Belfast Project: The Government Opposes the Petition for Certiorari

The government has filed its opposition to the petition of Ed Moloney and Anthony McIntyre for a writ of certiorari in the Belfast Project case. The brief is, of course, of very high quality, as is almost always the case with briefs by the office of the Solicitor General. Of course, it’s easy for me to say so, as I more or less agree with the substantive points the brief makes.

The brief rejects M&M’s argument that they were denied an opportunity to be heard for the same reasons that I rejected it: M&M were heard on the merits and the courts rejected their arguments in light of Branzburg. They are not entitled to an evidentiary hearing, because the court found that they failed to state a claim on which relief could be granted. The brief also argues that none of the cases M&M and their amici—many from the civil context—are on point.

The brief also rejects the argument that the factors that animate a 28 USC § 1782 analysis should apply in the MLAT context. Again, this seems right. To the brief’s analysis, I would simply add the point that because the request was made pursuant to a treaty, once the executive decided not to refuse to honor the request, the United States should be obligated, in my view, to comply with the request except to the extent an evidentiary privilege applied.

M&M now have the option to file a reply brief. The clerk will distribute the briefs to the justices for consideration sometime after ten days from the filing of the government’s brief.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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