Appellate Advocacy Blog

In Memoriam Charles Fried

I was sad to hear about the recent passing of longtime Harvard Law Professor Charles Fried. I had been surprised (and impressed) to learn that Prof. Fried had retired from teaching just last semester. When I took Constitutional Law from Prof. Fried two decades ago, he had already been on the faculty for 40 years.  I am glad to know that many more students had the opportunity to learn from him.

Others have written ably about Prof. Fried’s impressive life and career. As a first-generation law student, I recall being awed by his impressive resume. It was always exciting when he started our class discussion about a case with the words, “When I argued this case at the Supreme Court . . .”  As a former Solicitor General, he could use that phrase often. But rather than repeat what others have written, I wanted to share my favorite Prof. Fried story—the story where Prof. Fried gave me some of the best advice I received in law school.

Sometime during my 2L year, I decided that I wanted to apply for judicial clerkships. Not knowing much about the process, I thought that my clerkship chances would improve if I asked my most famous professor to write a letter of recommendation. Prof. Fried easily fit that bill. He also served as the faculty advisor to the Harvard Law Federalist Society, and I was actively involved in the organization. I arranged a meeting with him to request the letter. I recall being nervous as I approached his office—I was not one to visit office hours.  I reminded him of my name and respectfully asked for a letter. Prof. Fried kindly agreed to write a letter, but then explained that because I hadn’t talked a lot in class and didn’t have an especially high grade (both statements were true), my letter would not be that strong. He then gave me the key advice. He said that I might be better off asking someone who knew me better to write a letter.  I thanked him and said either that I would do that or that I would let him know (I can’t quite recall which).  Then I left his office.

I took his advice.  I requested other letters, applied for clerkships, and spent an amazing year clerking at the federal appellate level.

Now, some might read this and think that Prof. Fried’s advice was a bit harsh. It wasn’t. I remember him being nothing but gracious and kind as he shared his thoughts. Now as I professor, I understand even more where he was coming from. Writing letters of recommendation can be hard, especially when you don’t have much to say about the student. And judges prefer letters from recommenders that can speak to the skills that would make you a good clerk. Not talking in class and getting a mediocre grade don’t fall into the quality clerkship skills category.

Further, I have had the opportunity to share his advice with countless law students as I counsel them about clerkships. For my entire decade teaching I have preached the value of clerkships to students—recently writing a book on the topic. As I share the steps that they will need to take to apply for a clerkship I can encourage them to build relationships with professors and employers that will lead to good letters of recommendation—letters that speak to the skills that will make them a stellar law clerk.

I will always be grateful to Prof. Fried for his advice. My thoughts are with his family. Requiescat in pace.

A Few Lessons from the Briefing in Trump v. Anderson, the Ballot Eligibility Case before the Supreme Court

Not just appellate eyes, but the eyes of the country, are likely to be trained on the Supreme Court on February 8, when the justices will hear Trump v. Anderson, the case from the Colorado Supreme Court that held former President Trump ineligible under the Fourteenth Amendment’s Section Three to be placed on the Colorado Republican Primary Ballot because of his actions in connection with the infamous January 6 assault on the Capitol as electoral votes were being counted in 2021.

The Petitioners’ briefs, along with their amici, were filed by January 18. Although the Respondent’s Brief was filed January 26, supporting amicus briefs are not due until January 31. In full disclosure, I am filing one on behalf of Professor Kermit Roosevelt of the University of Pennsylvania’s law school.

The briefs filed revealed interesting strategic choices and provide instructive examples of how to use the same  historical examples, same words spoken during the congressional and ratification debates, and same precedents to opposing effects.

For this post, I want to primarily focus on choices made by the advocates. As every appellate advocate knows, it is prudent to put your best argument first. If that argument is weak, it has an adverse effect on the subsequent arguments. So how did the parties open their briefs?

Trump’s brief begins with the argument that the “president is not an ‘officer of the

United States.’” If the Court accepts that view, the case is over. That might seem to make it a good choice as an opening argument. Yet, the Colorado Supreme Court treated it as an extraordinarily weak one. That court found it impossible to believe that those who framed the Fourteenth Amendment were determined to assure that minor officeholders did not return to their minor offices, but that it was of no concern that the most powerful figure in American government could violate an oath to the Constitution in precisely the same manner and still regain that office.

