Appellate Advocacy Blog

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

Friday, July 23, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 23, 2021

WeeklyRoundupGraphic

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 DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • Mississippi’s attorney general has asked the Supreme Court to overturn Roe v. Wade, calling it “egregiously wrong.” The Court will ear argument this fall on whether to allow Mississippi’s law that bans most abortions after 15 weeks. See the Brief for Petitioners and reports from The New York Times, The Wall Street Journal, Reuters, and Bloomberg News.

  • Adam Feldman wrote an analysis of the 2020-21 Supreme Court shadow docket; it was posted on The Juris Lab. Coined by Professor William Baude, the term “shadow docket” refers to the Court’s decisions made outside the regular docket and without oral argument. 

 Appellate Court Opinions and News

  • The DC Court of Appeals tossed a Constitutional challenge against Speaker Nancy Pelosi and a House resolution to create a proxy voting system to allow remote legislating during the pandemic. The court determined that it did not have jurisdiction to review rules and procedures of the House. The court agreed with the lower court decision that “the resolution and its implementation lie within the immunity for legislative acts conferred by the Constitution’s Speech and Debate Clause.” See the decision and reports from The Hill and The New York Times.

  • The Tenth Circuit upheld as constitutional a law that permits the revocation of the passport of a person who owes taxes. Thus, the court determined that international travel is not a fundamental right. This ruling is the first of its kind. See the decision and reports from Bloomberg Law and The Gazette (CO).

  • The US District Court for the Northern District of Indiana denied a petition to preliminarily enjoin an Indiana University Covid policy that requires all students and staff to be vaccinated, with exceptions for religious, ethical, or medical reasons. The policy requires those who are unvaccinated to take special precautions including wearing masks, taking additional Covid tests, and quarantining during an outbreak. The court weighed individual freedoms against public health concerns and found that the petitioners did not show they would suffer irreparable harm. The court held that “[t]he university is presenting the students with a difficult choice — get the vaccine or else apply for an exemption or deferral, transfer to a different school, or forego schools for the semester altogether. … But, this hard choice doesn't amount to coercion.” See the decision and reports from NPR, USA Today, and The Wall Street Journal.  

  • The Fourth Circuit has ruled that gun laws barring sales to those under 21 are unconstitutional because they restrict the rights of citizens. The court wrote: “Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18-to-20-year-olds to a second-class status.” See the decision and reports from CNN, USA Today, and The Hill.

July 23, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, July 9, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 9, 2021

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

The Supreme Court ended the 2020-21 term last week. And with that came the many end-of-term wrap-ups and commentaries. Here are a few for your perusal:

Appellate Court Opinions and News

  • The Fifth Circuit ruled that Texas’s rule that requires attorneys to join the bar association violates the First Amendment. The court reasoned that, because “the Bar is engaged in non-germane activities,” compelling Texas attorneys to join and pay dues violates their First Amendment Rights. See the order and reports from the ABA Journal and the Times-Picayune

Jobs

The Office of the Federal Public Defender for the Eastern District of North Carolina is hiring an Appellate Assistant Federal Public Defender.  See the posting here.

Interesting Discussions

  • Tim Koval posted a discussion that he and Jeff Lewis had with Judge Robert Bacharach of the Tenth Circuit about using acronyms in brief writing. Spoiler: avoid them if you can.

  • Avi Wolfman-Arent  started a thread (and sub-thread) about the circumstances that led to the Supreme Court case where we find the oft-quoted First Amendment line about yelling fire in a crowded theater. 

July 9, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, July 2, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 2

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court News and Opinions:

It was a very busy final week of the term for the Supreme Court, with a number of orders and opinions released throughout the week.

On Monday, the Court rejected requests to review two cases concerning the ability of courts to intervene in disputes arising in religious settings, declining to resolve separation of church and state disputes.  More from Bloomberg.

Also on Monday, the Court declined to review a lower federal court decision that found a school violated the Constitutional rights of a transgender student when it imposed a policy banning him from using the boys' restroom. More from BuzzFeed.

Also on Monday, the Court struck down barriers to challenging governmental takings of property in federal court, ruling that the "exhaustion requirement" imposed before bringing suit in federal court only requires giving a state agency a chance to weigh in, rather than requiring following all of the agency's administrative procedures.  More from Bloomberg.

