Appellate Advocacy Blog

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

Monday, May 1, 2017

An En Banc Conundrum

Several weeks ago a reader sent me a copy of an order from the District of Columbia Court of Appeals denying rehearing en banc in a multi-appellant case.  Pretty run of mill, or so it seemed at first glance.  Courts deny rehearing en banc all the time.  But this order was far from ordinary.  According to the order, the case was before the following judges of the District of Columbia Court of Appeals:  "Washington, Chief Judge; Glickman, Fisher, Blackburner-Rigsby, Thompson, Beckwith, and Easterly, Associate Judges."  That is 7 judges.  Judge McLeese did not participate in the the cases.  Although there are 9 seats on the District of Columbia Court of Appeals, one of the seats has been vacant for several years, making for normally 8 active judges.  

Of the 7 active judges participating in the case, 4 voted for rehearing en banc with respect to two appellants, yet the petitions were all denied.  How can that be?  I emailed some with the tipster, and we agreed it was probably because the District of Columbia Court of Appeals requires a majority of active judges to vote in favor of a petition.  In the case of the District of Columbia Court of Appeals, that would be 5 judges.  After looking at the court rules, that is in fact the case.  So, even though one judge was recused, and a majority of the active, non-recused judges voted for rehearing en banc, the petition was denied.

I must admit, I had not heard of such a situation before, and my tipster was equally baffled.  As it turns out, Howard Bashman has written on the topic before, arguing that recused judges should not be counted as a no vote.  Howard's piece, written in 2001, noted that the federal rules were unclear on how recused judges should be counted in the en banc voting process and that the federal appellate courts were divided on how the language should be interpreted.  Federal Rule of Appellate Procedure 35 now makes it clear that it is a majority of active judges "who are not disqualified" participate in the decision whether to take a case en banc.  Sounds like the District of Columbia Court of Appeals needs to update it rules!



May 1, 2017 | Permalink | Comments (1)

Friday, April 28, 2017

Appellate Advocacy Blog Weekly Roundup April 28 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).


Salazar-Limon v. Houston:

The Supreme Court denied cert this week in Salazar-Limon v. Houston, a case in which the trial court granted summary judgment in favor of the State on a qualified immunity claim related to an allegation of excessive force by a police officer who shot a man in the back.  The denial of cert drew extra attention because Justice Sotomayor authored a strong dissent, in which she asserted that the trial court and the Fifth Circuit had acted improperly in granting summary judgment and argued that the Supreme Court does not evenly consider appeals from the State and from citizens in such cases.  Justice Alito also authored a separate opinion, concurring in the denial of cert.

Some links discussing the decision and the policy implications related to the development of qualified immunity law in such cases:

Justice Alito's concurrence and Justice Sotomayor's dissent.

Will Baude post on Volokh Conspiracy at the Washington Post about the Court's "Double Standard for Qualified Immunity Cases."

Raffi Melkonian blog post arguing that Sotomayor missed the mark with the reasoning in her dissent.

Supreme Court Arguments:


Monday the Supreme Court heard argument in McWilliams v. Dunn, addressing the question of whether an indigent defendant's entitlement to meaningful expert assistance includes a requirement that the expert assistance be independent from the prosecution.

NPR Article previewing the oral argument

NPR Article about Justices appearing to be split during oral argument

SCOTUSblog page for McWilliams

Bristol-Meyers Squibb Co.

Tuesday the Supreme Court heard oral argument in Bristol-Meyers Squibb Co. and in BNSF Railway Co., addressing the Constitutional law governing where injured people and others can sue companies.  The cases could mark further changes in the recently evolving law of personal jurisdiction.

Bloomberg Article previewing the oral argument

ABA Journal Article by Erwin Chemerinsky previewing Bristol-Meyers Squibb Co. and its potential impact

SCOTUSblog page for Bristol-Meyers Squibb Co.

 Maslenjak v. United States

Wednesday the Supreme Court heard oral argument in Maslenjak, addressing whether a naturalized American citizen can be stripped of citizenship status in a criminal proceeding based on an immaterial false statement.

SCOTUSblog page for Maslenjak

NY Times article reviewing the oral arguments and the apparent concern by the Court for the government's very hard-line position that any criminal offense, no matter how minor and no matter whether ever resulting in arrest or other consequence, could be the basis for revoking citizenship.


