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Professor Bibas and Students Assist in 2nd Supreme Court Case

January 08, 2010
Students in Penn's Supreme Court Clinic, with Professor Stephanos Bibas and Lecturer Stephen Kinnaird, gather outside the nation's highest court

Students in Penn Law's Supreme Court Clinic were back at the Supreme Court on January 12 for oral arguments in the second case they've handled this school year. Professor Stephanos Bibas, Lecturer Stephen Kinnaird and the students assisted in researching, writing briefs and preparing strategy in Abbott v. Abbott. The international child abduction case involves a parent taking a child out of a country without the other parent's consent.

The Penn Law group researched family law and international treaties on child custody from several countries, strategized, and edited and rewrote briefs. "The work was my first introduction to the challenges of international legal research," said student, Rick Bold. "I had to learn how not only to find the relevant statutes or code provisions, but I had to find them in English."

"Writing the briefs has been a collaborative project that has challenged my writing and forced me to be open to suggestion and criticism," student, Chad Albert said. "The drafts that we submit to Professor Bibas and Mr. Kinnaird invariably change dramatically before they are submitted to the Court, and the process of having my work torn to shreds and then rebuilt has given me invaluable insight into the editing process at the highest level of legal writing."

Attorney, Karl Hays of Austin, Texas argued the case before the Supreme Court, with Professor Bibas and Kinnaird second-chairing. Hays represents Jacquelyn Vaye Abbott in her case against her former husband, Timothy Mark Cameron Abbott. Jacquelyn Abbott was awarded custody of their son in Chile, where they lived at the time. Later, she took the child from Chile to Texas without Timothy Abbott's consent.

To Hays, the Penn Law Supreme Court Clinic is an invaluable resource. "They can analyze and synthesize various issues I couldn't do on my own," Hays said. "They had the ability to research foreign case law, various other conventions and treaties that a solo attorney in Austin couldn't do."

"The students' work and creativity allowed us to put arguments before the Court that had not previously been considered in Hague Convention cases," said Kinnaird, who also heads the Supreme Court practice in the Washington, D.C., law offices of Paul Hastings.

The work on the case was educational for everyone involved. "It's been a fascinating adventure," said Bibas. We've all been able to learn a lot. We didn't know details about the Hague Convention when we started."

"The chance to be doing hands on, live research, in front of the highest court in the land no less, breathes life and passion into the experience in a way that studying something in the mere academic sense in a classroom never could, said student, Dane Reinstedt.

In a bit of friendly inter-school rivalry, Stanford Law's Supreme Court Litigation Clinic assisted Timothy Abbott's attorneys. This is the first time one law school assisted one side of the case and another law school handled the other side in a Supreme Court case.

The friendly rivalry between Bibas and Stanford Law Professor and Clinic director, Jeffrey Fisher runs deeper. They've debated each other in public forums, and the two clinics have competed for several cases, but the world of the Supreme Court bar is collegial. Fisher advised Bibas in starting Penn Law's clinic.

Abbott v. Abbott is the Penn Law Clinic's second Supreme Court case this school year. In October, the Penn Law class also assisted in Padilla v. Kentucky, a case that tests the limits of the Sixth Amendment's guarantee of effective assistance of counsel for non-citizen criminal defendants. Rulings in both cases are expected by the spring.