Appellate Advocacy Blog

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

Friday, May 26, 2017

Appellate Advocacy Blog Weekly Roundup May 26 2017


 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 at[email protected] or a message on Twitter (@Daniel_L_Real).



Supreme Court Rulings:

Cooper v. Harris

On Monday, the Supreme Court ruled in this case challenging North Carolina's congressional districts as having been drawn based on an unlawful reliance on race.  Justice Kagan authored the opinion for the Court, joined by the more liberal Justices on the Court and by Justice Thomas.

Supreme Court Opinion

Washington Post Article

Buzzfeed Article

TC Heartland LLC v. Kraft Foods Group Brands LLC

The Supreme Court, in a unanimous opinion, reaffirmed a prior decision and held again that a domestic corporation resides only in its state of incorporation for purposes of venue in patent cases.  As a result of a Federal Circuit decision in 1990, in which the court held that patent infringement venue was proper in any court having personal jurisdiction over the defendant, over the past two decades there has been a rise of patent-focused cases in venues such as the Eastern District of Texas. As a result of the TC Heartland decision, venue is restricted to where the defendant is incorporated or where the defendant has a regular and established place of business.

Supreme Court Opinion

Patentlyo Article

Immigration Cases

As this article from The Atlantic discusses, there are a number of important immigration cases that are awaiting rulings from the Supreme Court.  The article notes that in the major cases, the Court seemed to lean toward favoring the arguments of the government during oral arguments, but the current political and world climate will make the eventual rulings very interesting.

Other Appellate Court Rulings:

On Thursday, the Fourth Circuit Court of Appeals upheld a nationwide injunction that blocked the Trump administration's efforts to temporarily halt immigration from six majority-Muslim countries.  The ruling is the first appellate court ruling on the second executive order issued by President Trump on the subject.  If the administration wants to seek it, the next step would be to petition the Supreme Court for review.

Fourth Circuit Ruling

Buzzfeed Article

Practice Tips:

Related to the Supreme Court's decision in TC Heartland, a good twitter thread this week touched on the importance of preserving even long-shot arguments, with the venue objection in patent cases in Texas as one example. HT: Sean Marotta.

May 26, 2017 | Permalink | Comments (0)

Tuesday, May 23, 2017

#TwitterTuesday--Legal Writing


Every appellate practitioner should want to improve his legal writing.  Here are a few Twitter accounts to follow that provide helpful legal writing tips:

Follow the University of Virginia Law Writing program (@UVALawWriting) for program news and writing and advocacy tips.  In looking at their page I saw several useful retweets of legal writing guru Bryan A. Garner (@BryanAGarner), which is another great account to follow.

The Legal Writing Institute (@lwionline) tweets about conferences, articles, and news in the legal writing community.

To write well you must also listen well.  Follow Listen Like a Lawyer (@ListenLikeaLwyr) for tips on effective listening practices.

May 23, 2017 | Permalink | Comments (0)

Tuesday, May 16, 2017

#TwitterTuesday--Even More Judges Who Tweet


I am a little late today with #TwitterTuesday.  My blogging has been a little slow the past few weeks, as my husband and I are preparing to move to Tucson, Arizona, where I will be taking a position as the Assistant Director of Legal Writing at the University of Arizona James E. Rogers College of Law.  But, I do have some tweeting judges to highlight today:

Jerod Tufte (@JudgeTufte) is a justice on the North Dakota Supreme Court. He tweets about appellate practice with an occasional beautiful picture of the Dakotas thrown in.

Steve Leben (@Judge_Leben) is a judge on the Kansas Court of Appeals and an Adjunct Professor at KU School of Law.  He is the co-founder of Procedural Fairness, an organization dedicated to “helping judges and courts implement policies and practices that promote procedural fairness in courtrooms and courthouses,” and tweets on this subject and others.

Richard Dietz (@richard_dietz) is a judge on the North Carolina Court of Appeals and a former appellate litigator.  His tweets cover appellate writing and practice and North Carolina judicial elections.

And, a post on tweeting judges would be incomplete without a Texas judge!  Brett Busby (@BrettBusby) is a justice on the Texas Court of Appeals, 14th District.  He is not a frequent tweeter, but has started highlighting some of the work of the South Texas College of Law.  We hope to see more tweeting out of him in the future.


May 16, 2017 | Permalink | Comments (0)

Friday, May 5, 2017

Appellate Advocacy Blog Weekly Roundup May 5 2017



 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 at[email protected] or a message on Twitter (@Daniel_L_Real).


U.S. Supreme Court Rulings:

Bank of America v. City of Miami and Wells Fargo & Co. v. City of Miami:

A divided Court ruling on Monday that the City of Miami counts as an aggrieved "person" entitled to standing to file suit claiming harm from discriminatory lending practices of banks.  Chief Justice Roberts joined liberal justices Breyer, Ginsburg, Sotomayor, and Kagan in the majority; Thomas dissented, joined by Kennedy and Alito; Gorsuch did not participate.


