Tuesday, September 27, 2016
We are one week away from the first arguments of the Supreme Court's 2016 Term. So, for #TwitterTuesday this week, I wanted to focus on the Supreme Court related Twitter accounts that you should follow to be stay in the know about all things SCOTUS related.
By far, my favorite source for SCOTUS news is SCOTUSblog.com. They provide detailed information on pending cases and cert petitions and liveblog the release of opinions. Follow them on Twitter (@SCOTUSblog) to access their content and discuss the latest SCOTUS news with other appellate enthusiasts. Just remember--it isn't the real Twitter account of the Supreme Court! That account is (@USSupremeCourt).
Tony Mauro (@Tonymauro) is a Supreme Court correspondent for Law.com and the National Law Journal (@The NLJ) and tweets about all things SCOTUS. For a look at the Court that goes beyond its rulings, make sure to follow Mr. Mauro.
After working in a firm, Kimberly Robinson (@KimberlyRobinson) is a legal editor for U.S Law Week and is that publication’s lead reporter at the Supreme Court. She also blogs for Bloomberg BNA on matters concerning the High Court.
Oyez (@Oyez) is Chicago-Kent's multimedia Supreme Court archive. It has some great historical tools for SCOTUS followers.
Don’t forget to check out Supreme Court USA (@iSupremeCourt) for information regarding potential cases and recent decisions before the Supreme Court.
Monday, September 26, 2016
Last week Tony Mauro posted a story on Law.com about his attempt to inquire about the health status of the eight justices on the United States Supreme Court. Chief Justice John Roberts sent a polite, but short response, informing Mauro that he "can expect to see an able and energetic Court when we reconvene in October."
While I have a lot of respect for Mauro, I am surprised and disappointed with this fixation with the health of the justices on the Court. While it may be quite relevant to know the basic health of a presidential candidate, who is elected to serve a 4 year term leading the free world, a judge or justice's job is not intended to be all that important. Remember, Hamilton called the Court the "least dangerous branch." Judges decide cases. Yes, that involves a certain amount of discretion, but it is very different for the discretion and power that is given to the president.
Furthermore, judges and justices are appointed for life. That means that they are going to get old and, at some point, die. At the circuit court level, many judges take senior status when they are ready for a slower pace of life. Some judges even voluntarily resign at a certain age. Unless we want to amend the Constitution, an aging judiciary is just a fact of life.
Additionally, any questions about the health of a judge or justice are best considered at the nomination and confirmation stages, where they can be handled in executive session away from the prying eyes of the public. Having worked nominations at the Department of Justice and the Senate, I have seen how both branches address sensitive issues of concern without making them a public news story. Justice Scalia had every right to keep his medical records private, just like I do. The fact that we have made the Supreme Court so political shouldn't change that fact.
If you do want to know the most up-to-date public information about the Justices health, Mauro has outlined that information here. Not much here is new (other than the fact that Justice Kagan wears a fit bit). It shows that the Court has some older members. But, the more politicized we make the Supreme Court and nominations to that Court, the more likely members of that Court will stay in their seats as long as possible. Since the politicization of the Court is unlikely to change any time soon, we should just rely on the good judgment of the president, Senate, and Court to handle this issue privately--the way it should be handled.
Friday, September 23, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Will the Supreme Court's Vacancy Issues Ever Become an Election Issue?
Chris Geidner had an article on BuzzFeed News this week asking the question. The article recounted how, for a brief moment last weekend, it appeared as if the topic of the vacancy on the Supreme Court and Congress's decision not to consider and vote on President Obama's nominee to fill the vacancy would became a real issue in this year's Presidential election. Hillary Clinton was asked a question about it; a member of Donald Trump's campaign allegedly had been told that he would be a nominee in a Trump administration; Senator John Cornyn (chair of the Judiciary Committee's subcommittee on the Constitution) spoke about hopes of confirmation for a set of lower court nominees back by Republican senators. But the focus quickly shifted away, again. Nonetheless, as the article notes, there are still some key dates coming up that might shift focus back to this topic as a key in the race for the White House, including the Court's new term opening in October, as well as upcoming debates.
Related, Jason P. Steed (@5thCircAppeals) tweeted a link to his April blog post about "Duty" and the Constitution, discussing the debate over whether the Constitution imposes a "duty" on Congress to consider and vote on a nominee to fill a vacant seat on the Court. The post raises some great discussion points about the intersection between whether the Constitution specifically imposes such a duty and whether it's acceptable to conclude that it does not if that conclusion arguably threatens the very function of the Constitution itself.