To explain more fully, Section Three of the Fourteenth Amendment disqualifies those have “previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States.” The essence of disqualification, then, is that breaking an oath to support the Constitution disqualifies a person from office.

The argument his lawyers posit is that Trump can only be ineligible if the president qualifies as an “officer of the United States.” Members of Congress are mentioned, as well as other elected officials, but those not specified must be deemed “officers of the United States.” The brief argues that the term is a constitutional word of art that only applies to people the president appoints to office or commissions, as in the military – and the president cannot appoint or commission himself to an office.

In making the argument, Trump’s lawyers seek to appeal to the same justices who have were in the majority in decisions that cut back on the administrative state. In these modern precedents that found fault with the lack of accountability for independent agencies because their leaders could not be fired by the president, the Court has referred to “officers of the United States” as appointees, rather than as elected officials. Leading with this argument is a bid to use those precedents for another purpose, which is why it leads and takes up considerable real estate in the brief.

The Colorado State Republican Central Committee (CSRCC), another party on the same side as Trump, also begins its brief with this argument, apparently having made the same calculation. It, however, adds an additional twist. It argues that the president oath of office, which is prescribed by the Constitution, and requires a pledge to “preserve, protect and defend the Constitution of the United States,” cannot have the same consequences as breaking an oath to support the Constitution. The difference between preserve, protect and defend and support seems like the proverbial distinction without a difference, but the CSRCC contends that it ties back to the fact that the oath-breaking that disables only a person who is an “officer of the United States.” As slim a reed as this is to hang upon, the CSRCC attempts to support its argument by making a concession. If Trump had served as a senator, representative, or governor before he became president, the result in this case could be different because those oaths trigger for Section Three’s application. But because he never held public office beforehand, the presidential oath is not one that gives rise to ineligibility. It remains to be seen if anyone salutes that flag.

The Respondents made several strategic choices in response. Just as the opening briefs should start with an advocate’s strongest points, the responsive brief should as well, rather than simply adopt the order of an opponent. It should be noted that there will be no reply briefs. Their first choice was to review the extensive evidence introduced at trial on why Trump’s conduct qualifies as fomenting an insurrection. (Trump’s brief follows his first point with an argument that he did not engage in insurrection, relying on his counterevidence.).

The choice to begin with the events of January 6 and Trump’s actions remind the justices of how serious the attack was that day and what it sought to accomplish, events and intentions that may have faded during the subsequent three years. The Respondents also intersperse color photographs from that day, enabling the justices to recall the seriousness of the attack.

Then, having established the factual predicate, the Respondents proceed to argue that an “insurrectionist president” is ineligible under Section Three. The use of that term, “insurrectionist president” is a calculated one. It establishes the abstract proposition that the Framers of the Fourteenth Amendment could not have intended that the presidency was available for someone of that ilk. Indeed, much of the debate around this provision had various members of Congress expounding on how it would keep the Confederacy’s Jefferson Davis out of the presidency. The Respondents also remind the Court that the presidency is referred to as an “office” in the Constitution 20 times, so that office or officer need not be an exclusionary term.

It suffices to say that both sides have employed appellate advocacy tactics that this blog has discussed many times. I plan to be in the courtroom February 8 to see how those techniques are deployed during oral argument.

An Appealing Definition of Persuasion

Happy 2024!  I hope you are off to a productive and healthy new year. 

In my classroom, we started the new year with a move to persuasive writing.  I began class with a discussion of some differences between argument and persuasion.  My students and I also discussed whether using a focus more on persuasion—and not just argument—might help us a tiny bit as we navigate these times of intense political and social division.  Of course, we have no answers for our national debate, but we agreed using the most appealing communication possible will make us the most persuasive advocates, hopefully helping us rise above mere loud argument.  

