[Richard Lazarus, guest-blogging, October 29, 2007 at 7:14am] Trackbacks
Advocacy Matters

This article originated in some research I was doing on the dismal record of environmentalists in Supreme Court cases involving the National Environmental Policy Act. Not only have environmentalists failed to persuade the Court to grant a single petition (in more than 150 tries), but on the 14 (depending how one counts certain cases) occasions when their opponents have obtained plenary Supreme Court review, the environmentalists have lost all 14 times. In fact, they have not received a vote of even one Justice since 1976 in Kleppe v. Sierra Club.

What I discovered in examining all the papers filed in those approximately 200 cases (including jurisdictional and merits briefs, the private archival papers of Douglas, Marshall, Powell, and Blackmun (bench memos, pool memo, inter-chamber correspondence) was that the environmentalists' unenviable record was largely the product of two things: (1) They had been systematically outlitigated by the other side's (primarily the Solicitor General's Office) better advocacy at both the jurisdictional stage and on the merits; and (2) Those within the Court favoring a narrower view of NEPA (esp. Rehnquist) were far more effective advocates for their position during the drafting of opinions than those who might have been receptive to a more expansive view of the law.

The contrast was so striking upon close examination that I decided about 18 months ago to switch gears and consider the related implications for the Court of the emergence in the past twenty years of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. The article, accordingly, strives to describe and explain the rise of a modern Supreme Court Bar and then to explore both theoretically and empirically its significance. By "significance" in this context, I do not mean just significance for the legal profession, which is of course interesting, but its significance for the Court: both the Court's plenary docket and its rulings on the merits.

Going in I had a good sense of the extent of the Bar's expansion, largely based from my vantage point of directing the Supreme Court Institute at Georgetown, but what I had less of a handle on was both how they had maintained that increase during a time when the Court's plenary docket was otherwise dramatically shrinking and the corresponding extent to which the experts were dominating the docket at both the jurisdictional and merits stages. The increase is quite dramatic both in terms of cases granted review (the hardest thing a Supreme Court advocate does), oral arguments presented, and, I further posit, their impact on the Court's formal judgment and the substantive content of the opinions. I further contend that the private Supreme Court Bar has become so effective that they have not only overcome the dominant advocacy role that the Office of Solicitor General enjoyed before the Court for much of the 20th century, but in many instances surpassed it.

In certain respects, the conclusions themselves should not be especially startling. After all, the ability of these expert advocates is obvious to anyone who follows the Court's docket closely, as are the inevitable limits faced by the Justices and the clerks in deciding cases, especially at the cert stage. There is tremendous potential within any case to pitch a case different ways to the Court and the way that a case is pitched and the depth of the accompanying legal analysis often determines how the Court views and frames the case before it. This is a real skill, like other kinds of skills.

Nor should it be so surprising that the private bar is successfully challenging the SG's dominant position. The private bar consists, of course, largely of alums of the SG's Office who, as a result, are frequently more experienced advocates than the OSG attorneys themselves and, when backed by paying clients, have more time to spend on the cases.

For some, perhaps the most controversial part of my article is when I take the next step and contend that the success recently enjoyed by the business community before the Court is likely a reflection of the effectiveness of the newly-emerged Supreme Court Bar that represents that community. Here too, I think the theoretical (most simply stated, you get what you pay for) and empirical support (e.g., antitrust cases) for this position are quite powerful. And, while I am sure that some private sector folks will pooh-pah their success either out of false modesty or for strategic reasons, I doubt that is what they are saying to their private sector clients at the time they are seeking to be retained for work before the Court. My only point is that when those lawyers are telling their clients that they are indeed effective, they are telling the truth. And, they are in fact worth what they are paid.

