Appellate Advocacy Blog

Editor: Tessa L. Dysart
Regent University School of Law

Tuesday, January 3, 2017

#TwitterTuesday--Who will be SG?


Happy New Year!  2017 is sure to be a big one as the country faces a new presidential administration and at least one SCOTUS vacancy.  For today we will focus on possible Solicitor General picks.

Erin Murphy, a partner at Kirkland & Ellis (@Kirkland_Ellis), focuses on Supreme Court and other appellate cases. This former law clerk for Chief Justice John Roberts, Jr., successfully argued on behalf of the House of Representatives in Texas v. United States and briefed for high-profile cases such as NFIB v. Sebelius.

Michael Carvin, partner at Jones Day (@JonesDay), has been characterized as having a “take no prisoners” argument style, seen in his work on behalf of the National Federation of Independent Bsuiness in NFIB v. Sebelius.

Kannon Shanmugam (@KannonShanmugam) heads the Supreme Court and appellate litigation practice at Williams and Connelly and, as evidenced in his tweets, is an avid Kansas Jayhawks fan. Shanmugam has argued before the Supreme Court of the United States eighteen times and in all thirteen Federal Circuit courts.

Another name that is being thrown around for SG is George Conway (@gtconway3d), a partner at Wachtell and husband of Kellyanne Conway, a senior Trump adviser.  Mr. Conway is a graduate of Yale Law School and Harvard College.  He clerked for Judge Ralph K. Winter, Jr., on the Second Circuit. 

January 3, 2017 | Permalink | Comments (0)

Friday, December 30, 2016

Appellate Advocacy Blog Weekly Roundup December 30 2016


The Appellate Advocacy Blog Weekly Roundup will be on a brief hiatus until after the New Year.  Thanks for following the Appellate Advocacy Blog, have a wonderful and safe New Year's, and look for a new Weekly Roundup on January 6.

December 30, 2016 | Permalink | Comments (0)

Friday, December 23, 2016

Appellate Advocacy Blog Weekly Roundup December 23 2016


The Appellate Advocacy Blog Weekly Roundup will be on a brief hiatus until after the New Year.  Thanks for following the Appellate Advocacy Blog, have a wonderful Christmas and New Year's, and look for a new Weekly Roundup on January 6.

December 23, 2016 | Permalink | Comments (0)

Thursday, December 22, 2016

Private attorney makes last ditch effort on behalf of Merrick Garland

Merrick Garland, Chief Judge of the United States Court of Appeals for the D.C. Circuit, was nominated as the next U.S. Supreme Court Justice on March 16, 2016, upon the vacancy left by Justice Scalia's death. His nomination is the longest pending in history. But Judge Garland will not become a Supreme Court Justice.


Judge Garland had the misfortune of being nominated during one of the most rancorous election seasons ever. In addition to the heavy partisanship permeating the presidential campaign, the seat Garland would have filled was previously held by one of the strongest conservative voices the Court has ever seen, and Judge Garland appears to be more of a moderate - not a cookie cutter replacement in other words. Add to that the fact that the Senate, who must do the work of confirming the nominee, was held by the party that did not do the nominating. All of this made for the perfect negative storm which Judge Garland must have anticipated many months ago. 

When he made his speech following President Obama's nomination, Judge Garland displayed great humility and gratitude for the nomination. If he is also a wise judge, he knew then that his rise to the High Court was a long shot, through no fault of his own. The times did not cooperate for him. 

But recently a private lawyer in New Mexico tried to make it happen. Steven Michel made application to the Supreme Court asking for injunctive relief in the form of an order to the Senate to vote on Garland's nomination. Chief Justice Roberts, circuit justice for the D.C. Circuit, denied the application without referral to the Court. Michel was not surprised:

"Asking Chief Justice Roberts to require a Senate vote on the Garland nomination was an extraordinary request. So although I’m disappointed by his refusal, I’m not surprised," Michel said Monday. "The Senate’s judicial confirmation process is broken. I hope it can be fixed before too long, because our democracy depends on it."

There are no mandates regarding the confirmation process and the regular course of action can vary depending on Senate leadership. The Supreme Court continued to function with the vacancy, but the result was probably not ideal in many people's eyes. The Court split in some decisions leaving the ruling of the lower courts in place, but did not provide binding pronouncements on the law. This is somewhat unsettling, because there is a desire to have stability within the law.

The vacancy will soon be filled however. The President-Elect now has the great power to insert his choice of nominee, and that person will likely resemble Justice Scalia much more than did Judge Garland. 

