One of my first joint-ventures with Ilya Shapiro was Keeping Pandora’s Box Sealed, which discussed the privileges or immunities clause in the context of McDonald v. City of Chicago. The Georgetown Journal of Law & Public Policy published the 90-page article on a super-fast schedule: from submission in November 2009 to publication on February 19, 2010, so it would be available before oral arguments on March 2, 2010. At that point, it was too late to submit a new amicus brief based on our research (Cato had joined a brief penned by Pacific Legal Foundation, that cited the yet-unpublished SSRN version on p. 23).
So Ilya and I had a genius idea–we would hand-deliver offprints of our articles to the Court, for delivery to chambers of each of the nine Justices. (Well, Ilya’s intern hand-delivered them). Or at least it seemed like a genius idea. Seven Justices did not even acknowledge receipt. I’m sure the offprints found their way to the recycling bin. (Much to our chagrin, Justice Thomas’s concurring opinion did not offer a citation–oh well). Justice Alito’s secretary replied by email, thanking us for the submissions, and stating that the Justice looks forward to reading it. Then there was Justice Sotomayor. Her secretary returned the article, with a letter stating that she would not accept any writings about pending cases outside the regular amicus process.
I had largely forgotten about that episode early in my career until this past fall, when I mailed copies of Unraveled to each of the Justices. I received very nice letters from Justices Ginsburg, Alito and Kagan. Nothing from the Chief (shocker, huh) or Justices Kennedy, Thomas, or Breyer. And then there was Justice Sotomayor. Her chambers returned the book, with a note:
Justice Sotomayor is grateful to you for sending her a copy of your book, Unraveled: Obamacare, Religious Liberty, and Executive Power. While the Justice appreciates your kind gesture, unfortunately, she is unable to accept any materials that in any way relate to pending litigation that may come before the Supreme Court. For this reason, I am returning your book with this note. I hope you understand.
Not exactly what I was expecting when a big package from One First Street Arrives, but I do understand. I did mail her a copy of Unprecedented, which discussed litigation pending at the time (including the contraceptive mandate cases, the tax subsidies litigation, and the origination clause challenge). Unprecedented was not returned to sender–I even got a nice note signed by the Justice.
My hope is that once all of the ACA litigation discussed in Unraveled winds down (primarily the contraceptive mandate, but also ancillary suits involving executive action), I will mail Justice Sotomayor the book again.
In any event–note to scholars, do not mail Justice Sotomayor your articles if it may affect pending cases. Save yourself the postage, and the U.S. Government the return postage.
The inspiration for this post was this question posed by Andy Grewal on #AppellateTwitter
Wow…the 1st Circuit ended up citing a law review article that was sent directly to the court, outside amicus process. #appellatetwitter pic.twitter.com/Z3NXPAChWn
— Andy Grewal (@AndyGrewal) December 20, 2016
Apparently, the First Circuit does accept law review articles filed with the clerks office, and can even cite them, so long as all of the parties are notified. I am not sure if this is permitted under FRAP, or was it a idiosyncratic approach by the panel (Lynch, Selya, Burroughs).