Finally, Cornell Law Professor Michael Dorf had a post on Justia.com titled, "The Future of the Supreme Court, Regardless of Who Wins the Election." In the piece, he makes the case that although "it is tempting for those of us who follow the work of the high Court to play a waiting game" and acknowledges that "with respect to some important issues, uncertainty . . . warrants caution" he also argues that "Supreme Court watchers who are fearful about the outcome of the 2016 election can take comfort from the fact that it may not matter as much as we expect." He argues that there are "vast swaths of our public life about which the Court has almost nothing to say" and that "[s]ome areas of Supreme Court jurisprudence will likely be unaffected by the next appointment(s) because they rest on broad cross-ideological consensus." While acknowledging that "who appoints the next several justices to the Supreme Court is [not] an unimportant question" he argues that we should not think "that everything is up for grabs" because, at the end of the day, "the Court still decides many more cases unanimously than by a single vote" and also points out that history should tell us that "[e]ven when we know who will apoint justices . . . [and] even when we know who those justices are," their ultimate voting habits with the Court are often unexpected.
Dorf on Twitter: https://twitter.com/dorfonlaw
Oral Argument Preparation Thoughts
Bryan Gividen (@BryanGivi) started a good twitter discussion about oral argument preparation process and tips. David Feder (@davidjfeder) had previously posted an image showing the Solicitor General's process for oral argument prep in cases before SCOTUS. The comments and responses to both provide some great practical thoughts from folks who regularly engage in oral argument preparation.
Gividen Twitter Discussion Link: https://twitter.com/BryanGivi/status/777896705161170944
David Feder Twitter Post: https://twitter.com/davidjfeder/status/777650613114974208
How Many Issues to Raise on Appeal
Mike Skotnicki (@MSkotnicki) tweeted a link to a 2014 blog post he wrote about determining how many issues to raise on appeal. In the post, he discusses striking the balance between raising every issue that you can possibly find and only raising one or two really good arguments, arguing in favor of raising "every argument deemed to have real potential to be found meritorious" and capable of passing the "'red face test' (would you blush raising the argument during questioning at oral argument?)"
Tuesday, September 20, 2016
It is time again for #TwitterTuesday. Today we are featuring some of the best folks to follow for Texas Appellate Practice.
The Texas Supreme Court (@OslerSCTX) is the Twitter handle to go to for information on cases, the Court, Justices, and other news pertinent to lawyers in the Lone Star State.
Between the official Texas Attorney General Twitter (@TXAG) and Ken Paxton’s person account (@KenPaxtonTX), news regarding some of the most high-profile appellate advocacy cases are just a few tweets away.
The State Bar of Texas Appellate Section (@TexAppOrg) is a must follow for appellate advocacy news and entertainment. Besides offering continuing education and other information to help enhance appellate practice in Texas, the Appellate Section has also been known to sponsor appellate memes contests to provide some much need humor amongst attorneys.
Follow TX Appellate Law (@TXAppellateLaw) for the latest “insight and commentary on Texas civil appeals and litigation,” compliments of D. Todd Smith (@dtoddsmith) and the Smith Law Group (@SmithLawGroup).
Finally, for some excellent writing tips and up-to-date information on the Fifth Circuit follow David Coale (@600camp).
If you follow the State Bar of Texas Appellate Section you can see the results of the Appellate Meme Contest. In interest of full disclosure, I came in second with this great meme:
The winning meme came from Jody Sanders of Kelly Hart & Hallman. It is epic:
Monday, September 19, 2016
Making workplaces more family friendly has been on the minds of people as different as Justice Ruth Bader Ginsburg and Republican presidential candidate Donald Trump. Last week Trump, with the help of his daughter, introduced child-care policies. According to the National Law Journal, last Wednesday Justice Ginsburg had a related issue on her mind when she "chided law firms for not taking more steps to improve the balance between home and work for lawyers with young children." Her remarks came in a conversation with former Solicitor General Ted Olson before the D.C. chapter of the Association of Corporate Counsel.
In fact, a recent Huffington Post blog post listed being a lawyer as the ten worst jobs for work-life balance. On their top ten best list--hairstylist and data scientists--skills that probably don't appeal to lots of attorneys (in fact the data scientist description mentioned the need for lots of math). However, a 2014 Forbes list of best work-life balance jobs included being a law clerk, a career that can involve balance if your judge is on board with the idea.
