Appellate Advocacy Blog

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

Tuesday, February 28, 2017

#TwitterTuesday--Appellate Law in the Land of Lincoln

TwitterTuesdays

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

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

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

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

 

February 28, 2017 | Permalink | Comments (0)

Friday, February 24, 2017

Appellate Advocacy Blog Weekly Roundup February 24 2017

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).

 

LINKS:

Hernandez v. Mesa:

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

SCOTUSblog article reviewing the oral argument. 

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

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

SCOTUSblog page with links to information about the case.

SCOTUS Blocks Execution Over Racial Bias:

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

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

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

Fourth Circuit Rules Assault Weapons Not Protected by Second Amendment

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

February 24, 2017 | Permalink | Comments (0)

Tuesday, February 21, 2017

#TwitterTuesday--Appellate Hashtag

TwitterTuesdays

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

February 21, 2017 | Permalink | Comments (0)

Monday, February 20, 2017

Best Law Schools for Moot Court

The Winter 2017 edition of The National Jurist features a story on the law schools with the best moot court programs.  The story recognizes that the schools with the best programs are not always the highest ranked programs according to U.S. News & World Report.  Taking data from the University of Houston Law Center's Blakely Advocacy Institute, which ranks moot court programs yearly based on their performance in moot court programs, The National Jurist identified the top 20 law schools for moot court programs.  As The National Jurist notes, only two of the schools in the top 20 moot court programs are highly ranked by U.S. News--Georgetown and Columbia.  

Georgetown's moot court ranking is no surprise.  As a very large law school, it has be ability to send multiple teams to many competitions.  While schools must perform well at competitions to receive points in the Houston Law rankings, there is something to be said about sending teams to multiple competitions.  South Texas Houston, Florida Coastal, Texas Tech, and Chicago-Kent--four schools high in the moot court rankings--are also known to send out a large number of competition teams.

Given the ABA's increasing focus on practical skills, I hope that we will see more schools build successful moot court programs.  The list of the top 20 from the article, courtesy of the TaxProfBlog,  is below.

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February 20, 2017 | Permalink | Comments (0)

Tuesday, February 14, 2017

#TwitterTuesday--Judicial Resources

TwitterTuesdays

It is time again for our weekly #TwitterTuesday.  Today we will feature judicial resources.

Judicature @ Duke (@DukeJudicature) is a scholarly journal for judges published quarterly by the Duke Law Center for Judicial Studies (@DukeLaw). With articles from Editor in Chief Justice Don Willett (@JusticeWillett), Judge Stephen Dillard (@JudgeDillard), Paul Clement, and numerous others, the new spring edition is a great resource.

Gavel to Gavel (@GaveltoGavel) is an e-newsletter, blog, and tweeter from the National Center for State Courts (@StateCourts) that examines the impact of state legislatures on courts. The NCSC “is the organization courts turn to for authoritative knowledge and information.”

February 14, 2017 | Permalink | Comments (0)

Monday, February 13, 2017

More on the Ninth Circuit TRO Ruling--Telephonic Appeals & Splitting the Ninth Circuit

The news has been full of reports about the Ninth Circuit's refusal to grant a stay of the district court's temporary restraining order of President Trump's Executive Order on immigration. Jennifer and Dan both blogged on it last week. I want to take a slightly different look at the Ninth Circuit's denial--first by exploring the unique way in which the Ninth Circuit heard the case and then by looking at possible broader impacts for the Ninth Circuit.

The Ninth Circuit heard argument in the case by telephonic oral argument. I was pretty surprised the first time that I heard of courts using telephonic oral argument.  I never saw (or should I say heard) a telephonic argument when I was clerking for the Fourth Circuit, and it seems to defeat some of the purposes of oral argument. William Robinson, the Assistant Director of the Sixth District Appellate Program, wrote in 2007:

On this point, there is near-universal consensus: never argue by telephone if you can avoid it. Mark Greenberg describes telephone oral argument, which he has done three or four times in 25 years, as “like making out with gloves on,” and as discouraging conversation and engagement, which are the requisites of oral argument. Danalynn Pritz notes that there are many visual cues which one gets from the justices during an argument – e.g., a judge rolling his/her eyes – which you have to be there to see, and notes that with phone argument “you miss innuendo and subtlety that could make the difference as to whether you will ever get the judge on your side.”

