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Editor's Note :

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Kevin Russell Contributor

Posted Fri, October 28th, 2011 9:29 am

Supreme Court clinics

In 2004, Stanford Law School created the first Supreme Court litigation clinic, allowing students to work with experienced Supreme Court practitioners on actual cases before the Court.  Since then, a number of other schools have created similar clinics.  The clinics have garnered praise for increasing the quality of representation for less affluent parties and leveling the playing field in a range of important areas.  At the same time, some have criticized the clinics for inadvisedly taking up cases to the Court despite a significant risk of losing on the merits and creating bad law.  In today’s Community topic, we discuss the pros and cons of Supreme Court litigation clinics as well as ideas about how such clinics should select cases and represent their clients.

Disclosure:  The author of this post is an instructor in two Supreme Court litigation clinics, and several of the other regular contributors to the blog also play similar roles in Supreme Court Litigation clinics.


  • Kevin Russell – 0 Promoted Comments

    In this thread, discuss whether on balance law schools should sponsor Supreme Court clinics. Are they worthwhile? Should law students be permitted to work on important cases before the nation’s highest court? Do they actually increase the quality of representation for clients? Do they do more harm than good?

    • Kevin Russell – 0 Promoted Comments

      To get things started, let me point folks to two articles that look at the impact of Supreme Court Clinics from two different perspectives.

      NYU Professor Nancy Morawetz has written an article entitled “Counterbalancing Distorted Incentives in Supreme Court Pro Bono Practice: Recommendations for the New Supreme Court Pro Bono Bar and Public Interest Practice Communities.”

      Here’s the abstract:

      “The emergence of a new Supreme Court Pro Bono Bar, made up of specialty practices and law school Supreme Court clinics, has altered the dynamic of litigation related to public interest issues. The new Bar often brings expertise in Supreme Court litigation to cases where there may otherwise be a dearth of resources to support high quality lawyering. But at the same time, this new Bar is subject to market pressures that can be expected to have important consequences. This article shows how members of this new Bar are engaged in a race for cases that will provide an opportunity to handle Supreme Court cases on the merits. At the certiorari stage, this Bar can be expected to engage in truncated case analysis, avoid coordination with lawyers handling similar cases, and otherwise make decisions that are influenced by each firm’s interest in being in a position to handle cases before the Supreme Court on the merits. Moreover, throughout the litigation, this Bar may be influenced by the merits opportunity that provided the incentive to take the case in the first place. This article explores the implications of this new dynamic in Supreme Court litigation for both pro bono practices and public interest practice communities. With respect to pro bono practices, this article proposes principles that firms could adopt, including principles that relate to the selection of cases for free representation and those that relate to the nature and kind of representation that the pro bono practices provide to a client once the firm has taken on representation. With respect to public interest practice communities, this article considers the strategic decisions that practice communities face in light of the new Supreme Court Pro Bono Bar. This article argues that practice communities must anticipate Supreme Court activity on the issues that interest them and must learn constructive ways of engaging both with lawyers whose cases might be possible targets for a petition for writ of certiorari as well as members of the Supreme Court Pro Bono Bar.”

      The article is available for download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1685513

      • Kevin Russell – 0 Promoted Comments

        Stanford Professor Jeff Fisher, co-head of that school’s Supreme Court Litigation Clinic, has written an article entitled “A Supreme Court Clinic’s Place in the Supreme Court Bar.”

        Here’s his abstract:

        “The past several years have witnessed the emergence of a new phenomenon: clinics in law schools that litigate cases in the Supreme Court. Although some commentators have written about the pedagogical goals and benefits of such clinics, no-one yet has written about their public interest mission. This article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by local counsel instead of Supreme Court specialists are generally at a distinct disadvantage. Finding that assumption to be accurate, the article identifies and discusses opportunities that Supreme Court clinics have to serve the public interest. Most importantly, such clinics can level the representational playing field to the benefit of traditionally underserved litigants and bring balance to certain areas of the law that otherwise tend to be skewed by inequalities in lawyering. At the same time, operating a Supreme Court clinic presents special challenges and responsibilities. Unlike most other kinds of clinical work, Supreme Court cases generate reverberations far beyond the specific parties involved—indeed, sometimes beyond the courts themselves. Consequently, insofar as clinics have control over which cases they bring to the Court and can cause the Court to hear cases that it might not otherwise have heard, the clinics’ work can implicate sometimes-latent tensions between client-centered representation and cause-based advocacy. The article is forthright that when it comes to selecting (and, to lesser extent, handling) cases in the Court, there are not always easy ways to navigate these competing approaches to public interest lawyering. But it explores the ethical, practical, and normative issues that operating a Supreme Court pro bono practice raises.”

