A Clinic's Place in the Supreme Court Bar

By Fisher, Jeffrey L. | Stanford Law Review, January 2013 | Go to article overview

A Clinic's Place in the Supreme Court Bar


Fisher, Jeffrey L., Stanford Law Review


INTRODUCTION

I. TESTING THE VALUE OF SUPREME COURT SPECIALIZATION
   A. Methodology
   B. Relative Success Rates
   C. Isolating Causes for the Differential
       1. Selection bias
       2. Amicus support from the United States
II. CLINICAL OPPORTUNITIES
   A. Educational Considerations
       1. Pedagogical considerations
       2. Public service considerations
   B. Operational Considerations
       1. Expertise concerning the Court
          a. Seeking certiorari
          b. Opposing certiorari
          c. Litigating on the merits
       2. Resources
          a. Certiorari stage
          b. Merits stage
       3. Substantive expertise
III. CLINICAL CHALLENGES AND RESPONSIBILITIES
   A. Case Selection
      1. Alternative avenues for relief
      2. Coordination of similar cases
      3. Screening cases to avoid making "bad law"
         a. Putting the issue in context
         b. Can clinics screen?
         c. Should clinics screen?
   B. Case Handling
   C. Postdecision Work
CONCLUSION

INTRODUCTION

Early in the October Term 2009, the Supreme Court was hearing argument in a case, Perdue v. Kenny A., (1) raising the question whether attorneys who prevail in a civil rights case may receive a fee enhancement above their typical lodestar rate for having done an exceptionally good job on a case. Chief Justice Roberts interrupted the plaintiffs' lawyer. "I don't understand the concept of extraordinary success or results obtained," the Chief Justice suggested. (2)

   The results that are obtained are presumably the results that are
   dictated or command[ed] or required under the law. And it's not
   like, well, you had a really good attorney, so I'm going to say the
   law means this, which gives you a lot more, but if you had a bad
   attorney I would say the law [means something else]. The results
   obtained should be what the law requires, and not different results
   because you have different lawyers. (3)

Chief Justice Roberts' comments were a bit tongue-in-cheek. (4) For one thing, the Chief Justice himself was an exceptional advocate before he was appointed to the bench. He was known for being able to secure victories in particularly challenging cases. For another, the Chief Justice was speaking to Paul Clement, a former U.S. Solicitor General whom the plaintiffs had hired in the case presumably because they thought his extraordinary skills might make a difference. Finally, and most important, it is common wisdom that the quality of advocacy often does matter. (5) Better lawyers often get better results for their clients. (6) (Better lawyering, of course, might be the result of superior skill, superior experience, superior resources, or some combination of all three.) (7) At least that has long been the collective wisdom--reinforced by the market--when it comes to settlements, trials, and initial appeals.

But when it comes to Supreme Court litigation, one might think that the Chief Justice is right. Certainly, one might want to think that the Chief Justice is right. Supreme Court cases typically deal primarily with pure questions of law. And it seems strange to say that the requirements of the Constitution--or, for that matter, any federal statute--can depend on who happens to represent the parties in a case. Shouldn't the meaning of statutes and constitutional provisions be fixed, free from the arbitrariness of which lawyers might be involved in a given case?

On the other hand, it stands to reason that if the quality and experience of lawyers matter everywhere else, they ought to matter in the Supreme Court as well. The Justices are people like any other judges. Some Justices are more expert in some fields than others; they have different life experiences and bodies of knowledge; and they face resource and time constraints on their acquisition of new information. They therefore ought to respond, at least in marginal cases, to exceptional advocacy. …

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