Supreme Court Advocacy

2014 Term

In Association of American Railroads v. U.S. Department of Transportation (D.C. Cir. No. 12-5204),we filed an amicus brief on behalf of Professor Alexander Volokh in the D.C. Circuit following the Supreme Court’s remand of the case. We argued that Congress’s delegation of authority to Amtrak to develop regulatory standards that governed competing railway operators violated the Due Process Clause. The D.C. Circuit agreed with our position, ruling that as a market participant, Amtrak couldn’t constitutionally regulate its competitors.

In West Chelsea Buildings LLC v. United States (No. 14-102), we served as co-counsel on a petition for certiorari brought by owners of property located underneath New York City’s High Line elevated park. We argued that the lower courts erred by failing to certify novel issues of state law to the New York Court of Appeals, and that the federal government’s uncompensated taking of our clients’ property violated the Supreme Court’s recent ruling in Koontz v. St. John’s River Water Management District, 133 S. Ct. 2586 (2013).

2013 Term

In McLane Southern, Inc. v. Bridges (No. 13-657), we filed a brief on behalf of two major trade associations challenging a Louisiana excise tax that discriminated against interstate commerce. We argued that the tax violated the Commerce Clause because it taxed out-of-state distribution activity while exempting similar in-state activity.

In Fein v. Commissioner of Internal Revenue (No. 13-64), we filed a petition for certiorari on behalf of a taxpayer. We sought review of the Second Circuit’s interpretation of a government-drafted stipulation and the resolution of a split among the federal courts of appeals involving the continuing vitality of Cohan v. Commissioner,  39 F.2d 540 (2d Cir. 1930), a landmark case addressing entitlement to federal income tax deductions.

2012 Term

In Millbrook v. United States (No. 11-10362), we won a 9-0 victory for our client, a federal inmate who sued the United States after alleging that he had been physically and sexually assaulted by prison officers. We argued that the United States’s waiver of sovereign immunity under the Federal Tort Claims Act extended to all wrongful conduct carried out by federal law enforcement officers within the scope of their employment. The Court unanimously agreed.

In International Securities Exchange, LLC v. Chicago Board of Options Exchange, Inc. (No. 12-940), we filed a brief in support of certiorari on behalf of fifteen professors of copyright law. We argued that an Illinois court’s decision applying misappropriation law to prevent public use of the DJIA and S&P500 stock index values raised serious First Amendment concerns and threatened the uniformity of the national copyright regime.

In  National Association of Optometrists & Opticians v. Harris (No. 12-461), we filed an amicus brief in support of certiorari challenging California laws that discriminated against out-of-state retail eyewear chains. We argued that California’s protectionist regime violated the Commerce Clause and had a disproportionate impact on poor and minority communities.

In Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), we filed a merits-stage amicus brief in support of the respondents on behalf of two law professors who had written extensively on the scope and history of the Alien Tort Statute. We argued that the statute only granted federal courts jurisdiction to hear claims brought against United States citizens.