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Reprinted with permission from the January 4, 2012 edition of The National Law Journal © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

4 January 2012

Appellate Lawyer of the Week: Charles Rothfeld
The National Law Journal

by Marcia Coyle

Among his more than two dozen Supreme Court arguments, Charles Rothfeld of Mayer Brown counts as particularly memorable a case he argued as a young assistant to the solicitor general.

As he launched into his explanation of the meaning of the "no-interest rule" for recoveries against the government, Chief Justice William Rehnquist, unaware that his microphone was live, leaned over to Justice Sandra Day O'Connor and declared, "The meaning of the no-interest rule is I have no interest in this case."

Although he regrets to this day not having a snappy comeback to Rehnquist's comment, Rothfeld did what those supremely qualified lawyers in the solicitor general's office always do: He pressed on, undaunted, with his argument. Today, his appellate skills forged with the help of Rehnquist's withering wit, Rothfeld is considered one of the leading members of the Supreme Court bar.

Rothfeld joined Mayer Brown in 1991. In his appellate practice, he has represented foreign governments, states, municipalities, members of Congress, Indian tribes, and groups of state and local officials before the Supreme Court as well as Fortune 500 companies and other businesses in a range of industries

On Jan. 18, the justices will hear arguments in an immigration challenge in which Rothfeld is counsel of record — Holder v. Sawyers, which has been consolidated with Holder v. Gutierrez. Both cases ask the Court to decide whether a parent's years of residence after lawful admission to the United States can be imputed to his or her non-citizen child if that child lived with the parent as an unemancipated minor. Federal immigration law requires that an alien seeking to avoid deportation must have "resided in the United States continuously for 7 years after having been admitted in any status." Both Sawyers and Gutierrez are shy of those seven years.

The Sawyers case is a product of Yale Law School's Supreme Court Clinic, of which Rothfeld is a founder and co-director with fellow Mayer Brown colleague, Andrew Pincus.

"The solicitor general filed the petition in Sawyers," recalled Rothfeld. "When we saw the filing, we got in touch with the lawyer representing Mr. Sawyers and asked if they wanted any help, and they did."

Rothfeld, a University of Chicago law school graduate, noted that the clinic has handled several immigration cases in the Supreme Court. Immigration law, he said, generates an enormous amount of litigation and some confusion.

"The circuits are often in disarray," he explained. "We have developed some degree of expertise in it. Yale has a clinical immigration program too and we can draw on them. It is a burgeoning area of litigation but not one we set out to get involved in. A number of these cases came to us out of the blue. There's a lot of demand for appellate lawyers in this area."

The Supreme Court clinic, he added, does handle many other types of cases. In fact, Rothfeld also is counsel of record in Astrue v. Capato, to be argued March 19, which raises the fascinating question of whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that parent under state law, is eligible for Social Security child survivor benefits.

In deciding in favor of twins born of in vitro fertilization, the U.S. Court of Appeals for the 3rd Circuit said the case involves the intersection of new reproductive technologies and what is required to qualify for child survivor benefits under the Social Security Act. "It goes without saying that these technologies were not within the imagination, much less the contemplation, of Congress when the relevant sections of the Act came to be, and that they present a host of difficult legal and even moral questions. We need not reach those difficult questions given the discrete factual circumstances of this case. We, nonetheless, cannot help but observe that this is, indeed, a new world."

Rothfeld is no stranger to either difficult or unusual legal questions. In 2009, he argued and won in his Mayer Brown capacity, Polar Tankers, Inc. v. City of Valdez, the first case since the 19th century in which the Court invalidated a state tax under the Constitution's Tonnage Clause.

"That was a great case," he recalled. "It's very rare get to a constitutional question that really has not been worked over before and to get to go back to the papers of the Constitutional Convention. We were really plowing new ground. That was a fantastic case to work on from my perspective, with a satisfying outcome."

Involvement in the law school environment, said Rothfeld, also is "rejuvenating." Teaching the students and seeing their different perspectives, he explained, has been very enjoyable. "It's also a way to keep tabs on the Court which helps you as a practicing lawyer. It requires you to follow more closely what the Court is doing and to rethink assumptions about how the Court works."

A fascinating opportunity and an enormous amount of work, he added, in which he and Pincus try to maintain a balance between their own practices and the clinic's work. "The clinic cases are just like our cases. You have to set aside the necessary amount of time. The students at Yale are fantastic but they are law students. They get involved in research and drafting but there is a very substantial overlay of work that Andy and I have to do. It's like having an enhanced caseload, which we do on top of our regular Mayer Brown work."

His specialization in appellate practice was partially an accident, he noted, because of post-law school clerkships and his job in the solicitor general's office. But clearly it suits him.

"It's the most academic type of practice," explained Rothfeld. "You're spending less time trying to make the lives of other lawyers miserable. It's a more isolated practice so you do spend fair amount of time sitting by yourself, writing things, thinking deep thoughts, which can be unsatisfying in some respects. But if you're interested in law as doctrine rather than the mechanics of the practice, the appellate side of it is much more enjoyable."

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