BY ANDREA SAENZ
The bench for Tuesday’s competition included Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, HLS ’77, and Diana Gribbon Motz of the U.S. Court of Appeals for the Fourth Circuit. Presiding as chief justice was the man who often holds a swing vote on America’s highest court, Supreme Court Justice Anthony Kennedy, HLS ’61.
The case, Adam’s Apple Markets, Inc. v. Aphrodite Cosmetics, Inc., centered on a retailer’s claim that a cosmetics manufacturer had made false or misleading representations of face about the nonuse of animal testing in their products. That misrepresentation had increased the sales of the manufacturer, Aphrodite, while allegedly causing lost sales for supermarket chain Adam’s Apple, which was the sole distributor of a competing line of cruelty-free products. The two issues being argued concerned whether Adam’s Apple had prudential standing to sue Aphrodite under the Lanham Act, and whether Aphrodite’s statements about their products constituted commercial speech under the Act.
Representing the petitioner, Adam’s Apple, was the William Wirt Memorial Team, named after a distinguished 19th-century Attorney General of the United States. The team was made up of Jim Farnsworth, Erika Harold, Kimberly Olvey, Schuyler Schouten, James Wawrzyniak Jr., and Cassandra Welch. Representing the respondent, Aphrodite, was the Shirin Shakir Memorial Team, named after the Class of 2007 member who died last year in a rafting accident over spring break. The team members, former 1L section-mates of Shakir, were Elizabeth Edmonson, Mark Jensen, Tian Tian Mayimin, Samuel Miller, S. Chartey Quarcoo, and Kevin Terrazas. Students, faculty, and family filled Ames Courtroom, with observers also watching in two overflow rooms.
The oral arguments in the case got off to a quick start, with Justice Kennedy pressing oralist Erika Harold on what her team meant by their argument that the Supreme Court’s jurisprudence on prudential jurisdiction had not been entirely clear and needed a newly defined standard. “You mean the poor way I’ve been writing my briefs?” teased Kennedy.
“I would never suggest that, Your Honor,” replied Harold.
Judge Garland jumped in with the first of what would be several colorful hypotheticals.
“Imagine that I moonlight for Mary Kay,” said Garland, “and so do all my fellow judges. So I’m driving around in my pink Cadillac.” The audience laughed, and Garland defended himself. “You sell a certain amount of Mary Kay, they give you a pink Cadillac. It’s right there on the website!”
Harold ended her argument confidently, and teammate Cassandra Welch took over. The judges asked her to defend applying First Amendment commercial speech doctrine directly to the Lanham Act, and brought up the specter of censorship. Garland stepped in again, this time to needle Dean Elena Kagan.
“What if Dean Kagan issues a press release saying the bad old days of The Paper Chase are gone, and declares Harvard Law to be a ‘cruelty-free law school’?” asked Garland. “Applications to Yale plummet. Can [Yale Law] Dean Koh sue Kagan?”
“Well, that would not seem to be a representation of fact,” replied Welch, drawing a laugh.
“Okay,” followed up Judge Garland. “Here’s a real hypothetical. Dean Kagan says, we have an ice skating rink. Koh comes, sticks his head outside – no ice skating rink! Can he sue?”
Things got slightly more serious for the oralists for the respondents, as the quick-speaking Kevin Terrazas was grilled by Judge Gribbon Motz on his reliance on legislative history over the plain language of the statute. The final oralist, Tian Tian Mayimin, walked a fine line trying to parse examples of what was and was not commercial speech. She was also asked yet another Harvard-centered hypothetical by Judge Garland, this time centering on the Hong Kong’s use of MSG in its mediocre Chinese fare.
After Harold’s rebuttal, the judges recessed to make their decisions. The team members looked visibly relieved that their work was over. “The last week’s obviously been stressful,” said Welch. “But it was great to get up there. It was a wonderful experience.”
Welch acknowledged that this year’s finalists were significantly more diverse than last years. For starters, five women appeared in the final round, as opposed to one in 2005, who was not an oralist. “That hit me,” said Welch. “Not just 1 v. 5, but three oralists? I mean, obviously we didn’t pick anyone for that reason, but it was funny to see how different the classes were.”
Dean Kagan used the break to pull out her Blackberry, but made a moment to congratulate the finalists. “I think they did great,” Kagan said, grinning. “It was a hot bench, but they rose to the challenge. It was a tough bench, especially Judge Garland. He sure knows a lot about the law school!”
When the judges retook the bench, they had kind words for the participants. “I have to tell you that these were the four best oralists I have ever heard,” said Judge Gribbon Motz. The other two judges also praised the oral arguments, noting the difficulty of dealing with unexpected judge questions and heavy time constraints. And then it was time to announce the awards.
The award for Best Brief went to the petitioners, with Justice Kennedy recognizing the excellence of the reply brief. The award for Best Oralist went to Tian Tian Mayimin, after Kennedy noted the judges emphasized substance over style, and that all four oralists were excellent and showed their personalities well. The award for Best Team went to the respondents, the Shirin Shakir Memorial Team, prompting gasps and hugs, and a loud round of applause and cheering from the audience.
Afterward, the finalists were congratulated by the audience before heading off to a reception in the Ropes-Gray Room. Richard and Lynn Terrazas, Kevin Terrazas’s parents, stood off to one side beaming proudly. “We’re very proud,” said Lynn Terrazas. “Of course, I’m biased. And I don’t know the law at all, but I thought he did great.”
Even in victory, though, there is always room for improvement. “I was really surprised,” said Mayimin of her best oralist award as she smiled and perspired under the hot lights of Ames Courtoom. When asked how she felt right after her argument was finished, she admitted, “I wanted to do it over!”
There will be no do-overs for the 2006 finalists, but the Ames moot court competition rolls on. The next month holds preliminary rounds for 2Ls competing in the 96th annual competition.