• Supreme Impact

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    A remarkably high percentage of faculty members at the University of St. Thomas School of Law have taken their advocacy all the way to the Supreme Court. Some have used their scholarly writing to make a difference in judicial or legislative deliberations and, in certain instances, powerfully influence the outcome of legally-contested issues.

    Professors then bring that experience right back into the classroom for students to learnhow scholarship related to appellate practice transforms social systems.

    In this article, six faculty members are featured for the way in which they navigate the intersection of scholarship, teaching and service before the U.S. Supreme Court – all with the goal of having a supreme impact.

    Professor Wulf Kaal Morrison v. National Australia Bank

    After studying, working and teaching in Europe and the United States, professor Wulf Kaal is uniquely qualified to comment on international issues coming before the Court.

    Kaal has written several articles on the issue of extraterritorial application of U.S. securities law and the Supreme Court decision in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010). The case involved foreign investors seeking a remedy against an Australian bank under U.S. securities law for transactions that occurred abroad. The Court was asked to determine the appropriate test for applying a U.S. securities law to extraterritorial securities transactions.

    Kaal participated in drafting an amicus brief to the Court. The brief argued for a bright-line rule limiting the application of U.S. securities law to transactions in securities occurring domestically. In this context, Kaal often mediates between European and American interests. “I often find myself acting as a mediator between European academics and policy shapers and their American counterparts,” he said.

    Kaal’s experience with the Supreme Court translates naturally into the academic setting. “In my International Law and Securities Regulation classes, I make a conscious effort to describe policy debates, what is at stake, and what positions I have taken,” he said.

    He feels it is important to discuss cases currently before the Supreme Court and lower courts because they shape the law and give students a good overview of possible issues they may deal with in practice. Kaal receives good student feedback when discussing his work in the classroom, “There is a noticeable increase in student engagement when I discuss my work.”

    Kaal’s teaching style was formed by the Humboldtian idea of unity of scholarship and teaching, infused with Catholic Social Thought. “I feel it is important to show my students that I do more than teach these concepts but try to shape policy with scholarship. The best teaching may be achieved by uniting theoretical concepts with practical implications and developments in the real world.”

    Professor Mark OslerSpears v. United States

    Professor Mark Osler has passionately pursued a reduction of the sentencing disparity between crack and powder cocaine users. This pursuit has taken him all the way to the Supreme Court, where in 2009, he was lead counsel for the prevailing side in Spears v. United States, 129 S. Ct. 840. The ruling clarified that federal courts may depart from sentencing guidelines for crackcocaine users based on a policy disagreement, creating greater flexibility for judges in sentencing.

    Osler’s work with the Supreme Court grows out of his work with a small group of sentencing experts. Characteristically humble, Osler is careful to point out that his victory is just one of a number associated with the work of these experts. His contribution to Supreme Court jurisprudence is undeniable, however, as Spears v. United States has been cited in hundreds of federal opinions. For Osler, the best part of the victory was the gratefulletters from District Court judges, thankful for a return of some discretion in sentencing.

    Osler’s Supreme Court experience naturally enhances his scholarship and teaching. “My work in sentencing litigation helps me maintain the depth of knowledge I hope to have in my subject area. If I am going to teach criminal law to the smart students we have at St. Thomas, I had better be a real expert. Working at the highest levels keeps me there.” The connection between his Supreme Court litigation and academic output is readily apparent in that many of his academic articles are directly related to the issues he argues to the Court.

    His work directly enhances the experience students have in his classroom. “Everything we do as a teacher is role modeling, for good and bad,” he said. “Students learn not only through what we say, but by watching what we do. If part of what we do publicly is ambitious, real and optimistic, they will see that as part of the vocation of law.” Beyond being a role model, Osler actively engages his students in his legal work. For example, he worked with a former student to bring about the result in Spears.

    Professor Gregory SiskUnited States v. Tohono O’odham Nation

    Professor Gregory Sisk is one of the nation’s foremost experts in litigation involving the federal government, and his expertise has brought him to the Supreme Court on more than one occasion. His involvement has consisted of both participating in amicus curiae with other law professors and submitting an amicus curiae of his own.

