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Supreme Court Specialists

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Adam Liptak has this article in the NYT on the rise of U.S. Supreme Court practices within law firms as well as specialized Supreme Court clinics at law schools.  Orin Kerr has this post at VC commenting on the article.

How does a law firm run a profitable business with a Supreme Court practice, given how few cases there are and how many of the clients are indigent, represented for free pro bono publico or on appointment for a nominal fee?  It doesn't.  The Supreme Court pro bono practice is a "loss leader and reputation enhancer" for the firm, Liptak writes.

How much does it really enhance a firm's reputation that it freed a terrorist to return to Afghanistan to kill more of our troops or that it got a murderer off with far less punishment than he deserved?  Reputation with whom?  Perhaps that activity draws applause from the ABA and academia, but does it resonate with the corporate general counsels who make the decisions on who will get the truly big-bucks cases?

Some folks in the criminal defense bar aren't too thrilled with specialists looking to take cases up to the Supreme Court, possibly just because they want to ratchet up the number of cases they can say they argued there.  Critics say that the exclusionary rule case of Herring v. United States (2009) and the immigration case of Fernandez-Vargas v. Gonzales (2006) were poor vehicles that shouldn't have been taken up and made bad law (from the defense perspective).

Orin Kerr notes that it is important to break out the different issues involved. He is particularly critical of the emphasis on oral argument. "The press covers oral arguments, not briefs, and lawyers are known for how many arguments they gave rather than how many briefs they wrote."  That is true even though "the written briefs are far more important than the oral arguments...."

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