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January 16, 2020

"The Defender General"

The title of this post is the title of this notable new article authored by Daniel Epps and William Ortman now available via SSRN. Here is its abstract:

The United States needs a Defender General — a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States.  The Supreme Court is effectively our nation’s chief regulator of criminal justice.  But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages.  As compared to counsel for defendants, government lawyers — and particularly those from the U.S. Solicitor General’s office — tend to be more experienced advocates who have more credibility with the Court.  Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients — even when they conflict with the interests of criminal defendants as a whole.  The prosecution’s advantages likely distort the law on the margins.

If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice.  In some cases — where the interests of a particular defendant and those of defendants as a class align — the Defender General would appear as counsel for a defendant.  In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits.  In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

I have lots of (mostly positive) thoughts about the general idea of a Defender General. But I want to find time to read this article before I start opining on the general topic. But that should not stop others!

January 16, 2020 at 11:51 AM | Permalink


It would be more helpful to have institutionalized training and support for criminal defense counsel filing in the United States Supreme Court, with intensive assistance when cert is granted. Instead of conditioning support on taking over a case, they should condition support on a committment to accept help in editing briefs and preparing for oral argument. If they felt a lawyer wasn't up to arguing an accepted case, they could try to persuade the lawyer to get off or ask the Court for 15-20 minutes of oral argument time.

They should work to deepen the bench of SCOTUS lawyers, not to weaken the bench.

To use another metaphor, they should teach lawyers to fish instead of taking the rod and reel away.

My bias: I've done around 50 oral aguments in courts immediately beneath the United States Supreme Court (state supreme court and federal circuit court), with > 200 oral arguments total. I know enough to seek out help in SCOTUS. But I also know enough to do right by my clients with that help. My office provides that kind of help to new lawyers in our state supreme court. We consider it a success when a new lawyer we helped does well there. So should any "Federal Defender General" for SCOTUS.

Posted by: Stephen Hardwick | Jan 16, 2020 2:33:34 PM

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