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As the Supreme Court term ended late last month, a brand-new player on the high court litigation scene can look back at a rare success record: three out of three certiorari petitions granted since February for argument and decision next fall, with a fourth pending and none denied. Even more remarkable is that not a single hour of the time involved in filing the petitions got billed to clients. The name of the new organization is the Stanford Law School Supreme Court Litigation Clinic, and it is the brainchild of Thomas Goldstein of D.C.’s Goldstein & Howe. “The students are over the moon about the success we’ve had so far,” Goldstein says. Five years ago, Goldstein shook up the staid Supreme Court practice by creating a one-man practice devoted exclusively to high court litigation. He aggressively trolled for clients by scrutinizing circuit court conflicts, and undercut the big firms on fees. Eleven oral arguments and dozens of briefs later, Goldstein, 33, has earned the grudging respect of his elders and is billing more than $1 million a year — still undercutting his top competitors, though not by as much. (Full disclosure: Goldstein provides information for Conference Call, a feature about pending Supreme Court cases, for American Lawyer Media publications.) He works with his wife, Amy Howe, and a shifting cast of lawyers and summer associates from topflight law schools, some sent his way by Harvard Law School professor Laurence Tribe. Tribe took a shine to Goldstein early on, though Goldstein graduated not from Harvard but from American University’s Washington College of Law. By design, half of Goldstein’s caseload is pro bono work, and that is where the Stanford clinic comes in. Other law schools have appellate clinics where students study Supreme Court and lower court cases, and some even work on real circuit and Supreme Court litigation in specific areas such as death penalty and human rights law. But Goldstein last year drafted a proposal for a clinic that would do nothing but work on real pro bono Supreme Court cases over a broad range of subjects. “There is nothing remotely like it anywhere else,” he says. Goldstein floated the idea by Stanford Law School professor Pamela Karlan, a former clerk to Justice Harry Blackmun with considerable Supreme Court experience herself. Goldstein had met Karlan during his law school days when she spoke at AU. She immediately loved the plan, and by the next morning she’d gotten the approval of Dean Kathleen Sullivan. An open meeting for students interested in the clinic drew an overflow crowd. In January it began with seven students, and it has already earned a spot in the curriculum for next year as well. The main ground rule for picking cases for the clinic was that they could not be corporation against corporation, says Karlan, who co-teaches the clinic with Goldstein. “Corporations can pay,” she says. Not all the pro bono cases that Goldstein and Karlan have presented to the clinic are civil rights cases. One petition, granted June 7, Rousey v. Jacoway, No. 03-1407, asks whether individual retirement accounts are exempt from bankruptcy estates. Hall v. United States, No. 03-1294, granted review on June 21, will determine whether an overt act is an element of the offense of conspiracy to commit money laundering. Smith v. City of Jackson, Mississippi, No. 03-1160, granted in March, is a more classic civil rights case, raising a major Age Discrimination in Employment Act issue. “It’s been a blast for me,” says Karlan. “All the cases I’ve worked on before involved civil or reproductive rights. The clinic has made me stretch myself into new areas like bankruptcy, which turned out to be a lot of fun.” The students worked in teams all spring, involving themselves in all aspects of the case — drafting, revising, and editing briefs, and corresponding with the Court and other parties. When he was not arguing cases, Goldstein trekked west weekly to work with Karlan and the students, editing line by line and conveying the secrets of writing a persuasive cert petition. “Keep your eye on the ball,” he advises. “Sacrifice everything necessary to make the point that your case is an ideal vehicle to resolve an indisputable circuit split.” Summer associates in Goldstein & Howe’s D.C. office are continuing the work on the cases, and the clinic will resume in the fall with Howe joining her husband Goldstein in teaching. The students have also convened as moot courts for lawyers rehearsing Supreme Court arguments — including Michael Newdow, the Sacramento atheist who argued and lost his own cause in opposition to the words “under God” in the Pledge of Allegiance. For the students, the clinic represents a singular — possibly once-in-a-lifetime — opportunity. “Everyone fantasizes about working on a Supreme Court case,” says Jennifer Thomas, a third-year student from Portland, Ore. “By the end of the summer, I will have worked on two cert petitions, an amicus brief, and a merits brief. We joke about how it’s all downhill from here.” The hope, of course, is that it will be uphill for clinic students. Their crash course in Supreme Court litigation will make them top candidates for clerkships — including at the Supreme Court — and for private appellate practice as well. “I’m thinking very seriously about a clerkship, though at this point I don’t want to graduate. This clinic has been a dream come true,” says Michael Abate, a second-year student from Rockford, Ill. He is a summer associate at the D.C. office of Jenner & Block, which has its own busy Supreme Court practice. Karlan sees double benefit for the students. “First, they are getting more intensive training in legal writing than anywhere else,” she says. “Second, they are learning to work as part of a team. They give and get criticism, and get a real sense of what a Supreme Court practice looks like.” The workload rises and falls according to the briefing schedule of the cases the clinic has taken on. “We’ve had a couple of 40- and 50-hour weeks. It’s incredibly hectic,” says Eric Feigin, a 2L from San Diego who is the incoming president of law review. He recalls line editing a brief with Karlan at her office until 1:30 in the morning. The long hours raise an inevitable question: Has Goldstein just found a clever way to shift his pro bono work to unsalaried law students? Not so, says Goldstein: “As talented as they are, the students need an enormous amount of supervision.” Between class time, travel time, and a constant flow of calls and e-mails during the writing and editing process, he is spending as much unbilled time on the pro bono cases as before: “It’s win-win for everyone. But there are cert petitions that the clinic has worked on that I could have done much quicker myself. It’s one step forward, one step back” in terms of time. Feigin echoes the point: “Anyone who thinks that it’s a matter of cheap labor hasn’t seen how much time he and Professor Karlan put in working with us.” Professor Richard Lazarus of Georgetown University Law Center concurs that “if you do a clinic right, it takes much more time than doing it yourself. It’s a tremendous amount of work.” Lazarus, who runs Georgetown’s Supreme Court Institute, calls the Stanford clinic’s record out of the starting gate “quite remarkable.” Lazarus cautions that with success will come a challenge for the clinic: making sure not to take up every case it is asked to file. “Their success may ironically multiply the number of requests they receive for such assistance, which will make it harder for them to exercise the kind of selectivity necessary to maintain such a record of success,” says Lazarus. “It is the power of selectivity that distinguishes the high rates of success enjoyed by the solicitor general from the far lower rates of success enjoyed by private counsel, many of whom are less willing to advise their clients not to waste their money on a futile petition.” Goldstein is keenly aware of the need to be selective. “We have to keep doing what the solicitor general does in being very careful which cases to appeal.” He wants the Court to be able to trust that every petition filed by the clinic is well worth considering for review. The clinic’s first petition, in the ADEA case, gets right to the point, asking the Court to resolve “the 5-to-3 circuit conflict over whether disparate impact claims are cognizable” under the ADEA. It asserts more than once that the circuit conflict is “untenable,” and the Court apparently agreed. The petition came in at a lean 18 pages, with only five footnotes. Footnote 5 notes that “counsel for petitioners were principally assisted by the following students in the Stanford Law School Supreme Court Litigation Clinic.” The clinic can be forgiven a sentence of self-promotion in its first of what may be years’ worth of contributions to the Supreme Court’s docket. A version of this article first appeared in the June issue of The American Lawyer.

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