Appellate Advocacy Blog

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

Thursday, June 21, 2018

When Justices Cite to Oral Arguments

As the Supreme Court's term finishes with a flurry, this is a great time to glue yourself to Adam Feldman's data dives on his outstanding blog, Empirical SCOTUS (cross-posted since March at SCOTUSblog.com). The site is a treasure trove for Court watchers, and Feldman is terrific at collecting, presenting, and analyzing data about an endlessly fascinating institution.

In a recent post, Don't Cite Me Like That, Feldman touches (tentatively, and appropriately so) on issues that keep a lot of us entertained: Does oral argument change outcomes? If so, how? And how can we tell? This debate was raised afresh late last week in the wake of the Court's decision in Minnesota Voters Alliance v. Mansky, a challenge under the First Amendment to Minnesota's ban on political apparel at polling places. Because polling places are nonpublic fora, governments have considerable latitude to impose even content-based restrictions on speech; those restrictions simply must reasonable and viewpoint-neutral. Writing for a seven-justice majority, Chief Justice Roberts concluded that the ban was unreasonable because the state failed to draw sufficiently sharp lines between permitted and banned political messaging; that is, the Chief says, "a serious matter when the whole point of the exercise is to prohibit the expression of political views."

To illustrate the state's difficulty in drawing lines, the Chief Justice cites to segments of the argument where counsel for the state, like, struggled to draw lines. The key questions came from Justice Alito; Mark Joseph Stern describes the most damning colloquy and provides an audio cut in this piece for Slate. Justice Alito relentlessly presents a chain of hypothetical questions about how a reasonable polling official would apply various bits of expressive apparel: a Colin Kaepernick jersey, shirts displaying rainbow flags or various messages, and so on. Counsel for the state's struggle was real (and understandable). It was also, according to the chief, telling:

Screen Shot 2018-06-21 at 10.33.12 AM

My intuition is that justices will most often cite to oral argument for the reasons the Chief did here: to oppose the position of the advocate presenting the argument. My sense, too, is that a major subset of such uses would be to expose overbreadth and faulty tailoring by highlighting awkward responses to scope-testing hypotheticals. Characteristically, Feldman doesn't rely on intuition: he pulls the data. This term, justices have cited to oral arguments 69 distinct times in 26 cases (both numbers went up this morning; the justices dropped cites to oral argument in this morning's opinions in Pereira v. Sessions and Lucia v. SEC). And yes: this term, justices' most common purpose for citing oral argument has been to undercut a party's position, either by using the transcript to "create a straw man argument that the authoring justice later deconstructs" or, as in Mansky, to "more directly oppose a party's position" by detailing "miscalculated or erroneous answers," often to questions about hypothetical applications. To be sure, justices use oral argument transcripts for other purposes, and Feldman breaks down and explains those well. This strikes me as a rich area for further study.

Cycling back to the initial question: did the state's struggles in the Mansky oral argument effect the outcome? Obviously, we can't know with the information we have, and given the marginal, late-in-the-game impact of oral argument, a good hypothesis in almost any case would be no. But, as Feldman cautiously explains, Mansky might be different. Justices Kennedy, Ginsburg, and Kagan sided with the majority. But their questioning patterns at oral argument (and, to some degree, the substance of their questions, particularly those of Justices Kennedy and Ginsburg) would suggest that they might have been inclined to rule the other way. And Justice Sotomayor's position in dissent—certify the case to the Minnesota Supreme Court for a possible saving construction—was a modest one. And yet: 7-2, with the oral argument transcript cited six times in the majority opinion (the Court also cited twice to oral arguments in Burson v. Freeman, a 1992 case addressing campaigning restrictions near polling places; see footnote 1 of the Mansky slip opinion).

So perhaps oral argument really mattered here. 

Mostly, though, just add Empirical SCOTUS to your must-read list if you haven't already. 

June 21, 2018 in Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, June 11, 2018

Return to Judgment (not Judgement)

Earlier this year I blogged about students (and a well-known national gym franchise) spelling the word judgment with the letter "e" appearing twice--in "judge" and in "ment."  In my initial post, I took a cursory look at how the U.S. Supreme Court spells the word, finding that it overwhelmingly prefersthe single "e" version of the word.

The topic intrigued me so much, I decided to dig a little deeper and write a short article on it.  I am pleased to announce that the article will be published in the Spring 2018 edition of The Green Bag.  You can preview the article here.

