Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, July 25, 2017

#TwitterTuesday--Legal News

TwitterTuesdays

For the most up-to-date appellate happenings, follow these legal news sources:

Appellate Law360 (@AppellateLaw360)--I enjoy my daily Law360 emails, full of great news stories.  The Appellate Law360 twitter account covers "late-breaking developments in appellate litigation."

National Law Journal (@TheNLJ) aptly describes itself as "[p]roviding in-depth coverage of the issues that mean the most to the legal community."  I couldn't say it better myself!

Bloomberg BNA (@BloombergBNA)--Bloomberg and its team of editors and correspondents cover a wide array of issues, including legal/appellate matters. Their SCOTUS reporter, @KimberlyRobinson, is top notch!

 

July 25, 2017 | Permalink | Comments (0)

Monday, July 24, 2017

Law360 Top Appellate Attorneys Under 40

Last week Law360 named its "Rising Stars for 2017," which features accomplished attorneys under the age of 40 who have achieved significant career accomplishments in their respective fields.  The list is broken up into 35 areas, one of which is appellate.  The four "rising [appellate] stars" are listed below:

Paul W. Hughes--Paul Hughes is a partner at Mayer Brown in the firm's Supreme Court & Appellate practice.  He has argued twice before the U.S. Supreme Court and has argued before several of the federal circuit courts.  He also lectures at Yale Law, where he is the co-director of Yale's Supreme Court Advocacy Clinic.  He is a graduate of Yale Law School and clerked on the Fourth Circuit for Judge Diana Gibbons Motz.

Erin E. Murphy--Erin Murphy is a partner at Kirkland Ellis, having come over to Kirkland with the Bancroft crew.  She has argued three cases in front of the U.S. Supreme Court and has also argued before most of the federal circuit courts.  She is a graduate of Georgetown Law, and she clerked for Chief  Justice John G. Roberts, Jr., and Judge Diana Sykes.

Thomas G. Saunder--Tom Saunders is a partner at WilmerHale.  He has argued (and won) two cases before the U.S. Supreme Court.  Like the others on this list, he has also argued  before several federal circuit courts.  He is a Yale Law graduate, and he clerked for Justice Ruth Bader Ginsburg and Judge Pierre Leval.

Adam G. Unikowsky--Adam Unikowsky is a partner at Jenner & Block.  He has won five cases before the U.S. Supreme Court, arguing at least 4 of them.  A 2007 graduate of Harvard Law, he left Jenner in 2010 to clerk for Justice Antonin Scalia.  He also clerked for Judge Douglas Ginsburg on the D.C. Circuit.

Congratulations to the rising stars!

July 24, 2017 | Permalink | Comments (0)

Tuesday, July 18, 2017

#TwitterTuesday--Utah

TwitterTuesdays

Looking to follow appellate law in Utah?  Here are a few Twitter accounts to follow:

Ken Reich (@LexUtah) is a Salt Lake City practitioner.  He tweets on a variety of issues, including decisions of the Utah Supreme Court.  His primary area of focus is business law.

The Utah State Bar (@UtahStateBar) tweets out information useful to all state bar members, including information about the Utah Court system and judicial openings.

Last, but certainly not least, follow my law school friend Aaron Nielson (@Aaron_L_Nielson), a professor at BYU Law, for information on federal courts and administrative law.  Aaron also blogs for the Yale Journal on Regulation, which you can follow @YaleJREG.

 

July 18, 2017 | Permalink | Comments (0)

Monday, July 17, 2017

Should SCOTUS Justices Have a Mandatory Retirement Age?

According to Law360, Seventh Circuit Judge Richard Posner (age 78), advocated for mandatory judicial retirement ages in a recent interview published by Slate.  Judge Posner suggested setting the retirement age at around 80 years old, saying "[t]here are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians."  Currently, Justice Kennedy is 80 years old (he turns 81 in just a few days--happy birthday Justice Kennedy), and Justice Ginsburg is 84.