While work-life balance is not specifically an appellate law topic, it is certainly an issue that appellate attorneys must consider. Stringent briefing deadlines, preparatory moots, and traveling to courts across the country for arguments can make it difficult to live a balanced life. What are the best appellate positions for work-life balance? My guess would probably be government appellate work or, perhaps, some non-profits who engage in limited appellate litigation. According to an article last year in The Atlantic, there is a new set of law firms cropping up that are striving to provide more flexible schedules for men and women. Perhaps more big law firms will follow Justice Ginsburg's advice and the model of these other firms and offer more work-life balance options for their attorneys.
Friday, September 16, 2016
This is the first edition of a new regular feature here at the Appellate Advocacy Blog: The Weekly Roundup. Each Friday, we’ll post links to some of the best appellate practice content that we’ve come across in the past week. If you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
How Not to Argue About Extrinsic Evidence
600 Camp – a blog about commercial litigation before the U.S. Court of Appeals for the Fifth Circuit – had a brief post on September 12 about the Fifth Circuit’s unpublished opinion in SmithGroup JJR, PLLC v. Forrest General Hospital. The brief opinion addressed the importance of preserving at the trial level arguments to be raised on appellate review. The particular issue at hand involved the admission and use of extrinsic evidence in the interpretation of a contract.
Blog Post: 600 Camp Blog Post
Fifth Circuit Opinion: SmithGroup v. Forrest General Hospital Opinion
Hat Tip: @David Coale
The 5 Edits I Make Most Frequently
Mark Herrmann, formerly a partner at a leading international law firm and now responsible for litigation and employment matters at a large international company, authored a post at Above the Law this week recounting common editing moves in the writing of briefs. There is a wealth of good advice there, based on real experience.
Blog Post: Above the Law Blog Post
Hat Tip: Raymond P. Ward
A Worthwhile, Four-Day Appellate CLE Is Coming to Philadelphia
Howard Bashman (featured in this week’s “Twitter Tuesday” has written a great post discussing the annual Appellate Judges Education Institute Summit, an annual four-day program hosted by the judicial division of the ABA and the Southern Methodist Dedman School of Law. In a lot of ways it is like a big CLE over several days, featuring a large group of judges and appellate practitioners. This year’s event is being held in Philadelphia in November. If it fits your schedule, it’s a highly beneficial event to attend and participate in.
Blog Post: Bashman Blog Post
Hat Tip: @howappealing
Combination of Clement/Bancroft firm with Kirkland & Ellis
A big news item this week concerns the breaking news that Paul Clement and the Bancroft firm are going to combine with Kirkland & Ellis. This news was reported and discussed in a variety of places, including an article in the National Law Journal, where another prominent SCOTUS bar practitioner was quoted as calling it “the biggest shake-up in the Supreme Court bar since [Clement] left King & Spalding in 2011.”
Article: National Law Journal Article
Hat Tip: @tessadysart
Twitter Thread About Getting Into Appellate Practice
Jason Steed, who was recently mentioned in our Twitter Tuesday feature and who is an appellate practitioner who blogs and tweets about appellate practice (especially in the 5th Circuit), started a twitter thread and discussion about getting into appellate practice that has some great discussion and thoughts. You can follow Jason’s other posts about appellate practice at @5thCircAppeals.
Thursday, September 15, 2016
Do we really need the United States Supreme Court to be fully staffed with nine justices? Eric Segall at The Daily Beast says, "No." This answer is a direct affront to the traditional idea that having an uneven number of justices is good for cleanly resolving disputes. Avoiding a tie is the most important thing. Or is it?
The legal outcome when justices vote 4-4 on an issue is simply that the result from the court below stands, and no precedent is made. The case ends for the parties involved, but the effect of the ruling also remains restricted to that jurisdiction. In a day and age when politics seem to cloud every serious issue or casual conversation, this is certainly a new way to think about the operational power of the Court.
Segall says the benefits to leaving the Court with only eight seats filled would be that no one political party could have too much influence over the outcome of controversial cases. Historically, the Court has been criticized for leaning too far one way or the other. In doing so, the Court, which is ideally a non-political entity, since justices are not elected, might be able to maintain or regain some of the aura of a disinterested neutral body.
But leaving the Court in this status really only addresses our current highly politicized process, and assumes that half the Court will always be conservative and the other half liberal. The Court can still shift to having a majority of conservative or liberal leaning justices even if the total number of justices remains at eight. Of course, other political ideologies may also come to dominate as well.
