Supreme Court Litigation
This course has three objectives:
- To gain a working knowledge of the unique role the Supreme Court plays in our legal system—identifying and resolving important disputed recurring issues of federal law—and of the demands thus placed on lawyers who practice before it;
- To provide a very intense experience in honing your legal writing skills, by the preparation of two short (10-12 page double spaced) briefs reflecting different phases of Supreme Court litigation, each to be prepared over a separate four week period, with on-going one-on-one interaction with the professor and detailed comments on the final brief;
- To study the oral argument process as now practiced in the Court, including moot court arguments be each student in a current case, study of actual arguments from the present Court Term and, if possible, attendance at one or more moot courts by arguing lawyers and discussions with those lawyers.
The uniqueness of practice in the Supreme Court stems primarily from the certiorari process, by which the Court identifies the 1% of petitioning cases it will hear on the merits. Lawyers on both sides must convince the Court that the case at hand does or does not present a legal issue of sufficient moment and controversy as to presently demand the Court’s attention. We will discuss in detail the features of a case that enhance or detract from its chances for certiorari. After a case is granted and goes forward on the merits, the selective nature of the Court’s jurisdiction—and its focus on resolving recurring legal issues rather than simply deciding cases—shapes the lawyer’s approach to the case in important ways, which will be considered in class sessions dealing with the drafting of merits briefs and the role that amicus briefs play in the Court's work.
All of these goals will be pursued through the study of three or four actual cases from the present Term. The greatest amount of effort, by both the students and the professor, will be invested in the two short brief writing assignments. These assignments, an Opposition to Certiorari and a Reply Brief on the merits, will demand both an understanding of the nature of the Supreme Court's process and a firm grasp on the law and facts of the particular case. In both instances you will prepare an outline, meet with the professor to discuss your approach, and then prepare the final brief. Neither brief will require extensive research beyond the materials cited in the case filings you will be provided with. Both briefs will demand an ability to think and write in clear simple English, and self-critically evaluate and revise what you have written—with feedback from the instructor - to make it as coherent and persuasive as possible to the Justices and their clerks. A limited number of students may satisfy the upper-level writing requirement through an additional credit of work and with the permission of the instructor.
Please note that course organization and content may vary substantially from semester to semester and descriptions are not necessarily professor specific. Please contact the instructor directly if you have particular course-related questions.
Donald B. Ayer
Supreme Court Litigation 776.01