        The article is available for download here: http://works.bepress.com/jeffrey_fisher/6/

        • Chuck Roth – 3 Promoted Comments

          I found Prof. Fisher’s piece interesting, but I found his methodology dubious at points.

          First, contra Prof. Fisher, I do not find it “reasonable to assume” that all similarly situated litigants have an equal chance of winning. Some cases – Leocal, Nken, and Kucana come to mind in the immigration world – reach the Court with a lopsided circuit split favoring the Petitioner; others involve a relatively evenly split, still others, a lopsided against the Petitioner. If those circuit splits have any predictive value (and I believe they do), we cannot say that Plaintiffs are similarly situated if one goes up with a lopsided split in her favor, and one against. I grant that it might sometimes be difficult to categorize circuit splits, which may be implicit, unacknowledged, or outdated; but the underlying assumption of similarity seems very flawed. Moreover, the flaw could be of significance; the thesis that experts increase the odds of prevailing would be undermined if the greater winning percentage could be explained by their handling more cases reaching the Court with lopsided circuit splits in their favor.

          Second, it seems unreasonable to treat cases where the lead attorney is a non-expert – but is associated with Supreme Court experts – as if no SupCt expert were involved. To say that not everyone listed on a cert petition or merits brief has contributed equally to its production is something of a straw man. A major Supreme Court firm would not likely permit its name to appear on a brief of abysmal quality, and from a practical perspective (I say this from experience), the firm is likely to carry the laboring oar, even if lead counsel maintains putative veto authority. Granted, non-expert lead counsel might make unwise concessions at argument, or prejudice the briefing in some way; but it’s more likely that oral argument will not alter the result, and that lead counsel has ultimately deferred to his co-counsel on the brief. From an analytical perspective, in light of these unknowable matters, the better solution would be to exclude those cases from the calculation; not to treat them as non-expert cases.

          I have doubts that a better methodology would lead to diferent results; my guess would be that expert assistance does have some positive impact. But it would be interesting to know where, when, and how. (Do non-experts associated with experts have a better chance than those who do not associate with experts? How do their chances compare with experts, on similar cases? Etc.) A more nuanced study would be interesting at some point.

    • Adam Liptak – 1 Promoted Comment

      There is no question that Supreme Court clinics can play a role in a legal education. But I do have questions about signals, opportunity costs, and conflicts. It may be that we spend too much time, and encourage students to spend too much time, focusing on the Supreme Court at the expense of the balance of the American justice system. Supreme Court clinics reinforce that message. They also (therefore) probably draw some of the best students away from more traditional clinical programs. That would be fine as a pedagogical matter if the skills they taught were similar. But I suspect that the legal research and writing that make up the bulk of Supreme Court clinics’ work merely reinforces skills taught in law school. Other clinics probably actually add skills to students’ portfolios, like appearing in a local court on behalf of a battered woman, or at a removal proceeding for an alien, or in a habeas proceeding for a wrongfully convicted prisoner. The clients I just described, moreover, often have a hard time getting a good lawyer. That is not true of most parties with Supreme Court cases. Finally, for reasons I’m not sure I can articulate, there seems something a little off to me when I see elite law schools endorsing given law firms by choosing to affiliate with them through these programs, which them deliver reputational and recruiting benefits to the firms.

      • Judith Coleman – 0 Promoted Comments

        It would really be something if a law school required participation in a “real” clinic as a prerequisite to participation in a Supreme Court clinic.

      • – 1 Promoted Comment

        I’m a student in Stanford’s Supreme Court litigation clinic, and I’ve also participated extensively in Stanford’s Community Law Clinic, a more traditional direct services clinic. Both experiences have been invaluable.

