Launch of HLS Supreme Court Advocacy Project

BY JEFFREY JAMISON

Inspired by last year’s moot court of the Ten Commandments cases, hosted by the American Constitution Society (ACS), Dean Kagan brought ACS and the Federalist Society together to “institutionalize” the practice of hosting moot courts for Supreme Court litigators. From those meetings, the HLS Supreme Court Advocacy Project was born. The Project aims to provide an opportunity for students to observe the manner through which the highest level of appellate advocacy is prepared while enabling advocates-particularly those with fewer resources-to practice for oral argument before the Court.

The inaugural moot court of the project, organized by ACS, featured one of the most important cases before the Court this term; Gonzales v. Oregon, the case addressing physician assisted suicide. More specifically, the issue before the Court is whether the Controlled Substances Act makes it a crime for physicians to help a patient commit suicide under the Oregon Death With Dignity Act. Oregon Assistant Attorney General Bob Atkinson argued the case before a panel composed of: the Honorable Kermit Lipez, US Court of Appeals for the First Circuit; Professor Richard Fallon, Ralph S. Tyler, Jr. Professor of Constitutional Law, HLS; Professor George Annas, Chairman, Health Law Department, BU School of Public Health; Professor Michael Klarman, James Monroe Distinguished Professor of Law, UVA, and Visiting Professor at HLS this year; and Professor Jay Wexler, BU School of Law.

The distinguished panel challenged Atkinson’s arguments on a variety of grounds, including the impact of the Court’s decision in Raich v. Ashcroft, the ability of the Attorney General to push the limits of the commerce clause, the ability of states to regulate doctors and legitimate medical practices, general states’ rights principles, federalism ideals, and whether the Attorney General has the power to enforce state law.

Following the argument, each member of the panel made substantive recommendations and asked about the strategy that the state of Oregon employed. The oralist then turned to the audience and asked for additional feedback. Several students offered suggestions and questions. This exchange provided useful insights into how a Supreme Court litigator establishes and executes a strategy. Atkinson walked the panel and the audience through several difficult strategic decisions that were made in preparing the briefs and the oral argument, including the dropping of an administrative law argument that would have benefitted his case but could have detrimental implications for states’ rights, if adopted by the Court. He later remarked that the event was incredibly useful and would have a direct impact on his presentation to the Court. The argument is scheduled for October 5, 2005, and a streaming video of this moot will be available shortly after the oral argument, at www.hlacs.org.

The HLS Supreme Court Moot Project will feature three to four additional moot courts over the course of year planned by the Federalist Society and ACS.

“There are already several major constitutional cases on the docket for [this] term, and we hope that HLS will become the forum of choice for attorneys seeking a rigorous and thorough practice argument before appearing in front of the Court,” said Jeffrey Harris, one of the Federalist Society’s coordinators for this exciting project.

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