The article starts with an Originalist inquiry into the spelling of judgment--looking at how the word was spelled in state constitutions and other important founding documents.  I then explore English language and legal dictionaries to see how those sources spelled the word.  I end with a much more detailed look at the Supreme Court's treatment of the word, using various legal research databases to identify every instance of "judgement" appearing in the U.S. Reports.  

Although I do encourage you to read the article (it is quite short), I am happy to share my conclusion in this post. In legal writing, judgment should be spelled with only one "e."  That is the preferred spelling of the early sources, the dictionaries, and the U.S. Supreme Court.  For those who want to cling to the double "e" version of the word, I implore you to be consistent in your writing. While seeing judgement in a brief does cause me to cringe, I cringe even more when I see the word spelled two different ways, sometimes in the same paragraph or sentence.

June 11, 2018 in Legal Writing, United States Supreme Court | Permalink | Comments (0)

Monday, May 28, 2018

Memorial Day Musings--SCOTUS and the Military

Today our country observes Memorial Day--a time to remember and honor individuals who died while serving our country in the military.  As the wife of a Marine Corps veteran, holidays like Memorial Day and Veterans' Day are dear to my heart.

As I was thinking about the upcoming holiday, I pondered how many Supreme Court Justices have served in the military.  The Supreme Court has decided several cases that impact the military, but how many are familiar with military service?  In searching the Internet for an answer, I stumbled across an August 2012 Atlantic article by Andrew Cohen, addressing the very topic.  According to Cohen, none of the current members of the Court have "active, wartime military experience." (Note:  Justice Gorsuch, who joined the Court after the article was published, also doesn't have military experience).  The last Justice with such experience was Justice John Paul Stevens, who served as a cryptographer in World War II.

Reviewing the backgrounds of the 112 Justices of the Supreme Court, Cohen estimated that only 41 had military experience, but "many never served in active duty during wartime or fired at an enemy."  Included in this group is Justice Kennedy (California Army National Guard), Justice Alito (ROTC and Army Reserves), and Justice Breyer (Army service).

Cohen's detailed research reviews each war and notes which Justices served.  Some notable veterans: Justice Holmes, Justice Black, Chief Justice Warren, Justice White, and Chief Justice Rehnquist.  Cohen notes, however, that since World War II, no future justices have served in combat.  As he states, "three generations of justices have come and gone since the end of hostilities in 1945, and yet none have seen combat before their tenure on the Court. Never before in our history, or in the history of the United States Supreme Court, has this occurred."

If Justice Kennedy does retire, perhaps President Trump will consider a veteran for the high court.  At least one member of his "shortlist"--Margaret Ryan--would fit that bill.

 

May 28, 2018 in United States Supreme Court | Permalink | Comments (0)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

Business-764929_1280

But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Thursday, February 8, 2018

Justice Ginsburg Reminds Us To Be Bold, But Not To Take Ourselves Too Seriously

The Notorious RGB is on tour. In person, she's a tiny little lady, with a tiny little voice, but out on the road she draws crowds like any other rock star. And at eighty-four, she is going strong. She says she will keep going as long as she can "do the job full steam." She even has a movie coming out documenting her life. It's entitled "RBG." She's a big deal. Not many others get to go by just their initials and everyone still knows who they're talking about.

09dc-bar1-master768

(Justice Ginsburg at NYU recently. This picture was too good not to share.)

Justice Ginsburg was recently profiled in the New York Times with tales of her latest adventures, but what she said about her criticism of Roe v. Wade many years ago, prompted me to think about my own day job - teaching law students how to advocate. In a lecture she delivered at NYU shortly before she joined the Supreme Court, Ginsburg

criticized Roe v. Wade, the 1973 decision establishing a constitutional right to abortion.

The Supreme Court had moved too fast, Justice Ginsburg wrote at the time. It would have sufficed, she wrote, to strike down the extreme Texas law at issue in the case and then proceeded in measured steps in later cases to consider other abortion restrictions.

The trend in state legislatures in the early 1970s, she wrote, was toward more liberal abortion laws. The categorical Roe decision, she wrote, gave rise to “a well-organized and vocal right-to-life movement” that “succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

Her analysis is contested, as Justice Ginsburg acknowledged on Monday. “I know that there are many people who disagree with me on this subject,” she said.

