Appellate Advocacy Blog

Editor: Tessa L. Dysart
Regent University School of Law

Friday, February 24, 2017

Appellate Advocacy Blog Weekly Roundup February 24 2017

WeeklyRoundupGraphic

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

LINKS:

Hernandez v. Mesa:

On Tuesday, the Supreme Court heard oral argument in Hernandez v. Mesa. The case has gained a fair amount of attention, particularly in light of political developments of the last few weeks.

SCOTUSblog article reviewing the oral argument. 

The case involves a Mexican family's attempt to hold a U.S. Border Patrol agent liable for the fatal shooting of their 15-year old son at the United States-Mexico border.  The family contends that their son was playing in the culvert along the border, was on the Mexico side of the border, and was shot across the border by a U.S. Border Patrol agent who was on the U.S. side of the border.

One issue is whether the Fourth Amendment can operate to protect a non-U.S. citizen injured outside of the U.S.  Another issues is whether a private federal action for damages can be brought by the family against a federal official.  Many commentators have speculated that Justice Kennedy may be the crucial vote, particularly with an eight-member Court.  He noted during the arguments that issues like this involving foreign affairs might be better resolved by the governments than the courts.

SCOTUSblog page with links to information about the case.

SCOTUS Blocks Execution Over Racial Bias:

On Wednesday, the Supreme Court blocked the execution of Duane Buck, a man convicted of murder in Texas.  The 6-2 ruling was the second ruling this term overturning a death sentence.  In this case, the Court held that the death penalty could not stand when it followed racially discriminatory testimony presented by the defendant's own attorneys  According to Chief Justice Roberts, the testimony "said, in effect, that the color of Buck's skin made him more deserving of execution."  The Court held that the testimony demonstrated prejudice.

New Circuit Split on Punitive and Compensatory Damages for ADEA Retaliation Claims:

As reported by the National Law Review this week, the United States Court of Appeals for the Fifth Circuit recently issued a ruling in which it held that punitive and compensatory damages are not available for retaliation claims brought under the federal Age Discrimination in Employment Act (ADEA).  The ruling, in Vaughan v. Anderson Regional Medical Center, creates a potential split between circuit courts of appeals because the United States Court of Appeals for the Seventh Circuit and the Equal Employment Opportunity Commission have both taken the position that such damages are available for retaliation claims under the ADEA.

Fourth Circuit Rules Assault Weapons Not Protected by Second Amendment

The United States Court of Appeals for the Fourth Circuit ruled this week that a Maryland law banning 45 kinds of assault weapons and imposing a 10-round limit on gun magazines was not violative of the Second Amendment.  The court called such weapons "weapons of war" and ruled that the Second Amendment does not extend to them.  The en-banc ruling was dissented from by one judge, who said that the majority's opinion went further than any other court "to eviscerate" the Second Amendment's guarantees.

February 24, 2017 | Permalink | Comments (0)

Tuesday, February 21, 2017

#TwitterTuesday--Appellate Hashtag

TwitterTuesdays

Normally on #TwitterTuesday we feature people, organizations, or journals to follow that tweet on matters related to appellate advocacy.  Today, however, I want to feature just one hashtag #appellatetwitter.  The #appellatetwitter hashtag is a great one to search if you are looking for the latest articles, jokes, and comments about appellate advocacy on twitter.  If you search at the right time, you may even find links to buy cool #appellatetwitter gear.

February 21, 2017 | Permalink | Comments (0)

Monday, February 20, 2017

Best Law Schools for Moot Court

The Winter 2017 edition of The National Jurist features a story on the law schools with the best moot court programs.  The story recognizes that the schools with the best programs are not always the highest ranked programs according to U.S. News & World Report.  Taking data from the University of Houston Law Center's Blakely Advocacy Institute, which ranks moot court programs yearly based on their performance in moot court programs, The National Jurist identified the top 20 law schools for moot court programs.  As The National Jurist notes, only two of the schools in the top 20 moot court programs are highly ranked by U.S. News--Georgetown and Columbia.  

Georgetown's moot court ranking is no surprise.  As a very large law school, it has be ability to send multiple teams to many competitions.  While schools must perform well at competitions to receive points in the Houston Law rankings, there is something to be said about sending teams to multiple competitions.  South Texas Houston, Florida Coastal, Texas Tech, and Chicago-Kent--four schools high in the moot court rankings--are also known to send out a large number of competition teams.