Also on Monday, the Court vacated an Eighth Circuit opinion and remanded a case involving assertions of excessive force by St. Louis police who restrained an inmate in an incident in which he died. The Court ruled that the appellate court deemed as "insignificant" facts that should have been given consideration in deciding whether to grant summary judgment on the excessive force claim, reviving the claim.  More from Courthouse News.

On Tuesday, the Court ruled against a group of noncitizens who had applied for "withholding" relief -- a remedy that involves an exception to the typical action of expeditiously again removing noncitizens who have been removed but are found back in the United States when there is risk of returning them to a country where they might face torture or persecution. More from Scotusblog.

Also on Tuesday, the Court ruled that states cannot stop developers from using the federal government's power of eminent domain to seize property for construction of a natural-gas pipeline through the state.  More from Scotusblog.

Also on Tuesday, the Court refused to lift the federal moratorium on evictions during the COVID-19 outbreak, leaving the ban in place until the end of July, as extended by the U.S. Centers for Disease Control and Prevention.  More from Bloomberg.

On Thursday, the Court upheld voting restrictions imposed by Arizona, limiting cases under the Voting Rights Act.  The ruling will make it more difficult to contest state-imposed election regulations.  More from Scotusblog.

Also on Thursday, the Court struck down a California requirement that charities and nonprofit organizations operating in the state disclose to the state attorney general's office the names and addresses of the organization's largest donors.  More from Scotusblog.

On Friday, the Court issued a summary reversal in the case of an Alabama death row inmate who had won habeas corpus relief in the lower court, upending the death row inmate's win.  More from Bloomberg.

In the ongoing discussion of whether Justice Breyer will or should consider retiring and allowing President Biden to name and seek confirmation of his replacement, Breyer's friend Kenneth Feinberg writes that Breyer is "at the top of his game" right now.  See the piece at Law.com.

Federal Appellate Court News and Opinions:

This week, the Tenth Circuit issued a ruling that mostly upheld Oklahoma's mandatory bar dues as Constitutional.  More from Law360.

Appellate Practice Tips and Pointers:

Appellate Twitter provided a couple of great threads this week, with appellate practitioners providing some great thoughts on effective advocacy.

Carl Cecere started a thread on Monday discussing the value of Introductions and Summaries in appellate briefs, an all-too-often overlooked opportunity for good advocacy.

Tobias Loss-Eaton started a thread on Thursday discussing the virtues of doing trial level work and trial level briefs, even if you aspire to some kind of "idealized" practice of high court appellate brief writing, because of the insight and development it can provide.

Appellate Jobs:

The Seventh Circuit is accepting applications for positions in the court's Office of Staff Law Clerks to begin in the fall of 2022.  Application information HERE.

July 2, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Friday, June 25, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, June 25, 2021

WeeklyRoundupGraphic

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 DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court sided with the student in the recent and much-anticipated First Amendment student speech case, finding that the school violated the student’s right to free speech when it punished her for a Snapchat post made while the student was off school grounds. The Court applied the traditional Tinker test and determined that this student’s speech was not disruptive. Although finding for the student, the decision preserved the right of school administers to police off-campus speech that meets the Tinker standard, that is, speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The decision states, “[t]he school’s regulatory interests remain significant in some off-campus circumstances. … [including] serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”  See the order and a sampling of the many reports, including from The Wall Street Journal, USA Today, The Associated Press, NPR, and The New York Times.

  • The Supreme Court ruled that the Fourth Amendment does not permit the police to enter a home or grounds except in emergencies and that “hot pursuit” does not “trigger a categorical rule allowing home entry.” In this case, after a motorist failed to stop when officers attempted to pull him over, the officers followed the motorist into his garage and arrested him for driving under the influence. The motorist sued, arguing that the officers had violated his Fourth Amendment right to be free from unreasonable search and seizure.  The Court agreed, stating, “when the officer has time to get a warrant, he must do so – even though the misdemeanant fled.” The Court reaffirmed that entry without a warrant is permitted in circumstances of true emergency, stating “[o]n many occasions, the officer will have good reason to enter – to prevent imminent harms of violence, destruction of evidence, or escape from the home.”  See the order and reports in The Washington Post, The New York Times, and USA Today.