Further, while 4-4 decisions put the brakes on creating law that could be too partisan leaning, extended periods of deadlocked opinions could also do more harm than good. The Supreme Court should be able to break ties in order to unify disparate approaches amongst the lower courts. Allowing 4-4 "sides" to continue could perpetuate the perceived political nature of the Court. This would ultimately only serve to fuel the existing divisiveness in the population and the erosion of public trust in our judicial system.
Wednesday, September 14, 2016
I received an email with the following hiring announcement that may be of interest to our readers:
Professor and Director of Trial Advocacy
SAMFORD UNIVERSITY’S CUMBERLAND SCHOOL OF LAW is seeking applicants to fill the position of Professor and Director of Trial Advocacy. The Director will oversee the law school’s Trial Advocacy program beginning in the 2017-2018 academic year. Ranked 14th in the nation by the U.S. News & World Report, Cumberland’s Trial Advocacy program demands a strong commitment to excellence from students seeking to develop exceptional advocacy skills. This faculty member will teach courses in Trial Advocacy and others subject to the candidate’s areas of interest and curricular needs. This is a tenure-track position. Applicants should have superior academic credentials and a demonstrated record of, or the potential for, excellence in teaching, legal scholarship and service. Prior teaching experience is advantageous but not required. The committee is particularly interested in candidates with significant trial and litigation experience, including the use of technology in the courtroom. Salary and rank are commensurate with the candidate’s experience and skills. Samford University is an Equal Opportunity Employer and does not discriminate on the basis of race, color, gender, national or ethnic origin, disability or age in its hiring. In furtherance of our strong institutional commitment to a diverse faculty, we particularly welcome applications from minorities, women, and others who enrich and diversify our faculty. Please forward a letter of interest, a resume or Curriculum Vitae, and a list of three references to: Professor Jill E. Evans, Cumberland School of Law, Samford University, 800 Lakeshore Drive, Birmingham AL 35229 or via email to firstname.lastname@example.org.
Tuesday, September 13, 2016
It is time for another #TwitterTuesday. This Tuesday we will highlight three appellate attorneys with blogs. By following these attorneys on Twitter, you can get easy access to their most recent appellate advocacy blog posts.
Jason P. Steed (@5thCircAppeals) is an “English prof turned appellate lawyer” who works at a firm based in Dallas, Texas. While not representing clients or writing articles for his website (Forma Legalis), he avidly tweets about criminal and civil cases, SCOTUS decisions, and the occasional political quip.
Howard Bashman (@howappealling) is an appellate attorney, author, and creator of “The Web’s first blog devoted to appellate litigation.” Bashman tweets about everything from constitutional law questions, intellectual property cases, and shifting trends in Circuit Court appointees.
Steve Klepper (@MDAppeal) is an appellate attorney in Maryland and the District of Columbia. While not serving as the Editor-in-Chief of the Maryland Appellate Blog, Klepper often tweets about politics, Maryland courts, and the current hot-button issues in law.
Monday, September 12, 2016
Last week Judge Stephen Dillard of Georgia Court of Appeals tweeted that his court is now live streaming oral arguments. The court's website contains a link that will take interested viewers to the live feed.
The issue of cameras in the courtroom has been divisive, especially at the United States Supreme Court level. Some justices feared that oral argument would become more about soundbites and less about the law. There is also concern about statements from justices being taken out of context and the public not understanding court procedures. So, while the audio from United States Supreme Court arguments is available, usually a few days after the argument is over, video cameras have not been allowed.
From an advocates standpoint, however, live streaming of oral arguments is a great learning tool. It allows an attorney to preview how different courts, and different judges or justices, operate without making a potentially costly trip to visit a particular court. It is also a great learning tool for students of appellate advocacy. Most law schools are not located near a federal appellate court, or the United States Supreme Court for that matter! Allowing students to watch arguments without the time and expense of traveling to a federal courthouse is a great tool for professors.
As it turns out, many state supreme courts offer live streaming of their oral arguments, including, Arkansas, Arizona, California, Colorado, Delaware, Indiana, Kansas, Kentucky, Maine, Michigan, Nebraska, New Jersey, Ohio, Oregon, South Carolina, West Virginia, and Wyoming. Some of these states, and other states, also include court of appeals arguments. At the federal level, the Ninth Circuit offers live streaming audio of appellate arguments. It seems likely that other federal courts will follow suit.
Tuesday, August 30, 2016
I (@TessaDysart) recently received an email from Professor Jennifer Romig (@JenniferMRomig) at Emory Law suggesting that this blog cover some of the great appellate advocacy discussions on Twitter. What a great idea! I asked my research assistant--Adam Burton (@AdamTylerBurton)--to help me put together a list of appellate lawyers and judges who are on Twitter. My hope is to post a few names each week on #TwitterTuesday.
