Appellate Advocacy Blog

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

Friday, December 16, 2016

Appellate Advocacy Blog Weekly Roundup December 16 2016

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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).

End of Year Updates From The Legal Intelligencer

Howard Bashman (@howappealing), of How Appealing, authors articles on The Legal Intelligencer, where he provides a variety of articles on important developments and practice ideas related to appellate practice throughout the year.  This week, he provided an article updating a number of subjects that had been addressed in the Intelligencer over the past year.  Topics include the 2016 amendments to the Federal Rules of Appellate Procedure, impact of the 2016 elections on the Supreme Court, and developments related to access to appellate oral argument audio and video. You can also access archives of past articles on a variety of interesting and useful topics.

Mere Dictum or Binding Alternative Ruling?

Jason Steed (@5thCircAppeals), recently named partner and new head of Supreme Court & Appellate Practice Group at Bell Nunnally & Martin LLP and #appellatepractice regular on Twitter, had a brief piece this week on his blog, forma legalis, explaining that "[i]n the Fifth Circuit, 'alternative holdings are binding precedent and not obiter dictum.'" Useful information if you practice in the Fifth about how you might use alternative rationales for decisions.

Justice Breyer's Dissent on Death Penalty

A popular topic of legal news and twitter this past week was Justice Breyer's dissent in Sireci v. Florida. In just under three pages, Breyer espoused his view that "the time has come to reconsider the constitutionality of the death penalty."  He reasserted his argument that "individuals who are executed are  not the 'worst of the worst,' but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race."

More on Breyer's Dissent and SCOTUS action on the death penalty:

Death of Judge Myron Bright

Judge Myron Bright, the longest-serving working judge on the U.S. Court of Appeals for the Eighth Circuit, passed away at the age of 97 on Monday.  As an article on INFORUM noted, Bright was "a champion of equal rights for minorities and women" and had a long history of demonstrating his concern for people who lacked influence and power.  

"Moneyball" for Judges:  Data Tools for Predicting How Judges Might Rule

The Wall Street Journal had an article this past week that detailed a variety of services now being offered to attorneys that compile a variety of data about tendencies and ruling habits of courts and judges.  The information tends to be information that has always been "available," but new resources have made it far easier and less time-consuming to access.

Marijuana in Your Trash?  Not Enough for Probable Cause.

As discussed at the Volokh Conspiracy this week, a divided Sixth Circuit panel held in United States v. Abernathy "that finding evidence of marijuana use in the trash placed outside a particular home does not (without more) generate probable cause to believe there is marijuana in the home."

iPhone User Can be Forced to Produce Passcode

Also discussed at the Volokh Conspiracy this week, a Florida Court of Appeals handed down a ruling this week in which the court concluded that an iPhone user who had been accused of surreptitiously taking photos up the skirt of a female shopper in a clothing store could be ordered to disclose the passcode to his phone, so long as the government can demonstrate that the user knows the passcode.

 Supplemental Briefing Ordered in SCOTUS Immigration Case

SCOTUS heard arguments in Jennings v. Rodriguez two weeks ago.  I included it in the Weekly Roundup back on December 2, noting that the case involved whether aliens seeking admission to the U.S. who are subject to mandatory detention must be afforded bond hearings.

This week, SCOTUS directed the parties to file supplemental briefs addressing several questions.  Lyle Deniston wrote about the impact of the briefing order, arguing that the briefing order "suddenly turned an important case on government detention of foreign nationals from a review of federal statutes into a full-blown constitutional controversy."  The briefing order directs the parties to file new briefs on the same issues already argued, "but this time on how to answer them under the Constitution."

Deniston notes that the Constitutional issues were present when the case was brought and argued, but that Chief Justice Roberts and other Justices insisted at the time that the Constitutional issues were not before the Court because the government had raised only statutory questions resolved by the Ninth Circuit -- and normally Consitutional questions that are not resolved by the lower tribunal cannot be raised and resolved for the first time in the Supreme Court.  Nonetheless, the Supreme Court has broad authority to ask a new question on its own or rewrite the questions that an appellant has sought to raise.

The new briefs are due January 17, with amicus briefs due January 27 and reply briefs due February 6.  Happy holidays to all of the attorneys involved in the case!

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