Above the Law

Snarky News Commentary about Pro-Football Inc.’s Cert Petition

Matthew L.M. Fletcher

Hey it’s Friday! 🙂

From Above the Law, here is “Redskins Lawyers Act Like Complete Jerks, Surprising Nobody.”

An excerpt:

As Alison Frankel of Reuters reports, the Redskins’ attorneys from Biglaw heavyweights Arnold & Porter and Quinn Emanuel Urquhart & Sullivan wrote:

“This court relies on a robust adversarial process to fully vet questions before it,” the cert petition said. “The Team, not (The Slants), is the best suited to serve this function here.”

The ATL piece is pretty snarky, but raises a few interesting points, about which I have no intention of being snarky.

If you’ve read cert pool memos, then you might know this is a thing. Clerks will assess the quality of a brief and the name recognition or lack thereof in analyzing whether to recommend a grant. A poorly written petition in a case that is otherwise certworthy may be denied while the Court waits for the better vehicle. The kind of candor from the Supreme Court bar in a cert petition, I would have thought, seems ripe for snarky commentary. But the “Team”‘s lawyers really are among the very best.

Also, “The Slants” are doing all this for the right to be be satirical. Not so the “Team”! These are very, very different postures. And surely the Court knows this.

Finally, trying to piece together the strategy here now that there appear to be only eight Justices for the foreseeable future. The Federal Circuit ruled in favor of “The Slants”, so IF there is a 4-4 ideological split on the Court on this issue (HUGE IF), then they prevail and Section 2(a) of the Lanham Act is unenforceable in the Federal Circuit. The “Team” lost at the district court level, and who knows what was going to happen at the Fourth Circuit, so they’re trying to short circuit the “Slants”, but for what purpose? Really, there’s no help for anyone at SCOTUS if there’s a 4-4 split. Unless the “team”‘s counsel suspects there’s not really a 4-4 split! Of course. I wonder what the strategy sessions have concluded in terms of each Justice. Surely there are the four First Amendment stalwarts that signed on to Citizens United and Hobby Lobby (the Chief, Kennedy, Thomas, and Alito), so which of the other four is likely to join?

ATL Interview with Amanda Blackhorse, Lead Plaintiff in New Trademark Case against Redskins

Matthew L.M. Fletcher

Here, via Leiter and the Lounge:

An excerpt:

We interviewed the lead petitioner, Amanda Blackhorse, last week. Blackhorse, now 27, grew up on the Navajo Reservation, went to Nations University in Kansas, and is now a social worker in Phoenix working with mentally ill adults. Here’s a synopsis of our Q and A:

ATL: What was your reaction to the Harjo decision?
Blackhorse: I was saddened by it. But our case is now going to move forward. For legal questions, please talk to our attorney, Philip Mause [partner at Drinker Biddle].

ATL: When did you start thinking about team mascots this way?
Blackhorse: During my sophomore year at Nations University, [a university for all Native American tribes], I started to become aware of my history as a Native American. I grew up on a Navajo reservation but never learned my history. The only thing shared between tribes is oppression. I literally cried when I realized our social problems stemmed from this.

ATL: How did you get involved with the case against the Redskins?
Blackhorse: In 2005, my friends and I decided to protest at a Redskins – Kansas Chiefs game in Kansas City. I was shocked to see the way people thought we were. They didn’t consider us human beings. People threw beers at us, told us to go home, yelled racial slurs. After that, I knew I needed to do something.

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