Today, because it has been a busy day, we will cover a few judges to follow:
Justice Don Willett (@JusticeWillett) serves on the Supreme Court of Texas and is the self-proclaimed “Tweeter Laureate” of Texas. This former bull rider provides great (and sometimes hilarious) commentary on contemporary issues in the legal community. Justice Willett often shares articles for practicing attorneys, including one on Lawyer’s using Twitter!
Judge Stephen Dillard (@JudgeDillard) is a Vice Chief Judge for the Court of Appeals of Georgia. Judge Dillard provides fun commentary on appellate cases, support for Samford University football, and even offers advice to budding appellate attorneys. Judge Dillard recently used Twitter to announce that he was not interested in pursing an appointment to the Supreme Court of Georgia.
Judge Carla McMillian (@JudgeCarla) serves on the Georgia Court of Appeals. Judge McMillian often tweets background news and history of the court as well as information and opportunities for law students, particularly in the Peach State.
What judges do you follow on Twitter? We would love to add to this list!
Friday, August 26, 2016
Should judges and lawyers quote profanity in their opinions, briefs, and oral arguments? Zoe Tillman tackled this touchy issue in a recent article on Law.com. The article, aptly entitled "In Quoting Profanity, Some Judges Give a F#%&. Others Don't," Tillman includes several quotes from federal judges on the use of profanity in judicial opinions. Well some try to avoid it at all costs, others don't mind including it, especially if it is relevant to the case.
Profanity has become increasingly prolific in court opinions. Since 2006, the word “fuck” was quoted in approximately 445 federal appeals court opinions, according to a search of court records. That’s nearly as many as the preceding four decades combined.
While judges may have the freedom to quote profanity in an opinion, what should an attorney do in writing a brief or in oral argument? With respect to oral argument, one option is to call the court in advance and notify the court that you plan on using profanity. According to First Circuit Judge Bruce Selya, who was interviewed for the article, his court always gives permission when attorneys ask.
With respect to briefs, I think that calling the court to ask how these issues have been handled in the past is always a good option. It also doesn't hurt to do your homework and know the tenure of the court that you will appear before. Finally, ask yourself if it is truly relevant to use the profanity in the brief.
In support of the latter argument [that the Patent & Trademark Office arbitrarily enforces offensive trademarks], the team provides extensive lists of wildly offensive trademarks that the PTO has issued. Certainly many of the issued trademarks mentioned in the brief are so salacious, crass, sexist and/or racist that we hesitate, on this family-friendly blog, to list them here. Indeed, this opening brief is notable in being one of the most [not inappropriately] profanity-laden court filings we have ever seen, and is worth a look for that reason alone.
Monday, August 22, 2016
On December 1, 2016, several important changes to the Federal Rules of Appellate Procedure will go into effect (assuming Congress doesn't act in the interim). Among other things, these changes impact the length of federal appellate briefs, particularly those filed under the word limit listed in Rule 32(a)(7)(B). Under the current rule, briefs must not "exceed 30 pages," contain "more than 14,000 words," or contain "more than 1,300 lines of text" using a "monospaced face." Under the new rule, the first and third options remain the same; however, the word limit decreases to 13,000 words. Why?
Attorney John E. Roberts explains:
In support of the rule change, the Advisory Committee noted that the current 14,000-word limit resulted from an attempt in 1998 to convert the 50-page limit then in effect into a cap on words. At that time, the Committee concluded that briefs generally contained about 280 words per page — and 280 words-per-page times 50 pages equaled 14,000 words. Now, the Committee has revised its view and concluded that appellate briefs prior to 1998 actually had closer to 250 words per page, which in its view justified reducing the word limit to 12,500 words. Pushback from appellate practitioners resulted in the new limit being upped from 12,500 to 13,000 words.
The whole package of rules changes can be viewed here. Most of the changes do concern the length of filings. As one can imagine, the changes have been opposed by some practitioners and bar associations. As Roberts notes, "[t]he Rules do allow the Circuit Courts to extend word limits in particular cases or even in all cases by local rule." It will be interesting to see if that happens. Based on my experience, most federal appellate judges believe that even under the current rules briefs are just too long. While there is that occasional complex case that might warrant a brief length extension, that is the exception and not the norm.
Perhaps making the length of briefs a congressional campaign issue is the only option appellate practitioners have left!