This statement is so insightful for how I want my students to think about advocacy. Law schools are smack in the middle of moot court season right now, and many of us are running to practices after class or during our lunch breaks. Inevitably, always one critique for the student mooters is, "We are the Supreme Court. We can do anything we want. What should we do? Make that argument." Students are frequently stuck on precedent and making analogous arguments to lower court opinions. It takes some nudging to get them into the mindset to make them contemplate what really is the right decision for the court to make. Have the lower courts found the right reasoning, or have they gotten it wrong? Now is the time to tell the Supreme Court how to rule and why.

The point Justice Ginsburg makes is also prescient considering our current political discourse. How do we move good policies forward? Is having a court declare the rule a good path, despite a lag in public opinion? Or do we forge ahead having faith that public opinion will fall in line? We can see through history that unpopular decisions have eventually become the norm, but acceptance of many of these opinions has rarely been immediate. RBG may be right, perhaps sometimes the Court should move slower. But the value is in thinking through the ramifications of both action and patience.

These are the kinds of questions I want my students to wrestle with, so that they can become good advocates, but also good stewards of the profession. Lawyers hold the future of the law in their hands, and nurturing it is a task not to be taken lightly. I am glad Justice Ginsburg reminds us to think outside the judicial box.

February 8, 2018 in United States Supreme Court | Permalink | Comments (0)

Thursday, January 25, 2018

Should Justices Dine with Senators?

The newest justice to the Supreme Court, Neil Gorsuch, is doing his part to keep Twitter rolling. A few days ago he attended a private dinner with Republican Senators Cornyn, Alexander, McConnell, and Secretary of Transportation, Elaine Chao, who is married to McConnell. How do we know this? Senator Alexander tweeted about it saying,

I enjoyed having dinner tonight at the home of Senator John Cornyn and his wife Sandy with our newest Supreme Court Justice, Neil Gorsuch, Transportation Secretary Chao and a few of my other Senate colleagues to talk about important issues facing our country.

The Tweet did not go unnoticed and drew criticism ranging from charges of fraternization to ethical impairment. The action of dining together is not actually against any judicial code of conduct. According to the Code:

Canon 5: A Judge Should Refrain from Political Activity

(A) General Prohibitions. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or

(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.

Sharing a meal would not fall under these restrictions, but could there still be a problem with it? Yes, and the problem is with perception. Justice Gorsuch, by all accounts, seems to be a very even-tempered judge, not subject to whim. He writes thoughtful opinions and might even be called predictable in his votes. Not everyone will like his decisions, but he does not seem susceptible to political pressure.

Gorsuch-2

However, in light of the current state of the public discourse and political climate, dining privately with politicians of only one political party certainly looks bad, and is not a suggested way to build a public perception of impartiality. Based on what I perceive to be Justice Gorsuch's respect for the judiciary and public perception, I doubt we will see anymore tweets documenting his attendance at dinners like this again. 

 

January 25, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 29, 2017

Lessons from the Carpenter oral arguments: SCOTUS echoes with [laughter]

I'm no Orin Kerr, but I've been pretty obsessed lately with United States v. Carpenter, this term's blockbuster Fourth Amendment-meets-technology case. It's a fascinating case, and it features outstanding advocates addressing important issues (and it makes for a nifty moot court problem). So I figured today I'd get the transcript, pore over it, and identify some great moments that let me say useful things about advocates doing advocacy.

There definitely are such moments. Interesting exchanges. Justice Gorsuch sharply pursuing a property-interest line of reasoning. And, most of all, the remarkable Michael Dreeben spinning out elegant prose on the fly.  

But what struck me first was the laugher. Or, in SCOTUS, the [laughter]. Apparently, cell phones bring out the funny in the justices. 

