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Glickman v. Wileman Brothers and Elliott Inc.: How Oral Arguments Led to a Lawsuit

Glickman v. Wileman Brothers and Elliott Inc. How Oral Arguments Led to a Lawsuit argued december 2, 1996 tony mauro In 1937, Congress passed the Agricultural Marketing Agreement Act (AMAA) to promote fair pricing and uniform marketing conditions in the agriculture business. Exempted from antitrust laws, the AMAA mandated uniform prices, product standards, and other conditions, all of which had to be approved by at least two-thirds of the affected producers and implemented by producer committees appointed by the secretary of agriculture. The AMAA’s administrative expenses were to be covered by assessments imposed on activities such as product advertising and promotion. After suffering adverse rulings at the administrative , district, and circuit court levels, a group of California fruit growers , handlers, and processors appealed their constitutional challenge of the AMAA to the Supreme Court.| 74 To listen to passages from oral arguments indicated with , visit www.goodquarrel.com. ;)) it is rare for a supreme court oral argument to be so bad that it provokes a lawsuit. Perhaps the only time it has happened was in an important First Amendment case argued on December 2, 1996. The case was Glickman v. Wileman Brothers and Elliott, Inc. (1997),1 an appeal in a case originally brought by California fruit growers who challenged a government checkoff program that forced them to pay for advertising they did not like. It was a raucous argument, in which Thomas Campagne, the longtime lawyer for the growers, virtually abandoned his First Amendment claim and became so impassioned about the relative merits of different fruit varieties that he speculated aloud that Justice Antonin G. Scalia was not buying green plums because “you don’t want to give your wife diarrhea.” Humor usually falls ›at at Supreme Court arguments; bathroom humor, even ›atter. Even before the Court handed Campagne a 5-4 defeat, one of the fruit growers was so angry that he sued Campagne for legal malpractice , fraud, and an entirely novel tort: failure to refer the case to a Supreme Court specialist. The lawsuit ultimately settled without a trial, but the fact that it was ‹led at all secured Campagne a prominent place in the pantheon of spectacularly unsuccessful Supreme Court advocates. In a broader context , it was also a milestone in the dramatic ‹n de siècle growth in the dominance of specialists in Supreme Court advocacy. Campagne served as exhibit A for the proposition that bad things can happen when a local lawyer refuses to give up a case and bring in a specialist as it makes its way to the nation’s highest court. That is not to say that specialists always do better. But especially in a case like Glickman , where the underlying facts of the dispute faded in importance next to the constitutional issue that the Court wanted to decide, the specialist might have fared better—at least one vote better, which is all Campagne needed to win 5-4 instead of losing 5-4. There is no doubt that Campagne knew the facts of the case underlying Glickman v. Wileman Brothers and Elliott. Since 1983, Campagne, a generalist with a small law ‹rm, had been ‹ghting various marketing How Oral Arguments Led to a Lawsuit | 75 1. 521 U.S. 457. orders on behalf of a range of agricultural producers. In 1988, he was hired by a contentious group of California fruit growers who objected to a New Deal–era federal law aimed at promoting and stabilizing their industry. Under the law they, like producers of many other crops, were assessed a fee—a checkoff—on the fruit they produced. The money went toward research and marketing projects, including generic advertising that promoted the virtues of their fruit—“Got Milk?” and “Beef: It’s What’s for Dinner,” except for peaches, nectarines, and plums. The protesting producers objected to paying for ads that promoted varieties they did not grow as well as for more general ads whose tone or message they did not like. One ad of which they disapproved seemed to connect eating peaches with sexual pleasure. And the fees they were assessed were considerable. One grower involved in the suit said that he paid six hundred thousand dollars per year in fees under the marketing program. Also tangled up in the dispute were rivalries between producers, with some claiming that the advertising favored varieties grown by the farmers who happened to serve on the government board...