December 22, 2016 | Permalink | Comments (0)

Monday, December 19, 2016

President-Lawyers as Communicators and Writers

It is the "most wonderful time of year" for law professors--grading season!  So, the blogging may be a little light over the next few weeks. Still, I wanted to blog on what I have been reading when I am not reading exams.

I have been on a mission to read a biography of every president. I was inspired by Stephen Floyd, an investment banker who has been reading and reviewing presidential biographies since 2012. The Washington Post also has a list of good presidential biographies. Reading presidential biographies has added a lot to my teaching, especially in constitutional law. I was thinking the other day, however, about our early president-lawyers and effective communication.

Three of our four first presidents were trained in the law--John Adams, Thomas Jefferson, and James Madison.  These three men were gifted writers and credited with drafting (or playing a significant role in drafting) our country's most foundational documents. Jefferson (with Adams' help) drafted the Declaration of Independence, and Madison is often called the "father of the Constitution." Madison is also well-known for his writings related to Virginia politics.  

Of these three men, however, only Adams was a gifted speaker. Jefferson, Madison, and Washington, were all terrible public speakers.  When they delivered public addresses to Congress people often had to strain to hear them.

With the advent of radio and television, we put much greater emphasis today on our presidents being excellent public speakers.  Bill Clinton--another president-lawyer--was known as the great communicator.  President Obama too is effective at pubic speaking.  While these men have written books as well, as have many past presidents, these books tend to be more of the autobiographical genre, rather than the political philosophy that our early president-lawyers wrote on.

In law school we focus heavily on teaching our students to be effective legal writers. Sadly, this task is getting more difficult each year. Twitter, Snapchat, Facebook, and the like are changing how our students think about writing and communicating. However, we must not got weary in our task. So, grade on law professors, grade on!

December 19, 2016 in Books, Legal Writing, Oral Argument, Rhetoric | Permalink | Comments (0)

Friday, December 16, 2016

Appellate Advocacy Blog Weekly Roundup December 16 2016


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 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!

December 16, 2016 | Permalink | Comments (0)

Tuesday, December 13, 2016

#TwitterTuesday--Substance & Mechanics


For some substance on a variety of legal issues, make sure to follow the Volokh Conspiracy (@VolokhC) for the latest articles. With relevant topics, both politically and legally, ranging from the legal implications of fake news to warrantless email surveillance, there are always new subjects to explore.

Orin Kerr (@OrinKerr) is a law professor at George Washington University, a part-time lawyer, and blogger for the Volokh Conspiracy. While tweets include some of the latest articles on the blog, Kerr also shares newsworthy court decisions in important appellate cases as well as other articles related to appellate practice.

For procedure and the mechanics of appellate practice, check out Counsel Press (@CounselPress), an appellate services provider who shares updates concerning both state and federal appellate courts. Tweets include information from preservation of issues to brief writing and more.

December 13, 2016 | Permalink | Comments (0)

Friday, December 9, 2016

Appellate Advocacy Blog Weekly Roundup December 9 2016


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 or a message on Twitter (@Daniel_L_Real).

Ruling in Samsung v. Apple

On Tuesday, a unanimous Supreme Court ruled in favor of Samsung in Samsung v. Applethe patent infringement suit brought by Apple, sending the case back to the Federal Circuit for further consideration.  In the case, Apple alleged that Samsung infringed on patents covering specific design elements of Apple's iPhone, including the rectangular front face with rounded corners and colorful grid of icons. Federal law provides that companies found to have infringed design patents on an "article of manufacture" are liable for their total profits. The lower court had awarded Apple $399 million in damages for Samsung's design patent infringement.  In the Supreme Court opinion, Justice Sotomayor wrote that the operative phrase in the statute, "article of manufacture," could sometimes be the entire product (the phone) and sometimes be the components found to have infringed the design patent. The Supreme Court opinion held that the Federal Circuit erred in ruling that the "article of manufacture" must always be the end product (the phone), but did not resolve whether the article of manufacture in the case was the whole phone or parts of it. 


New York Times



Ruling in Salman v. United States

On Tuesday, the Supreme Court unanimously ruled in Salman v. United States, a significant insider trading case that raised the question of whether gifts of confidential information from business insiders to family members without direct financial benefit violate securities law. The Court ruled in favor of prosecutors, ruling that gifts to friends or relatives, whether in the form of cash or a tip of information, sufficiently "benefit" the insider to be considered a violation of securities law.