  • The Supreme Court ruled in favor of private landowners, striking a California regulation that permitted union organizers to recruit farm workers at their workplace.  The Court determined that the regulation amounted to a taking of private property because it allowed unions to invade the landowners’ property without compensating the property owner.  See the order and reports from The New York Times, The Associated Press, Reuters, and Bloomberg

  • This week, the Senate Judiciary Committee approved bills that would expand video coverage of federal court trials and other proceedings, including allowing the filming of Supreme Court argument for the first time. These bills are the first in over ten years aiming to expand live coverage of federal proceedings. See reports from Politico and Forbes.

Appellate Court Opinions and News

  • The Ninth Circuit stayed a recent lower court ruling that had struck California’s 30-year old ban on assault rifles. The judge striking the ban compared the AR-15 rifle to a Swiss Army Knife, calling it “good for both home and battle.” The Ninth Circuit’s short order stays the ruling pending other related cases challenging the assault weapons ban.  See the ruling and reports from CNN and The LA Times.

June 25, 2021 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, June 22, 2021

The Problem with the Invited Future Appeal in Justice Alito's Fulton v. Philadelphia Concurrence

    When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves.[1] But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia.[2] Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith[3] should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling.[4] Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.

    The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.

    Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.[5]

    Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.

    No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.

 

[1] In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).

[2] 593 U.S. __ (2021).

[3] 494 U.S. 872 (1990).

[4] See Gentithes, supra note 1, at 341.

[5] See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).

June 22, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, June 13, 2021

Five Tips for Students in Moot Court and for Appellate Advocates

Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates.  Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.

1.    Start strong

First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.

Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.

Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.

Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:

May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.

What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:

May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.

 The difference should be obvious.

2.    Answer the judges’ questions.

Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.

To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.

Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:

Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?

Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.

Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?

Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.

That is simply terrible. Now consider this example.

Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?

Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.

Again, the difference should be obvious.

3.    Have a conversation with the court

During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.

The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.

4.    Don’t screw up on the basic aspects of appellate practice

Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:

  • Know the record
  • Know the law (and please make sure your legal authority remains valid law)
  • Know the standard of review
  • Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
  • Never be disrespectful to the lower or appellate court, or the adversary
  • Follow the federal or state rules, and the local rules
  • Don’t make weak arguments
  • Cite cases and other authority
  • Know the difference between binding and persuasive authority
  • Have realistic expectations and communicate those expectations to your client
  • Don’t use notes at oral argument
  • Be honest
  • Don’t be a jerk

This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.

5.    Have a short list of ‘non-negotiable’ legal arguments

It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.

And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.

June 13, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Friday, June 11, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, June 11, 2021

WeeklyRoundupGraphic

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 DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court ruled 5-4 that violent felonies committed recklessly, as opposed to intentionally or knowingly, do not count toward the “strikes” that would trigger the 15-year mandatory minimum sentence under the Federal Armed Career Criminals Act.  The Act requires the mandatory minimum for those convicted of firearms possession when they have been previously convicted of three violent felonies. The plurality opinion (one justice agreed on different grounds) determined that the Act excludes crimes committed recklessly, saying the words “against the person of another” requires purposeful conduct and “demands that the perpetrator direct his action at, or target, another individual.” See the order and reports from The New York Times, Bloomberg Law, and The Hill.

  • A few weeks ago, we flagged Johnson & Johnson’s cert petition appealing a $2.1 billion award to petitioners who claimed that J&J talcum powder products caused their cancer. This week, the Supreme Court denied cert. See articles in the Washington Post and The Wall Street Journal.

  • Last week, The New York Times’s Adam Liptak and Alicia Parlapiano reported on a survey from researchers at Harvard, Stanford, and the University of Texas looking at what the public thinks about this term’s major Supreme Court Cases.  Find the article here.

