Justice Kennedy Presides at Law School

Staring directly into the eyes of Supreme Court Associate Justice Anthony M. Kennedy, Harvard Law School (HLS) student Cassandra H. Welch calmly began her argument in a case that pitted two cosmetic corporations against one another.

But just as her voice began to pick up in intensity, she was abruptly stopped.

“You’re asking us to suppress or censor information that would be in the public interest,” the associate justice said.

Welch wasn’t arguing her case before the Supreme Court—she was competing in the 95th Annual Ames Moot Court Final Competition before a packed audience at the Law School’s Ames Courtroom last night.

The mock trial competition included two teams of six HLS students who had earned a spot in the final round after advancing past the preliminary stages.

Kennedy returned to his alma mater—along with two federal appellate judges—to preside over the contest.

The case, Adam’s Apple Markets v. Aphrodite Cosmetics, asked whether a corporation could sue a rival firm if it lost profits because of that competitor’s false advertising.

Adam’s Apple “brought” the mock suit, arguing that Aphrodite’s false advertising cut directly into its profits.

“We were able to show why we had losses, and this would not be speculative,” said Erika N.L. Harold, one of the participants and a former Miss America.

Kennedy subjected the teams to a rigorous questioning. The associate justice asked whether a court should determine how a corporation had lost revenue, reflecting a conclusion he reached earlier this year in a Supreme Court case, Anza v. Ideal Steel Corporation.

“The court should not say what the reasons for lost business are,” Kennedy said. “It is difficult for the courts to say why sales are lost.”

Aphrodite, the defendant, argued that Adam’s Apple’s lost sales did not warrant a legal victory. The team also argued that Aphrodite’s false advertising did not constitute commercial speech because the statements were made in a letter to the editor.

But one of the other judges, Fourth Circuit Appeals Court Judge Diana Gribbon Motz, said the dynamic nature of media makes advertisements difficult to define.

“Advertisements are so elastic these days,” she said. “What about infomercials? What about press releases?”

Following 90 minutes of oral argument, the judges praised the plaintiffs for the best written legal briefs and the defendants for presenting the best overall case.

The judges honored law student Tian Tian Mayimin, who represented Aphrodite Cosmetics, for the best oral presentation.

Kennedy and Motz were joined by Merrick B. Garland ’74, who sits on the U.S. Court of Appeals for the District of Columbia.

Kennedy’s appearance was not the first time a Supreme Court justice sat on a moot court bench to judge the Ames competition. Supreme Court Associate Justice David H. Souter ’61 was among the judges last year, and Justice Ruth Bader Ginsburg presided in 2004.