Copyright (c) 2003 University of Arkansas at Little Rock School of Law
The Journal of Appellate Practice and Process
FIRST ARGUMENTS AT THE SUPREME COURT OF THE UNITED STATES: A CHILLY RECEPTION AT THE COURT
5 J. App. Prac. & Process 51
David J. Bederman*
My first Supreme Court argument was a humbling, but ultimately valuable, experience. I represented the Petitioner in Sandra Jean Smith v. United States. 1 Haven't heard of the case? Well, don't feel bad. Even in this era of reduced Supreme Court dockets, every term there tends to be at least one case that makes Supreme Court watchers scratch their heads and wonder what could possibly have motivated the Court to grant review. My case - as reduced to its essence in the question I presented to the Court in my petition for writ of certiorari - was deceptively simple and (at the same time) fairly inconsequential: "Is Antarctica a "foreign country' for the purposes of the Federal Tort Claims Act?"
Yes, you did read that correctly. My case was the first before the Supreme Court to raise the question of the legal consequences of acts done in Antarctica, in this case, whether it was permissible to sue the United States for its negligent acts there. The Federal Tort Claims Act (FTCA), on its own terms, excludes jurisdiction over claims "arising in a foreign country." 2 My client's husband was killed when he fell to his death into an unmarked crevasse outside the major United States base on the frozen continent, so the question was fairly raised whether Antarctica qualified as a "foreign country," and thus whether claims arising there were excluded under the FTCA.
I had no delusions that Smith would be a landmark decision for ...
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