Appellate Court Opinions and News

  • The Eighth Circuit has affirmed a preliminary injunction blocking a Missouri abortion ban.  The law would have prohibited abortions after eight weeks or because the fetus has Down Syndrome. The ruling is based in the Supreme Court precedent that “[b]ans on pre-viability abortions are categorically unconstitutional.” The ruling recognizes that the law was a ban rather than a restriction: “Unlike a regulation, the Down syndrome provision does not set a condition that—upon compliance—makes the performance of a pre-viability abortion lawful, thus preserving the constitutional right to elect the procedure. Rather, it bans access to an abortion entirely,” See the order and reports from The Courthouse News, The Washington Times, and The Associated Press.

  • The well-loved and highly-respected Second Circuit Judge Robert A. Katzmann died this week. See the US Courts announcement, a New York Times tribute and a report, and a statement by U.S. Attorney General Merrick B. Garland.

June 11, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, June 5, 2021

Judicial Opinions & Pop Culture (or, are the Star Wars sequels "mediocre and schlocky")

Earlier this week I received an email from a student with this Ninth Circuit opinion attached. The subject of the email was "Judge Lee and Star Wars," and the student told me to look on page 26 at footnote 5. I was a bit puzzled at first, since the case was about class action settlements. But, when I got to page 26 it was all clear. Here is what Judge Lee wrote,

Under the settlement, ConAgra agreed to refrain from marketing Wesson Oil as “100% Natural.” That sounds great, except that ConAgra already abandoned that strategy in 2017 — two years before the parties hammered out their agreement — for reasons it claims were unrelated to this or any other litigation. Even worse, ConAgra’s promise not to 
use the phrase “100% Natural” on Wesson Oil appears meaningless because ConAgra no longer owns Wesson Oil. In reality, this promise is about as meaningful and enduring
as a proposal in the Final Rose ceremony on the Bachelor. Simply put, Richardson — the new owner of Wesson Oil — can resume using the “100% Natural” label at any time it
wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.5

Footnote 5. As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.

I laughed out loud when I read the paragraph and footnote, but I also was not surprised, since I have known Judge Lee for many years, and he is definitely a fan of Star Wars (and apparently the Bachelor?). Judge Lee's Star Wars analogy has also made the news, especially in the movie and comic spheres, with one headline reading:

U.S. Ninth Circuit Court Declares THE LAST JEDI "Mediocre And Schlocky" In Recent Ruling

Although that headline might stretch the analogy a bit, it did get me thinking--should judges throw pop culture references into their judicial opinions? In my mind, the answer is certainly yes.

Before I defend pop culture references in judicial opinions, let me start with what I assume to be the critique--that it trivializes important disputes. The response is--like any other use of humor--there is certainly a time and a place for pop culture references. There are some cases where pop culture references could seem insensitive or overly trivial, but in other cases, they humanize the judiciary and raise awareness about our court system, which is why I think that they are great!

According to a 2020 survey, only 51% of Americans can name all three branches of government, with 23% unable to name any branch of government. Compare this to the 49% of adults who have seen The Empire Strikes Back. I couldn't find statistics for the number of people who can name the three movies in the original trilogy, but I think that you get my point.  Star Wars is a big business and very well known. If a pop culture reference to Star Wars gets people to think, albeit even briefly, about our federal court system, that reference is a plus in my book.

How common are pop culture references in judicial opinions?  I ran a few searches on Westlaw Edge to see what I could find.  Searching "Star Wars" in all cases brought up 403 hits. In glancing at the top 50 results, most of them have to do with copyright infringement--they aren't using pop culture to make an analogy.  Justice Kagan did make a Star Wars reference in her dissent in  Lockhart v. U.S., stating "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. . . . Everyone understands that the modifying phrase—'involved with the new Star Wars movie,' . . . —applies to each term in the preceding list, not just the last." 577 US. 347, 362 (Kagan, J., dissenting).