In class, we drew a distinction between baldly setting out claims for a client as “argument” and using appealing language to convince a tribunal to rule for the client as “persuasion.”  We reviewed argument as “the act or process of arguing, reasoning, or discussing,” as Merriam-Webster explains, noting some definitions include the idea of an “angry quarrel or disagreement.”  See https://www.merriam-webster.com/dictionary/argument.  Then, I suggested my definition of persuasion.  I asked students to consider persuasion in appellate writing as “an attempt to modify behavior through appealing communication, which is organized, supported, clear, and always honest.”  We stressed the need for credibility, and also for communication that appeals with calmer language and clear connection to law and facts.  (For similar definitions, consider Dictionary.com’s explanation of “persuade” and “persuasion” as including “inducement” to “prevail on (a person) to do something, as by advising or urging.”  See https://www.dictionary.com/browse/persuasive;https://www.merriam-webster.com/dictionary/persuasive.)

You might be thinking that some differences in these definitions of argument and persuasion are in the eye of the beholder, making part of this argument-persuasion idea a distinction without a difference.  Plus, many articles and books on appellate writing stress the need for advocates to avoid conclusions and instead persuasively explain precisely why courts should rule for their clients.  On the other hand, I have seen students approach appellate writing differently based on their concepts of persuasion and argument, prompting me to share this reminder on persuasion. 

Under changes the legislature made to California’s Education Code a few years ago, students in the public schools near my home no longer learn “persuasive” writing.  Instead, they focus on “argument” and what the Ed Code calls “argumentative essays.”  https://www2.cde.ca.gov/cacs/ela?c2=17%2C8%2C9%2C9&c0=2.  Often, these argumentative essays can use “evidence” from opinion or experience, see id., and my sons’ public school teachers emphasized argumentative word choice and strong presentation of the writers’ views.

When the graduates of this approach started trickling into my law school classes, I noticed these California public school students were better than some past students at crafting interest-catching  intro hooks, something I also stress in my persuasive writing teaching.  However, I soon realized several of these students also wrote first drafts less focused on deep analysis.  Too often, their writing had a harsh, argumentative tone but weak connections to the key parts of the precedential cases.  This interesting difference made me think more about how the way we understand the role of our briefs’ “Argument” sections underpins the entire way we draft those briefs.  

While the California Ed Code approach allows connections to supporting “evidence,” I believe the ability to use opinion as evidence undercuts this approach.  Thus, too many of my students who learned high school writing under the new Ed Code initially focused more on their own opinions than on true support from case law.  Their papers suggested a result on appeal based on their analysis of the facts only.  In other words, students engaged in bare arguments simply saying clients should win because of X facts, instead of using persuasion showing how courts should rule for clients based on the way other courts ruled on X and similar facts.  

I see only a handful of students a year from local public schools (or any other schools), and thus I have a very small sample.  Moreover, these students are often quite grateful for constructive criticism and are very open to learning more concrete ways to persuade with appealing, deep connections to our cases.  Nonetheless, the way I saw the California Ed Code change students’ focus helped me see the need to define persuasion expressly. 

Taking this lesson from my students, I do my best to think of genuine persuasion and not only argument as I write.  As you craft your own appellate arguments, hopefully this new twist on the reminder to always persuade and not simply state conclusions will be helpful to you as well.

Appellate Advocacy Blog Weekly Roundup Friday, January 19

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

SCOTUS Opinions and News:

• On Tuesday, the Court declined to accept an appeal from Indiana's Martinsville metropolitan school district seeking to have the Court rule that school districts could limit access to bathrooms by transgender students.  The case was brought in 2023 and the trial court and the Seventh Circuit Court of Appeals eventually ruled in favor of the transgender boy plaintiff, granting his request to be allowed to use the boys' bathrooms in the school.  The Court declined to take the case without further explanation.
  • Guardian article:  https://www.theguardian.com/law/2024/jan/16/us-supreme-court-case-bathroom-transgender-students-indiana
  • Courthouse News article:  https://www.courthousenews.com/supreme-court-wont-hear-fight-over-transgender-bathrooms/
  • Reuters Article:  https://www.reuters.com/legal/us-supreme-court-snubs-fight-over-transgender-student-bathroom-access-2024-01-16/