Monday, August 15, 2016
With classes starting up again at law schools around the nation and the October 2016 Supreme Court term fast approaching, we could all use some levity. Thankfully, the Appellate Section of the State Bar of Texas is offering just the thing--an Appellate Advocacy Meme contest. Here is the information that I received about the contest:
Reminder to send in your submission to the Appellate Meme Contest:
There’s still time to participate in the Appellate Section's meme contest. Here’s a link to one meme generator site, but there are many such free apps and websites that make it easy to create your own appellate meme. Just find an appropriate photo, upload it, add your creative, funny, snarky, or “appealing” caption, and click “generate meme.” Then right click on your image and save it to your desktop.
All submissions are due by August 31 and should be sent to Jeff Levinger [email@example.com] and April Farris [Farris.firstname.lastname@example.org]. Winners will be announced at the Appellate Section annual meeting on September 8, 2016, during the first day of the Advanced Civil Appellate Practice Course in Austin.
I hope that the Appellate Section will share the winning meme with us!
If memes are not your thing, Scholastica is hosting a haiku contest on Twitter. They are asking people to tweet their best haikus about the law review submission process using the hashtag #LawRevHaiku.
Thursday, August 11, 2016
David Cleveland, the Founding Editor of the Appellate Advocacy Blog, has been appointed Associate Dean for Academic Affairs at Valparaiso University Law School. Congratulations David on your appointment! Due his increased duties, he has decided to step down as Managing Editor of the blog. I am honored to fill his shoes and thank him for all the work that he did in getting this blog off the ground. The editorial team here at the Appellate Advocacy Blog hopes that we can continue to keep you informed on current topics in the courts of appeal and appellate practice. We also hope that David will still contribute a post when he has time!
Monday, August 1, 2016
The Southeastern Association of Law Schools 2016 Conference kicks off on Wednesday, August 3, in Amelia Island, Florida. As always, Prof. Russell Weaver from the University of Louisville Brandeis School of Law has put together an excellent program.
There are several panels that may interest readers of this blog, including:
- A discussion group on Equality & Identity in a Post-Scalia World (Wednesday, Aug. 3)
- A discussion group on Justice Thomas after 25 years on the bench (Wednesday, Aug. 3)
- Supreme Court Update: Business, Administrative, Securities, Tax, and Employment Issues (Thursday, Aug. 4)
- Supreme Court Update: Individual Rights (Thursday, Aug. 4)
- The Scalia Legacy (Friday, Aug. 5)
- Understanding the Effects of Judicial Selection on State Courts (Saturday, Aug. 6)
- The First Amendment and the Changing Supreme Court (Sunday, Aug. 7)
I will be on a panel on Monday, August 8, called "The Road to Scholarship as Seen by Newer Professors," which was organized by Prof. Suzanne Rowe from University of Oregon School of Law. This panel is designed to offer advice to newer law professors on what to do (and of course what not to do) to establish a good scholarly agenda. SEALS typically offers great programming for new law professors and for those thinking about entering academia.
I encourage all those attending to check out the full program here.
Special recognition to Prof. Tim Zinnecker at Campbell for the most creatively named panel: "God created the world out of nothing in six days; I'm only the academic dean."
Wednesday, July 13, 2016
This week Supreme Court Justice Ruth Bader Ginsburg drew criticism for her negative public remarks about Republican presidential nominee, Donald Trump. In three separate forums, Justice Ginsburg made remarks about not wanting Trump to become president and saying he has a big ego. The New York Times Editorial Board chastised Justice Ginsburg for speaking out and listed the instances:
In the New York Times: “I can’t imagine what the country would be — with Donald Trump as our president,” joking that if her husband were alive, he might have said, “It’s time for us to move to New Zealand.”
In an interview with the AP: “I don’t want to think about that possibility [a Trump victory], but if it should be, then everything is up for grabs.”
And with CNN: Trump was “a faker,” who “has no consistency about him.” In that interview, with CNN, she added: “He says whatever comes into his head at the moment. He really has an ego.”
Not at all unexpectedly, Donald Trump responded via Twitter by questioning Justice Ginsburg’s competence and ending with a curt command - "resign!"
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!
Commenters have noted that Supreme Court justices are not held to the Code of Conduct as are other federal judges which states that judges should refrain from political activity. Judges should not "make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office . . . ." But Justices are subject to 28 U.S. Code § 455 which requires a judge to disqualify himself in any proceeding "where his impartiality might reasonably be questioned." Further, a judge should disqualify himself if “he has a personal bias or prejudice concerning a party . . . .”