A search for "Harry Potter" in all cases brought up 284 hits. I looked at the last 84 results, and I found some gems:

  • "Between Marshall's status as the only other person at the defense table and the fact that, by this time, Jenkins had twice previously been shown Marshall's face, Jenkins's in-court identification of Marshall was about as unexpected as the mention of Voldemort in a Harry Potter novel." Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1293 (11th Cir. 2016)
  • "According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm's current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good." Deseret Mgmt. Corp. v. United States, 112 Fed. Cl. 438, 451 (2013)
  • "In a word, today's decision will not require even depositary banks to hire armies of employees to examine each check like something out of Harry Potter's Gringotts Wizarding Bank. It will require only a minimal level of reasonable care." HH Computer Sys., Inc. v. Pac. City Bank, 231 Cal. App. 4th 221, 240, 179 Cal. Rptr. 3d 689, 703 (2014)
  • "The effect is that the debtor's homestead is subject to the loss of its exemption because the snapshot taken upon filing catches the potential for movement not unlike a photograph from a Harry Potter novel captures the movement of the subjects in the photograph." In re Montemayor, 547 B.R. 684, 701 (Bankr. S.D. Tex. 2016)

So appellate judges--throw in those pop culture references!  Maybe, just maybe, it will increase awareness and interest in the judiciary.

June 5, 2021 in Current Affairs, Federal Appeals Courts, Film, Humor, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, May 23, 2021

The Supreme Court, Abortion, and the Future of Roe v. Wade

Last week, the United States Supreme Court agreed to review the constitutionality of a Mississippi law that prohibits most abortions after fifteen weeks.[1] This case, Jackson Women's Health Organization v. Dobbs, represents yet another episode in the seemingly never-ending abortion saga. Simply put, a state enacts legislation striving to restrict the right to abortion and the Court renders a divisive decision, often by a 5-4 vote along ideological lines, that fails to resolve and clarify permanently the scope of the abortion right. The Court’s incremental, case-by-case jurisprudence has invited confusion and unpredictability into abortion jurisprudence and incentivized states to continue testing the viability of Roe v. Wade, which held that the judicially-created right to privacy under the Fourteenth Amendment encompassed a right to abortion.[2]

So, here we go again.

Another divisive abortion decision is likely and whatever the Court decides, its decision will likely be viewed as political and compromise the Court’s institutional legitimacy.

This constitutional mess can be traced to Roe v. Wade and Griswold v. Connecticut, in which the Court manipulated the Fourteenth Amendment’s Due Process Clause to create unenumerated rights that no reasonable reading of the text could support.[3] In Griswold, the Court held that the Due Process Clause, along with other provisions in the Bill of Rights, contained invisible “penumbras … formed by emanations from those guarantees that give them life and substance.”[4] Within these judicially-invented “penumbras,” the Court gave itself the power to discover unenumerated “rights” out of thin air, including the right to privacy, that could not possibly be found in or inferred from the text.  Relying in substantial part on Griswold, the Court in Roe held that the right to privacy encompassed the right to terminate a pregnancy.[5]

Regardless of one’s policy views on abortion, liberal and constitutional scholars largely agree that Roe was constitutionally indefensible. Harvard Law School Professor Laurence Tribe, for example, stated that “behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found.”[6] The late Justice Ruth Bader Ginsburg described Roe as “heavy-handed judicial activism,” and Edward Lazarus, a former clerk to Justice Harry Blackmun (who drafted the majority opinion), stated that “as a matter of constitutional interpretation ... if you administer truth serum … [most scholars] will tell you it is constitutionally indefensible.”[7] These scholars are correct – Roe was one of the worst decisions of the twentieth century.

Importantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had the opportunity to overturn Roe and return the abortion question to the states. Instead, the Court made the problem worse.[8] In a 5-4 decision, the Court upheld the “central holding” of Roe but overturned Roe’s trimester approach, which provided that, absent a compelling interest, states could not restrict a woman’s right to access abortion services during the first two trimesters, or pre-viability phase, which lasts approximately twenty-four weeks.[9] In the third trimester, the states had the authority to prohibit abortion except where necessary to protect the life or health of the mother.[10] In Planned Parenthood, however, the Court rejected the trimester approach; instead, the Court held that abortion restrictions during the pre-viability phase that imposed a “substantial burden” on the right to access abortion services were unconstitutional.[11]

Planned Parenthood was equally, if not more, constitutionally indefensible than Roe and it thrust the right to abortion into legal purgatory. After all, what precisely constitutes a “substantial burden” on the right to access abortion? And what criteria should be used to determine whether a burden is substantial? The Court had no answer.