Last year I argued an appeal which resulted in a reversal, and saw a lot of eyes being rolled while the AG, who argued by phone, was doing a particularly poor job responding to tough questions.

So, never argue by phone, unless you really have no choice, or the issue is so weak, or the court panel so bad, that it won’t make a difference. In which case, maybe you shouldn’t be arguing the case anyway.

I imagine that the argument was done telephonically because (1) it was an emergency motion and (2) the Ninth Circuit is geographically quite large--but in the age of Google Chat and FaceTime it seems like at a minimum a video conference could be used.

The geographic size of the Ninth Circuit brings me to my second point, which is the broader impact of the Ninth Circuit's decision.  As Jennifer noted in her post, President Trump has already tweeted his displeasure at the Ninth Circuit. I could see this ruling as providing more fuel to the fire to split the Ninth Circuit.  The Arizona senators have already introduced a bill to split the Ninth Circuit.  The bill would create a new 12th Circuit that is made up of Washington, Idaho, Montana, Nevada, Arizona, and Alaska.  Oregon, Hawaii, California, Guam, and the Northern Mariana Islands would remain in the Ninth Circuit. 

As a practical matter, I think that splitting the Ninth Circuit is not a terrible idea.  The current court is too big to even hold normal en banc hearings. However, the issue has been a political one in past Congresses.  No doubt it will continue to be highly politicized in this Congress.

February 13, 2017 | Permalink | Comments (0)

Friday, February 10, 2017

Appellate Advocacy Blog Weekly Roundup February 10 2017

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).

 

Ninth Circuit Hearing on Immigration Executive Order

The dominant appellate news this week concerned judicial proceedings about President Trump's Immigration Executive Order.  Last Friday, U.S. District Senior Judge James Robart of Seattle issued a nationwide restraining order blocking enforcement of the immigration ban, siding with the Washington  Attorney General.

The Department of Justice immediately sought appellate review of the order in the Ninth Circuit Court of Appeals.

On Tuesday, the Ninth Circuit heard argument from both sides, and broadcast the arguments live.  It provided an unusual opportunity for lay persons who have been following the substantial news coverage of the issues to hear the inner workings of the judicial system.  Late Thursday, the court declined to overturn the temporary restraining order.

Howard Bashman posted a series of links to recent coverage and discussion of the executive order and the judicial proceedings surrounding it at his How Appealing blog.

You can access the complete list of filings in the Ninth Circuit at the court's official website.

More on Judge Gorsuch

There will likely continue to be a lot of discussion of Judge Gorsuch, including his judicial philosophy, track record, etc.  And one aspect of his record that continues to garner quite a bit of coverage is his writing.  This past week, Ross Guberman had a couple of blog posts about Gorsuch's writing. Perhaps most exciting to #AppellateTwitter is that Guberman notes Gorsuch is #TeamOxfordComma.

Judge Gorscuh is a gifted writer. He's a great writer. But is he a "Great Writer"? Part One

Judge Gorsuch's Writing Style: A Cheat Sheet

The First Mondays podcast -- a must subscribe if you are a SCOTUS follower -- has been discussing Judge Gorsuch, as well. Last week, the podcast began a series to track the confirmation process of Gorsuch, including an interview with a former clerk and a discussion of some of Gorscuch's jurisprudence from the appellate court.

 

February 10, 2017 | Permalink | Comments (0)

Thursday, February 9, 2017

Ninth Circuit responds to TRO challenge

Readers of this blog are probably universally up to speed on the latest court happenings in Washington v. Trump regarding the January 27, 2017 Executive Order entitled Protecting the Nation from Foreign Terrorist Entry into the United States, so this report will not be news to many.

