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The Tribe Brief

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No, it's not a John Grisham novel. Tony Mauro has this post at BLT on a "dust up" over whether whether the Harvard Law prof's name can appear on an amicus brief in a global warming climate change case now before the US Supreme Court, American Electric Power Co. v. Connecticut, No. 10-174.

The dust-up, as well as [co-counsel] Duncan's willingness to go public with it, reflects the high-stakes nature of Supreme Court briefing, and the value many clients place on hiring marquee legal talent for their submissions to the Court -- especially when the representation seems counter-intuitive.

A liberal icon, Tribe nonetheless came down in the brief on the side of the energy industry, espousing the view that issues like climate change are "textually committed" to the political branches and are ill-suited for resolution by courts. Tribe declined comment.

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On Feb. 7, just hours before the filing deadline by Duncan's account, the Justice Department "insisted" that Tribe's name be removed because of the ethics law barring former employees from seeking to "influence" the department for a period after they leave. The brief was re-submitted without Tribe's name, listing Duncan instead as counsel of record.

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The problem, of course, is that Tribe was not attempting to influence THE DEPARTMENT. He was attempting to influence THE COURT.

To my knowledge, former DOJ employees are not barred from writing or signing amicus briefs as private citizens, so long as the information or arguments in the brief do not stem from sources to which they had access only because of their governement employment.

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