Appellate Practice:

This week's #PracticeTuesday discussion on Twitter was all about career changes -- when, how, and why.  It was hosted by Raffi Melkonian.  As always, a lot of great discussion and advice.  Check out the main thread HERE or search for the hashtag on Twitter for additional posts.

This week, Jason Steed shared a blog post from last April on the subject of "Choosing the Right Word."  It's a great read and emphasizes somef quality legal writing stand-bys, such as avoiding the overuse of adverbs and adjectives and, instead, using carefully chosen simple nouns and verbs.

Georgia Court of Appeals Chief Judge Dillard had a discussion going this week on Twitter about concessions during oral argument.  Among the responses that don't appear directly in the thread are a series of thoughts from Steve Klepper, giving the litigants' perspective.

April 28, 2017 | Permalink | Comments (0)

Tuesday, April 25, 2017

#TwitterTuesday--The Grand Canyon State


We have had a cold, rainy weekend in Virginia.  So, the warm sunshine of Arizona, where I will be moving to soon, is on my mind.  For #TwitterTuesday today we are featuring some accounts to follow for appellate matters in Arizona.

The Arizona Supreme Court (@AZCourts) has its own twitter account that provides easy access to case summaries and decisions as well as other news and information about the Court.

The Attorney General of Arizona, Mark Brnovich (@GeneralBrnovich), is both country music fan and an avid tweeter about the opportunities his office has to engage with the public and on issues such as protecting victims.

 Osborn Maledon, P.A. (@OsbornMaledon) is an Arizona law firm that runs the AZAPP blog which provides case summaries and news from appellate courts in the Grand Canyon State.

April 25, 2017 | Permalink | Comments (0)

Tuesday, April 18, 2017

#TwitterTuesday--AGs of New England


Today for #TwitterTuesday I would like to feature some of the AGs in the Northeast.

Maura Healey (@MassAGO) is the Attorney General of Massachusetts. On top of tweeting about the Boston Celtics or the Boston Marathon, the AG tweets about their work regarding opioid addiction and sexual violence.

 George Jepsen (@AGJepsen) currently serves as the Attorney General for Connecticut. Jepsen’s tweets contain helpful links to find the current projects going on in The Constitution State, including his statements on the activities of President Trump.

Peter Kilmartin (@AGKilmartin), Attorney General of Rhode Island, provides a convenient link in his tweets to helpful information contained in a newsletter from his office.

T.J. Donovan (@TJforVermont) currently serves as the Attorney General for the State of Vermont (@VTAttorneyGen). His tweets often correlate to events his office is holding around the state as well as a way to introduce topics of discuss and hear feedback from constituents.

April 18, 2017 | Permalink | Comments (0)

Monday, April 17, 2017

Should you correct a judge's pronunciation?

For those of you on the edge of your office chair waiting for the answer, it is no.  You should not correct a judge's mispronunciation of a word.  

The long (although not too long) answer can be found in my colleague James Duane's recent article May it Please the Court?: The Perils of Correcting a Justice's Pronunciation, which is being published by the Seton Hall Circuit Review.  In the article, Jim recounts a trip to the United States Supreme Court that we took with several of our students to hear oral argument and meet with Justice Kagan.  During argument in the case, one of the justices asked a question that mentioned the last antecedent rule.  The justice pronounced "antecedent" in an unconventional manner.  The advocate, who was quite skilled, used the more common pronunciation of the word "antecedent" in her response.  

As he reflects in the article, Jim told us after the argument that he has "never contradicted a judge about the pronunciation of any word while arguing a case. I would instead either mimic the judge's mistaken pronunciation, or simply not use that word in my answer."  Sound advice.  Jim also avoids mentioning the particular justice and advocate in his article, but he provides a link to the oral argument.  Tony Mauro, in this write up on Jim's article, includes a link to the audio. 

This article is not Jim's only foray into the perilous task of appellate pronunciation. He also has a delightful (and short) piece in The Green Bag on how the Supreme Court is split on pronouncing the word "certiorari."

April 17, 2017 | Permalink | Comments (0)

Tuesday, April 11, 2017

#TwitterTuesday--Final Four


Yes, I am a week late, but for #TwitterTuesday this week we are featuring the four schools that made it to the final four:

North Carolina

Josh Stein (@JoshStein_) is the 50th Attorney General of the Tar Heel State (@NCAGO), serving alongside current governor and University of North Carolina School of Law graduate, Roy Cooper (@RoyCooperNC).