The notion of a mandatory judicial retirement age is not new.  In fact, many states have such rules, although most states set the age at 70.  The problem with a federal judicial retirement age is that Article III of the Constitution states judges "shall hold their Offices during good Behaviour," which has been read to confer life tenure on federal judges.  Article III, however, is not an obstacle for Judge Posner who, according to the article, reads the clause "as simply meaning judges can be fired at any age for bad performance."

Interestingly, there have been efforts to increase state mandatory judicial retirement ages in recent years, due in part to the fact that life expectancies are increasing.  These efforts, however, have largely been rejected by voters in the past. In fact, Oregon voters recently rejected an effort to remove the mandatory judicial retirement age of 75.  On the other hand, last year Pennsylvania voters, by a rather narrow margin, approved an increase in the mandatory retirement age from 70 to 75.  

 

July 17, 2017 in Appellate Court Reform, Federal Appeals Courts, State Appeals Courts | Permalink | Comments (0)

Tuesday, July 11, 2017

#TwitterTuesday--Nevada

TwitterTuesdays

In keeping with my west coast focus, today's #TwitterTuesday features Twitter accounts to follow out of the great state of Nevada.

Jordan T. Smith (@NevadaAppellate)--According to his profile, Jordan Smith is an appellate litigator in Nevada.  He was "[r]ecognized by Best Lawyers as the 2016 Appellate Practice Lawyer of the Year in Las Vegas."  He tweets on Nevada Supreme Court opinions and other appellate items of interest.

State Bar of Nevada (@nevadabar)--The State Bar tweets on a host of topics, including legal writing, important legal news in the state, and developments in appellate law.

NV Attorney General (@NevadaAG)--This staff run account tweets out news from the AG's office, including the office's litigation efforts.

 

July 11, 2017 | Permalink | Comments (0)

Monday, July 10, 2017

The Chief's Advice to Young Graduates

Chief Justice John Roberts made headlines last week.  It wasn’t a hot-button 5-4 opinion at the end of the SCOTUS term that caught the media’s attention this year.  But, it was a piece of writing that the Washington Post called “[t]he best thing Chief Justice Roberts wrote this term.”  So, what was it?  Well, it was a graduation speech delivered to the graduating class at Cardigan Mountain School, where the Chief’s son Jack was graduating ninth grade.

It is hard to believe that the Chief’s son is graduating ninth grade.  I remember seeing him “dance” at the press conference in July 2005, when President Bush announced John Roberts’ nomination to the SCOTUS.  You can watch the video here.  Apparently, young Jack was impersonating Spiderman.

What makes this speech so great? It is certainly funny (see this line:  “You’ve been at a school with just boys. Most of you will be going to a school with girls. I have no advice for you.”). But that is not what makes the speech stand out.  What makes the speech so unique, and what has drawn attention, is the section of the speech where Chief Justice Roberts tells the students that he hopes that they will be “treated unfairly” and have “bad luck.” He says:

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Chief Justice Roberts does offer the students some advice that I think relates to appellate advocacy.  He reminds the students that, although they are “privileged,” they should not act like it.  Rather, when they get to their new schools, they should “walk up and introduce [themselves] to the person who is raking the leaves, shoveling the snow or emptying the trash. Learn their name and call them by their name during your time at the school.” He also told them to smile and say “hello” to people that they do not recognize when taking walks.  He said, “[t]he worst thing that will happen is that you will become known as the young man who smiles and says hello, and that is not a bad thing to start with.”

This exhortation to treat others with kindness is a lesson that many attorneys could stand to learn.  When I was clerking, there was a story told around the courthouse about some attorneys looking for a courtroom.  One of the judges, who was not in his robe, stopped to help them.  But, when he told them that he only knew the courtrooms by carpet color (which is how all the judges, clerks, and court staff referred to the courtrooms) and not number, the attorneys were quite rude to him.  He wasn’t on their panel, but I do believe that he spoke to the judges who were.  A little kindness to the clerk’s office, the marshals, the janitorial staff, and the unknown person offering help, goes a long way!

