Appellate Advocacy Blog

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

Monday, July 14, 2014

Will the Hobby Lobby decision benefit Guantanamo detainees?

It should, according to lawyers for detainees at Guantanamo, in arguing motions last week filed with the D.C. District Court on behalf of two hunger-striking detainees in the wake of Burwell v. Hobby Lobby Stores, Inc.  The motions seek rulings that the detainees are protected "person[s]" within the meaning of the Religious Freedom Restoration Act (RFRA).  In particular, the motions seek to prevent the Government from depriving the detainees of the right to participate in communal prayers during the Islamic holy month of Ramadan which began on June 28.

In Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009), the D.C. Circuit Court of Appeals held that Guantanamo detainees do not have religious free exercise rights as protected "person[s]" because, in the Court's view, RFRA does not apply to non-resident aliens.  The D.C. Circuit upheld Rasul as law of the circuit in Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014).  Hobby Lobby changes all that, the detainees' lawyers argue, because the position taken by the D.C. Circuit in Rasul and Aamer is inconsistent with granting religious free exercise rights to for-profit corporations such as Hobby Lobby.

In support of the motions, a defense lawyer for the detainees argued that "[i]t is truly grotesque for the Obama folks to insist that a for-profit corporation is a person, but a flesh-and-blood human being at Guantanamo Bay is not."

In her already-famous dissent in Hobby Lobby, Justice Ginsburg warned that "approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,'" (citation omitted), and that the Court majority, by doing so, had "ventured into a minefield."  Stay tuned.

July 14, 2014 | Permalink | Comments (1)

Saturday, July 12, 2014

A Fine Line Between Persuasion and Argument

One of the rookie mistakes every lawyer makes at some point is confusing persuasion for argument.  Merriam-Webster says that argument is “a statement or series of statements for or against something; a discussion in which people express different opinions about something; an angry disagreement.”  Persuasion is defined as “the act of causing people to do or believe something; the act or activity of persuading people.”  The latter implies some knowledge on the part of the persuader about what matters to or motivates the audience, whereas the former implies an aggressive imposition of ideas without regard for the audience.  Here are five concrete tips for avoiding mere argument.

  1. LISTEN.  By listening, an advocate learns what matters to its audience.  Before an oral argument, the judges often have not yet made up their minds.  They are primed to be persuaded, and if the advocate tunes into the questions appropriately, the advocate can learn valuable information about the judges’ concerns.  Similarly, when it comes to brief writing, advocates should listen to the arguments of their opponents so that they can adequately address the competing concerns in the case and explain why one side nevertheless prevails.
  2. ELIMINATE EXAGGERATORS.  Words like blatant, clearly, and obviously can be tempting to throw into a brief, but they offer little in the way of substance.  Seriously, if a resolution were so clear, would the case have even gotten this far?  Focus instead on the substance of the argument.  If the issue is in fact so clear, the judges will see it on their own.  It is the advocate’s job to make the issue seem clear cut, but slapping the word “clearly” on the argument is not likely to be taken at face value by a learned judge who is investing hours in the resolution of a case.  There needs to be meat there to back it up. 
  3. TAME EMOTIONS. It is hard not to get emotional about our cases.  First, we get to know the ins and outs of the cases, and we often develop intense relationships with our clients.  They are often in desperate situations and the lawyer might be their only hope for resolution of the conflict.  Second, when we invest time in developing an argument, writing a brief, and preparing for oral argument, it can feel like wasted time when we lose. Pushing anger, disappointment, frustration, sadness, and other emotions aside can be challenging, but it is essential.  An overly emotional response makes an attorney seem inappropriately biased, and the judge is less likely to trust that the attorney has considered all sides of the issues and is advancing a sound and thoroughly researched argument.  On a related note, avoid overt appeals to the judges’ emotions.  Judges pride themselves on making logical decisions separate from their personal emotions and feelings, so an overt appeal to the judge’s emotions can not only irritate the judge, it is likely to also insult the judge.
  4. AVOID AD HOMINEM ATTACKS.   Incorporating a personal attack against opposing counsel is a sure-fire way to make a judge think that no sound legal theory supports your position.  Let the law and facts speak for themselves by telling a compelling story about your client and showing the court how the law supports a resolution in favor of your client.
  5. DON’T TALK BACK.  At all costs, avoid the phrase, “But your Honor!”  Also think long and hard before filing a motion for rehearing or a motion for reconsideration.  Unless there is a legal basis for filing such a motion (like there is precedent the court did not have before it or new facts have come to light), they are usually a waste of time.  Handling these types of motions drains the court’s time and resources, and quite often these motions are unwarranted because there is no legal basis to justify the court changing its mind.  There is value in respecting the finality of judgment in a court.  If you disagree with the court’s ruling, appeal it to a higher court, but don’t argue about whether the decision was right by filing frivolous motions for rehearing and reconsideration.