New York Times





Takeaways from 2016 SCOTUS Oral Arguments So Far:

Adam Feldman writes on the Empirical SCOTUS blog about "Four Takeaways From this Term's 2016 SCOTUS Oral Arguments" so far. There is a wealth of great information about the Justices' interactions with one another and with advocates during the first 1/3 of this term's oral arguments, including which Justices tend to speak the most (or the least), the issues that interest the Justices the most, and the tendencies of some of the best and most frequent advocates to appear before the Court.

Highlights from Appellate Twitter:  #PracticeTuesday

On Tuesdays the brilliant tweeters of #AppellateTwitter post a variety of useful tips, strategies, guidelines, advice, etc.  Here are a few of the highlights from this week, where the topic was mythbusting -- conventional wisdom with which experienced appellate practitioners disagree:

  • Sean Marotta (@smmarotta) argued against the myth that a law student should take "any" clerkship, regardless of location, judge, etc.  He argued that young graduates should definitely consider costs to family, significant others, and other factors when deciding whether a clerkship is really the right opportunity to pursue.
  • Rachel Gurvich (@RachelGurvich) argued against one of my personal favorite myths, that being on Law Review is some kind of prerequisite to a successful legal career. I always tell students that law review is not for everyone and is not a magic bullet -- the key is to find something that catches a potential employer's eye and once you get your foot in the door, you can explain why you didn't go the law review route.
  • Bryan Gividen (@BryanGivi) argued against the myth that a young associate should never so no to an assignment -- because if you don't learn how to say no to assignments that you cannot perform well, you are sure to start alienating colleagues and clients with poor work product.
  • Jennifer Romig (@JenniferMRomig) argued against one that is dear to my heart, as an educator -- the myth that law school conclusively reveals whether someone will be a good lawyer.  I've known many students who were "average" or even below in performance in law school, but went on to be fine and highly successful members of the legal community -- even some who took a couple of tries to pass the bar exam. I've known students who excelled in classes, but not so much in the real world. There's just more to it than that.
  • Finally, Supreme Court Places (@SCOTUSPlaces) called for the debunking of a myth that is near and dear to the hearts of anyone who has ever clerked for an appellate court -- "There must be a case for that simple, seemingly incontrovertable proposition."  It's amazing how often you think that but research seems to come up empty!

December 9, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, December 8, 2016

Asian-American rock band, The Slants, seek its day in Court

January 18, 2017. That's the day the rock band, The Slants, gets to make its case on trademark to the United States Supreme Court.


The band has been battling the U.S. Patent and Trademark Office since 2006 in its quest to trademark the name of the band. The USPTO has refused to grant the trademark on the grounds that "slant" is a racist slur. 

"For us, this case has always been about civil rights." The trademark office rejected the band's trademark application, citing a section of the Lanham Act that prohibits registration of trademarks that may disparage "persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute." The Slants claim the provision violated the First Amendment. After losing before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, the en banc court in December 2015 sided with The Slants and struck down the ban on disparaging marks as an unconstitutional regulation of speech.

The Slants seek to protect its First Amendment rights, but underlying the case is the idea of reclamation. Words that have been historically used to disparage minorities are sometimes, and to some degree, reclaimed by those groups as a sign of empowerment. Simon Tam, the band's leader is the named party in the suit, makes the following point in reclaiming, or reappropriating, insulting words:

Tam's brief in the case Lee v. Tam defends the name as part of "the long tradition of 'reappropriation,'" whereby minority groups reclaim insulting words and turn them into "badges of pride." Words like "queer" and "nigger" have been transformed in that way, to varying degrees.

"The Slants' fans are not racists eager to denigrate Asian-Americans," the brief states. "Only an uninformed philistine could find the band's name disparaging."

The Slants' members are all Asian-American and assert that it is their right to use this word as representative of their freedom of expression and celebration of their heritage. They've also written an open letter to the USTPO contesting its decision here.

To get the word out and seek funding, The Slants released the video above and have also released a new song to gain exposure. A few words:

There's no room/ For your backward feelings/ And your backyard dealings/ We're never gonna settle/ We're never gonna settle.... So sorry if you take offense/ But silence will not make amends/ The system's all wrong/ And it won't be long/ Before the kids are singing our song.

The song is titled "From the Heart." 

December 8, 2016 in Appellate Advocacy | Permalink | Comments (0)

Tuesday, December 6, 2016

#TwitterTuesday--Sunny States


It is starting to feel like winter, even in Virginia.  So, let's feature some #AppellateTwitter accounts to follow from sunnier spots:


At the Lectern (@Atthelectern) provides commentary and news from Horvitz & Levy (@horvitzlevy) on the practice of law before the California Supreme Court. The tweets provide links to their articles on

 Check out Sedgwick LLP’s (@SedgwickLLP) appellate law blog The Appellate Strategist for “insights on appellate issues, trial consultations, and evaluating appeals.”


