Mary Margaret McKeown (born May 11, 1951) is a senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit based in San Diego. McKeown has served on the Ninth Circuit since her confirmation in 1998.
Early life and education McKeown, a native of Casper, Wyoming, graduated from Kelly Walsh High School in Casper in 1969. She attended the University of Madrid and graduated Phi Beta Kappa from the University of Wyoming with a Bachelor of Arts in 1972.
She worked for Senator Clifford P. Hansen, whom she credits with inspiring her interest in the legal profession. McKeown received her Juris Doctor in 1975 from Georgetown University Law Center. She also received an honorary Doctor of Laws from Georgetown.
Legal career McKeown was the first female partner with the law firm of Perkins Coie in Seattle and Washington, D.C. McKeown specialized in intellectual property, antitrust, trade regulation, and complex litigation, representing clients like Boeing, Nintendo, Amazon, and Citicorp. McKeown was co-founder of the firm’s Washington, D.C. office and founded the firm’s intellectual property practice. She spent over two decades at the firm.
From 1980 until 1981, McKeown served as a White House Fellow. She worked as a Special Assistant to Secretary of the Interior Cecil D. Andrus and as Special Assistant for domestic policy at the White House.
McKeown was the president of the Federal Bar Association of the Western District of Washington and a founder and first co-president of the statewide Washington Women Lawyers.
Teaching and scholarship McKeown is the jurist-in-residence at the University of San Diego (USD) School of Law.
She taught at Georgetown University Law Center, Northwestern University Law School, and the University of Washington School of Law. McKeown is an affiliated scholar at the Center for the American West at Stanford University.
Selected publications include: "The Lost Sanctuary: Examining Sex Trafficking Through the Lens of Ah Sou" (Cornell Journal of International Law, 2008); "Happy Birthday Statute of Anne: The Dance Between the Courts and Congress" (Berkeley Technology Law Journal, 2010); "To Judge or Not to Judge: Transparency and Recusal in the Federal System" (The Review of Litigation, 2011); "The Internet and the Constitution: A Selective Retrospective" (Washington Journal of Law, Technology & Arts, 2014); "Culinary Ambiguity: A Canonical Approach to Deciphering Menus" (Harvard Journal on Legislation, 2014); "Beginning with Brown: Springboard for Gender Equality and Social Change" (San Diego Law Review, Fall 2015); "The ABA Rule of Law Initiative: Celebrating 25 Years of Global Initiatives" (Michigan Journal of International Law, 2018); "The Nineteenth Amendment Centennial Cookbook: 100 Recipes for 100 Years" (ABA 2019); "My Mother Made Me Do It: A Short History of the Nineteenth Amendment" (Litigation, 2020); "The Judiciary Steps Up to the Workplace Challenge" (Northwestern University Law Review, 2021); and "Politics and Judicial Ethics: A Historical Perspective" (Yale Law Journal Forum, 2021).
She is the author of Citizen Justice: The Environmental Legacy of Justice William O. Douglas—Public Advocate and Conservation Champion (Potomac Press 2022).
Federal judicial service On March 29, 1996, President Bill Clinton nominated McKeown for a seat on the United States Court of Appeals for the Ninth Circuit, and then renominated her on January 7, 1997. McKeown was confirmed by the United States Senate on March 27, 1998, by an 80–11 vote. She received her commission on April 8, 1998. On January 12, 2022, McKeown announced that she would assume senior status upon the confirmation of her successor. On September 15, 2022, she assumed senior status.
She has served on multiple committees for the court. For the Ninth Circuit, she currently serves as chair of the Workplace Environment Committee and chair of the Pacific Islands Committee. She has also served on the Executive Committee of the Ninth Circuit, chair of the Ninth Circuit Judicial Conference, the Ad Hoc Death Penalty Rules Committee, and chair of the Ninth Circuit Education Commission.
She served as chair of the Judicial Conference of the United States Codes of Conduct Committee, the national ethics committee for federal judges, and is currently a member of the Judicial Conference of the United States Committee on Judicial Conduct and Disability. McKeown served as a member of the ABA Commission to redraft the Model Code of Judicial Ethics.
McKeown has worked on promoting a better work environment within the judiciary in her position as Chair of the Workplace Environment Committee for the Ninth Circuit and her appointment by Chief Justice Roberts to the Federal Judiciary Workplace Conduct Working Group.
She is former president of the Federal Judges Association and the San Diego Association of Business Trial Lawyers. She served as chair of the ABA Commission on the Nineteenth Amendment and the ABA Standing Committee on Federal Judicial Improvements. She has also served on the Managerial Board of the International Association of Women Judges.
Statistics Between December 2014 and August 2020, McKeown sat on an en banc panel 29 times. McKeown was in the majority in all 29 of the en banc cases she heard during that period. She has also authored more than 600 opinions.
