Appellate Advocacy Blog

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

Friday, May 27, 2022

Appellate Advocacy Blog Weekly Roundup Friday, May 27, 2022


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.

US Supreme Court Opinions and News

  • On Monday, the Court surprised many when it unanimously ruled against a mandatory arbitration clause. Specifically, the Court overturned a specific rule that had allowed a defendant to invoke an arbitration clause even after having participated in litigation. The suit sought overtime pay from a Taco Bell franchise. The defendant participated in the litigation for over eight months before finally moving to compel arbitration. The Court ruled that by waiting, the defendant had waived the right to compel arbitration. The decision is rooted in the Federal Arbitration Act, which requires courts to put arbitration contracts on “equal footing” with other kinds of contracts. Thus, the Court rejected the argument that arbitration should be favored and held “a court must hold a party to its arbitration contract just as the court would to any other kind.” Further, the Court ruled that “a court may not devise novel rules to favor arbitration over litigation. … [F]ederal policy is about treating arbitration contracts like all others, not about fostering arbitration.” See the decision in Morgan v. Sundance and reports from Bloomberg, Slate, and The Des Moines Register.

  • The Supreme Court ruled against two death row inmates and sharply limited a prisoner’s ability to challenge a conviction in federal court based on a claim of ineffective counsel in a state proceeding. The Court held that a federal court considering a habeas corpus petition “may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state post-conviction counsel.” The dissent criticized the ruling, arguing that the majority “all but overrules two recent precedents that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court[: that] that a federal court may consider a habeas petitioner’s substantial claim of ineffective assistance of trial counsel (a “trial-ineffectiveness” claim), even if not presented in state court.” See the decision in Shinn v. Martinez Ramirez and reports from The New York Times, The Washington Post, and SCOTUSBlog.

Appellate Court Opinions and News

  • The Eleventh Circuit struck part of a Florida law that required social media platforms to display posts by political candidates and “journalistic enterprises,” even if such posts violate the platforms’ rules of conduct. The court held that the law was an unconstitutional violation of the First Amendment. The court held that  it is substantially likely that social media companies — even the biggest ones — are private actors whose rights the First Amendment protects" and ruled, "[p]ut simply . . . the government can't tell a private person or entity what to say or how to say it.” See the decision and reports from NPR, Bloomberg News, and The Washington Post.

  • The Fourth Circuit has ruled that a candidate who takes part in an insurrection may be barred from holding public office under the 14th Amendment of the US Constitution. The decision came in a case that sought to bar Madison Cawthorn’s candidacy. See decision and report from Bloomberg News.

Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink


Post a comment