Given the ABA's increasing focus on practical skills, I hope that we will see more schools build successful moot court programs.  The list of the top 20 from the article, courtesy of the TaxProfBlog,  is below.

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February 20, 2017 | Permalink | Comments (0)

Tuesday, February 14, 2017

#TwitterTuesday--Judicial Resources

TwitterTuesdays

It is time again for our weekly #TwitterTuesday.  Today we will feature judicial resources.

Judicature @ Duke (@DukeJudicature) is a scholarly journal for judges published quarterly by the Duke Law Center for Judicial Studies (@DukeLaw). With articles from Editor in Chief Justice Don Willett (@JusticeWillett), Judge Stephen Dillard (@JudgeDillard), Paul Clement, and numerous others, the new spring edition is a great resource.

Gavel to Gavel (@GaveltoGavel) is an e-newsletter, blog, and tweeter from the National Center for State Courts (@StateCourts) that examines the impact of state legislatures on courts. The NCSC “is the organization courts turn to for authoritative knowledge and information.”

February 14, 2017 | Permalink | Comments (0)

Monday, February 13, 2017

More on the Ninth Circuit TRO Ruling--Telephonic Appeals & Splitting the Ninth Circuit

The news has been full of reports about the Ninth Circuit's refusal to grant a stay of the district court's temporary restraining order of President Trump's Executive Order on immigration. Jennifer and Dan both blogged on it last week. I want to take a slightly different look at the Ninth Circuit's denial--first by exploring the unique way in which the Ninth Circuit heard the case and then by looking at possible broader impacts for the Ninth Circuit.

The Ninth Circuit heard argument in the case by telephonic oral argument. I was pretty surprised the first time that I heard of courts using telephonic oral argument.  I never saw (or should I say heard) a telephonic argument when I was clerking for the Fourth Circuit, and it seems to defeat some of the purposes of oral argument. William Robinson, the Assistant Director of the Sixth District Appellate Program, wrote in 2007:

On this point, there is near-universal consensus: never argue by telephone if you can avoid it. Mark Greenberg describes telephone oral argument, which he has done three or four times in 25 years, as “like making out with gloves on,” and as discouraging conversation and engagement, which are the requisites of oral argument. Danalynn Pritz notes that there are many visual cues which one gets from the justices during an argument – e.g., a judge rolling his/her eyes – which you have to be there to see, and notes that with phone argument “you miss innuendo and subtlety that could make the difference as to whether you will ever get the judge on your side.”

Last year I argued an appeal which resulted in a reversal, and saw a lot of eyes being rolled while the AG, who argued by phone, was doing a particularly poor job responding to tough questions.

So, never argue by phone, unless you really have no choice, or the issue is so weak, or the court panel so bad, that it won’t make a difference. In which case, maybe you shouldn’t be arguing the case anyway.

I imagine that the argument was done telephonically because (1) it was an emergency motion and (2) the Ninth Circuit is geographically quite large--but in the age of Google Chat and FaceTime it seems like at a minimum a video conference could be used.

The geographic size of the Ninth Circuit brings me to my second point, which is the broader impact of the Ninth Circuit's decision.  As Jennifer noted in her post, President Trump has already tweeted his displeasure at the Ninth Circuit. I could see this ruling as providing more fuel to the fire to split the Ninth Circuit.  The Arizona senators have already introduced a bill to split the Ninth Circuit.  The bill would create a new 12th Circuit that is made up of Washington, Idaho, Montana, Nevada, Arizona, and Alaska.  Oregon, Hawaii, California, Guam, and the Northern Mariana Islands would remain in the Ninth Circuit. 

As a practical matter, I think that splitting the Ninth Circuit is not a terrible idea.  The current court is too big to even hold normal en banc hearings. However, the issue has been a political one in past Congresses.  No doubt it will continue to be highly politicized in this Congress.

February 13, 2017 | Permalink | Comments (0)

Friday, February 10, 2017

Appellate Advocacy Blog Weekly Roundup February 10 2017

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As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Ninth Circuit Hearing on Immigration Executive Order

The dominant appellate news this week concerned judicial proceedings about President Trump's Immigration Executive Order.  Last Friday, U.S. District Senior Judge James Robart of Seattle issued a nationwide restraining order blocking enforcement of the immigration ban, siding with the Washington  Attorney General.

The Department of Justice immediately sought appellate review of the order in the Ninth Circuit Court of Appeals.