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The Ninth Circuit has upheld the stay issued from the District Court in Seattle. The state of Washington, joined by Minnesota, alleged the order violated protections against religious discrimination. The order from the Ninth Circuit can be found here. All other appellate documents and audio relating to this case can be found here

The Ninth Circuit stated:

The court rejected the administration's claim that it did not have the authority to review the president's executive order.

"There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the court said.

President Trump has already responded via Twitter:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

As the White House is considering options on what to do next, the media is puzzled over what that tweet means. The Government could appeal to the Ninth Circuit en banc, which would consist of a panel of nine or ten judges, including the judges in the panel issuing the order. The Ninth Circuit has twenty-nine judges in total. The Government would also opt for a direct appeal to the United States Supreme Court. Or the Government could let the ruling stand and allow the trial court process to move forward at a snail's pace. High in the halls of Justice many bright minds are gaming out the next move. What is your best guess of how this will play out?

February 9, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, February 7, 2017

#TwitterTuesdays--State SGs

TwitterTuesdays

Welcome to #TwitterTuesday for the week.  The news has been full of information about the new SCOTUS nominee and the legal challenges to President Trump's immigration executive order.  Since state SGs play an important role in checking the president and preserving federalism, today we will feature a few state SGs to follow on Twitter:

Stuart Raphael (@sar3018) is currently serving as the fifth Solicitor General of the Commonwealth of Virginia under Attorney General Mark Herring (@MarkHerring). Raphael frequently tweets about his work, including the current controversy over President Trump’s executive orders.

Elbert Lin (@ElbertLin) is the West Virginia Solicitor General. Follow him for information relating to his appellate work for the Attorney General of West Virginia (@WestVirginiaAG) and news regarding courts and the law more generally.

In the neighboring Buckeye State, Eric Murphy serves as the Solicitor General for Ohio Attorney General (@OhioAG), Mike DeWine.

Carolyn Shapiro (@cshaplaw) just ended her stint as the Solicitor General of Illinois. Shapiro continues to teach at Chicago-Kent College of Law (@ChicagoKentLaw) and serves as co-director for the school’s Institute on the Supreme Court of the Unites States.

February 7, 2017 | Permalink | Comments (0)

Sunday, February 5, 2017

Neil Gorsuch--The Writer

On Friday, Dan posted a few articles about Supreme Court nominee Neil Gorsuch. I want to elaborate on the last set of articles--focusing on Judge Gorsuch as a writer. Justice Scalia was certainly known for having a distinct, sometimes caustic, style of writing.  Justice Kagan is known for trying to make her opinions accessible to the intelligent non-lawyer. So, what kind of writer would a Justice Gorsuch be?  

As Dan noted, the Wall Street Journal has an article discussing Judge Gorsuch's writing style. If you can't get past the WSJ paywall, the ABA Journal has pulled out some of the highlights in this article.  According to the WSJ & ABA Journal, Judge Gorsuch tries to write opinions that are "accessible" and enjoyable to read.  Apparently, he has "elevated the recitation of facts 'to a form of wry nonfiction.'"

Perhaps because I have a pre-teen nephew, my favorite example in the articles of Judge Gorsuch's catchy writing style comes from a July 2016 dissent.  The Washington Post describes the case in this manner:

On May 19, 2011, a physical education teacher at Cleveland Middle School (CMS) in Albuquerque named Margaret Mines-Hornbeck sought assistance over her school-issued radio. A student, referred to as F.M. in the case to shield the child’s identity, was a 13-year-old seventh grader who, the court order said, “had generated several fake burps, which made the other students laugh and hampered class proceedings.” He was arrested by a school police officer for disrupting the education process and suspended from school.

The boy’s mother sued two school officials and the police officer, claiming her son had been subject to unlawful arrest and excessive force. The appellate court upheld a decision by district court judges in support of the school officials and the officer.

Judge Gorsuch started his dissent with these words:

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a  police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.

