This issue was
raised at oral argument in Trial Lawyers, and it is true that an expansive reading of that decision might be used to argue for the invalidity of such rules, since both their purpose and, surely, their effect, is to make some litigants forgo trials.
Virginia Rutledge, counsel for The Andy Warhol Foundation for the Visual Arts (which filed a friend of the court brief in the case), told A.i.A., «The outcome can't be predicted based on questions
raised during
oral argument, but the Court has before it very compelling
arguments for Prince's transformative use of Cariou's imagery and the significance of the First Amendment speech interests
at stake, and was openly dismissive of allegations of market harm.»