Supreme Court Litigation Clinic wins amicus victory and persuades Court to hear arguments

The Law School's Supreme Court Litigation Clinic, a joint project of NYU Law and Jones Day, led by Samuel Estreicher, Dwight D. Opperman Professor of Law, and Jones Day's Donald Ayer and Meir Feder, played an important role in two cases decided this term, winning an amicus victory in one, and persuading the Court to hear oral arguments in a case next term.

Melendez-Diaz v. Massachusetts

On June 25, the Supreme Court ruled in Melendez-Diaz v. Massachusetts that criminal defendants have the right at trial to question lab analysts and others who prepare forensic reports. The clinic joined a group of evidence professors who have published extensively on the Confrontation Clause to file an amicus brief in the case. Justice Antonin Scalia wrote for a 5-4 majority saying that forensic records are not objective documents but rather constitute a form of testimony against the defendant, and those who prepare them must be subject to cross-examination under the Sixth Amendment right to confront witnesses. He also wrote the Court's opinion in Crawford v. Washington in 2004, which held that testimony is inadmissible unless the witness appears at trial, or, if the witness is unavailable, has previously been available for cross-examination. 

Justice Scalia cited the clinic's amicus brief for the proposition that only some of the controlled-substance analyses performed by state and federal laboratories are implicated in prosecutions, and only a small fraction of those cases proceed to trial. According to the brief, nearly 95 percent of convictions are obtained through guilty pleas that do not require in-court testimony from laboratory analysts.

In his dissent, Justice Anthony Kennedy, also referring to the amicus brief, wrote that “[w]hat the Court does not consider is how its holding will alter these statistics. The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial. Zealous counsel will insist upon concessions: a plea bargain, or a more lenient sentence in exchange for relinquishing this remarkable power.”

Ayer was counsel of record on the brief. Jeffrey Fisher, who successfully argued for the petitioner, participated in a moot court with the clinic's students last fall.

Ricci v. DeStefano

In another 5-4 decision in which the clinic filed an amicus brief, the Court ruled on June 29 in Ricci v. DeStefano that white firefighters in New Haven, Connecticut, were unfairly denied promotions because of their race, reversing a decision of a three-judge panel of the U.S. Court of Appeals for the Second Circuit, a panel that included Judge Sonia Sotomayor, who has been nominated to the Supreme Court.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy wrote in his opinion for the Court. In dissent, Justice Ruth Bader Ginsburg wrote that the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

The clinic filed an amicus brief on behalf of the Society for Human Resource Management, the world’s largest association devoted to human resource management, supporting the city’s position. According to the brief, monitoring for disparate impact and consideration of alternative approaches with lesser disparate impact are expected, if not required, by the Equal Opportunity Employment Commission and reflect responsible employer behavior, not a race-conscious violation of Title VII. Christopher Meade '96 of Wilmer Cutler Pickering Hale and Dorr argued the case for the City of New Haven and referred to the amicus brief in his oral argument. 

"Ricci complicates the ability of public sector employers to honor their twin obligations under state law and Title VII," Estreicher said. "The opinion fails to appreciate the legal constraints on state and local governments to make promotion decisions largely on the basis of written test scores while at the same time meeting their Title VII duty to avoid use of selection procedures that disqualify disproportionately racial minorities. The majority also should be faulted for not giving the City of New Haven a chance on remand to try to satisfy the Court's new "strong basis in fact" test, and for injecting newly minted doubts about the constitutionality of a disparate impact theory that has been in operation since at least the 1971 Griggs v. Duke Power Co. decision."

Nicholas Connor '09, Christopher Filburn '09, Daniel Weick '09, and Jenny Zhang '09 worked on the brief. Ayer was counsel of record, and Feder and Lawrence Rosenberg of Jones Day were co-counsel.

Weyhrauch v. United States
On June 29, the Supreme Court agreed to hear oral arguments in Weyhrauch v. United States, a case in which the clinic played a central role in drafting the petition for writ of certiorari. Ayer was counsel of record, and Estreicher and Feder were co-counsel on the petition and reply. Nathan Foster '09, Ross Demain '09, Briana Hulet '09, and Nick Fogg '10 also worked on the case.

Petitioner Bruce Weyhrauch was a member of the Alaska House of Representatives in 2006 who was indicted under 18 U.S.C. Sections 1341 and 1346, on a theory that certain non-disclosures by him constituted a violation of the duty of honest services. The district court excluded the government's evidence offered to establish this violation on the grounds that: 1) it failed to show a violation of any state law disclosure duty; 2) the government had offered no provision of federal law allegedly establishing such a duty; and 3) the trial court ruled that no such federal law disclosure duty could be inferred as a matter of federal common law. 

The Ninth Circuit reversed, ruling that disclosure obligations of state officials that may be prosecuted under Section 1346 on an honest services theory are governed by a uniform body of federal law, to be determined by the federal courts, so that no violation of a state law duty must be shown in this case. The Court granted review of that decision.

Posted on July 2, 2009

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