Document Type

Article

Publication Date

2017

Abstract

This Article focuses on the role of the lawyers using the framework described by Professor Richard J. Lazarus in his 2008 article, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar. Lazarus argues the modern Supreme Court bar has come to be dominated by a small number of Supreme Court specialists. Because of their experience and superior knowledge of the Justices and Supreme Court practice, Supreme Court specialists are more likely to obtain outcomes desired by their clients, which are typically large corporations or industry trade associations. Consistent with Lazarus’s finding, this Article shows the video game industry’s representation by a Supreme Court specialist in Brown gave it advantages over California that likely affected the outcome of the case.

Part II analyzes whether the counsel in Brown fit within Lazarus’s definition of a Supreme Court specialist. Part III provides background on the Brown case and the cases that came before it. Part IV compares the expert and non-expert representation in Brown by examining the parties’ briefs, the amicus briefs, and the oral argument. Finally, Part V explores whether the case might have come out differently if both sides had been represented by Supreme Court specialists. It concludes that with expert representation, California could have captured the five votes necessary to win, or at least obtained a narrower decision that would have allowed the legislature to try again to craft a law that could survive a constitutional challenge.

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