Mary Fairhurst, a Gonzaga School of Law graduate, was sworn in as the Chief Justice to the Washington Supreme Court (@WACourts) in January. Follow the state supreme court on Twitter for updates and even a little history from the State’s highest court.


Ellen Rosenblum (@EllenRosenblum) is a graduate of the University of Oregon School of Law and has the distinction of serving as Oregon’s first woman Attorney General.

South Carolina

Alan Wilson (@AGAlanWilson), a University of South Carolina School of Law graduate, is the current Attorney General for the Palmetto State (@SCAttyGenOffice).

April 11, 2017 | Permalink | Comments (0)

Monday, April 10, 2017

Back to a Full Bench

After 14 months of operating with only 8 justices, on April 17, 2017, the Supreme Court of the United States will hear oral arguments with a full bench.  Judge Neil Gorsuch has been confirmed by the United States Senate to fill the vacancy on the high court created by the death of Justice Antonin Scalia last February.  Judge Gorsuch will be sworn in today.

Judge Gorsuch's confirmation process was not without controversy.  Senate Democrats, upset that former-President Obama's pick to replace Justice Scalia did not receive a hearing, filibustered Gorsuch's nomination on the Senate floor.  Republicans responded by using the "nuclear option" to change the Senate rules and require only 51 votes (not 60) for Judge Gorsuch's nomination to move forward.  Senate Democrats had similarly used the "nuclear option" in 2013 to remove the filibuster for executive and federal appellate nominees.

Justice Gorsuch's first week as a justice will be likely spent prepping for the cases the Court will hear his second week on the bench.  The Court is sent to hear argument in seven cases from April 17 to April 19.  His vote is likely to be critical in some the cases still facing the Court this term.


April 10, 2017 | Permalink | Comments (0)

Friday, April 7, 2017

Appellate Advocacy Blog Weekly Roundup April 7 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).

Confirmation of Judge Gorsuch to SCOTUS

Items Related to Gosuch Confirmation Votes, Filibuster, Nuclear Option:

Washington Post evaluation of the votes as of Monday morning

Washington Post on Democrats securing votes to block nomination and setting up potential "nuclear option"

Reuters article: Democrats amass support needed to block confirmation vote with filibuster article on "The Strategic Case Against the Democratic Filibuster of Neil Gorsuch"

USN&WR article on "A Supreme Mistake in the Making" about how Republicans could harm the country and themselves by breaking the filibuster with the "nuclear option"


HowAppealing links to variety of articles and stories about Senate Republicans deploying the "nuclear option" to break the filibuster and clear the path for Gorsuch's confirmation.


Items Related to Midweek Plagiarism Allegation:

Business Insider article about the allegations

Politico piece asserting that the evidence supports conclusions of plagiarism

Bloomberg piece asserting that the alleged plagiarism examples are embarrassing


 Not Directly About Gorsuch, But About Judicial Nominations, Vetting, and Confirmation

NY Times article about the White House ending the ABA's role in vetting judges


Noteworthy Appellate Rulings

7th Circuit Court of Appeals ruling in Hively v. Ivy Tech Community College of Indiana:

The 7th Circuit Court of Appeals became the first federal appeals court to rule in favor of protection for sexual orientation-based discrimination under existing federal law when it ruled in an 8-3 ruling that existing civil rights laws protect against such discrimination.

Reuters article about the 7th Circuit decision

AP/Buzzfeed article about the ruling, including court's actual opinion

HowAppealing Links, Part 1

HowAppealing Links, Part 2


Analysis of Appellate Work and History

Empirical SCOTUS analysis of "The Most Powerful Justices Across Time" 


Practice Items

Reuters  on judge sanctioning firm over line spacing and font

#AppellateTwitter's #PracticeTuesday thread this week about tips, processes, advice on finalizing briefs

Twitter:  Trial by Combat denied


April 7, 2017 | Permalink | Comments (0)

Thursday, April 6, 2017

The Fourth Circuit's inboxes are overflowing with unsolicited emails

Here is an interesting tactic that I had not heard about before, and seems so out of the realm of possibility I had never considered it: Fourth Circuit judges have received thousands of unsolicited emails urging a particular outcome in a pending case. As lawyers, we understand and live by the idea that ex parte communications are not allowed. Normally we think of this in terms of the other party involved in the case. No one wants opposing counsel to have the judge's ear without being able to respond. The rule preserves the fairness of the process.


