Appellate Advocacy Blog Weekly Roundup Friday, March 29

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 Real a quick email at[email protected] or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

Supreme Court News:

• On Wednesday, the Court heard arguments in Kisor v. Wilkie, a case dealing with the "Auer deference" doctrine. Tony Mauro, @Tonymauro, reported the doctrine is named after the 1977 case Auer v. Robbins that directed courts "to defer to an agency's interpretation of its own ambiguous regulations." The Auer deference doctrine has been criticized as giving too much power to regulatory agencies. 

Justice Gorsuch vocally challenged U.S. Solicitor Noel Fransisco's position of a middle ground on the doctrine, while Justice Bryer seemed to defend the doctrine. Chief Justice Roberts may be the swing vote. 

• On Tuesday, the Court decided the case of Sturgeon v. Frost. The case dealt with whether the Nation River in Alaska was considered "public land." The Court found that it is not. The Park Service thus did not have the authority to regulate Mr. Sturgeon's activities on the river. Justice Kagan concluded the opinion with this quip: "That means Sturgeon can rev up his hovercraft in search of moose." And in reading her summary of the opinion she stated, "Accordingly, we reverse the decision below and wish Sturgeon good hunting.” Evidently, as Tony Mauro puts it, Kagan "knows a thing or two about hunting." Last year she said this about hunting with the late Justice Scalia: "I actually quite liked it, which I think some of my East Coast friends are horrified about."

Federal Court of Appeals News:

• U.S. Court of Appeals for the 2nd Circuit heard arguments about the case of President Trump's tweets. Is the president acting in his official capacity when he communicates with the public, and, if so, does shutting off critics from the platform violate the First Amendment? The Washington Post writes about it here.
• U.S. Court of Appeals for the 9th Circuit remanded a case that revives a lawsuit against student loan collectors. The case was brought by student borrowers who alleged robocalls were made illegally. The case was sent back down to the lower court because the court of appeals found that a reasonable jury could find "vicarious liability" on the part of the collectors. Reuters has this report. 

State Supreme Court News:

The Hill reports "the Oklahoma Supreme Court on Monday denied a request by drugmakers to delay the start of an upcoming trial against them in the state for allegedly helping to fuel the opioid epidemic.” The state's case, which targets Purdue Pharma, Allergan, Cephalon and Janssen Pharmaceuticals, “is expected to be the first state lawsuit against opioid manufacturers to go to trial.”

Other Appellate News or Insights:

Bayer AG plans to appeal the $80 million verdict it recently experienced for its weed killer Roundup. The company "doesn't view the ruling as a harbinger for others because each trial has different factual and legal circumstances." Read about the likely appeal here.