FloridaSupremeCourt (@flcourts) is a great resource to find quick access to the latest news from the Sunshine state’s highest court.

Fla. AG Pam Bondi (@AGPamBondi), as well as her person Twitter account, @PamBondi, will keep you informed on the latest legal news with links to articles found at


December 6, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

New Federal Rules of Appellate Procedure

On December 1, 2016, several amendments to the Federal Rules of Appellate Procedure took effect.  I blogged about the changes in August.   Lee Peifer of the has shared a summary by the United States Court of Appeals for the Eleventh Circuit of the important changes. One of the most significant amendments is the change to Rules 28.1 and 32 limiting the length of principal briefs to 13,000 words (down from 14,000).  Peifer noted that some of the courts of appeals, including the Second, Seventh, Ninth, and Federal Circuits have opted out of the lower word limits.

While the lower limits were generally opposed by the appellate bar, I am not surprised at the change.  In working on an update to the book Winning on Appeal, I have had the opportunity to read comments from many federal appellate judges on the state of appellate briefs.  They almost uniformly agree that briefs are just too long.  

The truth is, it takes more time to write a short brief than it does a long one.  That extra step of carefully editing your work and cutting out the fat is very time consuming.  I have certainly seen this in student assignments that are either right at the page limit or overlength.  Often these students failed to leave sufficient time in their schedule to edit their work.  Lawyers run into this problem too.  The Federal Circuit dismissed an appeal when counsel tried to get around the word limit by eliminates spaces between words and citations.

The late Richard Wydick's book Plain English for Lawyers offers some excellent tips for attorneys (and law students) who struggle with cutting the surplusage in their briefs.  In this new age of shorter briefs, we are going to need them!

December 5, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

Appellate Advocacy Blog Weekly Roundup December 2 2106


After a brief holiday hiatus, the Appellate Advocacy Blog Weekly Roundup returns today with 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 or a message on Twitter (@Daniel_L_Real).

Garland Returning to Bench

Judge Merrick Garland has been in or on the fringes of the news for months now, ever since President Obama nominated him to fill the Supreme Court seat vacancy created by the death of Justice Scalia.  With the recent election results, the possibility of any confirmation hearing ever happening for Judge Garland is all but gone.  So now, for the first time in months, he'll put his robe back on and return to the bench as the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.  The Salt Lake Tribune wrote about it this week.

Supreme Court News

This week saw several pieces of Supreme Court news.

First, on Tuesday, November 29, the Court issued its first opinion of the term.  In Bravo-Fernandez v. U.S., the Court held that the issue-preclusion component of the double jeopardy clause does not bar the government from retrying a defendant after a jury has returned irreconcilably inconsistent verdicts of acquittal and conviction if the conviction is later vacated for legal error unrelated to the inconsistency. The Court's decision was an 8-0 unanimous decision.  See more at SCOTUSBlog.

Also on Tuesday, the Court heard argument in Moore v. Texas, concerning the Eighth Amendment and standards for intellectual disability  and medical standards for determining whether an individual may be executed. You can find more about this case and the arguments at SCOTUSBlog.

On Wednesday, November 30, the Court heard arguments in Jennings v. Rodriguez, a case involving whether aliens seeking admission to the U.S. who are subject to mandatory detention must be afforded bond hearings.  You can find more about this case and the arguments at SCOTUSBlog.

New Federal Rules

Orin Kerr (@orinkerr) noted on Twitter this week that new amendments to a variety of federal rules, including the appellate rules, are now in effect.  See the US Courts rules and forms page for more.

Sean Marotta (@smmarotta) reviewed the major changes to the FRAP, so check that out for a quick reference.

Appellate Practice

Lisa Solomon (@lisasolomon ), founder and CEO of Now Counsel Network, had an article on ARAG about using fiction techniques to write more persuasive fact sections in appellate briefs. Relying on the work of Brian Foley and Ruth Anne Robbins, Solomon advocates focusing only on relevant facts, including accurate citations to the supporting evidence, and using storytelling techniques to boost the persuasive force of the facts section.

December 2, 2016 | Permalink | Comments (0)

Tuesday, November 29, 2016

#TwitterTuesday--Legal Levity


After a brief holiday hiatus, #TwitterTuesday is back.  With the election over and exams for students (and exam grading for professors) fast approaching I thought our readers might need some legal levity.  So. if you need a laugh or smile, here are a few folks to follow on Twitter:

“A Crime a Day” (@CrimeADay) keeps the Twitter-verse informed on some of the most surprising statutes on the books. The tweets provide both comic relief and numerous “shake-my-head” moments at the seemingly random subject matter of the United States Code (see e.g., laws regarding the curvature of pineapple slices in fruit cocktail).