Cases
En banc Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc). On rehearing en banc, McKeown wrote for the majority to clarify the scope of copyright protection under federal law. A songwriter’s estate claimed that Led Zeppelin’s Stairway to Heaven copied portions of the rock song Taurus. The Ninth Circuit held that under the Copyright Act of 1909, the scope of the copyright in Taurus was limited to the 1967 deposit copy. This meant that the estate could not play sound recordings for the jury to evaluate whether Stairway to Heaven and Taurus were substantially similar. Additionally, the court formally abrogated the “inverse ratio rule” which had permitted a lower standard of proof to satisfy the “substantial similarity” test if a plaintiff could demonstrate that the alleged infringer had a high degree of access to the protected work. In doing so, McKeown wrote that the rule “defies logic” and joined the Second, Fifth, Seventh, and Eleventh Circuits to dispose of its use. City of Oakland v. Wells Fargo & Co., 14 F. 4th 1030 (9th Cir. 2021) (en banc). The City of Oakland, California claimed that Wells Fargo’s discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates that drove down the assessed value of properties, and which ultimately resulted in lost property tax revenue and increased municipal expenditures for the city. McKeown wrote for a unanimous en banc panel to hold that these downstream “ripples of harm” were too attenuated and traveled too “far beyond” Wells Fargo’s alleged misconduct to establish proximate cause under recent Supreme Court precedent. Absent proximate cause, the city failed to state a claim that Wells Fargo violated the Fair Housing Act.
Copyright Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc). Actor Cindy Lee Garcia was tricked into performing in a blasphemous video proclamation against the Prophet Mohammed. The video was uploaded to YouTube and garnered millions of views. Garcia received death threats. Asserting a copyright interest in her performance, Garcia sought a preliminary injunction against Google to remove the film from its platform. On rehearing en banc, McKeown wrote that the district court did not abuse its discretion in denying Garcia a preliminary injunction based on her copyright claim. Garcia failed to establish a likelihood of success on the merits because Garcia’s fleeting performance in the video did not amount to a “work” under copyright law, and she was unlikely to experience irreparable harm because the video had already persisted for months online before she sought the injunction. Finally, McKeown dissolved the prior panel’s takedown order to Google because the film was of substantial interest to the public and a prior restraint of speech under the First Amendment, and Garcia could not overcome the heavy presumption against such restraints with her thin copyright claim. Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020). This case concerned a book titled “Oh, the Places You’ll Boldly Go!”: a Dr. Seuss and Star Trek “mashup.” The comic book contains various elements from Dr. Seuss’s famous book entitled “Oh, the Places You’ll Go!”, which were mashed-up with several characters, imagery, and elements from the Star Trek science fiction franchise. Writing for the panel, McKeown concluded that ComicMix had created, without seeking permission or a license, a non-transformative commercial work that targets and usurps the original work’s potential market. Because the work was neither transformative nor parody, it did not qualify as fair use.
Criminal United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc). Cotterman was traveling back from Mexico with his wife. Border Agents got an alert that Cotterman was a sex offender convicted for child molestation. They conducted a cursory search of his laptop and found no incriminating pictures but did find password-protected files. Given the alert and the protected files, agents seized the laptop at the U.S.-Mexico border and shipped it 170 miles away for a full forensic examination. In this second inspection, agents discovered child pornography. At trial, the district court granted Cotterman's motion to suppress the evidence of child pornography obtained during the forensic examination because there was no reasonable suspicion of criminal activity. Writing for the en banc majority, McKeown held the Fourth Amendment required that Border Agents have reasonable suspicion before they may conduct a forensic examination of a traveler's personal electronic equipment.
Immigration Quintero Perez v. United States, 8 F.4th 1095 (9th Cir. 2021). In Quintero Perez v. USA, a Mexican national was fatally shot by U.S. Border Patrol while on U.S. soil. The shot caused the Mexican national’s body to fall exactly on the U.S.-Mexico Border. The family of the deceased Mexican national sued the United States under the Alien Tort Statute (ATS) and the Federal Tort Claims Act (FTCA) and also brought Fourth Amendment Bivens claims against the agent and the supervisor in charge of Border Patrol. McKeown’s majority opinion held that the ATS and FTCA claims were barred by sovereign immunity and the applicable statute of limitations, respectively. With respect to the Fourth Amendment Bivens claims, McKeown held that these claims presented a new context and declined to extend Bivens to reach this new context.
Antitrust DeHoog v. Anheuser-Busch InBev SA/NV, 899 F.3d 758 (9th Cir. 2018). A group of beer consumers sued to prevent Anheuser-Busch InBev, SA/NV from acquiring SABMiller, plc, alleging that the merger was anticompetitive and violated Section 7 of the Clayton Act. Writing for a unanimous panel, McKeown dismissed the consumers’ lawsuit because the acquisition “did not create a reasonable probability of anticompetitive effects in the U.S. beer market” because the Department of Justice had required SAB to completely divest its interests in the domestic beer market.
International law