    In 2011, Sisk submitted an amicus brief in his own name in support of neither party in the case United States v. Tohono O’odham Nation, 131 S. Ct. 1723. The case involved duplicative litigation in both the Federal District Court and the Court of Federal Claims. He felt that neither party was addressing an important point: the case should not have been filed in the Federal District Court in the first place.

    In writing the amicus, Sisk’s goal was to ensure that the Supreme Court did not say anything that could be interpreted as accepting the district court as an appropriate forum. Though victory in the usual sense was not possible, as Sisk was not advocating for either side, he achieved his goal of making the court aware of his concern.

    “Not only did the court cite to my treatise, but the court included language to the effect that the Court of Federal Claims was a perfectly adequate forum, and there was no need for the case to be in the district court,” he said. “They certainly said nothing to undermine the position I took.”

    One of the challenges in writing a Supreme Court brief is the necessity of being interdisciplinary, according to Sisk. “You have to approach [work at the Supreme Court] with a specialist’s eye and a generalist’s perspective.” Sisk enjoys this aspect of the work, as it constantly refocuses him on the broader implications of his field, and prevents him from becoming too absorbed in his specialty.

    His appellate work plays a significant role in his research. Being the author of the only casebook on litigation with the federal government, and a treatise on the same topic, the cases he works on are directly applicable to his work as a scholar. In fact, United States v. Tohono O’odham Nation is an update to the casebook, and he will be teaching it next semester.

    Sisk’s appellate practice also enriches the classroom environment. His experience allows him to go beyond a simple academic explanation of the course material and give students an appreciation of the actual application of the material as it played out in real life. “Teachers can go too far with war stories, but having some to tell students increases student confidence in the professor,” he said. “They like to see that their faculty are key players in the very fields of law in which they teach.”

    Professor Thomas BergHosanna-Tabor School v. EEOC

    Professor Thomas Berg’s first experience with the Supreme Court occurred shortly after he finished law school when he wrote an amicus brief for a client. This was just one of the first steps in Berg becoming a nationally recognized constitutional scholar in the field of religious liberty. Due to the nature of his scholarship, he often becomes involved in amicus work withthe Supreme Court.

    Berg often is involved in religious liberty cases, the most recent of which is Hosanna-Tabor School v. EEOC (pending). Through amicus briefs and his scholarly writing, Berg hasattempted to advance an approach to church-and-state issues that encourages and protects religious freedom, rather than an approach that focuses on an absolutist separation of church and state. Though he has not always been on the winning side, over time, he has watched the court move closer to his approach to church-and-state issues.

    He doesn’t point to any particular case as his greatest accomplishment, but instead values his inclusion in a group of scholars that has achieved an ongoing dialogue with the Supreme Court.

    Berg views his academic and amicus work at the Supreme Court as twohalves of the same project. Working at the Court “is a great way to put together the academic and scholarly with the practical, and have an effect now, as opposed to 50 years from now,” he said.

    By honing his skills at the highest level of our justice system, Berg is able to more effectively impart them to his students. In the classroom, he engages key legal skills necessary for a successful appellate practice, such as appellate strategy and effective legal drafting.

    Berg also calls on his students to be active participants in his appellate work. Over the years, students have collaborated with him on researching the issues discussed in his briefs. Students also have provided valuable editing advice and feedback.

    Professor Teresa CollettGonzales v. Carhart

    Professor Teresa Collett is a nationally recognized appellate lawyer in the area of life issues. Her expertise in this field has led her to the Supreme Court on more than one occasion. She is frequently invited to participate in the appellate process by a variety of clients ranging from individual parties to state attorneys general.

