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Friends of the court

Research and amicus briefs by UCLA law scholars are being cited in some of this year's most important cases

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U.S. Supreme Court
UCLA

You didn’t have to be a constitutional law expert to grasp the impact of federal court decisions on everyday life in America. This year, big issues before the U.S. Supreme Court dominated the headlines, from same-sex couples’ right to marry to the solvency of federally run health insurance exchanges. Behind those headlines, observers willing to dig a bit deeper quickly discovered the fi­ngerprints of prominent UCLA Law scholars, whose research and amicus briefs were cited in some of the year’s most important decisions.

For Gary Gates, Blachford-Cooper distinguished scholar and research director of the Williams Institute at UCLA Law, Obergefell v. Hodges, which legalized same-sex marriage across the entire country, was the culmination of years of research on the demographics of LGBT parenthood.

“Th­ere are an estimated 200,000 children under 18 being raised by same-sex couples right now,” Gates said. “Same-sex couples are three times more likely to have adopted or fostered children. At the time of the study, if they lived in states where same-sex couples were eligible to marry, they were actually five times more likely to have adopted or fostered. [­The right to marry] facilitated somewhat easier access to public adoption or fostering agencies. It may have prompted even more adoption and fostering.”

Gates’ findings were reflected in the historic majority opinion for Obergefell v. Hodges, authored by U.S. Supreme Court Justice Anthony Kennedy. “Most states have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents,” Kennedy wrote, citing Gates’ amicus brief. “Th­is provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.”

Gates was thrilled with Kennedy’s opinion, not just for the obvious civil rights reasons, but also because the citation of his amicus brief indicated the Supreme Court’s willingness to consider social science research to help inform its opinions.

“Amicus briefs can provide for the court a view of the impact of a ruling beyond the legal impact,” Gates said. “It hasn’t always been the case that courts have felt comfortable enough relying on demographic research, my field of study. It’s very gratifying seeing the court use this work to help inform these very important decisions.”

Gates is not alone among UCLA Law faculty members on the list of SCOTUS citations this year. An amicus brief filed on behalf of professor Jill Horwitz and a group of notable economists was cited three times in the Supreme Court decision in King v. Burwell, which upheld federal subsidies for low-income purchasers of health insurance on all exchanges created by the Affordable Care Act. Th­e brief outlined the disastrous economic effects on federally run exchanges if the subsidies were disallowed.

“I do think this brief influenced the decision, as it is uncommon for a brief to be cited so many times in an opinion,” Horwitz said. “In this case, there were many briefs, and I think what differentiated this [brief] from the others was its focus on the economics underlying the [Affordable Care] Act. ­The brief provided a perspective that was not easily accessible to the justices based on their own legal analysis.”

There have been other prominent citations this year of the work of UCLA Law faculty members, including Khaled Abou El Fadl, Omar and Azmeralda Alfi professor of law, by the Supreme Court in Holt v. Hobbs; Stuart Banner, Norman Abrams professor of law, by the U.S. Court of Appeals for the Ninth Circuit in City of San Jose v. Offi­ce of the Commissioner of Baseball; Eugene Volokh, Gary T. Schwartz professor of law, by the U.S. Court of Appeals for the Sixth Circuit in Planet Aid v. City of St. Johns; and Adam Winkler by the U.S. Court of Appeals for the Ninth Circuit in Chula Vista Citizens for Jobs v. Norris.

At UCLA Law, amicus briefs aren’t just a way to bring the latest scholarship to bear on appellate court decisions. Th­ey’re also an educational strategy. Professor Volokh, for example, leads the Scott and Cyan Banister First Amendment Clinic each fall, which offers students the opportunity to contribute research to appellate cases.

 “Because we work on real cases, it helps expose students to real responsibility,” said Volokh, a First Amendment expert who has been cited by appellate courts half a dozen times in just the past eight months. "It’s a way for students to dip their toes into the ocean of lawyerly responsibility.”

Students in the clinic hone legal writing and editing skills and learn legal strategy by drafting and fi­ling amicus briefs on behalf of nonpro­fit organizations and academic groups. The clinic, which launched in fall 2013, has already worked on notable cases. In NAACP v. the Radiance Foundation, the clinic came to the defense of a blogger who parodied an advocacy organization’s name as a form of political commentary. The blogger was sued for trademark infringement and lost in a lower court.

Representing the Electronic Frontier Foundation and the American Civil Liberties Union of Virginia, clinic students submitted an amicus brief to the U.S. Court of Appeals for the Fourth Circuit. The ruling was reversed, and the clinic’s amicus brief was cited in the reversal decision.

UCLA law students can also gain firsthand experience working with faculty members on real cases through the law school’s Supreme Court Clinic. Under the direction of professor Banner, the clinic, which launched in 2011, is on the verge of making its own Supreme Court headlines.

Earlier this year, the Supreme Court accepted the clinic’s petition for certiorari (review) in Torres v. Lynch, an immigration case that touches on the defi­nition of an “aggravated felony” that can lead to deportation. The Supreme Court’s decision to review the lower court’s ruling in this case was a fi­rst for the clinic. “All of the students were very excited,” Banner said. “Everyone was checking the court website that morning to see what happened.”

Banner and students in the clinic drafted and filed the petition in March and a reply brief in the case in May. He is now working with students in preparation for the oral argument, which is scheduled for Tuesday, Nov. 3. 

Volokh and his clinic students filed an amicus brief last spring on behalf of Common Cause, the Brennan Center and the Pennsylvania Center for the First Amendment in a case that involved a government employee who lost her job after running in an election against her boss, a county clerk of the court

“I hope we are providing a service for courts across the country,” said Volokh. “Sometimes we can bring an extra perspective and raise arguments that parties aren’t in a position to make. The clinic is a win-win: good for our students and also helpful to judges.”

This story was condensed from one published in the fall 2015 issue of UCLA Law Magazine. Read the complete story here.

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