Thursday, October 8, 2009

Yesterday's SCOTUS Argument in Reed Elsevier v. Muchnick

As previewed earlier here, Reed Elsevier v. Muchnick presents the question:

Does 17 U.S.C. s. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

The transcript from yesterday's oral argument is available here(Justice Sotomayor has recused herself from the case).

This case has aroused considerable interest, not only because of the large settlement at stake ($18 million) but also because of its odd posture. No party was willing to defend the Second Circuit's conclusion that subject matter jurisdiction was lacking, so the Court appointed Professor Deborah Jones Merritt (Ohio State) to argue and file an amicus brief in support of the judgment below.

From a procedural standpoint, the case revisits the ongoing problem of how to distinguish jurisdictional and non-jurisdictional requirements (see, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). The parties briefs also consider the availability of supplemental jurisdiction (28 U.S.C. s. 1367), although that issue garnered no attention during the argument.

For SCOTUS Blog's analysis of the oral argument, see here.


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