    In 2007, Collett wrote an amicus brief in the landmark case of Gonzales v. Carhart, 550 U.S. 124. The brief was filed on behalf of Ron Paul and the Association of American Physicians and Surgeons. In her brief, Collett defended the right of Congress to ban partial-birth abortion, and argued that the lower courts had erred in several respects by overturning the ban. In the end, the Court upheld the law, and Collett views her work in this case as one of her most significant contributions.

    She identified balancing the competing demands of an academic career and appellate responsibilities as a challenge facing professors who both teach and do amicus work. “It’s not part of your day job and, unlike your scholarship, it can’t be delayed.” At the same time, she is thankful for the benefits that come from pursuing both vocations simultaneously. “The law school is a resource-rich environment,” she said. “Not only does the law school have access to a wealth of legal resources and information, but the studentsthemselves are a valuable asset.”

    Collett’s practice at the Supreme Court allows her to put her scholarship to use, and in turn, informs and enhances it. The appellate work “builds upon my published scholarship and challenges me to answer questions that I did not answer in those original works,” she said. It also ensures that her academic work remains rooted in the practical. “Sometimes there are questions that, when you are talking about the theory, you don’t really focus on the implementation problems that can actually make a good law impossible.”

    Collett credits her appellate work with allowing her “to challenge students to have a more in-depth understanding of potential consequences of the policy stances they choose to take.” Students connect the policy positions they take in the classroom to the real-life impact they would have when implemented in the courtroom. “Questions that could appear to be completely academic have a certainurgency if you have actually seen them be litigated.”

    Students have been influenced in even more direct ways. Over the years, numerous research assistants have helped Collett draft and shape arguments. She has also allowed students to sign pleadings when the court permits it.

    Professor Lyman JohnsonJones v. Harris Associates, L.P.

    Professor Lyman Johnson has a long history of participating in the federal appellate system. He is a recognized expert in the area of corporate governance and securities law, and has written multiple amicus briefs on these issues. He also has served as an expert witness and consultant in Supreme Court litigation.

    In 2009, Johnson was involved in the landmark mutual-fund case Jones v. Harris Associates L.P., 130 S. Ct. 1418 (2010). The case reinforced a fiduciary standard for mutual-fund manager compensation in lieu of substituting a bright-line rule advocated by the defendant. Johnson served as an expert witness and consultant for the plaintiff investors.

    “I worked with the lawyers very closely in developing the arguments and briefs,” he said. “I also worked on the oral arguments.” With Johnson’s help, the plaintiffs prevailed, marking a major victory for mutual-fund investor rights.

    In approaching amicus curiae projects, Johnson views the biggest challenge as narrowing one’s legal arguments. “The key is to identify and hone in on the key winnable points, really disciplining yourself.” He credits the collaborative process that produces an amicus brief as guiding the honing process. “The collaborative nature of the work makes it a lot easier to keep your eye on the ball.”

    Johnson’s involvement with the Supreme Court keeps him current on cutting-edge legal issues. “A lot of the things I am teaching in my classes I am working on, on an ongoing basis.” Johnson’s work outside the classroom is also an opportunity to collaborate and absorb the perspective of other leaders in his field. “It allows me to probe securities law in-depth with other experienced lawyers and collaborate outside of the academic setting.”

    Johnson believes his involvement at the Supreme Court makes him a more effective teacher. “It reminds me what it is like to be a student. The longer you are in teaching, the farther you are getting away from your students, because they are always coming in as novices, while you are getting more experienced.” Johnson says his work with the court puts him in the role of a student once again. Educating himself on the issues coming beforethe Supreme Court allows Johnson to reconnect with the experience of being a student, and in turn provides valuable perspective on the learning process. And his students confirm he is an outstanding teacher.

    The practice of law is a social endeavor. Engaging with the U.S. Supreme Court is just one way in which School of Law teacher-scholars enhance students’ educational experience and benefit society. Their scholarly proficiency and service before the U.S. Supreme Court add to the wealth of knowledge and expertise that they bring to the classroom.

    Author: Justin Seitz, 2L, is a research assistant to two professors; his research focuses on civil procedure and corporate law. He is interested in practicing in the areas of estate planning and family business law.

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