Sunday, October 10, 2010

Law school Supreme Court clinics provide great practical experience but do they jeapordize key legal issues?

That's the question raised by this article in today's New York Times entitled "Specialists' Help at Court Can Come With a Catch" (a free subscription may be required to log-in).  The article notes that several elite law schools have established specialized clinics to assist with U.S. Supreme Court appeals.  At Stanford, for example, second and third year students who take the clinic forgo all other classes for a three month period in order to log the 60 to 80 hours per week needed to work a Supreme Court appeal.  And while the Stanford clinic has purportedly had above average success in the more than 100 appeals the clinic has handled since it's inception six years ago, critics fear that the need to find cases causes clinics and other "volunteer" experts to push cases that aren't necessarily the right or best ones:

[P]ublic interest lawyers say firms and clinics have sometimes pushed the wrong cases. “It’s not in every client’s interest to be in the Supreme Court,” said John H. Blume, a law professor at Cornell and the director of its Death Penalty Project, which conducts research and allows students to work on capital cases at all levels of the court system. “If you’re in the get-to-the-podium business, it could compromise your judgment.”

The NYT also references a pending article by Stanford clinical professor Jeffrey Fisher who argues based on his own analysis of Supreme Court appeals that expert pro bono help results in greater success on appeal that those who pursue their cases without it.

As a general matter, the justices are more likely to reverse than affirm the decisions they review. Professor Fisher explored the gaps between experts and amateurs both when they represented individuals as petitioners — the parties bringing the appeals, and so the likely winners — and when they represented individuals on the other side, known as respondents.

Experts not affiliated with the clinic who brought appeals won 67 percent of the time, compared with 46 percent for others. When representing those responding to appeals, they won 29 percent of the time, versus 16 percent.

The Stanford clinic has generally been even more successful. In the 35 cases it has argued before the court, it, too, won 67 percent of the time when representing petitioners but did substantially better than expert counsel in representing respondents, winning 46 percent of the time.

You can read the rest here.


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