Appellate Advocacy Blog

Editor: Tessa L. Dysart
Regent University School of Law

Friday, January 27, 2017

Appellate Advocacy Blog Weekly Roundup January 27 2017



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).


SCOTUS Rejects Texas Voter ID Appeal

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




Constitution Daily Blog

 Microsoft Victory in Warrant Case Upheld

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

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




 Supreme Court Short List Narrows

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


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

SCOTUS Justices' Gendered Interactions

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

Legal Writing Tip:  Avoid Use of Intensifiers

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



January 27, 2017 | Permalink | Comments (0)

Thursday, January 26, 2017

President Trump will make his Supreme Court nomination next week

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

Now President Trump reports there are three judges he is considering

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

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

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

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

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

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

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

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

January 26, 2017 | Permalink | Comments (2)

Tuesday, January 24, 2017

#TwitterTuesday--From Sea to Shining Sea


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

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

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

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

January 24, 2017 | Permalink | Comments (0)

Friday, January 20, 2017

Appellate Advocacy Blog Weekly Roundup January 20 2017


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).

Supreme Court Nomination Podcast

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

President-Elect Meets with Pryor

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

The End to Chevron Deference?

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

SCOTUS Considers Trademark Battle

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


January 20, 2017 | Permalink | Comments (0)

Tuesday, January 17, 2017

#TwitterTuesday--A Great Advocate & Law Professors


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

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

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

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

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

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

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

January 17, 2017 | Permalink | Comments (0)

Friday, January 13, 2017

Appellate Advocacy Blog Weekly Roundup January 12 2017


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).

Potential SCOTUS Nominee Profile:

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

Twitter Discussion About Typeface Conventions for Emphasis:

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

 SCOTUS Hears Case on Disabled Children and Public Schools:

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

Read More:


LA Times

Constitution Center Blog

Unwritten Opinions:  Oregon Court of Appeals:

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

January 13, 2017 | Permalink | Comments (0)

Tuesday, January 10, 2017

#TwitterTuesday--Appellate Journals


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

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

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

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

January 10, 2017 | Permalink | Comments (0)

Monday, January 9, 2017

Best Appellate Movies

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

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

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

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

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

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

Friday, January 6, 2017

Appellate Advocacy Blog Weekly Roundup January 6 2017


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).

Roberts Recusal from Patent Case

Life Technologies Corp. v. Promega Corp. was argued last month before the Supreme Court.  The case involves a statute imposing liability on companies exporting "all or a substantial portion of the components of a patented invention" to actively induce overseas action to combine components in a way that would amount to infringement if done domestically.  It turns out that Chief Justice Roberts owns shares of stock in a company, Thermo Fisher Scientific, which in turn owns the petitioner company, Life Technologies.  As a result of the late discovery of the conflict, Roberts has recused himself from resolution of the case.




Insider Practice Instruction from the 5th Circuit

The 5th Circuit Court of Appeals has provided some helpful videos on Youtube concerning practice instruction in the circuit.  In one video, the clerk of the court explains the process for scheduling oral arguments.  In another video, the chief judge discusses what attorneys can expect when presenting oral argument.

Useful Grammar Twitter Follows

Real Simple (@RealSimple) this week posted "7 Twitter Accounts English Grammar-Lovers Should Follow." Inasmuch as appellate practice involves a great deal of careful writing, these are all useful follows for appellate practitioners, as well.

President's Article in Harvard Law Review

This week President Barack Obama had a commentary appear in the Harvard Law Review.  The commentary, titled "The President's Role in Advancing Criminal Justice Reform," provides a discussion of the current criminal justice landscape and the need for meaningful reform, the role played by the President in driving significant reform at both the federal and state/local levels, and a look ahead to reforms that could be implemented soon. 

Brief Odds and Ends

#AppellateTwitter made the United States Law Week -- in a piece calling it "Appellate Law Enthusiasts' 'Nerdy' Forum."

A new keyboard just for legal writers has hit the market -- the Legal Keyboard -- including buttons for section, paragraph, and copyright symbols, among other features.  Only $65.





January 6, 2017 | Permalink | Comments (0)

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)