• On Wednesday, the Court heard oral argument in combined cases involving the extent to which courts should give deference to federal administrative agencies in interpreting the law those agencies administer, implicating the future of the longstanding Chevron deference doctrine.
  • SCOTUSblog preview of arguments:  https://www.scotusblog.com/2024/01/supreme-court-to-hear-major-case-on-power-of-federal-agencies/
  • Bloomberg preview article:  https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X2CM43GS000000?bna_news_filter=us-law-week#jcite
  • Law.com review of arguments:  https://link.law.com/public/34035705
  • SCOTUSblog analysis of arguments:  https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/

 

Federal Appellate Court Opinions and News:

 

• U.S. Court of Appeals for D.C. Circuit issued an order denying rehearing en banc of a prior order denying Donald Trump's attempt to restrict Special Counsel Jack Smith's access to Twitter archives of Trump's Twitter feed.
• Fox News Article:  https://www.foxnews.com/politics/federal-appeals-court-rejects-trump-petition-special-counsel-jack-smith-access-twitter-feed
   
• D.C. Circuit Court Order:  https://www.cadc.uscourts.gov/internet/opinions.nsf/B8BAD4AB171DABF285258AA6005D0173/$file/23-5044-2035679.pdf
   

Appellate Practice Tips:

 

• Fifth Circuit appellate practitioner and frequent #AppellateTwitter poster Raffi Melkonian (https://twitter.com/RMFifthCircuit) had a thread this week discussing some thoughts for those seeking to have their practice focus on appellate practice:   https://twitter.com/RMFifthCircuit/status/1747670455069061280

Appellate Jobs:

• The New Mexico Supreme Court is hiring a full-time law clerk.  You can find the job announcement on the court's website:  https://www.nmcourts.gov/careers/  (HT Emil Kiehne on Twitter – https://twitter.com/EmilKiehne)

Don’t Overlook Credibility as a Key Factor in Your Reply Brief

Reply briefs provide an advocate with a welcome opportunity to recapture the momentum established in the opening brief. A good opening brief makes a powerful case for your position that, standing alone, ought to spell success. Your opponent’s response brief follows by seeking to arrest the gravitational pull of your opening arguments and lead the appellate panel in a different direction. The reply, the advocates’ last word before oral argument, should attempt to regain your advantage by refuting your opponent’s counterarguments and new points, as well as providing the court with a sense that you bring greater credibility to the applicable caselaw. Credibility can make the difference. Judges will discount an otherwise compelling argument when the advocate has made statements elsewhere that are false or unsupported by cited authority, causing a jurist to doubt the presentation.

A reply brief can employ tools that may help win the gold star of credibility. One way to win the credibility battle is to highlight your opponent’s concessions, which may imply that your arguments are correct at least as far as they go. Those concessions can come in the form of factual agreements even when your opponent argues against the significance of those facts, opening the door for you to emphasize their significance in reply. Concessions can also consist of statements that agree with your identification of relevant precedent, allowing you to explain the case and its meaning for your dispute even more pointedly. 

Another form of concession occurs implicitly when the response brief omits any response to a material point you have made. That omission occurs with more frequency than you might imagine. Caselaw in nearly every jurisdiction treats that omission as either waiving the argument or, with much the same effect, a concession. A reply brief should call attention to the lack of response, which also serves to remind the panel of the key nature of the point overlooked by your opponent. Your opponent’s silence, then, becomes a powerful point in your favor.

Another tool in the credibility battle comes from showing the care you took in mustering caselaw without overstating the holdings. Your precision, in comparison to your opponents’ hyperbolic or rhetorical excesses, will work in your favor as the court reads the briefs. Your opponents’ exaggerated and emotion-laden presentation will hold less weight when contrasted with your more lawyer-like, straightforward presentation of arguments framed in terms of the record and the authority that a court should consult. For example, where your opponent calls an argument “made up” or “ridiculous” or engages in ad hominem attacks, it may behoove you to quote their overwrought response and demonstrate that their characterization or problem questions not you or your argument as much as it expresses their misunderstanding of the undisputed record or the meaning of precedent, allowing you to explain in plain yet powerful words the existing facts or applicable law.