The Chief offers some other great advice, so I encourage you to read his full remarks here.

July 10, 2017 in Appellate Advocacy, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Thursday, July 6, 2017

Job Posting--Legal Research & Writing Visiting Professor at Pepperdine Law

Below is a job posting that might be of interest to some of our readers.  If sunny Malibu isn't enough of a draw, don't forget that Paul Caron, "the Owner and Publisher of the Law Professor Blogs Network," is now dean at Pepperdine.  Dean Caron is a prolific scholar and blogger, and he is a well-respected figure in legal academia.  I suspect that he will be a great leader at Pepperdine.

Legal Research and Writing Visiting Professor (2017-2018)

Pepperdine University School of Law seeks a LEGAL RESEARCH and WRITING VISITING PROFESSOR for one year to teach for the 2017-2018 academic year. Applicants must have a J.D. from an ABA-accredited law school, have excellent academic credentials, be committed to teaching Legal Research and Writing, and support the goals and mission of the University. Applicants should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing. The position comes with a market-competitive salary, employment benefits, and the title of Assistant Visiting Professor of Legal Research and Writing.

The School of Law is an ABA accredited, AALS member law school located in Malibu, California. Pepperdine is a Christian university committed to the highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership. The School of Law welcomes applications from people of all faiths and is particularly interested in receiving applications from candidates who may bring greater racial, ethnic, and gender diversity to the faculty of the School of Law.

For further information about Pepperdine University and the School of Law, please visit the law school's website. The deadline for submission is July 19, 2017.

Please download and complete the attached application, and send to lrw.pepperdinelaw@gmail.com.

Pepperdine University, School of Law
24255 Pacific Coast Hwy
Malibu, CA 90263
310-506-4676

You can also find the posting here.

 

July 6, 2017 | Permalink | Comments (0)

Tuesday, July 4, 2017

#TwitterTuesday--The Centennial State

TwitterTuesdays

While the State of Colorado is known for many things, such as this, the state nickname that you probably learned in elementary school is the "Centennial State," since Colorado became a state in 1876, 100 years after the Declaration of Independence, which we celebrate today!  So, in honor of the Fourth of July and the Centennial State, here are a few Colorado Appellate Twitter Feeds to follow:

Colorado Bar CLE (@cleincolorado) is the "[n]onprofit continuing legal education provider and publisher for the Colorado Bar Association."  They tweet on legal issues in the state, including 10th Circuit cases and cases from the Colorado Appellate Courts. You can also find helpful practice and appellate information on their website:  http://cbaclelegalconnection.com/ 

Law Week Colorado (@LawWeek) tweets on appellate decisions out of the 10th Circuit and the state supreme court, as well as the latest in legal news and happenings.

Christopher Jackson (@COAppeals), was forward thinking enough to get the best Colorado Appellate Twitter handle. He tweets about appellate matters and election law, with a focus on Colorado.

July 4, 2017 | Permalink | Comments (0)

Monday, June 26, 2017

Lexis Acquires Ravel Law

Earlier this month, LexisNexis announced that is has acquired Ravel Law. My guess is that many of our readers have not heard of Ravel Law.  According to their website:

Ravel is analytical research, a new category of intelligent tool that combines legal research and analytics. Powered by expert legal knowledge, machine learning, and comprehensive caselaw from the Harvard Law Library, Ravel is built by digital natives for 21st Century practice.

Ravel enables lawyers to find what's important, understand why it's important, and put that information to use in the most persuasive way possible. In short, we turn legal information into legal insights.

Ravel's intuitive array of data-driven tools are built from the ground up for the hardest questions, transforming how lawyers understand the law and prepare for litigation.

I first heard of Ravel a year or so ago.  I was particularly impressed by their Judge Analytics.  They market the product as helping you "[u]nderstand how judges think, write, and rule." I think that description is spot-on.  Judge Analytics allows you to find "cases, circuits, and judges your judge finds most persuasive" and "rules and specific language your judge favors and commonly cites."  For appellate advocates appearing before an unfamiliar court, this is an incredibly important research tool.  It is also useful for students applying for clerk-ships.  It collects all of your judge research in one place. 

