Eve Primus: Cited in the Supreme Court

This is the fourth in a series of posts about profs cited this term in the Supreme Court.

Eve Brensike Primus is a Professor at the University of Michigan, where she attended law school.  She clerked for Judge Reinhardt on the Ninth Circuit, and was a public defender in Maryland.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

The article is Structural Reform in Criminal Defense:  Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679 (2007).  It was cited by the Supreme Court in Martinez v. Ryan for the proposition that many states have abbreviated deadlines for expanding a trial record before the first appeal as of right, which means that many defendants are unable to supplement their trial records in order to raise ineffective assistance of trial counsel claims on direct appeal.  The Court relied on the article to explain why states often require defendants to wait until state collateral review proceedings to raise ineffective assistance of trial counsel claims.  Of course, in the Martinez case, the Supreme Court held that states’ decisions to relegate IAC claims to collateral review had important implications for the scope of procedural default doctrine in later federal habeas proceedings.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

When I write law reform articles, I try to appeal to many different audiences including state and federal courts, legislators, executive officials, and academics. 

Do you do anything in particular to share your work with practitioners?

Sometimes, I publish shorter versions of my law reform ideas in journals that are distributed and read by more practitioners than the standard law review article.  As a former public defender, I often reach out to my contacts in the public defender world and share my thoughts with them as well.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think it is a real overstatement to say that it is useless to the legal system.  Many scholars’ ideas on a subject evolve and develop as a result of the vibrant discussion that they have with other scholars in their publications.  That back and forth has a way of crystallizing ideas and isolating the strengths and weaknesses of different positions in much the same way that opposing briefs do.  Judges and law clerks read a lot of scholarship when thinking about how to resolve open legal questions.  They might not cite everything that they read but I think that the ideas expressed in legal scholarship are important to their thought processes.

Are you happy with the way your work was used?

I am very happy that the Supreme Court was willing to recognize that states often make it impossible for defendants to raise challenges to their trial attorneys’ performance on direct appeal.  All too often, the courts are not in touch with the realities of the criminal justice system on the ground so I am pleased that here the Court was willing to look at how things actually work.  That said, I don’t agree with the Court’s conclusion that, as a result, it is desirable for many states to relegate these claims to collateral review.  In my article, I argue for reforms that would make it easier to raise trial attorney ineffectiveness claims on direct appeal.

What advice do you have for scholars who want their work to be influential in the courts?

If you want to be influential, you have to address important legal subjects that courts are grappling with, write clearly and concisely, effectively communicate that you fully understand the legal landscape of where the doctrine currently is, and then provide a balanced, nuanced, and well-supported argument for why your proposed step forward is the right move to make.

Did your family or colleagues do anything for you when the opinion case out?

I got a bunch of congratulatory emails.  One of my colleagues who had told me that I was crazy when I wrote the article came sheepishly into my office and said, “I stand corrected.  Good for you.”