I shouldn't be surprised by this. Talking about Cell Site Location Information allows the justices to mine rich veins of I'm-a-wizened-person-with-life-tenure-and-I-don't-know-how-these-gizmos-work humor. And that's what Justice Kennedy did with the day's first [laughter]:

Screen Shot 2017-11-29 at 7.43.18 PM

And Justice Sotomayor:

  Screen Shot 2017-11-29 at 7.49.41 PM
Screen Shot 2017-11-29 at 7.49.41 PM

OK, so these are not the funniest jokes in the world. But they are, like, legit jokes. And that is not the norm for Justices Kennedy and Sotomayor. They are not humorless folk, but they never rank highly in Jay Wexler's groundbreaking studies of SCOTUS humor. Today's yuk fest means that Justice Sotomayor finally opened up a gap between herself and Justice Thomas in this term's [laughter] count. Justice Kennedy gets in the occasional self-deprecating quip, but his funniest SCOTUS moment before today was when he played straight man for Justice Scalia in the great "What's a footman?" routine of '07. These justices are not Justice Breyer, who can bring down the house with a well-timed utterance of "Limburger cheese." 

Maybe [laughter] will unite the justices. And all of us, every one.

 

November 29, 2017 in Humor, United States Supreme Court | Permalink | Comments (0)

Wednesday, October 18, 2017

The advocacy of "the greatest lawyer of the 20th century"

22499011_10155074358482825_4019653763382361093_o

My law school was fortunate to welcome Elena Kagan earlier this week. (The artist's rendering above is the work of Professor Evelyn Brody.) During a delightfully wide-ranging conversation with Professor Carolyn Shapiro, Justice Kagan took a firm stand on one point: her former boss Thurgood Marshall was "the greatest lawyer of the twentieth century."

No one argued with that.

Marshall

As Justice Kagan noted, we mostly remember Thurgood Marshall, attorney at law, as an appellate advocate, though that might change with the release of the film Marshall, which focuses on his trial work. He is, of course, most celebrated for his work in the Brown v. Board of Education cases. And his advocacy led to key victories in the decade-plus before Brown: in Murray v. Pearson, a groundbreaking Maryland desegregation case; in Shelley v. Kraemer, a landmark case striking down racial covenants; in the Brown precursors Sweatt v. Painter and McLaurin v. Oklahoma State Regents; in dozens of other cases.

To spell out the obvious: there is substance to Marshall's legend. The records of his appellate oral arguments provide ready confirmation of this. It's worth reading in full the transcripts of his oral arguments in Briggs v. Elliott, one of the consolidated Brown cases.  In the original 1952 argument and rebuttal (pdfs), Marshall elegantly handles active questioning from skeptical justices (Reed and CJ Vinson, who reportedly favored upholding the school boards' practices)  and genuinely torn justices (Frankfurter and Jackson, who were sympathetic to the claimants but true believers in judicial restraint). In the 1953 reargument, Marshall offers a rich oral treatise on the Fourteenth Amendment. And his rebuttal is a remarkable closing argument. I won't paste an excerpt here because an excerpt won't do it justice. Trust me: click here; scroll to page 20; start reading the paragraph at the bottom of the page that begins "[t]he argument of judicial restraint has no application in this case"; keep going until you hit "[t]hank you, sir." Ethos, logos, pathos.  

I'd also recommend listening to Solicitor General Marshall's oral argument in United States v. Price, the Mississippi Burning case. Unlike in Briggs/Brown, he's not addressing skeptical or torn justices: he draws only two soft questions from a Court that ultimately ruled unanimously in his favor. So he generates his own momentum: in key segments of his argument, he serves as his own interlocutor, asking sharply-composed questions and offering sharply-composed answers. It works remarkably well; his assurance and comfort in his own skin are a palpable force.

None greater. 

October 18, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Wednesday, October 4, 2017

Oral argument in Gill v. Whitford: big questions, well-composed answers

In yesterday's oral arguments to the Supreme Court in Gill v. Whitford, the closely watched partisan gerrymandering case, Justice Breyer uncorked a doozy of a question. As he winds up, he promises to take "exactly 30 seconds." Then he, like, does not.

The question spans three pages and 57 lines in the transcript. According to Josh Blackman, who tracks the length and volume of Justice Breyer's questions so you don't have to, this appears to have shattered the justice's previous record, which I naively thought was the Article III equivalent of Joe Dimaggio's hitting streak

Here's the whole thing. Start scrolling:

Breyer1

Breyer2-669x1024

Breyer3

(Hat tip: Josh Blackman & Adam Feldman)

Like a lot of Breyer's long questions, this one had a pretty simple, IRAC-y structure and goal. First, he identifies a sticking point around which the Court would have to work to rule for one party or the other. Here, that's whether there are judicially manageable standards for evaluating claims of that partisan redistricting violates the Constitution. Second, he spins out his ideas about a solution (or, in other cases, his ideas about why the sticking point means the Court might be stuck). Here, that's his multi-step control > asymmetry > persistence > outlier > justification approach. And third, he asks the question. It's usually a 50+ word version of "so what do you think?"