On Tuesday, the Ninth Circuit heard argument from both sides, and broadcast the arguments live.  It provided an unusual opportunity for lay persons who have been following the substantial news coverage of the issues to hear the inner workings of the judicial system.  Late Thursday, the court declined to overturn the temporary restraining order.

Howard Bashman posted a series of links to recent coverage and discussion of the executive order and the judicial proceedings surrounding it at his How Appealing blog.

You can access the complete list of filings in the Ninth Circuit at the court's official website.

More on Judge Gorsuch

There will likely continue to be a lot of discussion of Judge Gorsuch, including his judicial philosophy, track record, etc.  And one aspect of his record that continues to garner quite a bit of coverage is his writing.  This past week, Ross Guberman had a couple of blog posts about Gorsuch's writing. Perhaps most exciting to #AppellateTwitter is that Guberman notes Gorsuch is #TeamOxfordComma.

Judge Gorscuh is a gifted writer. He's a great writer. But is he a "Great Writer"? Part One

Judge Gorsuch's Writing Style: A Cheat Sheet

The First Mondays podcast -- a must subscribe if you are a SCOTUS follower -- has been discussing Judge Gorsuch, as well. Last week, the podcast began a series to track the confirmation process of Gorsuch, including an interview with a former clerk and a discussion of some of Gorscuch's jurisprudence from the appellate court.

 

February 10, 2017 | Permalink | Comments (0)

Thursday, February 9, 2017

Ninth Circuit responds to TRO challenge

Readers of this blog are probably universally up to speed on the latest court happenings in Washington v. Trump regarding the January 27, 2017 Executive Order entitled Protecting the Nation from Foreign Terrorist Entry into the United States, so this report will not be news to many.

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The Ninth Circuit has upheld the stay issued from the District Court in Seattle. The state of Washington, joined by Minnesota, alleged the order violated protections against religious discrimination. The order from the Ninth Circuit can be found here. All other appellate documents and audio relating to this case can be found here

The Ninth Circuit stated:

The court rejected the administration's claim that it did not have the authority to review the president's executive order.

"There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the court said.

President Trump has already responded via Twitter:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

As the White House is considering options on what to do next, the media is puzzled over what that tweet means. The Government could appeal to the Ninth Circuit en banc, which would consist of a panel of nine or ten judges, including the judges in the panel issuing the order. The Ninth Circuit has twenty-nine judges in total. The Government would also opt for a direct appeal to the United States Supreme Court. Or the Government could let the ruling stand and allow the trial court process to move forward at a snail's pace. High in the halls of Justice many bright minds are gaming out the next move. What is your best guess of how this will play out?

February 9, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, February 7, 2017

#TwitterTuesdays--State SGs

TwitterTuesdays

Welcome to #TwitterTuesday for the week.  The news has been full of information about the new SCOTUS nominee and the legal challenges to President Trump's immigration executive order.  Since state SGs play an important role in checking the president and preserving federalism, today we will feature a few state SGs to follow on Twitter:

Stuart Raphael (@sar3018) is currently serving as the fifth Solicitor General of the Commonwealth of Virginia under Attorney General Mark Herring (@MarkHerring). Raphael frequently tweets about his work, including the current controversy over President Trump’s executive orders.

Elbert Lin (@ElbertLin) is the West Virginia Solicitor General. Follow him for information relating to his appellate work for the Attorney General of West Virginia (@WestVirginiaAG) and news regarding courts and the law more generally.

In the neighboring Buckeye State, Eric Murphy serves as the Solicitor General for Ohio Attorney General (@OhioAG), Mike DeWine.

Carolyn Shapiro (@cshaplaw) just ended her stint as the Solicitor General of Illinois. Shapiro continues to teach at Chicago-Kent College of Law (@ChicagoKentLaw) and serves as co-director for the school’s Institute on the Supreme Court of the Unites States.

February 7, 2017 | Permalink | Comments (0)

Sunday, February 5, 2017

Neil Gorsuch--The Writer

On Friday, Dan posted a few articles about Supreme Court nominee Neil Gorsuch. I want to elaborate on the last set of articles--focusing on Judge Gorsuch as a writer. Justice Scalia was certainly known for having a distinct, sometimes caustic, style of writing.  Justice Kagan is known for trying to make her opinions accessible to the intelligent non-lawyer. So, what kind of writer would a Justice Gorsuch be?  

As Dan noted, the Wall Street Journal has an article discussing Judge Gorsuch's writing style. If you can't get past the WSJ paywall, the ABA Journal has pulled out some of the highlights in this article.  According to the WSJ & ABA Journal, Judge Gorsuch tries to write opinions that are "accessible" and enjoyable to read.  Apparently, he has "elevated the recitation of facts 'to a form of wry nonfiction.'"