I don't have a lot to say about Ravel's other features.  I, personally, did not find Ravel's case research to be as useful, but that might be because I did not spend enough time reviewing it.  The connections and graphs were a little too much for me.  I suspect, however, that millennials might really like that feature.

Unfortunately, integrating Ravel into Lexis is going to take some time.  When I called Lexis Advance to ask about the time frame, I was told that the integration would be complete in the first quarter of 2018.  Congratulations to Lexis and Ravel--I suspect that this will be a great deal for both organizations.

June 26, 2017 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Tuesday, June 20, 2017

#TwitterTuesday--Themeless in Arizona

TwitterTuesdays

Welcome to #TwitterTuesday.  Alas, I have no great theme today.  But, I do have three great Twitter feeds that you can follow!

Ross Guberman (@legalwritingpro) is the author of several books on legal writing, including Point Made: How to Write Like the Nation's Top Advocates (which I enjoyed) and Point Taken: How to Write Like the World's Best Judges.  He tweets primarily on legal writing.

Bryan A. Garnar (@BryanAGarner) is pretty much the go-to guru for all things legal writing.  He is the editor-in-chief of Black's Law Dictionary and the Redbook, interviewer of justices and judges, and co-author of at least two books with the late-Justice Scalia, including a book on appellate advocacy Making Your Case:  The Art of Persuading Judges.

Megan E. Boyd (@LadyLegalWriter) blogs on legal writing at ladylegalwriter.blogspot.com. She has some great tweets on writing in general and legal writing in particular.

 

 

June 20, 2017 | Permalink | Comments (0)

Monday, June 19, 2017

Should the Justices Cancel Their Summer Plans?

Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban.  There is also a case in the Ninth Circuit challenging the ban.  In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions. 

Should the Court grant certiorari in these cases?  My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.”  Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore.  Professor Blackman argues:

The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.

Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.” 

While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law.  Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore).  I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore.  Perhaps even a non-speedy decision would suffer the same fate.  At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C.  I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months.  Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.

June 19, 2017 in Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, June 15, 2017

Justice Gorsuch's first Supreme Court opinion is unanimous

This week, the newest justice on the United States Supreme Court issued his first authored opinion, Henson v. Santander Consumer USA Inc. The topic was debt collection, perhaps not a scintillating topic for most, but Justice Gorsuch opened with a catchy couple of lines - the most colorful of the opinion: 

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices.

The rest of the decision centers on statutory interpretation, and following in the footsteps of Justice Scalia as he does, Justice Gorsuch's textual approach does not diverge from that of the late justice. The issue in the case was whether a third party purchaser of a debt can fall within the statutory definition of a "debt collector." Because the Fair Debt Collection Practices Act defines a debt collector as one who collects a debt on behalf of another, the defendant in the case could not be called a debt collector, and so did not violate the Act. The petitioner sought to use grammatical reinterpretations of the Act's wording that did not comport with the plain meaning, and failing that, asserted policy arguments. But Justice Gorsuch did not buy it, saying:

All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodri- guez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pur- sues its [stated] purpose[ ] at all costs.” Id., at 525–526. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legis- lature says . . . what it means and means . . . what it says.” Dodd v. United States, 545 U. S. 353, 357 (2005) (internal quotation marks omitted; brackets in original).

The opinion writer has been criticized for not being sensitive to a broader policy of consumer protections, and while that may be true, it was a unanimous Court that agreed the statute's definition of debt collector did not include the type of defendant before the Court. The Court, all nine now, agreed upon one thing - the plain meaning of the statute as written. Further, the Court did not veer off the beaten path. It affirmed the decision of the Fourth Circuit, which had affirmed the decision of the lower district court. It seems that this reading of the statute wasn't any rogue opinion, and instead placed the responsibility of writing clear law back in the hands of Congress. 

