The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Erwin Griswold On The Importance Of Time Limits For Law School Exam

In the New York Times v. U.S., the parties filed briefs under severe constraints.


On June 30, 1971, the Supreme Court decided New York Times v. United States. The so-called Pentagon Papers cases was rushed through the Courts. Justice Harlan's dissent lays out the chronology:

Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 a.m. The application of the United States for interim relief in the Post case was also filed here on June 24 at about 7:15 p.m. This Court's order setting a hearing before us on June 26 at 11 a.m., a course which I joined only to avoid the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 p.m. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that same night. The briefs of the parties were received less than two hours before argument on June 26.

During oral argument, Solicitor General Erwin Griswold–the former Dean of Harvard Law School–weighed in on the compressed briefing schedule:

The items filed by the Post and the Times, I do not believe are marked top secret, but they are marked in-camera in the caption of the items. I repeat, all three have also filed regular briefs except not printed, only the American Civil Liberties Union seem to have the resources to produce a printed brief for this case. I am told that the law students of today are indignantly opposed to final examinations because they say that no lawyer has asked to work under such pressure that he has to get things out in three or four hours. I can only say that I think it's perhaps fortunate that Mr. [William] Glendon and Mr. [Alexander] Bickel and I went to law school under an earlier dispensation.

Agreed. All law students should learn to deal with tough time constraints.