Appellate Advocacy Blog

Savannah Law School Professor Cited by SCOTUS

Congratulations to Savannah Law School Professor Caprice Roberts who was recently cited by Justice Thomas in his dissent in Kansas v. Nebraska, 135 S. Ct. 1042 (2015).  The case involved a dispute between the states of Nebraska and Kansas over the apportionment of river water.  In his dissent, Justice Thomas disagrees with the majority’s reliance on Restatement (Third) of Restitution §39 (2010).  This section “proposes awarding disgorgement when a party’s profits from its breach are greater than the loss to the other party.”  Kansas, 135 S. Ct. at 1068 (J. Thomas, dissenting).  Thomas asserts that the Court has never relied on Section 39 because the theory of disgorgement is not supported in law. His analysis relies on Professor Roberts’s description of Section 39 as a “’novel extension’ of restitution principles that ‘will alter the doctrinal landscape of contract law.’”  Id. at 1068-69(quoting Roberts, Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008)).  According to Justice Thomas, the majority’s decision has in fact altered the doctrinal landscape of contract law.

WSJ on Federal Word Count Proposal Debate

The federal appellate courts are currently considering a change to Federal Rule of Appellate Procedure 32(a)(7)(B) that would reduce the word-limit of principal appellate briefs from 14,000 to 12,500. Law blogs, especially those of an appellate bent, have reported on this as comments rolled in over the last several weeks. This blog is far behind on mentioning it, and even now, I don't have a strong opinion on the proposal. But it seemed worth mentioning that the issue has reached the general public in the form of a Wall Street Journal article.

Oddly, what stood out to me in this article was this bit:

Michael Gans, clerk of the Eighth U.S. Circuit Court of Appeals in St. Louis, who oversaw the word-count study, says the process couldn’t have been more painstaking. It was carried out by a high-school graduate who interned at his office and spent a recent summer in a cubicle counting every single word of 200 printed-out briefs that served as the sample. “I felt sorry for her, but that’s what she did all summer,” Mr. Gans said. “She still wants to go to law school.”

Perhaps optical character recognition software could have been used?

hat tip to reader: Professor Jennifer Romig

Administrative Office of the US Courts Releases Annual Report

The Administrative Office of the U.S. Courts just issued its annual report, Judicial Business of the United States Courts: Annual Report of the Director 2014. It's a wealth of information on filings, dispositions, and similar details. Not surprisingly, I always skip ahead to the table on opinions filed in terminated appellate cases (Table B-12) to see what percentage of appeals are being resolved by unpublished opinions. It's up to 87.7% with the Fourth Circuit leading the way at 93.8%. Also, the decline of oral argument continues, dropping to 18.6%.

The report is an interesting snapshot of the federal courts and provides useful data for long-term court watchers. Enjoy.