Less overblown, but equally problematic, are distortions of your argument that the other side might attempt to show that it makes little sense. When that occurs, a reply brief should explain how the other side either purposely misrepresented or otherwise misunderstood your argument. Doing so allows you to restate the premise of your argument to assure that the court understands it as intended and that it provides no basis for the criticism your opponent mounted. And, in those instances where opponents misrepresent or misunderstand the argument, you can also demonstrate anew its validity and applicability by showing that their reading is far from what you argued or constitutes a wild and unwarranted extrapolation from it.

A final consideration in establishing your greater credibility: read the response brief from the perspective of a judge unfamiliar with the case or the relevant precedents. From that reading you will likely identify between one to three points that raise understandable doubts about your argument. Those points, then, become the questions that the judge probably will expect answered in the reply – and setting out those questions and compelling answers to them in an introduction, particularly where you can use the other credibility tools mentioned here throughout the brief, will bolster your credibility. Often, credibility serves as the key to success in an appeal.

NOW, how well can ChatGPT prepare me for oral argument?

Back in March 2023, when generative AI was relatively new and we were all deciding whether to celebrate human ingenuity or engage in apocalyptic panic, I wrote a post asking if ChatGPT could prepare me for oral argument.  I thought it would be interesting to write a follow-up now (close to a year later) to see how the technology has progressed and whether its skills in moot court have improved.  TLDR:  it’s even better.

In my first post, I used the free version of ChatGPT, which was then version Legacy 3.5.  Since then, I’ve signed up for the paid version, ChatGPT-4, as well as the free version of Claude, the generative AI tool from Anthropic.

A feature that both ChatGPT-4 and Claude have that earlier generative AI tools lacked is the ability to upload documents.  This means that an advocate can directly upload briefs before engaging with the AI, which cuts down significantly on the number of prompts needed to get the AI up to speed on the facts, legal issues, arguments, and authorities.

For purposes of this post, I uploaded a single brief (on the same topic as in my previous post)[i] to both AI tools and entered the same prompts in each.  I told them both, “you are an appellate court judge. I am the attorney arguing on behalf of the position represented in the attached brief. Ask me questions.”[ii]

Both ChatGPT-4 and Claude responded with a list of questions, rather than engaging in a back-and-forth discussion.  So I prompted them further with “please ask me one question at a time and then ask follow-up questions for each of my answers.” 

Both tools began with the first question in their list of questions, waited for my response, and then asked more probing follow-up questions.

Here’s my exchange with ChatGPT-4:

ChatGPT

Certainly. Let's start with the first question:

Viewpoint Neutrality: Your brief asserts that the Bielefeld Public Advertising Guidelines are viewpoint neutral. Could you elaborate on how the Guidelines maintain viewpoint neutrality, especially considering they prohibit religious advertisements?

Me

the guidelines prohibit the content of religion, rather than a viewpoint. it is irrelevant whether the advertisement supports or opposes religion. if the content involves religion, it is barred. therefore, the guideline is viewpoint neutral.

ChatGPT

Thank you for your response. A follow-up question on that point:

Given that the Guidelines prohibit content involving religion, how do you address concerns that such a prohibition might inherently favor secular viewpoints over religious ones? In other words, how do you reconcile the argument of viewpoint neutrality with the potential perception that secular views are being preferred or given more space in the public discourse?

I was surprised at how probing the follow-up question was.  But I was even more surprised at how similar the follow-up question from Claude was to the follow-up from ChatGPT-4.  Here’s my exchange with Claude:

Claude

Understood, let's take this one question at a time. Here is my first question:

The brief argues that religion can be banned on a content basis in a nonpublic forum. However, doesn't banning religious content target particular viewpoints? How is this viewpoint neutral?

Me

the guidelines prohibit the content of religion, rather than a viewpoint. it is irrelevant whether the advertisement supports or opposes religion. if the content involves religion, it is barred. therefore, the guideline is viewpoint neutral.