Perhaps because I have a pre-teen nephew, my favorite example in the articles of Judge Gorsuch's catchy writing style comes from a July 2016 dissent.  The Washington Post describes the case in this manner:

On May 19, 2011, a physical education teacher at Cleveland Middle School (CMS) in Albuquerque named Margaret Mines-Hornbeck sought assistance over her school-issued radio. A student, referred to as F.M. in the case to shield the child’s identity, was a 13-year-old seventh grader who, the court order said, “had generated several fake burps, which made the other students laugh and hampered class proceedings.” He was arrested by a school police officer for disrupting the education process and suspended from school.

The boy’s mother sued two school officials and the police officer, claiming her son had been subject to unlawful arrest and excessive force. The appellate court upheld a decision by district court judges in support of the school officials and the officer.

Judge Gorsuch started his dissent with these words:

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a  police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.

The Washington Post contains the remainder of his dissent, where he explains how his colleagues were wrong on the law.

Judicial philosophy and politics aside, the Court needs more justices who will promote good (interesting) legal writing. It looks like a Justice Gorsuch would fall into this category. 

 

 

 

February 5, 2017 | Permalink | Comments (0)

Friday, February 3, 2017

Appellate Advocacy Blog Weekly Roundup February 3 2017

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As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

The dominant appellate news this week was President Trump's announcement of his nominee for the U.S. Supreme Court seat vacated by the death of Justice Scalia.  On Tuesday, Trump announced that he was nominated Judge Neil Gorsuch, of the 10th Circuit Court of Appeals, to fill the vacancy.  A quick and short bio of Gorsuch:

He is a strict adherent of originalism, Scalia’s belief that the Constitution should be interpreted based on the intent of the Founders. He also has much of Scalia's flair as a writer.

Gorsuch has the type of academic credentials common to high court justices: Columbia, Harvard Law, even Oxford. He clerked for Justices Byron White and Anthony Kennedy, then practiced law in Washington and did a stint at the Justice Department.

Because Gorsuch's nomination was the dominant appellate news of the week, this week's edition of the Weekly Roundup brings you several items to help familiarize yourself with him:

Gorsuch on Liberals and Litigation:

Much of the "discussion" this past week has been on what will happen during Gorsuch's confirmation hearings.  Will Democrats act to hold up the confirmation on principle grounds, asserting some sort of payback for Congressional Republicans refusing to hold a hearing on Merrick Garland throughout the past year?  Will Republicans use the "nuclear option" to prevent a filibuster?  Will Democrats allow the process, but challenge Gorsuch on his ideologies?  Will Democrats decide not to push the battle on this confirmation, perhaps saving the possibility of doing so on a later nomination?  All of that remains to be seen, but it's certain that if and when confirmation hearings begin, there will be a great deal of questioning and discussion of ideologies.

Gorsuch himself has written about the topic in an article that, perhaps, gives a little insight into what may come during his own confirmation hearings in a February 2005 article in the National Review.  In it, he wrote

At the same time, the politicization of the judiciary undermines the only real asset it has — its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.

Gorsuch's Track Record:

CNN provided a write up that highlighted a number of Gorsuch's key rulings since joining the federal appellate bench, which might provide some insight into what expect from him on the high court.  

In the Hobby Lobby case he joined the opinion ruling that federal law prohibited requiring closely held corporations to provide contraceptive coverage for employees as part of employee insurance plans, and would have gone further and allowed individual owners of the company to challenge the mandate.  Gorsuch has been a defender of religious freedom in other contexts, as well, including prisoner rights.

One topic that has garnered some recent discussion is "Chevron deference" given by courts to administrative interpretations of regulations.  In that context, Gorsuch has been a critic and has urged reigning in the deference, perhaps a sign of changes to come in the Supreme Court's jurisprudence.

Interestingly, Gorsuch has been critical of legislative grants of authority to the executive branch, advocating limits on executive power and a stricter separation of legislative and executive functions than existing Supreme Court jurisprudence has required.  The Wall Street Journal has also written about this portion of Gorsuch's jurisprudence.

Democrats who are looking for silver linings about the possibility of a Justice Gorsuch on the Supreme Court might also check out a Slate essay that notes that Gorsuch "has shown flickers of humanity" in the area of criminal justice, including a case in which he dissented from an opinion upholding immunity for school police officers who handcuffed a student accused of being disruptive by burping in class.