The United Kingdom Law Students’ Organization (@UKLSA) has some great memes about law school. Whether you are still in school or you want to remanence about your law school experience, check out UKLSA for a good laugh.

For some funny tweets (and some more thought provoking as well) about lawyers and the law in general, check out Best Lawyer Jokes (@bestlawyersjoke).

And in case you miss our inaugural #TwitterTuesday post (which you should check out here), if you are wanting law-related humor, you should definitely follow Justice Don Willett (@JusticeWillett) of the Texas Supreme Court. You will not be disappointed in following him.

November 29, 2016 | Permalink | Comments (0)

Monday, November 21, 2016

Justice Scalia and Legal Writing

Last week I was in Washington, D.C., for the Federalist Society's National Lawyers Convention.  This year the Society honored the legacy of Justice Antonin Scalia, who was a great friend of the Society. 

One of the panels, which was hosted by the Society's Litigation Practice Group, was entitled "How Justice Scalia's Writing Style Affected American Jurisprudence."  A video of the panel is available here, and I highly recommend watching it.  It is one of the best panels I have seen at Convention.

The panel featured several former Scalia clerks, including the moderator, Justice Joan Larsen of the Michigan Supreme Court.  The clerks talked about Justice Scalia's approach to drafting opinions. Kannon Shanmugam, a partner at Williams & Connolly, called Scalia "the king of the syllogism."  He emphasized the importance that Scalia put on sound reasoning.  He also recalled Scalia's desire to write concise opinions.  He recalled how Scalia once took some time to edit a draft opinion from 14 pages to 10.

While several of the panelists noted that Scalia was careful to not too personally criticize his colleagues on the bench, Prof. Toni M. Massaro did discuss how Scalia's writing style, particularly some of his caustic one-liners, might offend the general public and be the type of writing we do not want students to emulate.

The other panelists, Prof. Brian T. Fitzpatrick and Judge Jeffrey S. Sutton, provided great insight into how Scalia's chambers were run.  For example, the clerks had to pull from the library all of the sources used in an opinion and sit down with Justice Scalia and the other clerks to carefully go through each opinion to check the accuracy of the substance of the citations.

Rather than recount all of the fun stories provided in the panel, I will just once again commend it to you.  The whole panel is less than an hour and a half long.  It is well worth the time!


November 21, 2016 | Permalink | Comments (0)

Friday, November 18, 2016

Appellate Advocacy Blog Weekly Roundup November 18



The Appellate Advocacy Blog Weekly Roundup will be on a brief hiatus until after Thanksgiving.  Thanks for following the Appellate Advocacy Blog, and look for a new Weekly Roundup on December 2.

November 18, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

#TwitterTuesday--Lonestar Judges

Judges in the Lonestar State are perhaps some of the most active on Twitter.  Some may attribute that to Justice Don Willett--the Tweeter Laureate of Texas.  Whatever the reason, here are a few more Texas Supreme Court Justices to follow:

Justice Jeff Boyd (@JeffBoydTX) of the Texas Supreme Court was elected to his first term in 2014. Justice Boyd is a balanced tweeter between pertinent information regarding the Texas Justice system and the more lighthearted jokes.

Justice Debra Lehrmann (@JusticeLehrmann) is also serves on the Supreme Court of Texas. This former trial judge is a relative new-comer to the Twitterverse, but does showcase opportunities she has to speak at different conferences across the Lone Star state.

Justice Eva Guzman (@JusticeGuzman) made history by being the first Latina to serve on the Supreme Court of Texas. Justin Guzman, who just won reelection to the bench, serves as a great to catch up on all the big news of the day.

Justice Jeff Brown (@judgejeffbrown) is (you guessed it) a Justice on the Supreme Court of Texas.  Justice Brown tweets about all things Texas, from law to politics and of course sports.  

November 15, 2016 | Permalink | Comments (0)

Monday, November 14, 2016

2016 Election Recap--State Supreme Courts

Last week I blogged on the impact of the 2016 presidential election on the U.S. Supreme Court.  On Friday, once the results were in, Dan linked to several articles discussing the results.  Today I want to focus on the impact of the election on the state supreme courts by looking at the 2016 state supreme court elections:

Alabama:  In Alabama, Michael F. "Mike" Bolin (Republican), Tom Parker (Republican), and Kelli Wise (Republican) won reelection as an Associate Justice on the state supreme court.  