But the states opposing abortion did.  Recognizing the ambiguity that Planned Parenthood created, these states have repeatedly enacted legislation that seeks to restrict abortion rights and thus rendered the scope of abortion rights unclear and uncertain. To make matters worse, the Court has evaluated these laws on a case-by-case basis and, in divisive and muddled opinions, failed to resolve the abortion question. Recently, for example, in Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, the Court invalidated – for good reason – laws requiring abortion providers to obtain hospital admitting privileges.[12]

The problem is that the Court, in these and other abortion decisions, has failed to definitively clarify the nature and scope of the abortion right, thus perpetuating a never-ending saga in which some states continue, in various ways, to eviscerate the abortion right. Instead of deciding each case narrowly – and based on an arguably subjective application of the undue burden standard – the Court should have either: (1) overturned Roe and returned the abortion issue to the states; or (2) held that women have an unfettered right to abortion before viability. Whatever one’s views on abortion, this would have resolved the constitutional question and precluded the seemingly never-ending litigation that Roe and its progeny have engendered. In short, Roe was a terrible decision and Planned Parenthood only compounded the constitutional damage that Roe inflicted. By way of analogy, when a person lies, the best course of action is to admit and own up to the lie rather than try to cover it up with additional lies. The Court’s abortion jurisprudence reflects the latter.

As such, the Court once again finds itself in a constitutional quagmire, the result of which will surely divide the country and risk compromising the Court’s institutional legitimacy. But the Court has no one but itself to blame. It created – and exacerbated – the constitutional fictions known as “penumbras” and substantive due process.  

Of course, one’s views on whether women should have a right to abortion are irrelevant. Most polls suggest that a majority of citizens support at least a limited right to abortion. And the reasons are understandable. But the abortion issue should have always been resolved by state legislatures, not nine unelected and life-tenured judges. The Court should have never involved itself in the abortion debate.

Ultimately, what should the Court do in Jackson Women's Health Organization? It should end this constitutional charade. In so doing, the Court should hold that, although Roe was constitutionally indefensible, it should not be overruled. For nearly fifty years, women have relied on Roe to make decisions, in conjunction with their health care providers, regarding whether to terminate a pregnancy. Put simply, Roe is entrenched in the public consciousness and stare decisis counsels in favor of reluctantly upholding Roe despite its obvious flaws. Furthermore, the Court should return to the trimester framework and hold that states may not restrict abortion access prior to viability.

That will end the inquiry and the uncertainty.

But don’t count on it. The most likely result will be a decision, engineered by Chief Justice John Roberts – who has become the Court’s most political actor – that confuses, rather than clarifies, abortion jurisprudence. That is the sad reality of the U.S. Supreme Court. Despite Chief Justice Roberts’s assertions to the contrary, the Court is unquestionably political.

Most importantly, in the future, the Court should hold that the penumbras upon which Griswold and Roe are predicated no longer exist. Had the Court adhered to an originalist framework, we would never be in this mess.

Hopefully, the Court will learn its lesson. There is ample reason, however, to be skeptical.

 

[1] Jackson Women's Health Organization v. Dobbs, No. 19-1392 (October Term, 2021).

[2] 410 U.S. 113 (1973).

[3] Id; 381 U.S. 479 (1965).

[4] Id. at 484.

[5] 410 U.S. 113.

[6] Timothy P. Carney, The Pervading Dishonesty of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner

[7] Id.

[8] 505 U.S. 833 (1992).

[9] Id.

[10] Id.

[11] Id.

[12]  136 S. Ct. 2292 (2016); 2020 WL 3492640.

May 23, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (2)

Friday, May 21, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, May 21, 2021

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court has ruled that their April 2020 decision on non-unanimous jury verdicts is not retroactive. The April 2020 decision found that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then the court considered this case (which we wrote about here back in December 2020) asking whether the April decision should apply retroactively to prisoners in Louisiana and Oregon (the last remaining states to allow non-unanimous verdicts as of the April decision) convicted in the past by non-unanimous juries. The Court ruled that it should not, stating: “It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.” See the order and reports from The New York Times and The Associate Press.

  • The Supreme Court has agreed to hear an abortions case that many believe may test Roe v. Wade. The case challenges a Mississippi law that bans most abortions after 15 weeks. The Court accepted the appeal of the Fifth Circuit’s decision that the law could not survive Supreme Court precedent on abortion restrictions, saying that it would consider whether “all pre-viability prohibitions on elective abortions are unconstitutional.” The case should be heard in the Court’s next term, which begins in October.  Here is a sampling of the many recent reports: The New York Times, The Washington Post, The Los Angeles Times, The Associated Press, and Reuters.