July 12, 2014 in Appellate Advocacy, Appellate Practice | Permalink | Comments (0)

Friday, July 11, 2014

Marin K. Levy: Judging Justice on Appeal

Marin K. Levy (Duke) has a new article, Judging Justice on Appeal, 123 Yale L. Journal 2386 (2014), a review of the 2012 monograph, Injustice on Appeal: The United States Courts of Appeals in Crisis by William M. Richman and William L. Reynolds.

Richman and Reynolds are well-known and prolific authors on the federal appellate courts and the caseload crisis that dominated the late-twentieth century. As Levy explains:

Over the past thirty years, no one has contributed more to this field than two court scholars together—William M. Richman and William L. Reynolds. Through a series of critical articles, Richman and Reynolds were able to pinpoint the precise effects of the caseload crisis, both on litigants and the system as a whole. Furthermore, they were able to show the interplay of these various effects, providing a holistic account of the problem in a way that no one else had done. Their recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, stands as a culmination of their earlier work, bringing together vital analysis of the caseload crisis, the ways in which appellate review has suffered as a result of that crisis, and potential solutions. More broadly, Injustice on Appeal stands as one of the most comprehensive and thoughtful accounts of the largest problem facing the federal judiciary today.

For the most part, Levy's review agrees with Richman and Reynolds' evaluation of the recent history, and present problems facing, the federal judiciary. Chief among these problems are the continued high volume of cases in the federal appellate courts and the case management practiced by the federal courts over the last forty years to manage that higher volume. Where Levy parts ways with the book's authors is in the possible solutions to the federal courts' problems.  While Richman and Reynolds prescribe large-scale changes, such as enlarging the federal judiciary, and look skeptically on the kinds of internal changes the courts have been doing for decades, Levy views the large-scale changes as unrealistic and smaller process changes as more fruitful. 

As I discuss in my recent piece, Post-Crisis Reconsideration of Federal Court Reform, 61 Clev. St. L. Rev. 47 (2013), the federal courts over the last forty years have adopted many internal reforms to deal with the increase in caseload volume, but they have also left many proposed reforms on the table. Large-scale systemic reforms have been politically unpopular, and smaller scale internal reforms have raised questions about the quality of appellate justice. It is possible that the disagreement between the book's authors and Professor Levy is the difference between a normatively preferable approach, a systemic fix, and a more pragmatic solution, continuing case management reform.

I certainly agree with Levy that the area is ripe for the next wave of scholars, and I would add, reformers, to make a difference in the post-"caseload crisis" era. Richman and Reynold's latest work is a terrific collection and summarization of their extensive research and thoughtful commentary in the area, and Levy's review is a useful focus on solutions and an interesting challenge to the field.

I highly recommend both works to anyone interested in the appellate courts.

July 11, 2014 in Appellate Court Reform, Appellate Procedure, Federal Appeals Courts | Permalink | Comments (0)

Sunday, July 6, 2014

Guest Post: Daniel L. Real on Wheaton College v. Burwell

Today's post is a guest piece by Daniel L. Real, a career judicial staff attorney for the Nebraska Court of Appeals since 1995 and a legal research and writing professor at Creighton University since 1999. Dan's prior work is on the issues of appellate practice and judicial independence. He shares his thoughts with us on the U.S. Supreme Court's recent decision in Wheaton College v. Burwell:

There has been plenty of quick commentary on the U.S. Supreme Court's decision from last week in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014). You can form your own opinions on whether the decision was correct, where you stand on the subjects of the Affordable Care Act (ACA) and religious freedom.  I don't have an interest in discussing those specific topics here.  Something related, however, did catch my eye this weekend.

I suspect that there will be quite a bit of discussion in the next week or so about the Supreme Court's last-minute ruling on the application for injunction filed by Wheaton College in Wheaton College v. Burwell, but for now there has not been a particularly wide-ranging discussion of it.  Perhaps the lateness of the ruling on July 3, coupled with the July 4 holiday, caught some off guard.  Nonetheless, it was a noteworthy ruling that is worth looking at and considering.

In Hobby Lobby, the Court held that certain closely-held corporations could assert the same religious freedoms as individuals and addressed whether certain provisions of the ACA requiring employers to provide health-insurance coverage for specific methods of contraception that violated the sincerely held religious beliefs of the companies' owners were in violation of the Religious Freedom Restoration Act (RFRA). The Court held ACA provisions concerning four specific contraception methods imposed a substantial burden on the religious freedom of the closely-held corporations. Under the RFRA, such a substantial burden would be permissible only if the government could show a compelling state interest and if the government's action constitutes the least restrictive means of serving that compelling interest.

