Sabbatical or no sabbatical, when Barry Friedman, Jacob D. Fuchsberg Professor of Law, heard about the need for an amicus brief in the many health care reform lawsuits pending before the U.S. Courts of Appeals, he enlisted a group of students in an intense effort to meet an impending filing deadline.

The health care reform law that Barack Obama signed into law in March 2010 after narrow passage in Congress has spawned legal challenges that are now starting to wend their way through the courts. In the case Commonwealth of Virginia v. Sebelius, currently before the U.S. Court of Appeals for the Fourth Circuit, Virginia is suing the U.S. secretary of health and human services, alleging that the Patient Protection and Affordable Care Act’s mandate that everyone have insurance coverage is unconstitutional under the Constitution’s interstate commerce clause.

After learning that there was no amicus brief dealing squarely with the relevant history of the commerce clause, Friedman emailed students in late January for research assistance. The 2Ls divided the work according to chronology, focusing on periods of important commerce clause developments. Graham Lake ’12 and Colin Roth ’12 researched the years of the country’s founding, while Lynn Eisenberg ’12 covered the Gilded Age. Ian Herbert ’12 did additional research on the necessary and proper clause.

Although the students were able to utilize some of Friedman’s research from his book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, they still had a lot of ground to cover, and only two to three weeks in which to do it outside of class. Friedman worked with experienced appellate attorneys at a Washington, D.C., firm—including Jeffrey Lamken, the counsel of record—to produce the brief based on the primary research. The filing deadline for the Fourth Circuit case was March 8; they beat it by a day. Friedman and his team plan to file the brief in every other upcoming health care reform case.

“This is what people come to law school to do: to be involved in the hot-button issues of the day and to have a chance to work on something that affects so many people,” said Roth. “To be able to do that as a second-year law student is a great opportunity.... A lot of people would kill to be able to do something like this.”

Roth appreciated seeing the influence of the students’ efforts on the finished brief. “It’s really cool to see the direct connection between the work we did and what ended up in the final product. The research contributed a substantial amount of value to the end result.”

For Eisenberg, who worked on Barack Obama’s presidential campaign for a year and a half before coming to NYU Law, the research was a chance to contribute to the health care reform she had supported through her previous work. It also helped her conceptually with the substantial writing paper on which she’s working, she said.

Two members of the Yale Law School community also contributed research. Erin Miller, a 1L, looked into commerce clause activity during the Great Depression era, while Sara Solow, who graduated in February, researched federal commercial activities during the Gilded Age, as well as the doctrinal development of the necessary and proper clause.

Nineteen law professors signed on to the final brief, including Friedman; Richard Pildes, Sudler Family Professor of Constitutional Law; Judith Resnik ’75, Arthur Liman Professor of Law at Yale Law School; David L. Shapiro, William Nelson Cromwell Professor, Emeritus at Harvard Law School and currently in residence at NYU Law; and Adam Winkler ’93, a professor at UCLA School of Law and a member of the Brennan Center for Justice’s board of directors.

Posted on March 11, 2011