  • This week, a reader flagged for us the petition for certiorari in Johnson & Johnson v. Ingham, No. 20-1223 (U.S., pending), and shared two pieces that discuss the case and its legal issues. Thanks, Abby! The Supreme Court will conference on the case this week. Johnson & Johnson (J&J) is appealing the $2.1 billion judgment on the claims of 22 plaintiffs who claimed J&J’s talc products contained asbestos and caused their ovarian cancers. Of particular import in the appeal is whether the lower court properly consolidated multiple plaintiffs into a single trial. For background, see pieces from Reuters and Bloomberg.  Both shared pieces question the legitimacy of consolidated trials and can be found here: Drug & Device Law and Justices Should Stand For Jury-Trial Fairness And Grant Writ Of Certiorari In J&J v. Ingham.

  • There’s a new podcast about the Supreme Court, “Divided Argument,” presented by law professors Dan Epps and Will Baude seems to be well-received; find the first three episodes here.

Appellate Court Opinions and News

  • The Ninth Circuit has rejected an appeal of the $25 million verdict against Bayer-owned Monsanto. This is the second appeal that the company has lost on a similar verdict and another appeal is pending. This case concerned the claim that the weedkiller Roundup caused the plaintiff’s cancer and considered whether the company should have included a warning on the product. The court rejected the company’s claim that conflicting federal and state laws on labeling prohibited it from including a warning. As Bayer faces many similar suits and because this ruling is a split from a decision from a US District Court in Georgia that sided with Monsanto (now pending in the Eleventh Circuit), some predict that Bayer will ask the Supreme Court to weigh in.  See the order and a report from The Courthouse News.

 

May 21, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 18, 2021

Mandates Matter

Mask-wearers-in-mill-valley-california

    We hear a lot about mandates these days. Politicians claim mandates when they eke out wins. Social media warriors fight over when masks should be worn. And state and federal officers joust over social distancing and mask mandates in public spaces. But if you are an appellate practitioner, one mandate you should definitely pay attention to is the one that actually ends your appeal.

    The judgment of the court does not end an appeal. The mandate does. The mandate terminates the jurisdiction of the case in the court of appeal and returns it to the district court (or, in rare cases, the Supreme Court) for action. Thus, even if a case is simply affirmed, the mandate must first issue before the district court can enter judgment. And if there is any additional action necessary, such as with a remand, the mandate will define exactly what actions can be taken (with certain exceptions, of course).

    Federal Rule of Appellate Procedure 41 provides that a mandate can either be a formal document entire in itself, or can simply be "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." FRAP 41(a). Because it is the mandate that controls, close attention should be paid to the directions it contains.

    The mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41(b). It is important to note what does NOT extend the deadline for the mandate - motions for extensions of time to file petitions for rehearing, for instance, do not extend the deadline. Neither does the filing of a petition for writ of certiorari.

    In the case of either a motion to extend or the filing of a petition for writ of certiorari, a party can (and should) move the court to stay issuance of the mandate pending action. To stay issuance for filing of a petition for writ of certiorari, the party must show that the petition "would present a substantial question and that there is good cause for a stay." FRAP 41(d)(2)(A). If the request is denied by the court of appeals, it can be renewed in the Supreme Court under its Rule 23.

    If a stay is granted for a certiorari petition, it can only be for an initial maximum period of 90 days from entry of judgment, mirroring the time period for filing the petition. FRAP 41(d)(2). The stay can be extended on a showing of good cause, or upon notice that the deadline to file the petition has been extended or that the petition has actually been filed (in which case the stay is extended until the petition is disposed). FRAP 41(d)(2)(A),(B). If the Supreme Court denies the petition, the mandate immediately issues. FRAP 41(d)(2)(B)(4).

    Close attention should be paid to the interplay of the mandate and any supersedeas bond. Such bonds stay execution of any judgment and remain in effect until their terms are fulfilled. See FRCP 62(b). Some bonds may be written to end upon issuance of the mandate. Thus, even if an appeal is pending, if the mandate issues, collection could begin without the proper stay being requested.