June 15, 2017 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, June 13, 2017

#TwitterTuesday--The Heartland of America

TwitterTuesdays

I am sorry that #TwitterTuesday has been sporadic this summer.  I have been moving across the country and, apparently, having technical problems.  I was 99% sure that I posted this #TwitterTuesday last week, but, alas, I was wrong.  So, in honor of my drive across America, today we are featuring appellate twitter feeds to follow from the heartland of America!

Daniel Schramm (@daniel_schramm) is an appellate attorney in St. Louis, Missouri.  He tweets about Missouri appellate practice, legal writing, and national legal issues.

Rox Laird (@roxlaird16) is a contributor to the blog On Brief: Iowa's Appelate Blog. He tweets about cases coming from the Iowa appellate courts and the Eighth Circuit.

For appellate news out of Kansas, follow Foulston Appeals (@FoulstonAppeals).  Foulston also tweets about national appellate matters, including the confirmation of Justice Gorsuch.

June 13, 2017 | Permalink | Comments (0)

Monday, June 12, 2017

Shout-out For Clear Writing

Last week it seemed like the only thing on cable news was former FBI Director James Comey's testimony before Congress.  While the content of Comey's written and oral testimony has received a lot of press, one surprise feature of the hearing was the praise Comey received for his writing.  Here is the exchange Comey had with Senator James Risch from Idaho:

RISCH:  Yesterday, I got, and everybody got, the seven pages of your direct testimony that’s now a part of the record, here. And the first — I read it, then I read it again, and all I could think was, number one, how much I hated the class of legal writing when I was in law school.

And you were the guy that probably got the A, after — after reading this. So I — I find it clear, I find it concise and, having been a prosecutor for a number of years and handling hundred — maybe thousands of cases and read police reports, investigative reports, this is as good as it gets.

And — and I really appreciate that — not only — not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes, so we know exactly what happened and we’re — and we’re not getting some rendition of it that — that’s in your mind. So...

COMEY: Thank you, Senator.

RISCH: ... so you’re — you’re to be complimented for that.

COMEY: I had great parents and great teachers who beat that into me.

While it is a shame that Senator Risch disliked legal writing in law school (and that he mentioned the fact at a hearing that was nationally televised), I appreciate the shout-out for the importance of clear and concise writing (and parents and teachers who encourage such writing).  

Over at the Lady (Legal) Writer blog, Prof. Kirsten Davis has an excellent post on why she thinks Comey's testimony is "A" worthy.  All of her comments are spot on.  A few of the comments pertain directly to appellate writing, such as organizing information chronologically (almost always a great strategy in the statement of facts) and showing how his ideas connect together.  She also notes the effective nature of the introductory paragraph that Comey uses and how he could have improved it.  I appreciate Kirsten's insight, and I am considering using Comey's testimony in my Advanced Legal Writing course this fall when we discuss the statement of the case.

 

June 12, 2017 in Current Affairs, Legal Writing | Permalink | Comments (0)

Sunday, June 4, 2017

Job Posting--University of Georgia School of Law

For those of you interested in making a career move to academia, I received the following posting from the University of Georgia School of Law:

  • The University of Georgia School of Law seeks to hire a full-time legal writing instructor beginning in the Fall 2017 term. Initial course package will include first-year legal writing and two additional legal writing courses based on the needs of the Law School. A Juris Doctor from an accredited university is required. Interested applicants should submit a letter, resume and list of three references at http://facultyjobs.uga.edu/postings/2239 no later than June 9, 2017. The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, sexual orientation, gender identity or protected veteran status.

June 4, 2017 | Permalink | Comments (0)

Friday, May 26, 2017

Appellate Advocacy Blog Weekly Roundup May 26 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 Rulings:

Cooper v. Harris

On Monday, the Supreme Court ruled in this case challenging North Carolina's congressional districts as having been drawn based on an unlawful reliance on race.  Justice Kagan authored the opinion for the Court, joined by the more liberal Justices on the Court and by Justice Thomas.