        It’s fair to raise questions about opportunity costs, as most students who participate in a Supreme Court clinic probably don’t get the chance to work in another one. But I would push back against the idea that Supreme Court clinics merely reinforce skills we learn elsewhere in law school, or don’t add new skills to our portfolios. On the contrary, we’re learning a host of new skills: how to write and edit collaboratively; how to advocate, rather than just analyze; how to actually produce a brief for a court, from early-stage drafting through cite checking and printing. Through our participation in moot courts and by watching our instructors argue before the Court, we also get a great education in oral argument.

        Sure, we don’t appear before judges, or work intimately with our clients. But the skills we do learn strike me just as useful to our careers (most of which, incidentally, will not involve Supreme Court litigation) as anything learned in a traditional clinic. In fact, I don’t think they are all that dissimilar.

        • Amy Burns – 1 Promoted Comment

          Like Alex, I am a student in the Stanford clinic — and have returned to work for a second term.
          I second Alex’s observation that the clinic does teach us skills that are new to us (though some of them are different skills from those taught in more conventional clinics).

          It also teaches us a lot about different ways to think about law, which has both practical and academic value. Nowhere else in law school, or in summer jobs, have I been exposed to this level of thinking and discourse about how law gets made, what factors really matter, the degree to which existing law in many areas is incoherent, the reasons why circuit splits develop, or the types of arguments that succeed at different levels of the judicial process.

          So to the extent that the Supreme Court clinic (at least at Stanford) teaches fewer “practical” skills than other clinics, it more than makes up for that lack in sheer intellectual challenge — which is, after all, another major aspect of a legal education. It may be less different from classroom education than some of the other programs, but that doesn’t make it less valuable as an educational experience.

          One final note — I was lucky enough to work on a case from the time cert was granted, through merits briefing and argument preparation, and then to sit in the gallery while my professor argued the case to the Court. I would need a whole full-length blog post to describe the immense value of that experience, easily the best I have had in law school.

  • Kevin Russell – 0 Promoted Comments

    In this thread, discuss what considerations Supreme Court clinics should take into account when deciding whether to take on clients. Should their only consideration be the interests of that particular client, or should they also take into account other factors, including the risk of creating “bad law” or the effect that the decision may have on the work of other clinics in the law school? What effect, if any, do the Rules of Professional Responsibility or legal ethics more generally have on the case selection decision?

    • – 3 Promoted Comments

      The choice facing a Supreme Court clinic in taking a case is probably not too different from that facing a law firm with a significant Supreme Court practice or a public interest group. That is, there is a constant struggle between two potentially disparate goals. And ethical rules are not always clear in mediating this conflict.

      On the one hand, attorneys are officers of the court. That role requires a broad commitment to our system of justice. Accordingly, attorneys have a general obligation to maintain the health and vitality of the legal system. Taking on a case that has a high probability of making “bad law” can lead to significant structural harm. Moreover, a poorly-argued case can easily create bad law, so the stakes are very high in Supreme Court litigation to get everything right, and not just from an individual – but a systemic – standpoint.

      On the other hand, attorneys also have duties to their specific clients. A lawyer must zealously represent his client’s interests. Notwithstanding the principle of stare decisis, every case is individual in the sense that the attorney should be arguing for the client, and not with the sole goal of creating or changing legal doctrine. Therefore, if a client has a compelling case, but can get no other representation than that offered by a Supreme Court clinic, why should he be denied the opportunity to present his case to the Court?

      Balancing these two interests is a delicate act, especially when an attorney is arguing before the ultimate appellate court. In many cases, the interests are probably not in conflict. But clinics may well end up taking those cases that are most on the edge, since no other lawyer wants to take them. Unless the claim is not colorable and arguments frivolous, I have a hard time saying that a clinic – or anyone for that matter – should not bring a case just because it might lead to bad law. Indeed, in many situations there may not even be a clear consensus regarding what “bad law” actually means. And if there is such a consensus, I doubt that the Supreme Court would ignore all those considerations and allow bad law to be created anyway.

      • Kent Scheidegger – 6 Promoted Comments

        “Indeed, in many situations there may not even be a clear consensus regarding what ‘bad law’ actually means.”

