After a nearly two-year absence, former solicitor general Theodore Olson returns to the Supreme Court lectern Oct. 29 to argue in a closely watched copyright case. 

Olson, co-chair of Gibson, Dunn & Crutcher’s appellate and constitutional law group, will argue on behalf of the copyright holder in the case of Kirtsaeng v. John Wiley & Sons. Wiley sued Supap Kirtsaeng for selling foreign-made copies of Wiley’s textbooks into the United States without authorization. At issue is whether the “first-sale” doctrine, which allows people to sell legally purchased works to others, applies to goods manufactured abroad. Olson’s last argument before the high court was Nov. 30, 2010 in the ERISA case of Cigna v. Amara.

Kirtsaeng will be represented by E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, one of the few New York City lawyers with a Supreme Court specialty. The former clerk to Justice William Brennan Jr. will argue that limiting the first-sale doctrine to domestic works would award the “Holy Grail” of locking up downstream sales to companies that “send jobs overseas” and make their products outside the United States.

Olson is not the only former solicitor general arguing during the two-week sitting of the high court that begins Oct. 29. Gregory Garre, chair of Latham & Watkins’ Supreme Court and appellate practice, is representing the state of Florida in two cases set for argument on Halloween day: Florida v. Jardines and Florida v. Harris, both Fourth Amendment cases involving the use of drug-sniffing dogs by police. Arguing for defendants Joelis Jardines and Clayton Harris will be assistant public defenders Howard Blumberg and Glen Gifford, respectively.

Current solicitor general Donald Verrilli Jr. will argue Oct. 29 in the case of Clapper v. Amnesty International. He’ll argue that Amnesty International and other rights organizations do not have standing to challenge a provision of the Foreign Intelligence Surveillance Act that allows intelligence agencies to eavesdrop on individuals outside the United States in national security investigations.

Jameel Jaffer, head of the American Civil Liberties Union’s Center for Democracy, will argue for the rights organizations that the potential risk of being monitored is already causing “actual and ongoing professional and economic harms,” giving them standing to sue. It will be Jaffer’s first argument before the court.

Marx v. General Revenue Corp., involving the awards of attorney fees in case brought under the Fair Debt Collection Practices Act, will be argued Nov. 7. Allison Zieve of Public Citizen Litigation Group will represent Olivea Marx, who sued General Revenue Corp. for illegal and harassing debt collection tactics. She will be joined by assistant to the solicitor general Eric Feigin as amicus curiae. Lisa Blatt, head of Arnold & Porter’s appellate and Supreme Court practice, will represent General Revenue Corp.

The argument Oct. 30 in the Fourth Amendment case Bailey v. United States represents an interesting twist for Kannon Shanmugam, who will argue on behalf of defendant Chunon Bailey. His first high court argument in 2005 while in the U.S. solicitor general’s office was in a case interpreting Michigan v. Summers, which allowed police to detain suspects while executing a search warrant. In Bailey, Shanmugam will be revisiting the Summers rule – but this time from the defendant’s side. The issue in Bailey is whether police can detain a suspect in connection with a search warrant when the suspect has left the location of the search. Jeffrey Wall, assistant to the solicitor general, will argue in opposition to Shanmugam.


Tony Mauro is the U.S. Supreme Court correspondentfor The National Law Journal, a Legal affiliate based in New York