On the whole, better Supreme Court advocacy is a good thing for the Court and for the development of the law, with an important caveat. What also emerges from my analysis is a significant concern that, notwithstanding the pro bono work that many of these private sector attorneys conduct (including in increasing coordinate with law school "Supreme Court Clinics"), there is a real risk of a skewing of the Court's docket and the rulings on the merits in favor of those who can pay top dollar for these advocates.

Most of the significant pro bono work is done only after the Court has granted review, which limits its ultimate effectiveness. And there is a distinct group of significant cases related to business liability in which the private sector bar has generally been unwilling to support those favoring expansive theories of liability, whether antitrust, securities, environmental protection, or tort in nature. There is not necessarily any strict professional conflict, just a desire not to fall in disfavor with potential business clients who pay top dollar. The article concludes by recommending several initiatives that both the Bar and the Court could undertake to begin to close the otherwise increasing advocacy gap.

Zathras (mail):
This advocacy gap is if anything worse in the state and lower federal courts. Many, perhaps most, plaintiff attorneys just do not have the advocacy skillset needed to win cases on appeal. There are some appellate attorneys that work on plaintiff cases, but many plaintiff attorneys do not like outsourcing this type of work, even when they do not have the time or resources to do an adequate job on appeal.
10.29.2007 9:30am
Waldensian (mail):
Of course, sometimes even one of the top advocates in the Supreme Court bar can't even get a single vote for his side.

Not that I'm bitter about that.
10.29.2007 10:37am
Houston Lawyer:
Wow, you've got a real dog bites man story here. The people with the most money hire the best advocates and tend to win. And the corollary, people with no experience or skills tend to be beaten by those who have experience and skills.

People with experience will counsel their clients that the clients’ preferred positions won’t win, but that they believe they can win on another point. Business clients understand that half a loaf is better than none. Clients who are litigating to affect public policy would seem hard to counsel in such a manner.
10.29.2007 10:57am
Do the environmental organizations not hire elite Supreme Court firms when they have cases before the Court?

If not, why not? Don't tell me it's a lack of money - the environmental movement in this country has plenty of money. Look at NRDC or Audobon Society or EDF - they all have revenues in the high 8 digits.
10.29.2007 11:18am
Houston Lawyer: I think this is more a case of "Hey, this is a situation that calls for specialized skills, and here's proof!" rather than "Hey, people with specialized skills do better in a situation requiring them."

The man-bites-dog aspect of the story is that it's really a dog-bites-man story.
10.29.2007 11:36am
PatHMV (mail) (www):
Also to Houston Lawyer: In the recent thread showing the atrociously-written brief submitted to the Supreme Court, quite a few commenters suggested that the quality of advocacy before the Supreme Court, with its superior judges and very bright law clerks, mattered very little, if any, in the outcome of cases. While quality of advocacy might matter in lesser courts (where judges don't have such skills or resources), these commenters said that in front of the Supreme Court, quality of advocacy surely made little difference.
10.29.2007 12:13pm
Mark Field (mail):
I think the basic premise of this post is persuasive. I wonder, though, about the specific example of environmental cases under NEPA. I'd bet that poor advocacy could not possibly suffice as a complete explanation of the results here; that the general conservative trend of the Court since 1976 must play some role.

In saying this, I'm analogizing to my experience in CA. When I began practicising (1977), insurance companies regularly lost before CA appellate courts and the CA Supreme Court in particular. Today, the situation is entirely reversed -- insurance companies regularly win their cases and many decisions favorable to plaintiffs have been pruned back or reversed outright. Just judging from my own observation, it certainly is true that the insurance industry did a better job of hiring appellate counsel during this time, but at least as important was the change in the appellate bench produced by a series of more conservative governors (more conservative than Jerry Brown and his father, anyway).

IOW, lawyers don't succeed in a vacuum any more than baseball players do. They succeed because the conditions are favorable to the particular skills they provide.
10.29.2007 12:36pm
Thales (mail) (www):
A.S.: Many elite law firms know which side their bread is buttered on. For every NRDC-like organization, there are 10 wealthier oil, chemical, mining etc. companies that are sources of business. Why take the NRDC plaintiff's case and antagonize corporate defendants into going to the elite defense firm across the street?
10.29.2007 12:39pm
Hans Bader (mail):
What "success" for the business community? It's not a pro-business Supreme Court.