National Law Journal Article reviewing the decision

Reuters Article reviewing the decision

Work Remaining for SCOTUS This Term:

Although the Supreme Court has completed hearing oral argument in cases for this term, much work remains to be done.  More than half of the cases on this term's docket remain pending, and the Court has the task of finalizing them before the end of term in late June.  That includes resolution of a number of noteworthy cases involving immigration, trademark arguments that impact the Washington Redskins trademark, cases against federal law enforcement officials, and religious liberty.

Bloomberg Article.

 Developments in Appeal of Travel Ban Case:

The United States Court of Appeals for the Fourth Circuit is scheduled to hear arguments next week challenging the latest version of the Trump administration's travel ban.  When that case is heard, however, Judge J. Harvie Wilkinson III will be recused because his son-in-law, the acting Solicitor General, is a lead lawyer for the administration.  Wilkinson was nominated to the bench by President Reagan and confirmed in 1984, and he is one of the most prominent conservative federal appeals judges in the country.  His recusal appears to further tip the balance of the panel that will hear the appeal toward a more liberal balance, widening the margin of judges appointed by Democratic presidents over Republican presidents.

BuzzFeed article.

UCLA Clinic Wins SCOTUS Case:

The Daily Bruin ran a great article this week covering a recent victory before the United States Supreme Court for UCLA law professor Stuart Banner and Supreme Court Clinic students.  The case, Nelson v. Colorado, involved issues related to court fees.  In Colorado, defendants convicted of crimes are required to pay restitution and fees, and they are not entitled to have those expenditures returned if their convictions are overturned on appeal.  Instead, Colorado law provides that they must bring a separate proceeding and "prove" their innocence.  Banner and his students successfully argued that the Colorado procedures were unconstitutional.

 Practice Tips:

The Bar Association of the Fifth Federal Circuit is consistently a great source for useful practice tips.  This week, the BAFF Twitter Account reminded followers that the Fifth Circuit website offers a vast array of practitioner guides and samples to make appellate practice in that court easier. Just see the links under "Forms, Fees & Guides" to start exploring.

Of Interest:

This week, the New York Times ran an article covering a book, "Hemingway Didn't Say That: The Truth Behind Familiar Quotations," in which Garson O'Toole (a pseudonym for former teacher and Johns Hopkins researcher Gregory F. Sullivan).  The book compiles some of the most popular posts from the popular website Quote Investigator, where O'Toole has traced the origins of numerous well-known sayings and identified misattribution of many famous quotes.

Appellate practitioners -- and appellatetwitter members, in particular -- love a good quote.  Better be sure the attribution is correct!


May 5, 2017 | Permalink | Comments (0)

Tuesday, May 2, 2017

#TwitterTuesday--Oh Michigan


I hear that it has been cold up north.  So, for those of you who might be snowed in and looking for some good Michigan appellate Twitter feeds to follow, here you go!

Bill Schuette (@SchuetteOnDuty) serves as Michigan’s Attorney General. The twitter feed helps inform the public about the current projects and reports issued by the Department of Attorney General.

Bridget McCormick (@BridgetMaryMc) serves as a justice on the Michigan Supreme Court (@MISupreme Court).

A colleague of Justice McCormick’s, Justice David Viviano (@JusticeViviano) also serves on the State’s highest Court.


May 2, 2017 | Permalink | Comments (0)

Monday, May 1, 2017

An En Banc Conundrum

Several weeks ago a reader sent me a copy of an order from the District of Columbia Court of Appeals denying rehearing en banc in a multi-appellant case.  Pretty run of mill, or so it seemed at first glance.  Courts deny rehearing en banc all the time.  But this order was far from ordinary.  According to the order, the case was before the following judges of the District of Columbia Court of Appeals:  "Washington, Chief Judge; Glickman, Fisher, Blackburner-Rigsby, Thompson, Beckwith, and Easterly, Associate Judges."  That is 7 judges.  Judge McLeese did not participate in the the cases.  Although there are 9 seats on the District of Columbia Court of Appeals, one of the seats has been vacant for several years, making for normally 8 active judges.  

Of the 7 active judges participating in the case, 4 voted for rehearing en banc with respect to two appellants, yet the petitions were all denied.  How can that be?  I emailed some with the tipster, and we agreed it was probably because the District of Columbia Court of Appeals requires a majority of active judges to vote in favor of a petition.  In the case of the District of Columbia Court of Appeals, that would be 5 judges.  After looking at the court rules, that is in fact the case.  So, even though one judge was recused, and a majority of the active, non-recused judges voted for rehearing en banc, the petition was denied.

I must admit, I had not heard of such a situation before, and my tipster was equally baffled.  As it turns out, Howard Bashman has written on the topic before, arguing that recused judges should not be counted as a no vote.  Howard's piece, written in 2001, noted that the federal rules were unclear on how recused judges should be counted in the en banc voting process and that the federal appellate courts were divided on how the language should be interpreted.  Federal Rule of Appellate Procedure 35 now makes it clear that it is a majority of active judges "who are not disqualified" participate in the decision whether to take a case en banc.  Sounds like the District of Columbia Court of Appeals needs to update it rules!



May 1, 2017 | Permalink | Comments (1)