But what if those who are not party to the case have something to say? Well, there is a process for that too - the amicus brief. Usually, interested parties must have permission from the court, and sometimes the actual parties, in order to submit this type of information. Other methods of submitting information to the court, particularly in an unorganized or decentralized fashion is not a "thing." Maybe now it is.

The current email campaign is coming from the Florida Family Association who is urging the court to uphold President Trump's travel ban (the court will be hearing the case in a few weeks). The FFA has engaged in similar campaigns in the past and feels that this type of communication can be persuasive for the court. The group promotes this communication by providing a template for individuals to copy and send on their own, not unlike the types of campaigns used by advocacy groups to communicate with elected officials. 

FFA founder and president David Caton said he believes email campaigns are an effective tool to sway judicial decisions.

"We feel there is a flavor that is missing in most courts, which is, what is really the will of the American public?" Caton said. "When there is injustice, there needs to be a mechanism to communicate from the people who are frustrated when they see the injustice."

But others, which I would guess includes most lawyers, have a different opinion.

"I can't think of a better way to make a judge mad than to flood his or her email box with a bunch of advocacy statements," [Russell] Wheeler said. [Wheeler is an expert in courts and law at the Brookings Institute].

Considering the way communications have changed over the last several years, and with the rise of social media where everyone has an opportunity to voice his or her opinion, this action doesn't seem so out of the mainstream anymore. Public, and formerly private, figures can all suddenly be subject to the admonitions of the crowd. And those communications are probably protected by the First Amendment unless it were to become harassment. While this kind of behavior stretches the boundaries of expected decorum, if the tactics are perceived as effective, this kind of action will continue to happen. Further, the continued politicization of the judicial branch will encourage advocacy groups to try influence court outcomes in ways that skirt the traditional judicial process. 

It is important that we have and cultivate a public discourse, but I can't say I am in favor of channeling that discourse into every judge's inbox. Speaking from within the legal bubble, I agree that receiving unsolicited email would not make me more likely to find in their favor. However, the more our courts continue to appear to be swayed by political ideology, and not by adherence to the law, the more this tactic and others like it will be employed to influence outcomes. I do not believe this is a good development for our legal system, but it appears to be directly connected with frustration and disappointment in the system itself. 

April 6, 2017 | Permalink | Comments (0)

Tuesday, April 4, 2017

#TwitterTuesday--Midwest Supreme Courts


Spring is in the air!  In honor of warmer weather, for #TwitterTuesday this week we are featuring the Twitter accounts of the high courts of some cold Midwestern states.

The Minnesota Judicial Branch (@MNCourts) is the official Twitter account of the State’s courts, including its Court of Appeals and the Supreme Court. Information about the latest decisions from various courts or news about the legal community in the state can be found here.

 The Michigan Supreme Court (@MISupremeCourt) has an extensive twitter outreach. Tweets from the State’s highest court include history of the legal system, information about legal services and opportunities, recent Court decisions and latest legal trends.

@OHSupremeCourt is the official Twitter account of the Supreme Court of Ohio. The Twitter feed includes announcements from the Court, recent decisions, and important deadlines for practitioners in the state.

April 4, 2017 | Permalink | Comments (0)

Tuesday, March 28, 2017

#TwitterTuesday--Lone Star Litigators


Today on #TwitterTuesday we are featuring lawyers from the Lone Star State.

David Walsh (@AppealsCRKA) is an appellate lawyer (and partner) at Chamblee Ryan in Texas. Over his career, Walsh has handled appeals on a wide-range of topics, including the right against self-incrimination, admissibility of expert testimony, insurance coverage, and civil rights.

Kirsten Castaneda (@Texapp) is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. Castaneda works in Dallas with the firm of Alexander Dubose Jefferson Townsend and often tweets helpful advice for fellow lawyers.

Tate Hemingson (@Tate_Hemingson) is a commercial litigator and appellate attorney with Strasburger & Price in Dallas. This self-described “grammar nerd” also writes articles, like one recently published with the Dallas Bar Association.

March 28, 2017 | Permalink | Comments (0)

Friday, March 24, 2017

Appellate Advocacy Blog Weekly Roundup March 24 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).

Judge Gorsuch Nomination and Hearing:

The biggest news item of this past week, as it relates to appellate practice, was surely the confirmation hearing held over several days for Supreme Court nominee Judge Neil Gorsuch.  It appears that the vote on his confirmation will take place in early April, so it will likely continue to be a big news item over the next couple of weeks, as well.