I was impressed with the choices made by Wisconsin Solicitor General Misha Tseytlin -- an outstanding advocate -- in his answer. The question marked a shift in the direction of the argument from a conversation about one potential justiciability obstacle (standing) to another (political question). After the inevitable (laughter) that accompanies almost every Breyer mega-question, Tseytlin signaled, quite succinctly, to which of Justice Breyer's cues he would respond and how he had already touched on another earlier in the argument. And then he deliver a sharply composed, concrete multi-part answer: 

Screen Shot 2017-10-04 at 8.15.44 AM

Screen Shot 2017-10-04 at 8.16.32 AM

He's then interrupted by Justice Kagan, who asks a question that's Breyerian in scope but relatively pointed:

Screen Shot 2017-10-04 at 8.22.15 AM

Screen Shot 2017-10-04 at 8.22.32 AM

Tseytlin delivers another well-composed response, using the Rule of Three rhetorical device:

Screen Shot 2017-10-04 at 9.45.05 AM

I'm looking forward to hearing the audio later this week.

October 4, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, October 2, 2017

First Monday

Happy first Monday!  Today kicks off the start of the Supreme Court's term.  The term last year was something of a snooze-fest as we all waited for the presidential election and the nomination of Justice Scalia's successor on the Court.  This term will likely be much more exciting with union dues, religious liberty, immigration, and sports gambling on the Court's agenda.  Check out this NY Times article and this Washington Examiner article for summaries of some of the key cases.

First Monday also means the start of the FantasySCOTUS season.  By this point, you have an idea of how your Fantasy Football season is going.  Maybe your key draft picks have been injured or just aren't playing up to expectations. Well, it is time to cut your losses and focus on FantasySCOTUS! Created by Professor Josh Blackman and now run by LexPredict, FantasySCOTUS allows anyone to predict how the cases before the Supreme Court will be decided.  User predict how individual justices will vote on cases, as well as the how the case will ultimately be decided.

I have used FantasySCOTUS as a teaching tool in the past, offering incentives for my students to participate in the contest and stay current on what the Court is doing.  The program allows you to create your own league, or you can participate in a law school specific league. There are even prizes for the top predictors! FantasySCOTUS also features {MARSHALL}+, a "revolutionary algorithim that can accurately predict Supreme Court cases."  Created by LexPredict, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

Although my Fantasy Football team seems to be doing pretty good for the first time in years, I look forward to seeing how my FantasySCOTUS predictions go this term.  Good luck to all of the participants.

October 2, 2017 in Current Affairs, Oral Argument, Sports, United States Supreme Court | Permalink | Comments (0)

Thursday, August 24, 2017

Will the U.S. Supreme Court soon be reviewing 167 courts-martial?

One hundred seventy-four service members have consolidated their appeals into 167 cases. They hope to have the U.S. Supreme Court review their cases, not for substantive error, but for an unusual procedural error. The legitimacy of some of the judges who heard these cases is being challenged. And even more unusual is that the challenge comes under a Civil War era law that has never been interpreted by the Court.

Some military JAG officer serve in the capacity as a judge on courts-martial. Four were also appointed to the Court of Military Commission Review (CMCR) - a commission that reviews Guantanamo Bay proceedings on their way to the D.C. Circuit. This is considered a civilian office. Where this runs afoul is that the 1870 statute prohibits military judges from concurrently holding a nonmilitary office unless the judge has specific permission to do so.

The 1870 statute, which the Supreme Court has never interpreted, prohibits active-duty military officers from concurrently holding a civil office, unless Congress expressly authorizes the dual office-holding. Congress enacted the law to ensure civilian control of the government. The remedy for dual office-holding was to sever immediately the military officer's service connection.

....

Military judges are executive branch inferior officers for purposes of the appointments clause. But because the CMCR—unlike military courts of criminal appeals—is not subject to supervision within the executive branch, its judges are principal officers who require appointment by the president, with the advice and consent of the Senate. And CMCR judges hold a "civil office" by virtue of its creation as an Article I federal court, the challengers allege.