Judge Gorsuch from a Legal Writing Standpoint:

Back in March, Megan Boyd had a blog post about Gorsuch's writing.  She noted that Gorsuch writes with rhetorical flair, but emphasized his use of powerful transitions, providing several examples. 

The Wall Street Journal has also written about Gorsuch's legal writing, noting that he has turned his legal opinions into "a form of wry nonfiction."

February 3, 2017 | Permalink | Comments (0)

Tuesday, January 31, 2017

#TwitterTuesday--Legal Writing

TwitterTuesdays

Happy #TwitterTuesday.  Just two more days until the SCOTUS pick.  While we wait to see if the ever tweeting Justice Willett will have to give up his Twitter account, let's highlight a few legal writing resources on Twitter:

The Legal Writing Institute (@LWIonline) is an “organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources establishing forums to discuss the study, teaching, and practice of professional legal writing.”

Alexa Chew (@aznchew) is a teaches an assortment of legal writing and advocacy courses at the University of North Carolina School of Law (@unc_law) and has co-authored a book on legal writing.

Legal Communication & Rhetoric: JALWD (@JALWD),  a publication of the Association of Legal Writing Directors, is a journal focusing on the study of professional legal writing for practitioners and law students alike.

January 31, 2017 | Permalink | Comments (0)

Monday, January 30, 2017

The Rise of the State Solicitor General

This past week, the law school where I teach hosted West Virginia Solicitor General Elbert Lin for a talk to the students.  SG Lin is a graduate of Yale Law.  He has an impressive resume--DOJ Federal Programs, SCOTUS clerkship, BigLaw, and the first solicitor general for the state of West Virginia.

SG Lin's talk covered the rise of state SGs across the country and the different roles they play.  I was surprised to learn that in 1909 there was only 1 state solicitor general (New York).  In 1987, there were only 8 states with a solicitor general.  Today 41 states have a solicitor general, and 6 additional states have a person whose role is functionally equivalent to a solicitor general.  SG Lin attributed the rise to a number of things, including the prominence of now Sixth Circuit Judge Jeffrey Sutton, who served as Ohio's solicitor general in the 1990s.

According to SG Lin, the state SG offices vary in the duties performed.  For example, some state SGs are political, while other serve in a career role.  Some offices handle all appeals, some just the important ones, and others divide on civil v. criminal appeals.

SG Lin sees the state SGs continuing to play an important role in their states and in the country as a whole.  For example, they can serve as a check on the administration by reinforcing federalism principles.  We have certainly seen this with respect to Texas's challenge to former-President Obama's immigration policies.  I imagine there will be no shortage of states checking President Trump's actions as well.

Another interesting factor that SG Lin mentioned was that state SGs can help level the playing field for states at the appellate level.  There is increasingly a very specialized appellate bar, particularly at the Supreme Court level.  Hiring an SG with appellate experience, like Lin, can give the state a leg-up in brief-writing and advocacy.

I really appreciate SG Lin coming to campus and speaking to our students.  His talk was informative and engaging.  

January 30, 2017 | Permalink | Comments (0)

Friday, January 27, 2017

Appellate Advocacy Blog Weekly Roundup January 27 2017

 

WeeklyRoundupGraphic

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

SCOTUS Rejects Texas Voter ID Appeal

The U.S. Supreme Court declined an appeal by Texas seeking to revive voter-identification requirements in Abott v. Veasey.  In 2016, the 5th U.S. Circuit Court of Appeals ruled that the Texas law imposing the requirements was violative of federal law barring racial discrimination in elections.  On Monday, SCOTUS declined to hear Texas' appeal.  Chief Justice Roberts issued a statement, noting that litigation on the matter continues in the lower courts and that all the legal issues presented can be raised on appeal at a later time.

More:

Reuters

SCOTUSBlog

Constitution Daily Blog

 Microsoft Victory in Warrant Case Upheld

In July, Microsoft won a victory in Microsoft v. U.S. when the United States Court of Appeals for the Second Circuit RULED that Microsoft could not be forced to turn over emails stored on an overseas server when the emails were sought for a domestic narcotics case.  Microsoft was the first US company to challenge a domestic search warrant seeking data being stored abroad.

This week, the Second Circuit let stand that July decision in a 4-4 decision refusing to reconsider the prior ruling.