The liberal justices rule against business on federal causes of action, and some of the conservatives rule against business on things like punitive damages in state-law suits, and preemption, based on misguided notions of "states rights" (even though the Founding Fathers never let states' rights justify interstate predation or protectionism, and even supplanted state substantive law with the Law Merchant in cases involving litigants from different states, see Swift v. Tyson).

The business community wins many little cases in the Supreme Court, but it loses most of the few really big ones.

I have filed amicus briefs in a number of "business"-related cases, on the side of business, and although on paper, I usually win, the winning cases (e.g., Watters v. Wachovia) are littler, in terms of economic impact than the losing cases (e.g., Massachusetts v. EPA, which will cost business more money than it will save from all the favorable court decisions from the same term -- although utilities (as opposed to automakers) will be able to pass on the costs of that decision to consumers, which is why they don't seem too unhappy about it).

Some of the business decisions -- like the last Philip Morris punitive damages decision out of Oregon -- are so incredibly, hair-splittingly narrow that it is hard to see what future cases they will even effect.
10.29.2007 12:49pm
frankcross (mail):
I'd say it's a pretty pro-business Supreme Court. While business loses a Scalia on a few tort issues, they consistently pick up Breyer and consistently win big cases.

I don't think Massachusetts v. EPA is likely to cost business a nickel (this issue will be settled by congressional action, regardless), while the standing doctrine of the Court is of vast benefit to business. And the Court has massively cut back on securities fraud liabilities, not to mention antitrust
10.29.2007 1:03pm
Oren (mail):
Hans: Your comparison of tort policy with protectionism is invalid on its face. States with pro-plaintiff tort systems are manifestly agnostic when it comes to in-state vs out-of-state defendants. They might be bad policy (or even outright fraud) but calling them protectionist is patently silly.
10.29.2007 1:05pm
Oren (mail):

And the Court has massively cut back on securities fraud liabilities . . .

I'd wait till Stoneridge comes down before making that claim.
10.29.2007 1:10pm
Hans Bader (mail):
I wasn't equating the general pro-plaintiff bent of a tort system with protectionism, contrary to Oren's assumption, which undergirded his erroneous criticism of my comment.

What I had in mind in talking about protectionism was not about punitive damages (which can mulct both in-state and out-of-state defendants) but issues such as choice-of-law doctrines (a state with very little relation to the subject matter of litigation is permitted to impose its own law rather than the law of the state where the contract arose, or the state with more nexus to the litigation, under the Supreme Court's very indulgent jurisprudence regarding what choice-of-law principles are permissible, under decisions such as Allstate), which allow a state to impose its law on transactions and occurrences occurring largely beyond its own borders, contrary to the Due Process Clause and the Commerce Clause, effectively allowing pro-plaintiff jurisdictions to impose their will on pro-business jurisdictions.

But now that Oren raises the issue, I think that there are indeed a few states, like West Virginia, where state supreme court justices have in fact openly boasted about their use of lottery-sized punitive damages to transfer wealth from out-of-state defendants to in-state plaintiffs, in a way that does suggest that, in practice, there is a protectionist animus motivating even general tort law doctrines regarding things such as punitive damages. (For quotes from West Virginia supreme court justices, do a search on, which has a number of quotes from such justices).

So while I wasn't making the argument Oren attributed to me, it turns out that in fact the argument that he attributed to me is not entirely unfounded.
10.29.2007 1:28pm
Thales - well, I suppose you could be correct. But I'd be shocked if an elite firm refused to represent, say, NRDC merely because it represents corporate clients in general (as opposed to the particular corporation on the other side of the suit, which would of course be a conflict). My firm (an AmLaw 100 firm, but not one with an extensive Supreme Court practice) has a detailed policy as to which clients require approval from the high muckity mucks, doesn't have any policy against representing environmental groups as clients. Which was why I asked the question - does NRDC actually come to these firms, money in hand, and ask the firms to represent them? Or do they just go with their in-house lawyers?