Even Justice Ginsburg supporters have agreed that statements like this do put her in a precarious position should a replay of Bush v. Gore become necessary in this election cycle, or for any number of President Trump policy contests that are likely to come before the Court, if the volume of challenges is anything like those President Obama has faced. Further, even under a President Clinton, Justice Ginsburg's decisions may be perceived to be biased in favor of Hillary. Either way, her opinions could draw even more criticisms based on bias, with the evidence being provided by Justice Ginsburg's own words.
Others see no problem with Justice Ginsburg remarks:
Former Ginsburg law clerk Lori Alvino McGill, partner at Wilkinson Walsh + Eskovitz in D.C., defended the justice’s remarks.
“The Justice is human like the rest of us, and an American citizen,” McGill said. “That she uttered out loud some of her personal fears about a potential Trump administration does not cast doubt on her ability to be impartial, should a hypothetical ‘Bush v. Gore’-type case arise and come to the court.”
McGill added, “Any case that comes to the court concerning Trump v. Clinton would not be a referendum on who is the better candidate. It would present a legal question for the court to decide, and I have no doubt that Justice Ginsburg would faithfully execute her duty to decide that question without regard to whether she would give Mr. Trump her vote.”
In theory, it is possible that a judge may hold political views and still provide a judgment in accordance with the law. But, as humans, we inevitably, and probably unfortunately, instantly look for bias in controversial opinions. Lately, it doesn't even seem that a person’s opinion may be considered without an immediate allegation of bias - a personal attack upon that person’s character. This phenomenon has contributed to an increasingly polarized political environment, so much so that productive discussions become more rare every day.
Certainly it is true that judges are human too and invariably will hold personal political opinions. However the accepted norm has been that judges will refrain from stating such opinions in an overtly public way in order to maintain the appearance of impartiality. Perhaps the appearance of impartiality is just a lie we have come to accept as the norm, even though we value impartiality itself. When we hear such a pointed statement come from such a prominent Supreme Court Justice, it is something unusual and may cause us to reconsider the norm.
Would we be better off if our judges freely shared their political views? Would that be better for transparency within the judiciary or would it lead to greater distrust of the judicial system? What are the advantages or disadvantages of abandoning the long held tradition of judges refraining from entering the political arena?
Thursday, April 7, 2016
On March 31, George Mason University School of Law announced that it will be renamed in honor of the late Justice Antonin Scalia. According to a recent article in The National Law Journal by Tony Mauro, the announcement of the school's new name--the Antonin Scalia School of Law--and the possible acronyms stemming from that name set Twitter "abuzz." Mauro notes, however, that Justice Scalia was known for his dislike of acronyms, and he cautioned lawyers against using them in brief. George Mason will certainly want to avoid some of the acronyms associated with their new name as well!
On a more serious note, the issue of acronyms in appellate briefs is definitely a problem. Last April, The National Law Journal published another story about acronyms--this time reporting on a letter from the clerk's office for the United States Court of Appeals for the District of Columbia Circuit directing lawyers in a campaign finance case to make sure that "'avoid using acronyms that are not widely known.'" When I grade student briefs I am also frustrated by the use of acronyms. They cause me to pause and translate what the jumble of letters means, which interrupts the flow of the argument and makes the argument less persuasive. Acronyms can also reduce the emotional appeal of your brief by taking the focus off key terms. For example, "hate crime prevention act" has much more of an emotional appeal than HCPA. If you want to focus on the hateful, discriminatory nature of a crime committed, you are much better to write the term "hate crime," which brings the judge back to the purpose of the statute and its connection to the crime committed.
So, while Justice Scalia's legacy will live on in the newly named law school, let the school's acronym problem help us remember the excellent legal writing tips that Justice Scalia has given us--including avoiding acronyms!
Thursday, March 31, 2016
At the risk of shameful self-promotion, and fully aware that there are thousands of articles and blog posts out there providing advice on appellate advocacy practices, I thought readers here might enjoy a short article that I authored and that is available in the latest edition of the American Bar Association's Student Lawyer magazine. The article was written with law students as the intended audience, and with a somewhat informal tone requested by the editors. But the point of the article is to highlight lessons that students are taught in law school that have counterparts or are easily adapted to real world rules and tips for being more effective in writing appellate briefs.
The article is available electronically on the ABA website for law students: Student Lawyer Magazine article.
