Appellate Advocacy Blog

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

Friday, April 22, 2022

Appellate Advocacy Blog Weekly Roundup, Friday, April 22


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 a quick note to either (1) Dan Real at or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at or on Twitter @CLDLegalWriting.

Supreme Court News and Opinions:

On Monday, the Court issued an order in a capital punishment case from Texas.  In the case, in which a black man was convicted and sentenced to death, one of the jurors made a comment during jury selection about believing that non-whites are more dangerous than whites.  In its order, the Court declined to hear the case, allowing the conviction and sentence to stand.  Justice Sotomayor authored a dissent, in which Justices Breyer and Kagan joined.  The case is Love v. Texas.

On Thursday, the Court issued an opinion in a case involving entitlement of residents of Puerto Rico and other U.S. territories to federal benefits enjoyed by citizens of the states, such as Supplemental Security Income.  In its opinion, the Court by an 8-1 vote ruled that there is no Constitutional right to receive such benefits and that Congress has substantial discretion over how to structure federal tax and benefits programs for residents of the territories such that it is not unconstitutional to deny these types of benefits.  Justice Sotomayor was the sole dissenter, while Justices Thomas and Gorsuch each authored separate concurring opinions.  Justice Gorsuch's concurring opinion has drawn attention for calling on the Court to formally overturn a series of early-20th-century decisions known as the "Insular Cases," in which the Court denied a variety of Constitutional rights to people living in the territories on grounds that Gorsuch described as racist stereotypes.  The case is U.S. v. Vaello Madero.

On Thursday, the Court issued an opinion in a case involving choice of law determinations in a case where a family brought suit in California against a Spanish museum to recover a piece of artwork expropriated by Nazis.  In its opinion, the Court concluded that California's choice of law provisions should apply instead of federal choice of law provisions, and remanded the case to the 9th Circuit for further proceedings to determine which jurisdiction's substantive property law would be applied by a California court in resolving the underlying dispute.  The case provided a small victory for the family, although only in the sense of leaving open the possibility of the 9th Circuit concluding that Spanish law should not apply to the case.  The case was notable, in part, because it was a unanimous 9-0 opinion.  The case is Cassirer v. Thyssen-Bornemisza Collection Foundation.

On Thursday, the Court issued an opinion in a case involving an Austin, Texas, city ordinance treating "on premises" signs differently from "off premises" signs. In the case, an outdoor advertising company sought to convert existing off premises signs to digital signs, which city ordinances prohibited (while allowing such signs for on premises signs). In its opinion, the Court ruled that the ordinance was content-neutral and therefore not subject to strict scrutiny.  By a 6-3 vote, the Court sent the case back to the lower courts to determine whether the ordinance survives a lower level of scrutiny.  Comparing the majority and dissenting opinions reveals a disagreement about the appropriate test for determining whether speech is content-neutral, as the majority concluded that the ordinance banned a broad category of communicative content and did not target a specific topic or subject matter while Justice Thomas in a dissent joined by Justices Gorsuch and Coney Barrett argued that the ordinance did discriminate based on content in prohibiting the promotion of events based on whether they occur on or off premises. The case is City of Austin v. Reagan National Advertising of Austin, LLC.

Federal Appellate Court News and Opinions:

On Thursday, the 11th Circuit Court of Appeals issued an opinion in a case striking down the University of Central Florida's Discriminatory Harassment Speech Code.  In its opinion, the court held that the school's code was unconstitutionally overbroad -- calling it "staggeringly broad" -- and found that it would prohibit any number of statements that would undoubtedly be protected by the First Amendment.  

State Appellate Court News and Opinions:

In Texas, an appellate court ruled that the Texas Health and Human Services Commission policy requiring applicants for Medicaid benefits in nursing homes have "prior occupancy" is incorrect.  The decision removed the concurrent-occupancy standard that required applicants to own and live in the  home at the same time before going to a nursing home.

Appellate Practice Tips and Techniques:

The State Bar of Texas Appellate Section is hosting a webinar on May 17 titled "Appellate Lessons from Legal Insiders:  How Appellate Practitioners Can Add Value to In-House Counsel."  The webinar will be from 12-1, on Zoom.


Appellate Jobs: 

The United States Court of Appeals for the Second Circuit is hiring a Supervising Staff Attorney.  The position would supervise four to six staff attorneys and would involve managerial duties such as recruiting, training, and evaluating the court's staff attorneys.  The position would also involve writing bench memoranda and proposed court orders for appeals and other matters before the court.

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Posted by: Taniya Khan | Apr 28, 2022 3:10:19 AM

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