Alaska:  Supreme Court Justices Joel Bolger and Peter J. Maassen won retention elections in Alaska.  Both men were originally appointed by Republican governors.

Arizona:  State Supreme Court Justice Ann A. Scott Timmer won retention election.  She was appointed by a Republican governor.

Arkansas:  Arkansans elected two Supreme Court Justices in the March 2016 primary.  John "Dan" Kemp, a circuit court judge, defeated Associate Justice Courtney Goodson for the chief justice seat.  Circuit Court Judge Shawn Womack defeated Clark Mason, a Little Rock attorney, in the other state supreme court election.

Colorado:  William W. Hood won a retention election to continue service on the Colorado Supreme Court.  He was appointed by a Democratic governor.

Florida:  Chief Justice Jorge Labarga, Justice Charles Canady, and Justice Ricky Polston all won retention election.  All three were appointed by a then-Republican governor (Charlie Crist).

Georgia:  David Nahmias won a retention election to hold his seat on the Georgia Supreme Court in May of this year.  Additionally, on November 9, Republican Governor Nathan Deal appointed three justices to the states supreme court—Solicitor General Britt Grant and Court of Appeals Judges Michael Boggs and Nels Peterson. 

Idaho:  Attorney Robyn Brody defeated Republican State Senator Curt McKenzie for a seat on the Idaho Supreme Court.

Iowa:  Chief Justice Mark Cady and Associate Justices Daryl Hecht and Brent Appel won retention election.  Chief Justice Cady was appointed by a Republican governor and Justices Hecht and Appel were appointed by a Democratic governor.

Kansas:  Chief Justice Lawton Nuss and Justices Marla Luckert, Carol Beier, Daniel Biles, and Caleb Stegall were all retained.

Kentucky:  State Appeals Court Judge Larry VanMeter, a registered Republican, defeated another state appellate judge, Glenn Acree, a registered Democrat.

Louisiana:  Incumbent Marcus Clark (Republican) won an unopposed election for the Fourth District seat on the state supreme court.  Additionally, Republican James Genovese defeated Republican Marilyn Castle for the Third District seat. 

Michigan:  Incumbent Republicans David Viviano and Joan Larsen survived election challenges to remain on the state supreme court.

Minnesota:  Incumbent Natalie Hudson beat attorney Michelle L. MacDonald for a seat on the Minnesota Supreme Court.  Justice Hudson was appointed by a Democratic governor.

Mississippi:  Three incumbents won reelection to the Mississippi Supreme Court.  Incumbent Jim Kitchens beat State Appellate Court Judge Kenneth Griffis.  Incumbent Dawn Beam beat Michael Shareef.  Incumbent James D. Maxwell won an unopposed election.  Additionally, Robert P. Chamberlin won a four-way race for the state supreme court.

Missouri:  Justice Richard Teitelman, a Democrat appointee, was retained for his seat on the state supreme court.

Montana:  In June, Chief Justice Mike McGrath and Justice Jim Shea both ran unopposed for their seats, which was treated per Montana law as a retention election.  Shea had been appointed by a Democratic governor.  Additionally, on November 8, Kristen Juras beat Dirk M. Sandefur for the vacancy caused by Justice Patricia O’Brien Cotter’s retirement.

Nebraska:  Chief Justice Michael Heavican and Justices John Wright and William Cassel all were retained.  Chief Justice Heavican and Justice Cassel were appointed by Republican governors, while Justice Wright was appointed by a Democratic governor.

Nevada: Justices James Hardesty and Ron Parraguirre were both retained on the state supreme court.

New Mexico:  Justice Barbara J. Vigil, a Democrat, was retained to the state supreme court and Republican incumbent Judith Nakamura, a recent appointee, defeated Democrat Michael Vigil.

North Carolina:  Incumbent Justice Bob Edmunds, a Republican, lost to Mike Morgan, a Democrat, in North Carolina’s nonpartisan supreme court election.  This gives Democrats a majority on the state supreme court, but the state legislature is allegedly considering expanding the size of the court.

North Dakota:  Justice Lisa Fair McEvers, an incumbent, ran unopposed for her seat on the state supreme court.  Jerod Tufte defeated Robert V. Bolinske, Sr., to replace Justice Dale Sandstrom on the state supreme court.

Ohio:  Republican Justice Maureen O’Connor won an unopposed election for the chief justice seat.  Republican Pat DeWine defeated Democrat Cynthia Rice for a seat on the Supreme Court.  Republican Pat Fischer holds a narrow lead over Democrat John O’Donnell in the other supreme court race.

Oklahoma:  Justices James R. Winchester and Douglas L. Combs were both retained to the state supreme court.

