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Sunday, March 30, 2014
Amicus Brief in Christie, et al v. NCAA, et al

I recently co-authored (with Tassos Kaburakis and John Holden) and served as counsel of record in connection with a cert stage amicus brief filed in the New Jersey/PASPA case.  This case is now at the U.S. Supreme Court ("SCOTUS") level.  The SCOTUS docket can be found here.  A link to the amicus brief is here.  I penned a short piece summarizing New Jersey's cert petition here.

Unlike the more common 9,000 word merits stage amicus briefs (filed after SCOTUS has granted cert), cert stage amicus briefs are limited to 6,000 words.  As such, a number of findings were left on the cutting room floor.  One of the most interesting was legislative history indicating that the senators debating the bill (S. 473) were unsure about which states would be exempted under PASPA's unique grandfathering clause.   For example, one senator posited that he thought South Dakota would/should be exempted.  PASPA passed by a 88-5 vote.  Wisconsin senator Herb Kohl, the owner of the NBA's Milwaukee Bucks, did not vote "yes" or "no" on PASPA, opting for "present" instead.  Six senators did not vote at all.

The cert petition (and two other amicus briefs) focus on PASPA's interaction with anti-commandeering and equal sovereignty arguments stemming from the Constitution's Tenth Amendment.  We primarily focus on PASPA's text vis-a-vis the Intellectual Property Clause (Article I, Section 8, Clause 8) of the Constitution.  We spend time examining Sec. 3703 of PASPA.

April 21, 2014 is the deadline for the NCAA/NBA/NFL/NHL/MLB (original plaintiffs) and DOJ (intervenor) to file a response to the cert petition.  At some yet-to-determined date, the justices will decide whether to grant the cert petition.  Stay tuned.  


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