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Ten students at New York University School of Law will engage with the nation’s highest court this fall through a new clinical program in U.S. Supreme Court litigation – an opportunity available only in recent years at a handful of campuses outside the state. While some existing programs concentrate on writing amicus briefs for matters already under consideration by the justices, the clinic intends to focus on seeking out new cases worthy of review by the Supreme Court, which hears about 70 cases annually. To that end, NYU Law Professor Samuel Estreicher has the aid of colleagues at Jones Day, where he is special counsel to the labor and employment practice, as well as issues and appeals. Along with Jones Day partners Donald B. Ayer of the Washington, D.C., office and Meir Feder of New York – as well as this year’s crop of summer associate researchers – Estreicher said the team is looking “at claims against government, primarily in the criminal law area, immigration matters, prisoner litigation and habeas petitions.” Ayer, a veteran Supreme Court litigator who oversees firmwide volunteer lawyering, said a “good pipeline of cases” from Jones Day’s pro bono practice would serve as a natural supplement to the clinic, which he promised would prove “extremely intense, very rigorous, very demanding.” Due to the nature of U.S. Supreme Court cases – most are selected at the discretion of the nine justices in accordance with the Judicial Improvements and Access to Justice Act of 1988, with all cases keyed to resolving disputed interpretations by the federal appellate bench – Ayer said litigants must consider their arguments well beyond the immediate concerns of clients to establishing more widely applicable legal guidance. “The thought process we’re talking about addresses controversies about legal issues,” said Ayer, who teaches a course in Supreme Court advocacy at Georgetown University Law Center and who served as deputy U.S. attorney general under President George H.W. Bush. The intellectual progression, he said, requires litigants to “formulate, explain and show the split,” then to “clarify and simplify the case” – in briefing as well as orally. Feder, who heads the issues and appeals practice in the New York office of Jones Day, calls such process the “art” of certiorari petitioning, by which litigants must craft briefs to frame a given issue according to the Court’s requirements. And well considered oral presentation before the Court is essential to success, said Feder, who prior to private practice was deputy chief appellate attorney in the U.S. Attorney’s Office for the Southern District of New York. Under Court rules, students are not permitted to address the bench; nevertheless, mock verbal presentations will be part of the clinic experience. “Learning how to speak to judges [is] something that doesn’t get a lot of attention in law school,” said Feder, adding that the NYU Law clinic is “something people in the appellate practice [will] look at and say, ‘Gee, I wish there’d been something like that when I was in law school.’” The 10 students enrolled in this fall’s clinic were among 39 interviewed by Messrs. Ayer, Estreicher and Feder to be part of the inaugural class. For the past two years, Estreicher and Feder taught a course in Supreme Court advocacy at NYU Law – based on cases already granted review. The clinic’s concentration on new cases, said Estreicher, “is a vehicle for exciting our students about appellate advocacy with a very special role, and a way for the law school to tap into the energy and skills of the bar.” Estreicher succeeded in broadening availability of employment arbitration in arguing before the high court in 2001 in the Matter of Circuit City v. Adams, 532 U.S. 105. The NYU Law clinic is a natural outgrowth of his course, said Estreicher, who is also a regular New York Law Journal columnist. The first Supreme Court clinic opened in fall 2004 at Stanford Law School in California, with similar programs begun in following years at Yale Law School, Northwestern University School of Law and the University of Virginia School of Law. This year, in addition to NYU Law, Harvard Law School is set to launch a Supreme Court clinic. Appellate Speciality The clinics have arisen, said Feder, “because appellate work is now becoming a specialty within and among firms. Firms recognize that appellate practice is not something you do on the side.” Indeed, there is now a “Supreme Court bar,” said Ayer, a specialty group litigating a decreased Supreme Court caseload – made even smaller by the 1988 congressional legislation that eliminated virtually all the Court’s nondiscretionary appellate jurisdiction. (The only mandatory appeals the Court must now review involve reapportionment cases, the Civil Rights and Voting Rights Acts, certain antitrust matters and the Presidential Election Campaign Fund Act.) As a result, said Ayer, the proportion of “repeat players” litigating cases before the justices has changed markedly. “Thirty years ago, lawyers appearing before the Court had argued either once before or never,” he said. “Today it’s exactly the opposite: most cases are argued by lawyers who’ve done more than 10 cases before.” Even a decade ago, justices reviewed significantly more cases than today, according to the Court’s most recent year-end report. Of the more than 9,000 cases annually on its docket, the Court grants full review to approximately 1 percent – or fewer than 100 cases. As a consequence, the Court of Appeals for the Federal Circuit has increasingly become the court of last resort. Accordingly, said Feder, “We’re not just training students how to write briefs for the Supreme Court. This training is the kind of thing that’s going to bring success at all levels” of appellate advocacy. First Case The NYU Law clinic begins with considering the May 2007 decision by the U.S. Circuit Court of Appeals for the First Circuit in Boston in Alam Sher v. Department of Veterans Affairs, 06-1537. The appellant, a pharmacist at a Veterans Administration hospital in Maine, refused to answer questions during an administrative investigation by the hospital, according to court papers. The hospital suspended Sher for invoking Fifth Amendment protection against self-incrimination and ordered his demotion after an administrative law judge for the Veterans Administration determined he had obtained free samples from drug companies for personal use, according to court papers. Claiming violation of immunity under Garrity v. New Jersey, 385 U.S. 493 (1967), regarding government employees threatened with adverse employment action for declining to answer questions during administrative hearings, Sher filed suit in the U.S. District Court for the District of Maine and lost. In affirming the district court decision, the First Circuit noted that “courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation . . . [and] since Sher was not even removed . . . but rather received a forty-five day suspension, a demotion, and reduction in pay grade, the penalty falls within established reasonable bounds.” This fall, the 10 NYU Law students will have as many weeks to chew on the matter of Alam Sher before their work is reviewed by 18 lawyers in Washington – a body Estreicher describes as “nine very smart judges and their nine very smart clerks.” By that time, the students’ brief will have been “done and done and re-done,” as Ayer put it. Therefore, according to Feder, a crucial prerequisite for selecting the lucky 10 was, “You have to play well with others.” - Thomas Adcock can be contacted at [email protected].

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