A 1979 Justice Department Office of Legal Counsel memo on the dual office-holding statute concluded: “Where Congress wishes to permit a military officer to occupy a civilian position … without forfeiting his commission, it has done so explicitly.”

Most convicted service-members never have the opportunity for the U.S. Supreme Court to review their cases. The military justice system is maintained separate and apart from the civilian system, complete with its own court of last resort - the U.S. Court of Appeals for the Armed Forces. Each service has its own intermediate court of appeals for review of the trial level court-martial.

If the U.S. Supreme Court were to grant review on these cases, it would represent a unique circumstance even beyond the substantive necessity of reviewing a previously unremarkable, nearly 150 year old statute. The Court has not reviewed a court-martial in over twenty years.

With the concept of civilian control over the military becoming more prominent in political philosophy discussions, this issue may have a good chance of being granted review by the Court. 

August 24, 2017 in United States Supreme Court | Permalink | Comments (0)

Monday, August 14, 2017

Supreme Court to Require E-Filing

The Supreme Court recently announced that on November 13, 2017, its electronic filing system will be up and running. Thankfully, the Court’s program will not be part of the PACER system.  Rather, according to the National Journal, the Court’s main page will include a button for “Electronic Filing.” The filings will be “accessible without cost to the public and legal community.”

While this is a huge step forward for the Court, it will not, initially, eliminate the requirement that parties file paper copies.  According to the Court’s press release,

Initially the official filing of documents will continue to be on paper in all cases, but parties who are represented by counsel will also be required to submit electronic versions of documents through the electronic filing system. The filings will then be posted to the Court’s docket and made available to the public through the Court’s website. Filings from parties appearing pro se will not be submitted through the electronic filing system, but will be scanned by Court personnel and made available for public access on the electronic docket.

E-filing has been around for some time, and is mandatory in most, if not all, federal courts.  It is slowly taking over in the state courts too.  The National Center for State Courts provides information on the state of e-filing in the states, including links to the various court rules.

While e-filing certainly has its strengths, it doesn’t mean that one can procrastinate to file a brief until minutes before it is due.  Be sure to understand the requirements for e-filing in your jurisdiction, including any size limitations and the amount of time it takes to get a login.

August 14, 2017 in Appellate Practice, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Monday, July 10, 2017

The Chief's Advice to Young Graduates

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

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

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

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

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

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

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

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

Monday, June 19, 2017

Should the Justices Cancel Their Summer Plans?

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

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

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

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

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

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

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

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

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

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

Thursday, June 15, 2017

Justice Gorsuch's first Supreme Court opinion is unanimous

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

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

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

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

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

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

Friday, December 9, 2016

Appellate Advocacy Blog Weekly Roundup December 9 2016

WeeklyRoundupGraphic

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

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. 

Coverage:

New York Times

Reuters

SCOTUSBlog

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.

Coverage:

New York Times

Fortune

Bloomberg

SCOTUSBlog

 

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)

Friday, November 11, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

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 atDReal@Creighton.edu 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)

Friday, November 4, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

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 atDReal@Creighton.edu 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.

SCOTUS:

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:

Law.com 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)

Friday, October 28, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Continuing Impacts of the Supreme Court Vacancy 

This week, Lyle Denniston (@lylden) took a look at three Supreme Court cases that were accepted right before Justice Scalia's death, but haven't received an oral argument date yet.  Denniston noted that the cases have intentionally been bypassed as hearings have been scheduled, and argued that the most likely reason for the intentional bypassing of these three cases – which have been waiting the longest to be argued – is that the Justices are inclined to think that they would wind up in 4-to-4 splits. 

One of the cases, Trinity Lutheran Church v. Pauley, is about school access to a state government program for turning tires into playground sufaces.  The case implicates state constitutional clauses in more than 30 states that deny equal access to government benefits for an organization that is a house of worship or is directly affiliated with one. 

The second case, Murr v. Wisconsin, involves the question of how private property is defined when the government seeks to prevent or regulate development because of environmental concerns. 

The third case, Microsoft v. Baker, involves suit by a group of consumers in Washington against Microsoft, in which they complain that the Xbox 360 had a defect that caused its optical disc to damage the machine to the point that it was unplayable.  Although the plaintiffs in the suit were denied class action status, they managed to get the case dismissed in a manner that allowed them to appeal as a class. 

Each of the three cases involves matters in which Justice Scalia had been outspoken in decisions in recent years.  

