Appellate Advocacy Blog

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

Friday, August 16, 2019

Appellate Advocacy Blog Weekly Roundup August 16, 2019

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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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court News:

As a follow-up to @Daniel_L_Real's Weekly Roundup post last week about cases concerning firearms, a petition was filed with the Court seeking to reverse the Wisconsin high court that held an advertising website (or interactive computer service provider) wasn't liable for the shooting death of a woman by her husband who obtained firearms through the website. The Wisconsin high court reversed a lower appellate court opinion, which reversal stated that the website cannot be held liable for "information posted by a third party on its website." Read the petition here

Regarding the cases before the Supreme Court concerning work-place discrimination of LGBT employees, "the Solicitor General’s office wants the EEOC on board to show the high court that the Trump administration is now unified in the belief that Congress didn’t have lesbian, gay, bisexual, and transgender workers in mind when it passed a federal workplace discrimination law more than five decades ago, sources said." The report is from Bloomberg Law.

Circuit Court Opinions and News:

The U.S. Court of Appeals for the Ninth Circuit rejected the DOJ's interpretation of "safe and sanitary" for migrant children, thereby upholding a district court's finding that federal authorities violated a long-standing settlement directing how to treat migrant children. Law.com has this article about the circuit court's opinion and the comments during oral argument by the DOJ's attorney discussing a colloquy whether "safe and sanitary" include having a toothbrush and soap.

Perhaps more of a practice pointer we would all do well to heed to one degree or another, the U.S. Court of Appeals for the Seventh Circuit recently included a footnote in an opinion with this instructive guidance: 

We have explained “one of the most important parts of appellate advocacy is the selection of the proper claims to urge on appeal.” Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000). The kitchen‐sink approach [the appellant] embraces can be criticized as “consum[ing] space that should be devoted to developing the arguments with some promise.” Id.

 

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Comments

The problem with the Seventh Circuit's "anti-kitchen-sink" comment is that appellate courts love to use "waiver" and "waived" arguments to reject appeals, so if an appellant or appellee fails to mention, or inadequately mentions, a certain argument then that argument will be deemed waived for all purposes, forever. Appellate courts have created this problem with their very aggressive and frequent use of waiver to reject appellate arguments. Of course, any argument made must be thoroughly and properly supported, or it will be deemed waived!

Posted by: Lawrence Winger | Aug 17, 2019 12:50:40 PM

Lawrence, this is an excellent perspective you bring up. It certainly seems easier for an appellate court to wave the wand of waiver than it is to decipher what issues to appeal. I appreciate your comment!

Posted by: Danny Leavitt | Aug 19, 2019 6:54:53 AM

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