Thursday, October 30, 2014
Monday, October 20, 2014
For those of you working on developing an appellate brief problem for this academic year, take a look at City of Los Angeles v. Patel. The U.S. Supreme Court just granted the petition for writ of certiorari today, and it has the trappings of a good problem for two reasons. First, the two issues, one jurisdictional and the other substantive, are well-separated. Second, it involves an intriguing question about Fourth Amendment protection of hotel guest registries. I could see a fun and interesting pop-culture problem developing out of these issues.
When creating good appellate brief problems, it can sometimes be difficult to manage the ripeness factor. You want to choose a current issue, but not one that will necessarily be resolved before your students complete the assignment. You also want to be careful about creating a problem where your students will have easy access to professionally-written briefs. These potential pitfalls can easily be avoided, though, by creative fact development.
When creating a problem from a recent cert. grant, the first step is to outline the issue(s) you want to use. Next, you should identify how the split(s) have come down. Once you have broken apart the pending case, you have a good framework for rebuilding a problem that has sufficient legal similarities without too much factual similarity. The students can then find many relevant legal sources for solving the problem, but they won't be able to just pull legal arguments out of professionally-written briefs because the facts will be too nuanced for the legal analysis to hold up verbatim in the simulated setting. Additionally, when the facts are sufficiently distinct from the original problem, the issue you have created may still be ripe or resolvable even if the Supreme Court rules on the actual case before the end of the semester.
Though problem-creation can seem like an intimidating challenge, it is a highly rewarding aspect of our work as law professors. Have fun as you create a packet that will be enjoyable and interesting for both you and the students. Be inspired.
Sunday, October 12, 2014
Judge Richard Kopf has this post on his blog, Hercules and the Umpire, regarding the late Judge Richard S. Arnold's near appointment to the Supreme Court by President Clinton in 1994. Reproduced in that post is a draft speech prepared for President Clinton to announce the nomination. Consideration of Judge Arnold for the Supreme Court is not news; it was mentioned both in President Clinton's autobiography, "My Life," and Jeffrey Toobin's book on the Supreme Court, "The Nine." But this particular document is interesting reading, and some additional lauding of Judge Arnold is well-deserved.
Judge Arnold's opinion in U.S. v. Anastasoff, 223 F.3d 898 (8th Cir. 2000) and his law review article on the topic, Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 221 (1999) stand as an articulate and principled denunciation of the practice of issuing "unpublished" and "non-precedential" opinions. His work undoubtedly energized the movement toward permitting citation of such opinions in the federal appellate courts and opened an entire vein of scholarship examining the practice. Hopefully, it also planted the seed that will eventually bear fruit in the form of an end to the practice of issuing purportedly non-precedential opinions. His work on this issue was but a small sliver of his accomplished career, but it's one that, I think, exemplifies the fine qualities as jurist that are often ascribed to him.