Supreme Court Opinion

Washington Post Article

Buzzfeed Article

TC Heartland LLC v. Kraft Foods Group Brands LLC

The Supreme Court, in a unanimous opinion, reaffirmed a prior decision and held again that a domestic corporation resides only in its state of incorporation for purposes of venue in patent cases.  As a result of a Federal Circuit decision in 1990, in which the court held that patent infringement venue was proper in any court having personal jurisdiction over the defendant, over the past two decades there has been a rise of patent-focused cases in venues such as the Eastern District of Texas. As a result of the TC Heartland decision, venue is restricted to where the defendant is incorporated or where the defendant has a regular and established place of business.

Supreme Court Opinion

Patentlyo Article

Immigration Cases

As this article from The Atlantic discusses, there are a number of important immigration cases that are awaiting rulings from the Supreme Court.  The article notes that in the major cases, the Court seemed to lean toward favoring the arguments of the government during oral arguments, but the current political and world climate will make the eventual rulings very interesting.

Other Appellate Court Rulings:

On Thursday, the Fourth Circuit Court of Appeals upheld a nationwide injunction that blocked the Trump administration's efforts to temporarily halt immigration from six majority-Muslim countries.  The ruling is the first appellate court ruling on the second executive order issued by President Trump on the subject.  If the administration wants to seek it, the next step would be to petition the Supreme Court for review.

Fourth Circuit Ruling

Buzzfeed Article

Practice Tips:

Related to the Supreme Court's decision in TC Heartland, a good twitter thread this week touched on the importance of preserving even long-shot arguments, with the venue objection in patent cases in Texas as one example. HT: Sean Marotta.

May 26, 2017 | Permalink | Comments (0)

Tuesday, May 23, 2017

#TwitterTuesday--Legal Writing

TwitterTuesdays

Every appellate practitioner should want to improve his legal writing.  Here are a few Twitter accounts to follow that provide helpful legal writing tips:

Follow the University of Virginia Law Writing program (@UVALawWriting) for program news and writing and advocacy tips.  In looking at their page I saw several useful retweets of legal writing guru Bryan A. Garner (@BryanAGarner), which is another great account to follow.

The Legal Writing Institute (@lwionline) tweets about conferences, articles, and news in the legal writing community.

To write well you must also listen well.  Follow Listen Like a Lawyer (@ListenLikeaLwyr) for tips on effective listening practices.

May 23, 2017 | Permalink | Comments (0)

Tuesday, May 16, 2017

#TwitterTuesday--Even More Judges Who Tweet

TwitterTuesdays

I am a little late today with #TwitterTuesday.  My blogging has been a little slow the past few weeks, as my husband and I are preparing to move to Tucson, Arizona, where I will be taking a position as the Assistant Director of Legal Writing at the University of Arizona James E. Rogers College of Law.  But, I do have some tweeting judges to highlight today:

Jerod Tufte (@JudgeTufte) is a justice on the North Dakota Supreme Court. He tweets about appellate practice with an occasional beautiful picture of the Dakotas thrown in.

Steve Leben (@Judge_Leben) is a judge on the Kansas Court of Appeals and an Adjunct Professor at KU School of Law.  He is the co-founder of Procedural Fairness, an organization dedicated to “helping judges and courts implement policies and practices that promote procedural fairness in courtrooms and courthouses,” and tweets on this subject and others.

Richard Dietz (@richard_dietz) is a judge on the North Carolina Court of Appeals and a former appellate litigator.  His tweets cover appellate writing and practice and North Carolina judicial elections.

And, a post on tweeting judges would be incomplete without a Texas judge!  Brett Busby (@BrettBusby) is a justice on the Texas Court of Appeals, 14th District.  He is not a frequent tweeter, but has started highlighting some of the work of the South Texas College of Law.  We hope to see more tweeting out of him in the future.