More:

Reuters

Jurist

 Supreme Court Short List Narrows

According to CBS News, sources close to President Trump indicated this week that Trump's short list of potential nominees to fill Justice Scalia's vacancy has been trimmed to two names:  U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman.  Trump is expected to announce his nominee next week.

More:

Above The Law (information on Gursuch and Hardiman, as well as Pryor)

SCOTUS Justices' Gendered Interactions

Adam Feldman and Rebecca Gill have a paper discussing the interactions of SCOTUS justices during oral argument.  According to the abstract, in the paper the authors examined whether gender dictates the nature of interactions between justices during oral arguments, when they are vying with one another to interact with attorneys and with each other.  They concluded that male justices interrupt female justices at a significant level, while the opposite does not hold true.

Legal Writing Tip:  Avoid Use of Intensifiers

Joe Fore posted a link on Twitter this week to a series of blog posts by Wayne Scheiss.  The series looks at the overuse of intensifiers in legal writing, notes why it is problematic, and provides tips for avoiding overuse.  Clearly, this is good advice.

 

 

January 27, 2017 | Permalink | Comments (0)

Thursday, January 26, 2017

President Trump will make his Supreme Court nomination next week

Nearly one year after the death of Justice Scalia, the U.S. Supreme Court is finally closer to returning to a full panel of nine justices. While President Obama did nominate Judge Merrick Garland to fill the spot, election year politics doomed his nomination from proceeding as usual. 

Now President Trump reports there are three judges he is considering

Neil Gorsuch, Colorado, 10th Circuit. At 49 the youngest of the group, Gorsuch is the most natural replacement for the late Justice Antonin Scalia. He is a strict adherent of originalism, Scalia’s belief that the Constitution should be interpreted based on the intent of the Founders. He also has much of Scalia's flair as a writer.

Gorsuch has the type of academic credentials common to high court justices: Columbia, Harvard Law, even Oxford. He clerked for Justices Byron White and Anthony Kennedy, then practiced law in Washington and did a stint at the Justice Department.

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William Pryor, Alabama, 11th Circuit. He’s been the conservatives’ justice-in-waiting for years, and at 54, the former Alabama attorney general comes straight out of central casting. Likely in his corner: U.S. attorney general-designate Jeff Sessions, who preceded Pryor as Alabama’s top law enforcement official.

But Pryor is controversial: He once criticized the Supreme Court’s 1973 decision in Roe v. Wade, which legalized abortion, as “the worst abomination of constitutional law in our history.” And he even has taken flak from conservatives concerned about a ruling he joined in favor of transgender rights.

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Thomas Hardiman, Pennsylvania, 3rd Circuit. A dark horse among the finalists, Hardiman, 51, isn’t unfamiliar to Trump. He sits on the same U.S. Court of Appeals for the 3rd Circuit as the president’s sister, Maryanne Trump Barry.

Hardiman’s career as a judge is marked by law and order. He has maintained a solidly conservative record on issues involving guns, searches, police officers and prison guards – more so than Scalia, who often sided with criminal defendants against overzealous prosecutors. In that sense, Hardiman is much like Justice Samuel Alito, who came from the same appeals court.

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The process for confirmation requires only a simple majority of Senators' votes, however, 60 votes would be needed to cease debate and invoke cloture. Currently Republicans have only 52 senators, so they would need the help of Democrats to allow the vote to go forward if a filibuster was invoked. It is a safe bet to say that confirmation of any nominee is going to be an arduous process since the Democrats have pledged to fight Trump every step of the way.

In response, President Trump has threatened to remove the filibuster rule (using the nuclear option), a shredding started by Senator Harry Reid who led Democrats to remove the 60 vote rule for lower court nominees. He used Republican obstructionism as his justification for weakening the rule. The Republicans may now find Reid's argument persuasive if Democrats engage in the same tactics. 

January 26, 2017 | Permalink | Comments (2)

Tuesday, January 24, 2017

#TwitterTuesday--From Sea to Shining Sea

TwitterTuesdays

It is a new week, a new president, and a new #TwitterTuesday.  While we all wait for a SCOTUS nominee, here are some practitioners across this great nation that you can follow on Twitter:

Emil J. Kiehne (@EmilKiehne) is an appellate lawyer at Modrall Sperling. Besides tweeting about the latest appellate news from the Supreme Court and the Court of Appeals for the Tenth Circuit, Kiehne publishes the New Mexico Appellate Law Blog.

