From Theory to Practice

While Professor John “Jack” Preis often cites Supreme Court cases in his classroom, he never imagined that one day, he would have the opportunity to participate in the formation of a Supreme Court decision. On Nov. 1, 2011, Preis argued Minneci v. Pollard before the U.S. Supreme Court. The case considers whether federal inmates can bring constitutional claims against employees of a private company that manages a federal prison. The Court will likely hand down its decision in Minneci v. Pollard by the end of June 2012.

Preis is representing Richard Lee Pollard, a California prison inmate who claims his Eighth Amendment rights were violated when he was mistreated after falling in the prison kitchen and breaking both of his elbows. Preis first read about the case in 2007 while doing research for a law review article. “I had written an article  on this exact issue and it seemed to me that the value of that research would be a lot more powerful in a court than in a law journal,” he said. “It brings the scholarship out of theory and into practice.”

Preis wrote to Pollard in prison, offering to represent him pro bono on appeal. Pollard accepted, and Preis began a four-year journey through the federal appeals court system, culminating in his upcoming appearance before the Supreme Court. “I definitely didn’t think [about the Supreme Court] when I approached the client,” Preis said. “It is very exciting, but also overwhelming. Very few people in the country can say they are Supreme Court lawyers. I have never thought of myself as that—I am a teacher who happened to ride this wave. There is a lot of luck involved in which case gets heard before the Court.”

Last spring, Preis suggested that the School of Law’s Moot Court Board argue the problem during its spring moot court competition for 2Ls. Moot Court Board President T.J. Brennan, L’12, and Tim Dustan, L’12, participated in that competition. The two were watching the Red Sox at Fenway Park in Boston when they learned Preis would be arguing the case before the Supreme Court. They emailed him from the baseball game, offering to help. “We had read all the case law and knew we wouldn’t have to do a lot of background research,” Brennan said. “We had argued Professor Preis’s side. He didn’t need to bring us up to speed with the case.”

Preis accepted their offer, and in August, Brennan, Dustan and Sam Irvin, L’12, began doing legal research as Preis prepared his argument. When Preis asked them to help edit his brief, the trio brought in Christopher Dadak, L’12, editor-in-chief of University of Richmond Law Review, Clayton LaForge, L’12, Law Review staff member, and Garrett Hooe, L’12, editor-in-chief of the Richmond Journal of Global Law and Business.

“We spent about 15 hours going through his brief page-by-page, as if it were a law review edit,” Brennan explained. “It was a 40-page brief and we felt like we were really helping out. Normally a law firm with a lot of lawyers would be doing that.

Preis is thankful for the students’ assistance. “They did an excellent job,” he said. “I was very fortunate to have their help, especially since I am going up against a law firm with huge resources.”

Brennan said the experience reinforced his desire to become a litigator and was, “My wildest dream come true. It is exciting to be taking part in shaping the law. Whether the ruling comes down on your side or not, we still had a real part in it. My legal career may have peaked in law school.” The students plan to go to Washington, D.C., to watch Preis as he presents his oral argument in front of the Supreme Court.

Preis said he has learned much while preparing the case, gaining a “deeper sense of the actual forces of law in this field. I now have a better sense of how the law is made. … If my primary teaching tool is the Supreme Court opinion, it is invaluable to me to participate in a Supreme Court argument to see what are the stakes and what are the trade offs.”

While the case has taken a tremendous amount of his time (this semester he is on a previously scheduled research sabbatical), Preis believes the experience will only make him a better teacher and legal scholar.

“While all these things we write in journals are important, it can be even more important if the research was put into a brief instead of a law journal,” he said. “This is a good lesson for what law schools can do for the community. We have all this expertise but a lot of times we are just counseling each other and complimenting each other on that expertise rather than giving it to someone who really needs it. There is a tremendous opportunity to do this type of work.”