(I suppose at some point I could just read Lazerus's article to see if he discusses it. I'll admit, though, that I'm not a big fan of his and when I was a student at Georgetown Law, over a decade ago, I deliberately took another prof for Enviromental Law...)
10.29.2007 1:50pm
Hans Bader (mail):
Environmental groups like the NRDC have more money in their litigation budget by a huge ratio than all the pro-business think tanks and legal organizations put together.

They're very well funded.

And yet, many lawyers who represent business for pay represent groups like the NRDC pro bono.

A cynic would say that the more victories the NRDC and other groups win in the courts against business, the more besieged business becomes, and the more need business has to hire lawyers at big law firms to represent it.

Lawyers hired by business have every incentive to reshape the law in ways that are harmful to business, and create more lawsuits against their business clients to defend against, and bill for.
10.29.2007 2:15pm

Many, perhaps most, plaintiff attorneys just do not have the advocacy skillset needed to win cases on appeal. There are some appellate attorneys that work on plaintiff cases, but many plaintiff attorneys do not like outsourcing this type of work, even when they do not have the time or resources to do an adequate job on appeal.

Clearly, this report provides that backing for med-mal lawyers to extend their practice by taking on plaintiffs whose lawyers failed to recommend outsourcing for malpractice...
10.29.2007 2:33pm
Oren (mail):

. . . which allow a state to impose its law on transactions and occurrences occurring largely beyond its own borders, contrary to the Due Process Clause and the Commerce Clause, effectively allowing pro-plaintiff jurisdictions to impose their will on pro-business jurisdictions.

The only imposition here is that the state requires that those doing business in the state submit to its laws and regulations. This is not an imposition on the pro-business states any more than the pro-business states "impose" their preferences when they allow companies to incorporate under favorable conditions. Rather, it's a consensual arrangement between a business that wishes to do business in a state and the state which prescribes the rules under which the former is permitted to do so. So long as these rules are applied in a neutral fashion, no violence is done to the Commerce Clause.

You might as well say Arizona imposes on California when it arrests Californians with medical marijuana cards that happen to be driving through. Try to see how far an argument that the CA citizen should be tried under CA law goes in that context and you'll understand why I'm skeptical about "choice of law" clauses in contracts. A company that contracts to provide goods or services in my state ought to be subject to local law (lex loci contractus, IIRC).
10.29.2007 2:56pm
Ted Frank (www):
Hans: Your comparison of tort policy with protectionism is invalid on its face. States with pro-plaintiff tort systems are manifestly agnostic when it comes to in-state vs out-of-state defendants.

Alex Tabarrok (of Marginal Revolution fame) and Eric Helland proved just the opposite: out-of-state defendants do far worse than in-state defendants in state court.

Moreover, Hans's position is better stated as describing a collective action problem. All 50 states would be better off if they could agree to an FDA preemption rule like Michigan's. But because the lower courts refuse to recognize (and Democrats in Congress doing the bidding of the litigation lobby fight against) national pharmaceutical standards, states that opt out only disadvantage their citizens vis-a-vis those of the other 49 states. Michigan consumers still have to pay the higher prices caused by West Virginia's anti-business judiciary, but don't get to recover against pharmaceutical defendants. There's a race to extract the most wealth from innocent corporate defendants for in-state plaintiffs, and we all lose.
10.29.2007 3:18pm
Hans Bader (mail):
Oren, you are ignoring the unconstitutional conditions doctrine.

A state cannot condition a corporation's ability to do business in a state on its allowing the state to extraterritorially regulate what the corporation does out of state. Extraterritoriality is forbidden by the Due Process Clause and Commerce Clauses, among other constitutional provisions.