Posner Declares the Supreme Court "Awful" 

Judge Richard Posner of the Seventh Circuit Court of Appeals made headlines again this week.  This time, the headlines stemmed from a recent appearance at the Seminary Co-op Bookstore in Chicago, in connection with the launch of a biography on Posner. 

At the event, Posner said that he was working on a new book about the federal judicary. He said that he had "about ten pages on the strengths and about 320 pages on the weaknesses."  Posner continued to say that he was "very critical" and that he does not "think the judges are very good. [He thinks] the Supreme Court is awful. . . . Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They're okay, they're not great." 

Posner criticized federal judges, including the Supreme Court Justices, as lacking intellect – suggesting that they are appointed for appearance purposes and use clerks to do much of their work.  He asserted that the Supreme Court Justices lacked extensive trial experience.  And he criticized their writing, suggesting that Breyer and Ginsburg are the only ones who author readable opinions.  He also took issue with formalisms like res judicata and continued reliance on precedent. 

Posner even took issue with the fact that judges call their offices "chambers," attributing the practice to fourteenth century French language. 

(Video of Posner's Comments )

(Hat Tip:  Above the Law @atlblog )

Clarence Thomas' Majority by Dissent and Jeffrey Toobin's Disdain 

Adam White had a piece this week at the Weekly Standard where he discussed Jeffrey Toobin's latest critical piece about Justice Clarence Thomas.  Toobin's latest piece in the New Yorker reflected on Justice Thomas' 25-year anniversary with the Supreme Court. White noted that Toobin's premise in the latest piece is that Thomas does not write any significant majority opinions and instead focuses mostly on dissenting from others' opinions and has been "on a Court of his own" for his career with the Supreme Court.  

White disagrees with the premise.  White notes that Thomas has written dozens of majority opinions, including ones in cases "on questions of state sovereignty, the First Amendment, antitrust, and . . . administrative law." White also contends that it doesn't matter how many majority opinions he has written – because Thomas authors concurrences and dissents, spelling out his own reasoning, and emphasizing his view of original intent in Constitutional thinking. Thomas also notes that while Toobin has praised other justices, like Ginsburg, for being "influential in different ways," he seems to turn a blind eye to that same thought when looking at Justice Thomas. 

 

Adnan Syed's Lawyers Motion for Bail 

Adnan Syed, whose murder case was spotlighted on the popular podcast, "Serial," in 2014, has remained incarcerated despite a ruling more than three months granting him a new trial. This week, his lawyers filed a motion asking that he be released on bail. The filing asserted that "Syed has now served more than 17 years in prison based on an unconstitutional conviction for a crime he did not commit." 

(NY Times Article

ABA's Unease Over Trump Article Results in First Amendment Debate 

A media lawyer in California, Susan Seager, authored an article reviewing Donald Trump's history as a libel plaintiff.  In the article, Seager called Trump a "libel bully" and a "libel loser," because of his record of losing such cases.  Her article was originally supposed to run in Communications Lawyer, a quarterly newsletter of an ABA member group.  In mid-October, however, discussion between ABA deputy executive director James Dimos, the newsletter's editors, and Seager, resulted in Seager pulling the piece and having it published online at medialaw.org. 

Among the suggested edits were recommended deletions of "direct references to Trump as a bully, a description of Trump as 'orange haired and orange tinged,' and a statement that Trump lacked a sense of humor."  Additionally, the suggested edits included changing the proposed title of the article from "Donald J. Trump is a Libel Bully but also a Libel Loser," to "Preseidential Election Demonstrates Need for anti-SLAPP Laws." 

Although the ABA disputes that its expressed concerns and suggested edits to Seager's language amounted to blocking the initial publication, media lawyers have expressed concern and called the situation an example of censorship. 

According to the ABA, the concerns expressed about the language of the article were based on concerns about whether the pointed language in the article amounted to "[n]ame calling and questioning Mr. Trump's mental capacity," were "ad hominem attacks [that could] increase the risk of the ABA being sued by Mr. Trump," and were inconsistent with the ABA's strong policy of being a nonpartisan organization. 

(Article

SCOTUS Celebrity News 

Apparently Chief Justice Roberts and his wife recently purchased a second home on an island off the midcoast of Maine.  Although the price was not disclosed, a 15-year mortgage for $1Million was filed.  

