At the end of July, my colleague Adam Friedl and I attended the Practising Law Institute’s (PLI) 16thAnnual Supreme Court Review. We want to thank PLI, a Pro Bono Net Bronze Sponsor since 2011, for inviting us (again) to the always-fascinating event. The daylong session kicked off with the themes and key decisions of the October 2013 Term. The diverse panel included law professors, practitioners, and journalists who provided a comprehensive and insightful (and occasionally controversial!) overview of the term, with a focus on some of the most noteworthy topics such as the ACA birth control mandate, unions and labor law, and warrantless searches of arrestees’ cell phones. It was a term of narrow decisions that leaned in a conservative direction and may set the stage for more sweeping changes in the future. Many of the panelists agreed that several of the cases were “proxy skirmishes” that avoided the wide ideological gulf on the Court. Adam and I left the program with a much better understanding of the 2013 Term and where the Court is going in the future. We cannot wait to return next year!
Throughout the day, three of the panelists (and the two conference co-chairs!), Joan Biskupic of Reuters, Dean Erwin Chemerinsky of University of California Irvine School of Law, and Professor Martin Schwartz of Touro Law School, were kind enough to sit down with Adam and me to discuss the 2013 Term and the evolving pro bono landscape.
We sat down with Ms. Biskupic for a quick chat before the day’s action began. She has chronicled the history of LGBTQ litigation, and in particular same-sex marriage cases, and recently wrote an article observing that BigLaw pro bono support has been exclusively on behalf of LGBTQ advocates. She traced her coverage of the cause back to a 1993 Washington Post article about contemporary gay rights cases, with a focus on a Hawaii Supreme Court ruling that “opened the door to gay marriages.” From there, she noted that the legal community became increasingly supportive of gay-rights – often before the rest of the country. In the landmark 2003 case Lawrence v. Texas, the ABA and O’Melveny & Myers came out in support of LGTBQ rights with amicus briefs and throughout the rest of the 2000s, the BigLaw community increasingly lined up on the side of progress. This culminated in pro bono support for the plaintiffs in last term’s key same-sex marriage cases. Ms. Biskupic speculated that demographics and the legal profession’s collegial and inclusive atmosphere contributed to the early support for gay rights.
At lunch, we spoke with Dean Chemerinsky and Professor Schwartz about how the Supreme Court affects the need for pro bono and the Court’s evolving understanding of technology. Last year, Dean Chemerinsky suggested that Shelby County v. Holder would create new demands for pro bono litigation. He echoed those comments this year, saying that without Section 4(b) of the Voting Rights Act or a new act of Congress that requires designated jurisdictions to get preclearance from the Justice Department, election system challenges must go through Section 2 – a far more resource intensive process. In addition, Professor Schwartz commented on the need for pro bono efforts to challenge the subsequent rush of voter ID laws.
On a more Pro Bono Net, technology-centric subject, we asked if they agreed with the New York Times’ Farhad Manjoo’s contention that this Term showed the Court to be tech-savvy. They commented that clerks often explain technology to the justices, for example Aereo, but that in Riley v. California, which held that police need a warrant to search a cell phone, the Court relied on high-quality amicus briefs and perhaps most importantly, their own experience. The Justices own cell phones and can appreciate how much information we put on them!
We concluded by asking how UC Irvine and Touro encourage pro bono in their student bodies. Touro has a 50-hour pro bono graduation requirement, which is separate from the 50-hour rule for admission to the New York State Bar. Similarly, UCI requires students to go through a clinical experience, supervised by a faculty member, before being eligible for graduation. In 2013, 92% of UCI students performed pro bono service and the average was over 100 hours. The school also provides 10 fellowships a year to assist graduates who are interested in public interest jobs. Dean Chemerinsky and Professor Schwartz hope that these programs and the spread of innovative pro bono and public interest service delivery models will help increase access to justice in 21st century America.