Claude

I understand the argument that the guidelines target religious content, not viewpoints on religion specifically. However, by allowing secular content while prohibiting religious content, doesn't that show favoritism towards the secular perspective? How can prohibiting religious content altogether be considered viewpoint neutral?

Both AI tools sound significantly more like appellate judges now than they did back in March 2023.  And it is much easier to engage in a discussion of the legal issues now.  As for distinctions between the two, I found Claude to be more helpful with the follow-up questions.  After a single follow-up, ChatGPT-4 moved on to the next question on its list, but Claude continued to probe my response:

Me

again, it's not about the viewpoint or advocacy or opposition to specific religious beliefs or the absence thereof. it's about religion as a topic. if an advertisement were submitted for an educational speaker teaching about world religions, that advertisement would be prohibited based on its content of religion, even though the speaker is presumably providing information and not advocating.

Claude

I see, so the key distinction here is that the guidelines prohibit religion as a subject matter or topic, not specifically viewpoints that support or oppose religious beliefs. Is that correct?

If so, I still have concerns that singling out religion as a prohibited topic is not actually viewpoint neutral in effect. By allowing secular topics but disallowing topics involving religion, it privileges the secular perspective by default. Why should religion be singled out as a prohibited subject matter when other topics like politics or ideological causes are not? What is the principled distinction there?

This is a far cry from the “Yes-Man” responses I received from ChatGPT in March 2023.  I continued my discussion with Claude to see how long it would stay on a single topic, and it lasted one more question but sounded remarkably like an appellate judge by agreeing to move on, yet reserving some (well-deserved) skepticism of my response:

Me

the guidelines likewise prohibit political advertisements. the primary distinction is that one can discuss religion as a subject matter without expressing a viewpoint as in my previous example; whereas advertisements discussing ideological causes will nearly always espouse a viewpoint of some kind

Claude

Okay, that explanation helps provide more context. So the guidelines prohibit both religious and political subject matter because those topics are seen as more inherently advocacy-based rather than neutral subject matter. Is that a fair characterization?

If so, I think I better understand the argument now that religion and politics can be prohibited subject matters in themselves regardless of specific viewpoints, while other secular topics would not necessarily have that inherent advocacy component.

I still wonder if there could be secular ideological causes that would seem advocacy-based similar to religions belief systems, but let me move to my next question area...

It was only after I agreed to move on that Claude began a discussion of the next topic.

In my previous post, I asked ChatGPT to summarize some of the key cases.  And, as we’ve seen many times over the past year, it hallucinated.  In one of the main cases, Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 897 F.3d 314 (D.C. Cir. 2018), ChatGPT-3 insisted the outcome was exactly the opposite of the outcome in reality.  When I asked both tools to summarize the Archdiocese case this time, their answers varied.  Claude was unable to independently tell me anything about the case, though it encouraged me to upload the opinion directly for it to summarize.  ChatGPT-4, however, used a plugin to search the internet to summarize the case.  What was interesting here is that the source of its information was law.cornell.edu, which contained a post of Justice Gorsuch’s statement on the denial of certiorari to the D.C. Circuit’s opinion.[iii]  Thus, the information ChatGPT-4 provided came from that statement, rather than the D.C. Circuit opinion.  But it was still more accurate than its previous hallucination.

I concluded by asking both tools to use the uploaded brief to create an outline for oral argument.  As before, both tools excelled at this task, though Claude presented a more argumentative version of the outline.

ChatGPT-4:

Here is an outline for your oral argument based on the brief for "The City of Bielefeld v. The Mustard Seed":

1. Introduction

• Briefly introduce the case and state your position supporting the City of Bielefeld.

2. Argument Overview

• Outline the main arguments: A. The Fourteenth Circuit erred in its decision. B. The city's guidelines on advertising in public buses are lawful and constitutional.

3. Forum Analysis

• Argue that the bus advertisement space is a nonpublic forum.
• Discuss relevant cases (e.g., Lehman v. City of Shaker Heights) that support this classification.