Jonathan Eisenman (@JHEisenman) is an appellate attorney at Greines, Martin, Stein & Richland focusing on civil appeals and writs. His current work focuses on appeals in California state court, the Ninth Circuit Court of Appeals, and the United States Supreme Court.

Neal Katyal (@Neal_katyal) is a Supreme Court lawyer at Hogan Lovells in Washington, D.C. The former Acting Solicitor General of the United States has argued over 30 cases before the Supreme Court and already has nearly half a dozen arguments set before the Court this term alone.

January 24, 2017 | Permalink | Comments (0)

Friday, January 20, 2017

Appellate Advocacy Blog Weekly Roundup January 20 2017

WeeklyRoundupGraphic

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Supreme Court Nomination Podcast

"Advice & Consent," a Supreme Court Nomination Podcast, has a new podcast including some in depth discussion of the people on President-Elect Trump's short list to fill the open Supreme Court seat.  The podcast is from a liberal perspective, but provides some good insight and information about the potential nominees that is likely of interest to appellate court watchers.  You can also follow @scotuscast on Twitter for future podcasts.

President-Elect Meets with Pryor

President-elect Trump met with Judge William Pryor, one of the judges on the short list to fill Justice Scalia's vacant seat. ABC reported on the meeting.

The End to Chevron Deference?

The House of Representatives passed a package of bills midweek this week concerning regulatory agencies.  One of the bills combined various provisions from previous bills to repeal the "Chevron deference" standard of courts deferring to agency interpretations of statutes.  Law360 has a good overview of the news HERE.  Hat-tip to Jason Steed.

SCOTUS Considers Trademark Battle

The Supreme Court heard a trademark case this week in which an Asian-American rock group called, "The Slants," challenges federal trademark law barring registration of marks that are disparaging to groups and individuals.  Attorneys on both sides faced heated questioning during the case.  NPR provides a summary of the argument HERE.

 

January 20, 2017 | Permalink | Comments (0)

Tuesday, January 17, 2017

#TwitterTuesday--A Great Advocate & Law Professors

TwitterTuesdays

Before I get to #TwitterTuesday for today, I wanted to take a moment to comment on Martin Luther King, Jr. Day.  Yesterday we remembered Dr. King and his great contributions to civil rights in this country.  While Dr. King was not an attorney, he was a superb writer and gifted speaker.  Two of his more famous works demonstrate this quite well--his "I have a dream" speech and his "Letter from a Birmingham Jail," where he provided a cogent defense of  his actions supporting the civil rights movement.  All law students, and lawyers, should read Dr. King's work!

Now on to #TwitterTuesday.  Today, I want to feature legal writing professors.  There are several out there who tweet frequently on appellate advocacy topics (some of whom blog here!).  Here are a few law professors to follow:

Joe Fore (@Joe_Fore) is currently a Legal Analysis, Researching, and Writing professor at the University of Virginia School of Law (@UVALaw). This avid Duke Blue Devils fan has also taught a class on Advanced Oral Advocacy and often tweets about interesting trends and the latest news regarding legal writing.

Jennifer North is a legal writing professor at Charleston Law (@CharlestonLaw). In addition to grading all those Legal Analysis, Research and Writing papers, Professor North writes articles relating to appellate practice for the Appellate Advocacy Blog.

Megan Boyd (@LadyLegalWriter) is a legal writing professor at Georgia State University College of Law. In addition to teaching, Boyd has a blog, the Lady Legal Writer, with an assortment of articles to help with the writing process.

Daniel Real (Daniel_L_Real) is a professor at Creighton Law (@CreightonLaw). His tweets focus primary on ways to improve written and oral advocacy. Professor Real writes The Weekly Roundup for the Appellate Advocacy Blog.

Jennifer Romig (@JenniferMRomig) is a legal writing professor at Emory Law (@EmoryLaw). In addition to teaching, Professor Romig writes a blog called Listen Like a Lawyer (@ListenLikeaLwyr) which is an excellent resource for law students and lawyers alike.

January 17, 2017 | Permalink | Comments (0)

Friday, January 13, 2017

Appellate Advocacy Blog Weekly Roundup January 12 2017

WeeklyRoundupGraphic

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Potential SCOTUS Nominee Profile:

SCOTUSBlog had a profile summary of one of President-Elect Donald Trump's potential nominees to fill the vacant seat on the Supreme Court.  Judge William H. Pryor of the U.S Court of Appeals for the 11th Circuit is considered by many to be the front-runner for the open seat.  