 

May 16, 2017 | Permalink | Comments (0)

Friday, May 5, 2017

Appellate Advocacy Blog Weekly Roundup May 5 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).

 

U.S. Supreme Court Rulings:

Bank of America v. City of Miami and Wells Fargo & Co. v. City of Miami:

A divided Court ruling on Monday that the City of Miami counts as an aggrieved "person" entitled to standing to file suit claiming harm from discriminatory lending practices of banks.  Chief Justice Roberts joined liberal justices Breyer, Ginsburg, Sotomayor, and Kagan in the majority; Thomas dissented, joined by Kennedy and Alito; Gorsuch did not participate.

Links:

National Law Journal Article reviewing the decision

Reuters Article reviewing the decision

Work Remaining for SCOTUS This Term:

Although the Supreme Court has completed hearing oral argument in cases for this term, much work remains to be done.  More than half of the cases on this term's docket remain pending, and the Court has the task of finalizing them before the end of term in late June.  That includes resolution of a number of noteworthy cases involving immigration, trademark arguments that impact the Washington Redskins trademark, cases against federal law enforcement officials, and religious liberty.

Bloomberg Article.

 Developments in Appeal of Travel Ban Case:

The United States Court of Appeals for the Fourth Circuit is scheduled to hear arguments next week challenging the latest version of the Trump administration's travel ban.  When that case is heard, however, Judge J. Harvie Wilkinson III will be recused because his son-in-law, the acting Solicitor General, is a lead lawyer for the administration.  Wilkinson was nominated to the bench by President Reagan and confirmed in 1984, and he is one of the most prominent conservative federal appeals judges in the country.  His recusal appears to further tip the balance of the panel that will hear the appeal toward a more liberal balance, widening the margin of judges appointed by Democratic presidents over Republican presidents.

BuzzFeed article.

UCLA Clinic Wins SCOTUS Case:

The Daily Bruin ran a great article this week covering a recent victory before the United States Supreme Court for UCLA law professor Stuart Banner and Supreme Court Clinic students.  The case, Nelson v. Colorado, involved issues related to court fees.  In Colorado, defendants convicted of crimes are required to pay restitution and fees, and they are not entitled to have those expenditures returned if their convictions are overturned on appeal.  Instead, Colorado law provides that they must bring a separate proceeding and "prove" their innocence.  Banner and his students successfully argued that the Colorado procedures were unconstitutional.

 Practice Tips:

The Bar Association of the Fifth Federal Circuit is consistently a great source for useful practice tips.  This week, the BAFF Twitter Account reminded followers that the Fifth Circuit website offers a vast array of practitioner guides and samples to make appellate practice in that court easier. Just see the links under "Forms, Fees & Guides" to start exploring.

Of Interest:

This week, the New York Times ran an article covering a book, "Hemingway Didn't Say That: The Truth Behind Familiar Quotations," in which Garson O'Toole (a pseudonym for former teacher and Johns Hopkins researcher Gregory F. Sullivan).  The book compiles some of the most popular posts from the popular website Quote Investigator, where O'Toole has traced the origins of numerous well-known sayings and identified misattribution of many famous quotes.

Appellate practitioners -- and appellatetwitter members, in particular -- love a good quote.  Better be sure the attribution is correct!

 

May 5, 2017 | Permalink | Comments (0)

Tuesday, May 2, 2017

#TwitterTuesday--Oh Michigan

TwitterTuesdays

I hear that it has been cold up north.  So, for those of you who might be snowed in and looking for some good Michigan appellate Twitter feeds to follow, here you go!

Bill Schuette (@SchuetteOnDuty) serves as Michigan’s Attorney General. The twitter feed helps inform the public about the current projects and reports issued by the Department of Attorney General.

Bridget McCormick (@BridgetMaryMc) serves as a justice on the Michigan Supreme Court (@MISupreme Court).

A colleague of Justice McCormick’s, Justice David Viviano (@JusticeViviano) also serves on the State’s highest Court.

 

May 2, 2017 | Permalink | Comments (0)