4. Content-Based Restrictions in a Nonpublic Forum

• Explain why religion can be banned on a content basis in a nonpublic forum.
• Distinguish between content-based and viewpoint-based restrictions.

5. Reasonableness and Consistency of Guidelines

• Argue that the city’s guidelines are reasonable and have been consistently applied.
• Address how the guidelines serve the city's interests without unconstitutionally restricting free speech.

6. Relevance of Archdiocese Case

• Discuss the relevance of the Archdiocese of Washington v. Washington Metropolitan Area Transit Authority case and how it supports your argument.

7. Conclusion

• Summarize the key points.
• Urge the court to reverse the Fourteenth Circuit’s judgment.

Remember, the success of your oral argument depends on how well you can articulate these points and respond to any questions or counterarguments from the judges.

Claude:

Here is an outline for your oral argument based on the legal brief provided:

I.  The city's advertising restrictions should be upheld as constitutional

A. The advertising spaces are a nonpublic forum where restrictions are allowed if reasonable and consistently applied

i. Case law establishes transit advertising spaces as nonpublic forums

ii. Governments can restrict content in these types of forums if restrictions are reasonable and consistently applied

B. Banning religious content is permissible in a nonpublic forum

i.  Religion is a subject matter, not just a viewpoint

ii.  Case law says governments can prohibit religious subject matter in nonpublic forums

C. Bielefeld's restrictions were reasonable and consistently applied

i.  Restrictions reasonably advanced objectives like public safety and reliable transit

ii.  Restrictions consistently barred any ads with religious content

II. The Mustard Seed is unlikely to succeed on the merits

A. Their argument depends on treating religion as only a viewpoint

i. But case law says religious subject matter can be prohibited

B. Their consistency argument fails

i.  Secular ads permitted did not contain religious viewpoints or subject matter

C. Restrictions were reasonable and consistently applied to advance forum purposes

III.  Conclusion: Preliminary injunction should not have been granted

A.  No First Amendment violation shown

B.  Mustard Seed unlikely to succeed on merits

Let me know if you need any clarification or have suggestions for improving this oral argument outline based on the briefing. I focused on the key arguments as to why the restrictions should be upheld as constitutional.

In short, generative AI tools have come a long way in a very short time.  And neither ChatGPT nor Claude were designed for law-practice usage.  I can only imagine where the new law-based tools will take us.

 

[i] The problem, from my first-year Advocacy & Research course, involved both facial and as-applied First Amendment challenges to a municipality’s advertising guideline that barred religious content on its public transit system.

[ii] My responses to the AI were designed simply to test its engagement with the subject and do not represent how I would actually argue this case.

[iii] https://www.law.cornell.edu/supremecourt/text/18-1455

A Fascinating Interview with the Texas Supreme Court

What would you ask if you had the opportunity to interview a state supreme court justice? Would you ask about the justice’s path to the bench? How the justice writes a good opinion? What the justice does when he disagrees with his colleagues?  How the justice works with his law clerks?  Or maybe you would ask what the hardest thing about being a justice is?

How would those questions change if you were 9?  Well, for Emily Caughey the questions wouldn’t change at all!

Last year then 9-year-old Emily came up with the idea to interview justices on the Texas Supreme Court. Her goal was to make a video that would teach kids about the judicial branch.  She drafted serious questions, like the ones listed above, but also fun, kid-friendly questions. She also enlisted the help of her then 7-year-old brother James. The result is a delightful, well-edited video that includes interviews of five Texas Supreme Court Justices.   According to her mom, Jennifer Caughey, a former Justice on Texas’s First Court of Appeals and the chair of Jackson Walker’s appellate section, Emily has “been sharing the video with schools in an effort to expose kids to the Texas Supreme Court.”  Go Emily!

The whole video is worth watching. Highlights include learning what two justices aspire to the same superpower and what two justices both wanted to be professional baseball players. I also enjoyed hearing the justices’ fun facts about the Texas Supreme Court.

Thank you Emily for spearheading such an innovative project, and thank you justices for being generous with your time.  For what it is worth my favorite ice cream flavor is Blue Bell’s Chocolate Peanut Butter Overload.