Twitter Discussion About Typeface Conventions for Emphasis:

Jennifer Romig, of listenlikealawyer.com, pointed in a Twitter post this week to an April 2016 blog post by Jason Steed, of Bell Nunnally & Martin, about whether it is preferable to use italics, or bold, or boldface italics to emphasize text.  Steed had taken a Twitter poll, in which italics won by a landslide, with bold slightly edging boldface italics as the next preference.  Steed argued in the blog post that this was a bit surprising, inasmuch as italics is already used as a convention for a variety of other aspects of legal writing, such as citations and foreign-language terms, while bold is rarely used for anything else. Romig's Twitter post also included responses from Michael Skotnicki, of the Briefly Writing blog, pointing to a couple of his blog posts about the value of using less typeface convention for emphasis instead of more and about alternative ways to place emphasis on important information.

 SCOTUS Hears Case on Disabled Children and Public Schools:

The Supreme Court heard argument this week in a case concerning the level of education support that must be provided to disabled children in public school systems.  The case specifically dealt with the concept of "free appropriate public education," guaranteed to disabled children under the Individuals with Disabilities Education Act (IDEA). The case is Endrew F. v. Douglas County School District

Read More:

SCOTUSBlog 

LA Times

Constitution Center Blog

Unwritten Opinions:  Oregon Court of Appeals:

The Oregon Court of Appeals -- like other state appellate courts -- disposes of a percentage of its cases in decisions that are affirmed without opinion.  Oregon is somewhat unusual in that a relatively high percentage of its business is done through "decisions affirmed without opinion" or AWOPs -- roughly 65 percent, in fact.  According to the chief judge, Rick Haselton, a big reason for the high percentage in Oregon is the lack of people to write all of the opinions that would be needed to bring the rate down. An interesting article discussing the situation, as well as some possible remedies, appeared at Investigate West, a nonprofit journalism watchdog.

January 13, 2017 | Permalink | Comments (0)

Tuesday, January 10, 2017

#TwitterTuesday--Appellate Journals

TwitterTuesdays

Happy #TwitterTuesday.  Perhaps one of your goals this year is to read more.  Well, here are a few appellate advocacy journals that you can follow:

Suffolk Law School (@Suffolk_Law) publishes the Journal of Trial and Appellate Advocacy. The Journal provides not only scholarly research, but also practical wisdom on current litigation issues.

The Journal of Appellate Practice and Process by the William H. Bowen School of Law (@Bowenlaw) publishes articles “exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.”

The American Bar Association Section of Litigation (@ABALitigation) publishes the Appellate Practice journal four times a year. With article topics ranging from the Supreme Court to building an appellate practice, the journal has a wealth of knowledge for appellate advocates.    

January 10, 2017 | Permalink | Comments (0)

Monday, January 9, 2017

Best Appellate Movies

It was a snowy/icy/cold weekend in Virginia.  In fact, I saw something on Sunday that said there is snow on the ground in every state except Florida. Sounds like perfect weather for a movie.

There are several lists out there on the best legal movies, including one by JD Journal and another by the ABA Journal. Most of the greats, however, are courtroom dramas.  Think about it, To Kill a Mockingbird, A Few Good Men, My Cousin Vinny--all courtroom dramas.  

So, what are the best Appellate Legal Movies.  I have combed the lists and offer these suggestions (with help from this list by Missouri appellate attorney Jonathan Sternberg):

  1.  Reversal of Fortune (1990).  This movie is on the ABA Journal list and focuses on the true story of Claus von Bulow who was accused of the attempted murder of his wife. Alan Dershowitz and a group of Harvard Law students helped with von Bulow's defense.
  2. Amistad (1997).  This movie makes all of the lists and follows the 1841 case about a slavery ship uprising.
  3. The People vs. Larry Flynt (1996). In addition to following the rise of Larry Flynt, this film follows the famous First Amendment case, ultimately decided by the Supreme Court, Hustler Magazine v. Falwell.
  4. Bridge of Spies (2015).  Sternberg had this movie on his list.  I had forgotten that the movie briefly covered Rudolf Abel's appeal to the U.S. Supreme Court.  This really was an interesting movie, even though the legal aspect was pretty minor.
  5. The Pelican Brief (1992). Every legal movie/book list needs to include at least one John Grisham book.  This is a great film that qualifies under the appellate category given the fact that it involves the murder of Supreme Court justices.

I am sure that I have missed some.  What is your favorite appellate movie?

January 9, 2017 in Film | Permalink | Comments (1)