(Hat Tip:  Howard Bashman @howappealing) 

#AppellateTwitter Weighs in on Golden Rules of Legal Writing 

Joe Fore (@Joe_Fore), Co-Director of the UVALaw legal writing program, asked for #AppellateTwitter's help this week in boiling down legal writing into aa few golden rules – broad take-homes – for his legal writing class.  And #AppellateTwitter did not disappoint. 

(Twitter Thread)

 

October 28, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, October 21, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Presidential Debate:  SCOTUS as a Topic

The third and final debate between Hillary Clinton and Donald Trump was this week, hosted by Chris Wallace.  And SCOTUS was a topic.

Law.com ran a story early in the week, in which it reported on the results of efforts by Law.com reporters to reach out to Supreme Court practitioners and other lawyers about what the candidates should be asked about SCOTUS.  The ARTICLE highlighted some of the responses.

Law.com followed up after the debate with a review of how the topic was actually handled.  Although SCOTUS was scheduled as one of six, 15-minute topics for the debate, moderator Chris Wallace struggled to get the candidates to provide much in-depth discussion about where the Court might go in the next several years and how they viewed the Constitution.   Clinton emphasized that she hopes to see the Court "not reverse marriage equality, not reverse Roe v. Wade, and . . . stand up against Citizens United." Clinton also urged Congress to go forward with the process of considering Merrick Garland's nomination to the Court. Trump's vision for the Court included observations that "[t]he justices [he's] going to appoint will be pro-life, they will have a conservative bent, they will be protecting the Second Amendment . . . [and] will interpret the Constitution the way the Founders wanted it."

More on the intersection of the election and SCOTUS and the future of the Court can be found in this week's Thursday Round-Up at SCOTUSblog.

Follow-Up on Donald Trump vs. The New York Times

Last week's Weekly Roundup included the "disagreement" between Donald Trump and the NYT concerning the Times article about women accusing Trump of inappropriate behavior.  The letters exchanged between Trump's lawyer and the Times' lawyer went viral

This week, the author of the Times response to Trump, David McCraw, penned a piece for Times Insider, in which he described his reactions to the response letter going viral.  See:  "I Hardly Expected My Letter to Donald Trump to Go Viral."  McCraw notes that he wrote the response letter "in about 45 minutes . . . between a meeting on the company's emergency operations plan and a conference call about a new patent suit." After that, McCraw and three colleagues from the Legal Department spent "about 30 minutes, talking about whether the overall point and tone were right, whether words should be tweaked, whether the ending was right." McCraw notes that when he was ready to publish the letter, he jokingly told his legal department colleagues to "[s]tand by [their] Twitter accounts." Then the letter went viral.

McCraw took note of the Internet debate over things like his comma usage and whether there should be one or two spaces after a period. he received hundreds of emails in response to the letter, mostly from strangers but also from former students, colleagues, and law school classmates. He noted that his intent was not to get into politics, but to focus on the basics of press freedom, in a way merited in many cases removed from the spotlight of Donald Trump.  But he also heard from a number of women who felt his letter was also speaking on their behalf, standing up for the women who had come forward to make the accusations against Trump.

According to McCraw, his "favorite email was the one that ended: 'As my sister put it, I've never wanted to hang a paragraph from a lawyer on my fridge before.'"

Washington University Law's Supreme Court Database

First Mondays (@FirstMondaysFM), a seasonal podcast on the Supreme Court, hosted by Ian Samuel (@isamuel) of Harvard Law School and Dan Epps (@danepps) of Washington University St. Louis Law, discussed this resource from Washington University Law in this week's podcast.

The Supreme Court Database is described on Washington University Law's website as "the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court." It "contains over two hundred pieces of information about each case decided by the Court between the 1791 and 2015 terms."

Put a couple of logs in the fireplace, make some hot cocoa, and settle in for a fall weekend of browsing this resource if you are a fan or follower of SCOTUS.  There's just so much great information there.

Hat Tip:  Bob Loeb (@BobLoeb).

On the Lighter Side

Jason Steed (@5thCircAppeals) rejoiced this week at discovering a California appellate court published an opinion using Century Schoolbook font.  See SoCal Appellate News Blog.

 

 

October 21, 2016 in Appellate Advocacy, Appellate Practice, United States Supreme Court | Permalink | Comments (0)