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Posted Jan. 17, 2013

UVA Law Professor Takes Students Inside Office of Solicitor General

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Toby Heytens

University of Virginia law professor Toby Heytens, who formerly served in the U.S. Office of the Solicitor General, is teaching a January Term course on the office, its history and its little-known duties and responsibilites.

When University of Virginia law professor Toby Heytens was a law student, he was a self-described "law nerd" with a keen interest in constitutional law and the Supreme Court. Yet Heytens found the U.S. Office of the Solicitor General — which represents the federal government before the Supreme Court — to be a bit of a mystery.

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"I was only aware of the most highly visible part of the Office of the Solicitor General, which is arguing cases before the Supreme Court," Heytens recalled. "As it turns out, in terms of the hours on the job, that's the least significant [task] performed in that office."

Heytens, who went on to serve in the office as a Bristow Fellow and eventually took leave from teaching to serve as an assistant to the Solicitor General, realized that current UVA law students might be similarly hazy on the duties and role of the Office of the Solicitor General.

So Heytens launched a January Term course this week to introduce the office, its work, its little-known responsibilities and its unusual relationships with the Supreme Court, the president, Congress and the rest of the federal government.

As part of the course, Heytens and the students visited the Supreme Court on Wednesday to observe the Solicitor General's Office in action during oral arguments in City of Arlington v. Federal Communications Commission, a case involving whether courts should defer to agencies regarding the scope of the agencies’ own powers.

The J-Term course, Heytens said, is delving into a number of thorny questions involving the solicitor general's duties.

"For example, who exactly is the SG's client? That's actually a really hard question in a lot of ways," Heytens said. "Is it the United States government as a whole — and what would that even mean? Is it the attorney general? Is it the president? One of [the office's] roles is defending the constitutionality of federal statutes, so is it Congress? Sometimes Congress passes a law that the president thinks is unconstitutional, the Defense of Marriage Act being the latest example. What do you in that situation?"

In the case of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage, President Barack Obama instructed the Justice Department in 2011 to stop defending the law in court, having determined that it is unconstitutional. House Republicans, however, have hired outside lawyers to defend the law on their behalf.

"There's interesting questions about what happens when the president decides, 'I'm not going to defend the constitutionality [of a law],'" Heytens said. "It's not clear under current Supreme Court precedent that DOMA is unconstitutional. There are judges who have ruled that DOMA is constitutional."

Second-year law student Caitlin Eberhardt said she wanted to take the J-Term course because she is interested in the unique role of the solicitor general.

"The solicitor general is an anomaly in the legal world because she or he not only answers to those represented, but also to the president and the American people," she said. "The parties facing the solicitor general in court are not interacting with the faceless monolith that so often comes to mind at the mention of the word 'government,' but with a walking, talking, argument-making embodiment of the United States."

The course is also exploring the solicitor general's little-known duty to authorize — or reject — any appeal by the federal government whenever any part of the government loses a case and wants to file an appeal.

"One of the things I think is cool about [this role] is that it makes the federal government the ultimate repeat player litigant," Heytens said. "The federal government is by far the most frequent litigant in federal court. And, considering that the federal government has this centralized process for deciding whether to appeal, it creates really interesting ideas about when you should appeal."

That role can often lead to interesting exchanges with local U.S. attorney's offices, Heytens said.

"It's easy for the trial attorney's perspective to be, we lost something, we should appeal," he said. "And [the Justice Department in Washington, D.C.] sometimes has a different perspective: 'We don't only have to think about this particular case. We care about the development of the law being favorable to the federal government.'"

Similarly, he said, the solicitor general must grant permission to any petition for re-hearing an appeal en banc (with all members of the district's bench) or for amicus briefs in federal courts of appeals.

The course is also looking at the conflicts that can arise when the solicitor general — a presidential appointee — is required to defend so-called independent federal administrative agencies, such as the FCC, the Securities and Exchange Commission and the Federal Election Commission.

"If the SEC wants to take a case to the Supreme Court, the SG has to do it. But the SG of course is a political appointee of the president of the United States. And so what happens when they disagree?" Heytens said.

Eberhardt said the course was an "incredible opportunity" to learn out more about the Solicitor General's Office directly from a professor who had the experience of working there.

"During the course of a semester, it's often difficult to take such an in-depth look at a specific topic, and being able to do so with such an experienced professor is a valuable experience that I'm sure will stand out when I look back on my law school years in the future," she said.

First-year law student Natasha Reed said she wanted to take the course in order to "better understand how the Solicitor General's Office balances the role it plays as the legal spokesman for the United States government."

First-year law student Ashleigh Pivonka said she also decided that taking a class on such a topic from a professor with first-hand knowledge was too good an opportunity to pass up. She added that it is proving to be a "nice warm up" for the upcoming semester.

"Having just come off of the grueling preparation of fall exams, I'm looking forward to being able to sit in the classroom and not be fervently worried about taking the proper notes and organizing outlines," she said. "The format of the J-Term class allows us to relax a bit and really just soak everything up in a less-stressful environment."