Sunday, February 14, 2016
As Jennifer has noted in her earlier post, yesterday our country lost a legal giant. Regardless of what one thinks of the substance of Justice Scalia's opinions, it is undeniable that he was a brilliant man who made a huge impact on how we think about and interpret the Constitution. He also contributed greatly to the field of advocacy. I plan to discuss both of those issues in a future post. Today, however, I would like to discuss the impact of Justice Scalia's death on the cases before the Court and its impact on our country as we are in the midst of a presidential election year.
Impact on the Court
There are two main questions to consider when evaluating the impact of Justice Scalia's death on the current Court. The first is what will happen in the cases that the Court has heard argument for and voted on in conference. The second is what will the impact be on the cases yet to be heard this term. The first question is complicated, and in the less than 12 hours since Justice Scalia's passing was announced, I have heard differing views. According to a post by Tom Goldstein of SCOTUSBlog, "Votes that the Justice cast in cases that have not been publicly decided are void." However, a friend of mine who clerked on the Court believes that if Justice Scalia signed on to the final opinion his vote would be counted. So, there could theoretically be a small number of opinions released that Justice Scalia signed on to, but it is unlikely. I expect that we will hear something from the Court on this issue.
So, what happens to the rest of the cases? Well, the Court will decide them with just eight members. There is certainly precedent for the Court deciding cases with just eight members--it happens when a Justice is recused. What happens then in those really controversial cases where the Court ties 4-4? In those cases, the decision of the lower court stands, unless the Court decides to rehear the cases when it has a full bench. Let's look briefly at how that would impact some of the big cases this term.
- Friedrichs v. California Teachers Association: Friedrichs involves a challenge to mandatory public sector union dues. The union won below at the Ninth Circuit.
- Fisher v. University of Texas at Austin: Fisher, up for the second time before the Court, concerns the constitutionality of the University of Texas's affirmative action policy. The Fifth Circuit upheld the University's policy.
- Whole Woman’s Health v. Hellerstedt: This case concerns a challenge to a Texas law regulating physicians who perform abortions and abortion clinics. The regulations were upheld by the Fifth Circuit.
- Little Sisters of the Poor Home for the Aged v. Burwell: This case concerns the regulatory accommodation to contraception mandate for religious nonprofit organizations. There are in fact seven consolidated contraception mandate cases before the Court. The religious nonprofits all lost below (D.C. Circuit, Third Circuit, Fifth Circuit, and Tenth Circuit). Interestingly, there are two Eighth Circuit cases not before the Court where the accommodation was struck down.
- United States v. Texas: In this case, Texas is challenging President Obama's executive action on immigration. Texas won below.
This is just a small sample of the close cases before the Court this term that will be impacted by Justice Scalia's death.
Impact on the Country
Justice Scalia was thought by many to be the leading conservative voice on the Court. By replacing Justice Scalia with a more liberal nominee, President Obama has the opportunity to change the direction of the Court for years to come. President Obama has already announced that he will nominate Justice Scalia's successor. But, in case you haven't noticed, we are in a presidential election year, and that makes things complicated. Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Charles Grassley have announced that they believe that the Senate should wait to confirm a nominee until after the presidential election.
Legal scholars on both sides of this debate have started releasing talking points and statistics on how much (or how little) the presidential election should impact the nomination and confirmation of Justice Scalia's successor. Amy Howe, also of SCOTUSblog, presents the "pro-confirm" argument, while Prof. Josh Blackman presents an interesting discussion of how divided government impacts the nomination and confirmation of a Supreme Court nominee in a presidential election year.
Both sides like to discuss the nomination and confirmation of Justice Kennedy. He replaced Justice Lewis Powell, who retired in June 1987. President Reagan first nominated Judge Robert Bork to the Powell seat, but Bork was rejected by the Senate. Judge Douglas Ginsburg was nominated next, but his nomination was ultimately withdrawn. Finally, Judge Anthony Kennedy was nominated in November 1987, and confirmed in February 1988, which was a presidential election year.
Finally, there is always the possibility of a recess appointment by President Obama. However, given the Supreme Court's recent decision in Noel Canning, which concerned when the Senate was properly in recess for purposes of a recess appointment, it seems likely that the Senate can keep itself in session enough to avoid any recess appointments.
Disclaimer: I have joined two amicus briefs in cases noted above. In Whole Woman’s Health v. Hellerstedt, I joined an amicus brief on behalf of Scholars of Federalism in support of Respondents. In Little Sisters of the Poor Home for the Aged v. Burwell, I joined an amicus brief on behalf of Constitutional Law Scholars in support of Petitioners.