If Sometimes You Do Not Fail Poem by gershon hepner

If sometimes you don’t fail
it means that you’re not trying hard
enough, and may be getting stale,
perhaps in attempt to guard
the credibility that you
may lose by being far too timid:
if you don’t every fail your view
a far too restricted limit.

Inspired by Adam Liptak’s article on the diminishing number of cases that are being accepted by the US Supreme Court (“Justices Opt for Fewer Cases, and Professors and Lawyers Ponder Why, ” NYT, September 29,2009) :

In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many. A couple of weeks ago, the Supreme Court advocacy clinic at Yale Law School held a conference to explore the mystery of the court’s shrinking docket. Law professors presented data, theories and speculation. Expensive lawyers told rueful stories about can’t-miss cases that somehow did not make the cut. Some participants blamed the newer justices, others their clerks. Some blamed Congress, saying it is not cranking out enough confusing legislation. And some blamed the Justice Department, which is filing fewer appeals. But there emerged nothing like a definitive answer to why the court now selects perhaps 80 cases from more than 8,000 requests for review it receives every year. The most striking possible explanation came from David R. Stras, a researcher at the University of Minnesota Law School. A crop of five new justices who joined the court starting in 1986, he found, voted to hear cases far less often than the justices they replaced. “You saw the docket fall off a cliff” as these justices took their seats, Mr. Stras said in an interview..
Speaking at a judicial conference in July, Solicitor General Elena Kagan said her office’s high rate of success may be the product of excessive caution. “I think they’re up to about 70 percent of the time they’ll take our advice, ” Ms. Kagan said of the justices. She then recalled advice she used to give colleagues in her last job, as dean of Harvard Law School: “If you don’t fail sometimes, that means you’re not trying to do enough things.”


9/29/09