        I would say that is an understatement. “Certworthy” cases are usually those where lower courts are divided, so there necessarily is not a consensus.

        Should “bad law” be defined as a result the people running the clinic disagree with? Why should the resources of a law school be devoted to trying to push the law in one particular direction? Law schools are funded with endowments, grants, tuition, and in some cases tax dollars. Do the people who provided these dollars have any say in what results will be deemed “good” versus “bad”?

        A law school clinic should provide an educational experience for its students and representation for those who cannot afford it. It should not be on an ideological crusade to push the law in a particular direction. On the contrary, to the extent possible it should strive to be viewpoint neutral.

        • Kevin Russell – 0 Promoted Comments

          I tend to agree with Kent that it is problematic for a clinic to take a position on what counts as “bad law,” particularly because I think the clinics should be a welcoming place for students of all ideological stripes to participate. Given that clinics do pro bono cases, there will necessarily be a tendency to be on the “liberal” side of some kinds of cases (a clinic is not going to represent Shell Oil in the Alien Tort Claims Act case, for example). But there’s a difference between accepting that fact and affirmatively taking or avoiding cases because the clinic has a position on what the law ought to be in various areas.

          That said, I do think that there are some justifiable lines that can be drawn that don’t depend solely on the ideological disposition of the clinic instructors or the law school. For example, Stanford has an immigration clinic that practices principally in the Ninth Circuit. It will frequently be the case that the Ninth Circuit has a more immigrant-friendly precedent than other circuits. It seems legitimate for the school to decide that it will consider whether taking up an immigration case to the Court could result in a loss that will make it harder for the immigration clinic to do its work.

      • Mark Wilson – 1 Promoted Comment

        “On the one hand, attorneys are officers of the court. That role requires a broad commitment to our system of justice. Accordingly, attorneys have a general obligation to maintain the health and vitality of the legal system.” That is not correct.

        As officers of the court, attorneys have an obligation to obey court rules, take good-faith legal positions, etc. However, they have no “general obligation” to the legal system as a whole. The “health and vitality of the legal system,” whatever exactly that entails, is for policy-makers, such as the U.S. and state supreme courts (in their policy-making role) and circuit judicial councils.

        If a lawyer, law firm or law clinic is disinclined to take a particular case (because it is against her/his/its interest for whatever reason, e.g. monetary, pedagogical, beliefs about the legal system generally), prompt withdrawal from representation is appropriate. It would be quite inappropriate, in my opinion, to refuse to file a certiorari petition or make certain arguments but not others because of the lawyer’s or the entity’s systemic interests or beliefs when the best representation of the client counsels otherwise.

    • Chuck Roth – 3 Promoted Comments

      It seems possible to state simply the case for factoring in larger considerations in determining which cases to take:

      Proposition 1. Supreme Court practice involves both narrow client interests and larger concerns; just as trial counsel must consider forensic issues, Supreme Court practitioners must consider potential enemies and allies (including the SG), the potential impact of the decision (which affects how the Court weights client interests), and in short, the larger context which will inform any decision.

      Proposition 2. One must make a realistic assessment of one’s ability to handle a case before taking it on; at the Supreme Court level, that includes one’s ability to adequately consider larger concerns mentioned above.

      Proposition 3. Assessment of a client’s interests begins before the agreement to represent (including whether it is in the client’s interests to retain me if he could hire Carter Phillips instead).

      Ergo, at the Supreme Court level, a practitioner has an obligation to assess and consider the larger context before undertaking to represent someone on a cert petition.

      An obligation to consider the larger context seems like it would involve a prudential weighing of the interests of the person (the death penalty might weigh quite heavily indeed), the chances of prevailing, and the likely impacts of winning and losing. It will not always be easy, but it should be attempted.

      Attempts to avoid this responsibility are not necessary, nor plausible. Supreme Court clinics are not appointed, but self-appointed; they are not public defender offices entrusted with a mission to represent all; they make conscious choices of which cases to take on, using limited resources. Thus, none of the arguments advanced against considering larger issues are persuasive.