Oregon:  Justice Lynn Nakamoto won an unopposed election to remain on the state supreme court. In May, Justices Rives Kistler and Jack Landau also won unopposed elections.

Tennessee:  Three state supreme court justices were retained in August—Justices Holly Kirby, Jeff Bivins, and Roger A. Page.  All three were appointed by a Republican governor.

Texas:  Texas has two high courts—the state supreme court and the Court of Criminal Appeals.  For the state supreme court, the three Republican incumbents—Debra Lehrmann, Paul Green, and Eva Guzman—defeated their Democratic challengers Mike Westergren, Dori Contreras Garza, and Savannah Robinson.  On the Court of Criminal Appeals Democrat incumbent Larry Meyers was defeated by Republican Mary Lou Keel.   Incumbent Republican Michael Keasler defeated Democrat Robert Burns.  For the open seat, Republican Scott Walker defeated Democrat Betsy Johnson.

Washington:  Incumbents Mary Yu, Barbara Madsen, and Charlie Wiggins defeated challengers David DeWolf, Greg Zempel, and Dave Larson to remai on the state supreme court.

West Virginia:  In May, incumbent Republican Brent Benjamin faced a five-way race for his seat involving two Republicans and three Democrats.  He lost to Republican Beth Walker.

Wisconsin:  In April, incumbent Rebecca Bradley defeated JoAnne Kloppenburg to remain on the state supreme court.

Wyoming:  Justices Kate M. Fox, William U. Hill, and Keith G. Kautz, all appointed by Republican governors, were retained.

November 14, 2016 in Appellate Advocacy, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Friday, November 11, 2016

Appellate Advocacy Blog Weekly Roundup


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 or a message on Twitter (@Daniel_L_Real).

Presidential Election and the Courts:

The Presidential election dominated news this week, in blogs, online news sites, and Twitter.  As a result, the biggest discussion point this week regarding appellate practice was the variety of thoughts about how Donald Trump's election will impact the courts -- the Supreme Court and other federal courts.

Here at the Appellate Advocacy Blog, Tessa posted on the topic in a post on Monday:  The Election and the Courts.  But that discussion ramped up even more starting midweek, after the election and Donald Trump's victory.  Discussions of how the Supreme Court is likely to change under a Trump presidency made headlines at The Economist, Bloomberg, the New York Times, NPR, and other sites. A list of the potential candidates from which Trump might pick a replacement for Justice Scalia (and other potential vacancies) is on the Trump/Pence website.  The National Law Journal expanded the discussion to remind us of the 52 nominees for open federal court seats already put forth by President Obama but not acted on.

Appellate Judges Education Institute:

The 2016 Appellate Judges Education Institute Summit begins today in Philadelphia. The annual summit provides a variety of educational opportunities specifically designed for appellate judges, lawyers, and staff attorneys.  When I worked for the Nebraska Court of Appeals, I was fortunate enough to attend the summit one year, and it is without a doubt one of the best appellate-specific educational opportunities there is.

#AppellateTwitter Swag:

If you are an appellate practice person -- lawyer, judge, casual fan -- you are likely already aware of the Twitter hashtag #AppellateTwitter.  It's continuing to grow, and is a source of some really great Twitter users, posts, and practice tips and discussion.  Jason Steed (@5thCircAppeals) recently indicated an interest in creating some #AppellateTwitter swag -- starting with coffee mugs.  And he's following through on it. He posted on Twitter this week how you can order your own #AppellateTwitter coffee mug, paying through Paypal.  Sign me up.

November 11, 2016 in Appellate Advocacy, Appellate Court Reform, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, November 7, 2016

The Election and the Courts


It is almost over folks!  Well, sort of.  Although the election is just a day away, the impacts of the election on the federal courts will be felt for years, even decades, to come.  The next president will have the chance to make a major mark on the Supreme Court and the Courts of Appeal--if the Senate cooperates.  Let's look at some of the key changes that we might see post-election.

The Supreme Court:  The unexpected passing of Justice Scalia in February 2016 left the high court short one justice.  President Obama's nomination of Merrick Garland to fill the vacancy has languished in the Senate for over 200 days.  While Supreme Court nominations are usually a topic in presidential elections, they have been at the forefront this time around.  Not only is Justice Scalia's seat vacant, but there are currently three justices on the Court over the age of 75.

Republican nominee Donald Trump has released two lists of possible Supreme Court nominees (the combined list can be viewed here).  The second list was provided after some criticized his original list as not sufficiently diverse.  While his list includes some noted conservatives legal minds, noticeably absent are judges from the D.C. Circuit or practitioners in the D.C. area.