The Court assumed, without specifically deciding, that the government had a compelling interest in guaranteeing cost-free access to the particular contraceptive methods.  The Court held, however, in a 5-4 decision, that the challenged ACA provisions did not constitute the least restrictive means of serving that interest and held that the ACA provisions violated the RFRA with respect to the closely-held corporations.

In explaining why the ACA provisions did not constitute the least restrictive means, the Court had to make a decision that often faces appellate courts and had to discern how much explanation to provide to support the Court's conclusion.  In writing for the majority, Justice Alito noted at least two "less restrictive" ways for the government to achieve its compelling ends.  First, the Court noted that "[t]he most straightforward way . . . would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections." Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____, *41 (2014).

After analyzing potential objections to the theoretically viable creation of a new government-funded program to provide the contraceptives, however, the Court concluded that it "need not rely on the option" to conclude that the ACA provisions were not the least restrictive alternative. The Court noted that "[Health and Human Services (HHS)] itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs." Id. at *43. The Court noted that "HHS has already established an accommodation for nonprofit organizations with religious objections," wherein the organization can self-certify that it opposes providing insurance coverage for the particular contraceptive services and require the organization’s insurance issuer or third-party administrator to provide coverage for the contraceptive services without any cost-sharing by the objecting organization. Id.

The Court specifically cautioned that it was not deciding whether this option "complies with RFRA for purposes of all religious claims," but very specifically held that "[a]t a minimum . . . it does not impinge on the plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion." Id. at *44. In footnote 40, the Court even responded to the dissenting opinion's characterization of the Court as being noncommittal about the viability of this alternative and the Court commented that "[T]he less restrictive approach we describe accommodates the religious beliefs asserted in these cases." Id.

There has been much discussion about the Hobby Lobby decision, its implications, whether it is the start to a "slippery slope," how it might impact the ACA as a whole.  But what has potentially gone largely unnoticed to this point is what happened just three days later, when the Court issued its ruling on Wheaton College's application for injunction in Wheaton College v. Burwell, 573 U.S. ___ (2014).

The "less-restrictive" alternative described by the Court in Hobby Lobby allows groups with a religious objection to the ACA mandates to self-certify a religious objection and pass the obligation to pay for coverage for the contraceptives to the insurer or third-party administrator. To obtain this accommodation, however, groups are required to fill out a federal form to register their objections. As the Washington Post noted in a July 3 article (, a number of colleges, including Wheaton, objected to the requirement to complete the form. The colleges alleged that the act of signing the form and authorizing third parties to provide the contraceptive coverage made the colleges complicit in the action of providing the contraceptives and that even that offended the college's religious beliefs.

In its ruling on Wheaton's application for injunction, the Court held that Wheaton need not fill out the previously required form and, instead, need only notify the government "that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds." Wheaton v. Burwell, 573 U.S. ___, *2 (2014). The Court noted that "[n]othing . . . precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act." Id.

Justice Sotomayor authored a dissent to this ruling, in which Justices Ginsburg and Kagan joined.  The dissent noted that earlier in the week the Court had described the very accommodation that Wheaton was challenging as being an alternative that was less-restrictive than the ACA provisions in achieving the government's compelling interests.  The dissent characterized the ruling in Wheaton as "evinc[ing] disregard for even the newest of [the] Court's precedents and undermin[ing] confidence in the institution." Id. at *4.

The apparent conflict between what the Court suggested in Hobby Lobby—that the accommodation was a legitimate and permissible means for the government to achieve its compelling interests that demonstrated that the ACA provisions were not the least-restrictive alternative—and what the Court suggested three days later in Wheaton—that the accommodation itself imposes a sufficient burden on religious freedom to merit injunctive relief—has been discussed briefly in a few articles, and they are a good starting point if you're interested in a more thorough look at the Wheaton dissent.

Dahlia Lithwick and Sonja West addressed it for Slate in an article titled, "Quick Change Justice." (  Robert Barnes addressed it for the Washington Post in an article titled, "Supreme Court Sides with Christian College in Birth Control Case." ( Adam Liptik addressed it for the New York Times in an article titled, "Birth Control Order Deepens Divide Among Justices." ( And Daniel Fisher addressed it for Forbes in an article titled, “Hobby Lobby Decision Begins to Contort Under its Own Logic.”

While the Hobby Lobby decision will be the subject of much commentary, the very quick development of a potentially contrary ruling of the Court later the same week is somewhat remarkable.  As is the lengthy dissent signed by the Court's three female justices on an unsigned order in Wheaton. It's a safe bet that the discussion and debate is only beginning.


July 6, 2014 in Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (1)