Here are links to a variety of items of interest concerning Judge Gorsuch, his nomination, and the confirmation hearing:

 ABA Live Blog of Day 1 of the hearing

ABA Live Blog of Day 2 of the hearing

ABA Live Blog on Day 3 of the hearing

ABA Live Blog of Day 4 of the hearing


University of Virginia Law School Creation:  Neil Gorsuch Project -- including links to opinions, speeches, etc.


CNN Article: Gorsuch on issues

NPR Article: Assertions made regarding Gorsuch on Maternal Leave

Washington Post Article: Some key Gorsuch rulings 

Reuters Article: Democtrats' Plan to Fight Nomination

Trump's Travel Ban:

This week, Judge Alex Kozinski authored an opinion in which he defended President Trump's travel ban against assertions that the ban is contrary to the First Amendment.  That opinion gained some publicity:

Kozinski opinion

 Supreme Court Rulings

The Supreme Court issued a couple of important rulings on meaningful cases this week.

Endrew F. v. Douglas Cty. Sch. Dist.

Regarding standards for what schools must do under the Individuals with Disabilities in Education Act to provide appropriate services for students.  In the Supreme Court's unanimous decision, the Court ruled that schools must do more than provide a "merely more than de minimis" education program.

Education Week Blog Article about Opinion

 Link to Supreme Court Opinion

Bloomberg summary of oral argument from January

Star Athletica v. Varsity Brands

Regarding copyright law protections for "decorative features" on cheerleading uniforms.

ABA Journal Article about Opinion

Link to Supreme Court Opinion

March 24, 2017 | Permalink | Comments (0)

Tuesday, March 21, 2017

#TwitterTuesday--Empire State


Today's #TwitterTuesday comes from the great state of New York.  Here are a few folks/courts to follow for #appellatetwitter in NY:

The New York Court of Appeals, the highest court in the state, has its own Twitter account (@NYCourtsCOA). The Court’s tweets provide information regarding their calendar and recent decisions. 

New York Attorney General Eric Schneiderman (@AGSchneiderman) keeps us up to date on what is happening in the Department of Law.

The Third (@NYAppDiv3) and Fourth (@NYAppDiv4) Judicial Departments of the Supreme Court - Appellate Division have their own Twitter accounts to keep followers informed and even providing the opportunity to see cases live.

Robert Rosborough IV (@NYSAppeals) is an “#AppellateTwitter Litigator” with Whiteman, Otherman & Hanna LLP. Rosborough’s tweets include a wide range of topics from appellate law in New York and around the country to the confirmation hearings for Judge Neil Gorsuch.

March 21, 2017 | Permalink | Comments (0)

Monday, March 20, 2017

To "Um" or Not--A Discussion of Disfluencies for Lawyers, Professors, and Students

As a moot court coach, I teach my students to not use disfluencies like "um" or "uh" in their oral arguments. According to Prof. Barbara Gotthelf's article, A Lawyer's Guide to Um, my dislike of these disfluencies is not unique, but it might be wrong.  After hearing a moot court judge critique an advocate for her use of "uh" and "um," Prof. Gotthelf "began consulting books on public speaking, including texts written specifically for lawyers, and they all gave the impression that using uh and um might be the single worst thing any speaker could do." Having previously heard from a psycholinguist that "using uh and um was not only 'perfectly normal,' but also helpful in furthering effective communication," Prof. Gotthelf dug even further into the literature and found "a body of scientific literature that supports Dr. Shriberg’s views and demonstrates that, contrary to public perception, uh and um are not only inevitable, but actually useful bits of communication."

Prof. Gotthelf's response to the "um fixation" is expressed in the article, which was published by Legal Communication & Rhetoric: JALWD and is available here.  I haven't had a chance to review it in depth, but I look forward to doing so soon (at least in advance of the below event).

In addition to publishing the article, Legal Communication & Rhetoric: JALWD is holding a live Facebook discussion of the article.  Below is the announcement that I received regarding the event.  I am sure that it will be, uh, a great discussion.

Gearing up for spring oral argument competitions? Join Legal Communication & Rhetoric: JALWD for a live Facebook chat-based discussion of Professor Barbara Gotthelf’s article, The Lawyer’s Guide to Um. This article about disfluencies like “um” and “uh” should be of particular interest to moot court advisors, practitioners, law students, and anyone who teaches oral argument. Should verbal fillers be vilified? Read the article and come weigh in!