Under the Due Process Clause, "no principle is better settled than that the power of a State, even its power of taxation, in respect to property, is limited to such as is within its jurisdiction." Miller Bros. v. Maryland, 347 U.S. 340, 342 (1954) (state could not impose use taxes on out-of-state sales, even though seller also had in-state sales); McLeod v. Dilworth Co., 322 U.S. 327 (1944). "A state may not tax value earned outside its borders." Asarco, Inc. v. Idaho State Tax Comm'n, 458 U.S. 307, 315 (1982) (state could not tax corporation on dividends it received from out-of-state subsidiaries); accord F.W. Woolworth Co. v. Taxation &Revenue Department of New Mexico, 458 U.S. 354, 372 (1982); Hans Rees' Sons v. North Carolina, 283 U.S. 123, 134 (1931) (State may not enforce a tax law which "operates so as to reach profits which are in no just sense attributable to transactions within its jurisdiction") .

"The 'Commerce Clause . . . precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State." Healy v. Beer Institute, 491 U.S. 324, 336 (1989)

For example, in Louisiana Dairy Stabilization Bd. v. Dairy Fresh Corp., 631 F.2d 67 (5th Cir. 1980), aff’d, 454 U.S. 884 (1981), the Fifth Circuit struck down under the Commerce Clause Louisiana's assessment on out-of-state dairy processors of three cents per hundredweight on those of their dairy products resold in the state of Louisiana.

Yet pro-plaintiff choice of law rules allow state courts to effectively impose one state's law on transactions or events that occur predominantly in other states, where the conduct or transaction would be legal and could not give rise to liability.

That violates the due process and commerce clauses, as recognized in contexts other than choice-of-law, as the citations to the above cases show.

A state cannot condition the right to do business in a state on a business waiving its defenses to extraterritorial regulation. See Western Union Tel. Co. v. Kansas ex rel. Coleman, 216 U.S. 1, 38 (1910) (state could not require company to pay a tax on the value of its total stock to qualify to do business in a state; "It is firmly established that, consistently with the due-process clause of the Constitution of the United States, a State cannot tax property located or existing permanently beyond its limits"); cf. South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 87, 97 n.10 (1984) (consent does not “validate under the Commerce Clause any contractual condition that the State had the economic power to impose”).

By the way, I am not taking issue with the principle of lex loci contractus that you cite.

Indeed, I think it is generally a good idea to apply the law of the place where the contract was entered into and executed.
10.29.2007 3:31pm
Fat Man (mail):
there is a real risk of a skewing of the Court’s docket and the rulings on the merits in favor of those who can pay top dollar for these advocates.

First good news I have had all week. The law should be a conservative institution in society. We get enough leftist demagoguery from Congress and the media.
10.29.2007 3:36pm
Gary Imhoff (mail) (www):
There's another possibility that I don't see represented here, but that seems to be the most likely, especially when, "In fact, they have not received a vote of even one Justice since 1976 in Kleppe v. Sierra Club." If environmentalists have failed this badly over thirty years in getting even a single vote from the most liberal justices, isn't it possible that the problem is not the quality of their representation, but the quality of their cases?
10.29.2007 4:47pm
hey (mail):
The people that should win are winning, and the deeply evil nihillist forces of the Left, especially the mysanthropic enviromentalists are losing. Trying to destroy this because of some idea that there should be a balance where the evil people win some is not only insane, but demonstrates what side you are pulling for, and it isn't that of civilisation.
10.29.2007 5:07pm
markm (mail):
Gary: Just what I was thinking. If the environmentalists can win on the law, they win in agency administrative hearings. If they lose there, they sue - and eventually they lose, but they can often manage to delay whatever it is they are against for several years while the case works it's way up to the point where the SC denies cert.
10.30.2007 3:44pm