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Court Chooses Guardians For Orphaned Arguments

Publication Date: 
December 13, 2010
The New York Times
Adam Liptak

New York Times writer Adam Liptak mentions an article written by Brian P. Goldman in April's edition of the Stanford Law Review featuring analysis on the phenomenon of appointing lawyers to argue positions abandoned by the parties:

Adam G. Ciongoli, the general counsel of a big insurance company, argued a case before the Supreme Court last week. But he was not representing his employer. Indeed, he was not representing any client at all.

Mr. Ciongoli was there because neither the prosecution nor the defense was willing to support a particularly harsh sentencing decision from the federal appeals court in St. Louis. The Supreme Court had appointed him to defend the decision because no one else would.


In an article to be published in the Stanford Law Review in April, Brian P. Goldman analyzed the phenomenon of appointing lawyers to argue positions abandoned by the parties.

He found that the Supreme Court had named more than 40 lawyers to argue such positions, and he concluded that about a third of the appointments were problematic examples of “judicial agenda-setting” at the expense of “party autonomy.”

But Mr. Goldman said Mr. Ciongoli’s appointment was “not improper” because it concerned a point that the parties were not free to decide for themselves. The question in the case, Pepper v. United States, was whether judges who resentence defendants after an appellate reversal may take account of the defendants’ conduct in the meantime.