Democratic nominee Hillary Clinton has not released a list of potential nominees.  Lydia Wheeler of The Hill has interviewed "well-connected groups" about Clinton's potential picks and come up with a list that is not too different from President Obama's list to replace Justice Scalia.  Merrick Garland, Sri Srinivasan, and Paul Watford all appear on the list.

Libertarian nominee Gary Johnson has also supplied a list.  His list features noted libertarian legal scholars, like Randy Barnett and Jonathan Turley, and D.C. Circuit Judge Janice Rogers Brown.

These list may not be worth much, however, if the Senate refuses to cooperate.  In recent days there has been speculation that Senate Republicans will try to shrink the size of the Supreme Court if Clinton is elected president and they keep the Senate.  Since there is no way that they could do this through the regular law-making process (Clinton would surely veto any attempt to amend 28 U.S.C. § 1), they would have to accomplish it by simply not confirming any nominees.

Lower Courts:  According to the Administrative Office of the United States Courts, there are 13 pending vacancies to the Courts of Appeal and 80 pending vacancies to the District Courts.  The new president will get a chance to fill these vacancies and any others that occur during the next four years. Depending on their length of service, federal judges can start retiring at the age of 65.  According to 2014 Congressional Research Service report, at the end of 2013, "32.5% of active circuit court judges were eligible, based on age and length of service as Article III judges, to assume senior status."  Nearly half of these judges were appointed by President Bill Clinton, which means that replacing these judges with Republican nominees would potentially change the ideology of the federal circuit courts.  Once again, whichever party controls the Senate will have the opportunity to influence how these seats are filled.

Tomorrow will be a big day. 

November 7, 2016 | Permalink | Comments (0)

Friday, November 4, 2016

Appellate Advocacy Blog Weekly Roundup


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 or a message on Twitter (@Daniel_L_Real).

#AppellateTwitter Threads of the Week:

BobLoeb, of Orrick's Supreme Court and Appellate Litigation practice, started a thread on Twitter this week asking for training or advice tips that were useful to appellate practitioners when they first got started.  Lots of great appellate advocates weighed in with some great tips.

While the #AppellateTwitter hashtag has really started to take off, one of its contributors, UNC Law Professor Gurvich, announced plans to start a #PracticeTuesday hashtag for weekly conversations about discussions related to best practices and tips for effective appellate practice.  Readers of this blog will surely want to look for that hashtag and tune in.


Just before this past week (Friday, October 28), the Supreme Court announced that it would hear a challenge to a Virginia school district's anti-transgender restroom policy.  The case, Gloucester County School Board v. G.G.,  arises out of a school district policy mandating that students use the restroom matching their biological sex.  A transgender student sued, with the support of the ACLU.  The trial court ruled in favor of the school district, but the 4th Circuit Court of Appeals ruled in the student's favor.  More information available at the ACLU website and at SCOTUSBlog.

The Miami Herald reported this week on an interesting case where the United States and Venezuala are joining on the same side against a U.S. oil company.  The case, Bolivarian Republic of Venezuala v. Helmerich & Payne International, was heard on Wednesday of this week.  In the case, the U.S. Court of Appeals for the D.C. Circuit determined whether U.S. courts have jurisdiction over a lawsuit against a foreign government by looking only at whether the claim was insubstantial or frivolous. More at SCOTUSBlog.

Earlier this week, the Supreme Court rejected an appeal for Alabama death row inmate Bill Kuenzel.  The case involved Kuenzel's claims that evidence was withheld by prosecutors, and gained some national attention when former Attorney General Edwin Meese weighed in and suggested that Kuenzel is "very likely actually innocent."  The AP reported.

Finally, Billboard magazine reported this week that the Supreme Court has asked for the U.S. Solicitor General to provide the government's view about a nearly decade-old dispute between a mother who posted a 29-second video clip on YouTube of her toddler dancing to the Prince hit, "Let's Go Crazy." She received a takedown notice, and the mother sued and raised misrepresentation of copyright and fair use issues.  Neither side was satisfied with the mixed opinion of the 9th Circuit Court of Appeals.  The Supreme Court has not yet granted review in the case, but the request of the Solicitor General suggests there is a possibility that such a grant could be forthcoming.

Obama's Judicial Legacy: ran a feature this past week, including lots of graphics, analyzing how President Obama's judicial appointments have shaped the federal courts and where changes have started to be evident. Charleston Law professor  Jennifer North wrote about that topic right here at the Appellate Advocacy Blog earlier this week.


November 4, 2016 in Appellate Practice, Legal Profession, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)