      There is something to be said for teaching students the importance of defending individual clients, without regard to the opinions of others. I find this somewhat compelling, particularly when it comes to unpopular people who need defense. But most students at law schools like Stanford will go on to represent multinational corporations. They will more likely be troubled by what to say to corporate clients whose short-term interests might harm individuals, the environment, etc., as opposed to defending unpopular individuals. The clinic’s pedagogical approach doesn’t seem responsive to that concern. The other pedagogical interest is also unhelpful; to value pedagogical opportunities over careful judgment in terms of case selection would imply that the interests of lawyers outweigh the interests of other people in society, including our clients. I hear no one advocating that.

      It seems to me that Prof. Morawetz’s article is useful in suggesting some issues which may arise from current Supreme Court practice. Flagging temptations for the Supreme Court bar might be useful in designing suitable protections for clients, and as ways to try to avoid rewarding poor behavior by some. If Supreme Court clinics, like Supreme Court practices, are powerful tools, then we should recall that powerful tools tend to require safety goggles.

  • Kevin Russell – 0 Promoted Comments

    In this thread, discuss more particularly how Supreme Court clinics should make value judgments in deciding whether and how to represent clients (assuming such judgments should be made at all). For example, if clinics should not take cases in which there is a significant risk of making “bad law,” how should the clinic decide what counts as “bad law”? To what extent should the decision making be made in coordination with outside interest groups? To what extent should clients, or potential clients, be involved in that discussion?

    • Chuck Roth – 3 Promoted Comments

      Defining bad law doesn’t seem very difficult in this context. If the clinic is considering representing X client, “bad law” is that which would be contrary to that X’s interests. Now, for X herself, good law might be of no use if, e.g., Ms. Ledbetter has already lost her $2 million verdict and won’t be able to get it back. But we still know what “bad law” is; it is that which would make it difficult for X to prevail on her claim – and thus, for others similar to X to prevail on their claims. It’s not a value judgment; it’s a prediction grounded in experience.

      If one cares about making bad law, whether to consult outside groups depends on one’s own expertise. I would consult more about 2255 than 2241 habeas, because I know the latter and not the former.

      The question is not whether clinics should “not take cases where there is significant risk of making bad law.” There is always a chance of making bad law. The question is whether the petition should go forward if the likely benefits to the client are slim (factoring in the chances of cert, the chances of prevailing at the SupCt, and the value to the client of winning) while the likely cost to others are high.

      I might suggest that this question be posed in the converse. If outside groups would share their expertise at no cost, under what circumstances ought a clinic (assuming that the client has authorized the communications) maintain secrecy about a cert petition in production phase? Are there considerations (like being the first to file) which should categorically not be permitted to intrude? Should clients be asked at time of retention for consent to collaborate? Should clinics categorically refuse to represent clients who would prohibit such collaboration (as they do to lawyers who want to maintain control over the briefs)?

      PS – Prof. Fisher’s article notes that cases rarely settle after a cert grant; but he does not ask why this should be. Ms. Ledbetter’s $2M was very important to her; presumably the company was very unhappy about paying it. Once cert was granted, both parties knew that they had a ~50% chance of losing, settlement ought to have been possible. Yet settlement rarely happens. Are we attorneys sufficiently investigating settlement opportunities for our clients? Are there unique forces which work against settlement at the SupCt (other than perhaps the desire to collect quills)?

  • Charles Thomason – 1 Promoted Comment

    I’ve mentored a series of amicus brief efforts using law students. Each time I felt it was very beneficial for the students, who used their training, but more importantly, they learned some new skills.
    First, collaboration is a key skill set, unless one plans strictly to practice solo. Guiding the students to reach consensus on the arguments to be included, and how those are presented in the briefs forces them to merge their ideas with those of others. Too much of law school involves individual effort, and minimal collaboration.
    Second, the students have to express an informed opinion, and not just regurgitate the ‘right answer’ as they do with their coursework. Lawyers provide opinions, not answers from outlines.
    Sometimes the final product is more refined, more to the point (than even some parties’ merits briefs); other times the amicus brief is a compromise argument without as much punch. But, they’ve learned by the experience to collaborate and formulate, and those skills add to their ability to practice effectively.

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