Appellate Advocacy Blog

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

Friday, May 25, 2018

Appellate Advocacy Blog Weekly Roundup May 25, 2018


Each week, the Appellate Advocacy Blog Weekly Roundup 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 or a message on Twitter(@Daniel_L_Real). You can also send emails to Danny Leavitt at or a message on twitter @Danny_C_Leavitt

Supreme Court Opinions and News:


Much has been written this week about the decision in Epic Systems Corp. v. Lewis regarding employers requiring workers to go through arbitration rather than going to court or joining class action suits or grievances. The Court held that neither the Arbitration Act's saving clause nor the National Labor Relations Act (NLRA) supersedes Congress's instructions in the Federal Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced. Justice Neil Gorsuch delivered the opinion for a 5-4 majority.  JusticeClarence Thomas filed a concurring opinion.  Justice Ruth Bader Ginsburg filed a dissenting opinion in which Justice Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined. Read about the opinion herehere, or here


More was reported on the potential retirement of Justice Anthony Kennedy, despite him already hiring law clerks for next term. The Hill has this article. And Adam Feldman of Empirical SCOTUS reports on the SCOTUS blog here


Boston University School of Law professor Jay Wexler measured laughter in Supreme Court transcripts to determine who the funniest justice this term. Justice Breyer caused the courtroom to break out in laughter 38 times. The short article is here


Federal Appellate Court News:


The D.C. Circuit Court will live stream oral arguments beginning this fall. The announcement is here.


State Appellate Court News:


With likely appellate consequences, a Nebraska court was asked to show a video on implicit biases to the venire. The article reporting on the petition from a deputy public defendant and the prosecuter's objection is here


Practice Pointers and Tips:


This article discusses Bryan Garner's suggestion to amend Federal Rules of Appellate Procedure 28 to include a "deep issue." The article's author and Bryan Garner urge practitioners to adopt the "deep issue" suggestion and avoid the "grammatically incorrect" statements that begin with "whether." 
For those preparing for the bar exam, keep this article in mind if you've considered studying on your smartphone. 


This thread live tweeting appellate practice CLE with tips and pointers. 


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