Thread by @CBLDF

What was late Justice Ruth Bader Ginsburg's role in the Jack Kirby family settlement with Marvel over character copyrights? Supreme Court procedure may be arcane at times, but the smallest moves by a Justice can have a major impact. #rbg #RIPRBG #scotus

The Kirby case involved the right to terminate transfers of copyright, which enables creators to reclaim material decades after selling it. Lower courts agreed w/ Marvel that Kirby’s material was work made for hire, which meant it was never owned by Kirby & couldn't be reclaimed.

Because the case was being appealed from the Second Circuit, covering New York, it fell under RBG’s purview - Justices manage cases based on the appellate courts to which they are assigned. ...

RBG's initial actions were procedurally routine, extending the Kirby family’s time to file the petition for certiorari - abbreviated "cert" -- which asks SCOTUS to take the case.

Why the extension? Perhaps someday I (#jefftrexler) will explain in full, but in brief, let's just say there's a reason that after years of repeating the same arguments - arguments that SCOTUS had rejected for decades ...

... after the extension the Kirby family petition presented an unprecedented new argument, based on the Constitution's takings clause, that tracked Taking Back the Kirby Case @jefftrexler @ComicsJournal, down to citing the same controlling authority. tcj.com/taking-back-th…

The law in favor of Marvel was so well-established and the takings argument - first appearing in a comics publication, of all places! - was so new that Marvel waived its right to respond, a common tactic in a case perceived to be a slam dunk.

So the next word from the Court came as a bit of surprise: SCOTUS asked Marvel to respond.

This changed the landscape, and afterwards instead of continuing to argue before the Court for oral argument the parties reached their historic settlement.

(Hit send too soon on that last one -- needed editing!) Who would have won if the case had been argued before the full Court for a ruling on the merits? We'll never know. However, the case history does illustrate ...

... how paying attention to procedure and Justices' patterns of reasoning are integral to SCOTUS petitions and arguments in all courts. #RBG's work in IP cases was significant; it will be interesting to see where the Court goes next.

Addendum - thoughts on who would have won can be found in this subthread.

https://twitter.com/mcvalada/status/1313246683006824448

As we look at other themes and cases throughout the week, we'll talk more about strategy and reading the judicial tea leaves. Lawyers are constantly trying to assess procedure and personality, one reason why chess is a recurring theme in legal fiction.