The chat will take place on Thursday, April 6 at 3pm Eastern. Professor Jennifer Romig of Emery University School of Law will moderate. To participate in the discussion, join the LC&R Discussion Group here: You may join at any time in advance of the chat. When you join, you can check out the archives of our previous discussions.

 Professor Gotthelf’s article can be found here on the Journal’s website:

The Group invites participation by lawyers, law professors, professors from communications and other fields, legal professionals, law students, and anyone with an interest in law and legal communication. It is a forum for the free exchange of ideas with civility and mutual respect.


March 20, 2017 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument | Permalink | Comments (0)

Monday, March 13, 2017

Full Citizenship Project

Last week, on International Women's Day, the Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announced the "Full Citizenship Project for All Law Faculty" campaign.  According to the press release, the project is "aimed at correcting gender and related disparities among U.S. law faculty." The press release explains:

 As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly—and only—36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.

The press release has been featured on the blog for the Society of American Law Teachers (SALT) and on Prof. Paul Caron's TaxProf Blog.  Additionally, a article discusses the project and features a nice supporting quote from Denise Roy, the co-president of SALT.  Finally, for a more personal perspective, a clinical professor has written about her experiences in academia here.


March 13, 2017 in Law School, Legal Profession | Permalink | Comments (0)

Tuesday, March 7, 2017

#TwitterTuesday--Legal Tech


Technology has significantly changed how lawyers do their jobs, especially appellate lawyers.  From e-filing to computerized research, the impact of technology has been huge.  So, for #TwitterTuesday, here are a few legal tech Twitter feeds to follow:

AppealTech (@AppealTech) is a “comprehensive appellate services provider” that producers a blog with helpful information related to appellate practice and technology.

Legal IT News (@LegalIT) is a good source for keeping up with the latest advances in legal technology.

For information “covering products, services, people, news, analysis, and commentary for the legal technology community,” check out Legaltech©news (@Legaltech_news)

Legal IT Insider (@LegalITInsider) is a London-based company publishes articles on the latest tech trends from the U.K. to the U.S.


March 7, 2017 | Permalink | Comments (0)

Thursday, March 2, 2017

Would Trump make a deal for the Supreme Court?

Senator Udall, D-NM, has an offer for President Trump (one that he would probably refuse): "We'll give you Gorsuch, if you agree to replace one of the liberal justices with Merrick Garland."


This deal is contingent upon the voluntary retirement of one of the more elderly justices like Ginsburg, Kennedy, or Breyer. Supposedly, Trump would charm one of them into retirement by guaranteeing that Garland would be nominated in his or her place. Then, the Senate would confirm both new justices simultaneously.

Well, that would certainly go toward maintaining the supposed balance of the Court, but whether that would be good for maintaining the neutrality of the process is questionable. The Court is already besieged by political attacks, and this would not help repair that perception.

Apparently Sen. Udall pitched this idea to Judge Gorsuch in a private meeting that included White House officials. Sen. Udall has mentioned this to other senators, but so far his persuasive skills do not appear to be winning over any supporters. Should he consult The Art of the Deal


March 2, 2017 | Permalink | Comments (0)

Tuesday, February 28, 2017

#TwitterTuesday--Appellate Law in the Land of Lincoln


Today for #TwitterTuesday  we are featuring Appellate Law in the Land of Lincoln.

The Illinois Supreme Court (@illinoiscourts) has its own official twitter. Their feed includes links to news from the Court and information about the latest opinions.

Appellate Lawyers (@AppLawAssoc) is an association of attorneys and judges that practice law in state and federal courts in Illinois. The group tweets about everything from pending cases to CLE opportunities for lawyers to learn and network.

The Illinois Attorney General (@ILAttyGeneral) has its own twitter account. The account keeps the public informed on what Attorney General Lisa Madigan (@LisaMadigan) is doing in the “state’s chief legal office.” 


February 28, 2017 | Permalink | Comments (0)

Friday, February 24, 2017

Appellate Advocacy Blog Weekly Roundup February 24 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).



Hernandez v. Mesa:

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

SCOTUSblog article reviewing the oral argument. 

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

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

SCOTUSblog page with links to information about the case.

SCOTUS Blocks Execution Over Racial Bias:

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

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

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

Fourth Circuit Rules Assault Weapons Not Protected by Second Amendment

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

February 24, 2017 | Permalink | Comments (0)

Tuesday, February 21, 2017

#TwitterTuesday--Appellate Hashtag


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

February 21, 2017 | Permalink | Comments (0)