The Washington Post contains the remainder of his dissent, where he explains how his colleagues were wrong on the law.

Judicial philosophy and politics aside, the Court needs more justices who will promote good (interesting) legal writing. It looks like a Justice Gorsuch would fall into this category. 

 

 

 

February 5, 2017 | Permalink | Comments (0)

Friday, February 3, 2017

Appellate Advocacy Blog Weekly Roundup February 3 2017

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).

 

The dominant appellate news this week was President Trump's announcement of his nominee for the U.S. Supreme Court seat vacated by the death of Justice Scalia.  On Tuesday, Trump announced that he was nominated Judge Neil Gorsuch, of the 10th Circuit Court of Appeals, to fill the vacancy.  A quick and short bio of Gorsuch:

He is a strict adherent of originalism, Scalia’s belief that the Constitution should be interpreted based on the intent of the Founders. He also has much of Scalia's flair as a writer.

Gorsuch has the type of academic credentials common to high court justices: Columbia, Harvard Law, even Oxford. He clerked for Justices Byron White and Anthony Kennedy, then practiced law in Washington and did a stint at the Justice Department.

Because Gorsuch's nomination was the dominant appellate news of the week, this week's edition of the Weekly Roundup brings you several items to help familiarize yourself with him:

Gorsuch on Liberals and Litigation:

Much of the "discussion" this past week has been on what will happen during Gorsuch's confirmation hearings.  Will Democrats act to hold up the confirmation on principle grounds, asserting some sort of payback for Congressional Republicans refusing to hold a hearing on Merrick Garland throughout the past year?  Will Republicans use the "nuclear option" to prevent a filibuster?  Will Democrats allow the process, but challenge Gorsuch on his ideologies?  Will Democrats decide not to push the battle on this confirmation, perhaps saving the possibility of doing so on a later nomination?  All of that remains to be seen, but it's certain that if and when confirmation hearings begin, there will be a great deal of questioning and discussion of ideologies.

Gorsuch himself has written about the topic in an article that, perhaps, gives a little insight into what may come during his own confirmation hearings in a February 2005 article in the National Review.  In it, he wrote

At the same time, the politicization of the judiciary undermines the only real asset it has — its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.

Gorsuch's Track Record:

CNN provided a write up that highlighted a number of Gorsuch's key rulings since joining the federal appellate bench, which might provide some insight into what expect from him on the high court.  

In the Hobby Lobby case he joined the opinion ruling that federal law prohibited requiring closely held corporations to provide contraceptive coverage for employees as part of employee insurance plans, and would have gone further and allowed individual owners of the company to challenge the mandate.  Gorsuch has been a defender of religious freedom in other contexts, as well, including prisoner rights.

One topic that has garnered some recent discussion is "Chevron deference" given by courts to administrative interpretations of regulations.  In that context, Gorsuch has been a critic and has urged reigning in the deference, perhaps a sign of changes to come in the Supreme Court's jurisprudence.

Interestingly, Gorsuch has been critical of legislative grants of authority to the executive branch, advocating limits on executive power and a stricter separation of legislative and executive functions than existing Supreme Court jurisprudence has required.  The Wall Street Journal has also written about this portion of Gorsuch's jurisprudence.

Democrats who are looking for silver linings about the possibility of a Justice Gorsuch on the Supreme Court might also check out a Slate essay that notes that Gorsuch "has shown flickers of humanity" in the area of criminal justice, including a case in which he dissented from an opinion upholding immunity for school police officers who handcuffed a student accused of being disruptive by burping in class.

Judge Gorsuch from a Legal Writing Standpoint:

Back in March, Megan Boyd had a blog post about Gorsuch's writing.  She noted that Gorsuch writes with rhetorical flair, but emphasized his use of powerful transitions, providing several examples. 

The Wall Street Journal has also written about Gorsuch's legal writing, noting that he has turned his legal opinions into "a form of wry nonfiction."

February 3, 2017 | Permalink | Comments (0)