(Image attribution: Mask-wearers in Mill Valley, Calif., 1918. (Photo by Raymond Coyne/Lucretia Little History Room, Mill Valley Public Library/Public domain.) Proving that there has always been someone with their nose sticking out.)

May 18, 2021 in Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 11, 2021

Zombie Precedents? Stare Decisis and the New Footnote Fourt in Jones v. Mississippi

The Supreme Court’s recent decision in Jones v. Mississippi purported to do all the right things with respect to precedent cases. The majority claimed to uphold precedents like Miller v. Alabama that highlighted the intransigence of youth and the need for courts to consider whether a juvenile defendant is permanently incorrigible before sentencing them to life without parole.[1] It then noted Montgomery v. Louisiana’s holding that Miller’s rule was substantive, and therefore applied retroactively on collateral review.[2] Yet in the opinion’s fourth footnote, the majority purported to limit Montgomery’s holding, stating that because it was in “tension” with other retroactivity cases, Montgomery “should not guide the determination of whether rules other than Miller are substantive.[3] Essentially, the majority acknowledged its disagreement with the holding of Montgomery—that Miller’s rule was substantive and not procedural—but refused to overrule it, saying that it ought to be a one-of-a-kind precedent courts in future retroactivity cases should feel free to ignore. Perhaps unsurprisingly, the Court then rejected the juvenile petitioner’s argument that under Montgomery a court could only sentence him to life without parole after making and on-the-record finding that he was permanently incorrigible.[4]  

Will footnote four in Jones come to rival other famous fourth footnotes in Constitutional jurisprudence?[5] That all depends on one’s conception of stare decisis and its meaning. It might create categories of precedents not just limited to their facts, but limited in their peculiar readings of long-standing doctrinal puzzles. Sure, one might say, Montgomery still stands as a precedent holding that Miller retroactive, but its comments on retroactivity doctrine and the distinction between substantive and procedural rules do not extend to future cases. Thus, Montgomery still exists, but has limited value in the development of retroactivity doctrine. It stands as a unique form of zombie precedent that appears all but dead, yet stills lurk the corridors of the United States Reports.[6]

Several Justices challenged footnote four’s approach, though they raised conflicting critiques of the zombie precedent model. Justice Thomas’s concurrence and Justice Sotomayor’s dissent used differing versions of stare decisis to make their points. First, Justice Thomas cited to his opinion Gamble v. United States that would permit overruling any “demonstrably erroneous” precedent, without further analysis, to argue that Montgomery could not survive and should be directly overruled.[7] As I’ve noted in an earlier post, that trend towards a weaker version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone, has taken root on the Court in the last decade, though it is yet to garner a clear majority of the Justices’ support. On the other hand, Justice Sotomayor relied upon a stronger conception of stare decisis traceable to 1992’s Planned Parenthood v. Casey.[8] That conception of stare decisis only permits the Justices to overrule based upon special justifications beyond “poor reasoning,” such as unworkability, special reliance interests, new legal developments, or vastly changed facts.[9] Applying those possibly justifications, Sotomayor and her colleagues saw no reason to overrule Montgomery’s retroactivity holding, then chided the majority for seemingly overruling it nonetheless.[10]

The Jones majority’s effort to render Montgomery a zombie precedent introduced a new battle front in the larger ongoing war over the future of stare decisis. Justices that support both the strong and weak version of stare decisis should take note of the possibilities and perils that such zombie precedents present. Jones’s footnote four has the potential to become a flashpoint in the stare decisis debate for years to come.

 

[1] Jones v. Mississippi, 141 S.Ct. 1307, 1317-19 (2021).

[2] Jones v. Mississippi, 141 S.Ct. 1307, 1317 (2021).

[3] Jones v. Mississippi, 141 S.Ct. 1307, 1317 n. 4  (2021).

[4] Jones v. Mississippi, 141 S.Ct. 1307, 1321 (2021).

[5] See United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938).

[6] These should not be confused with “phantom precedents,” which are decisions the Court finds so incomprehensible that they may never have existed at all.

[7] Jones v. Mississippi, 141 S.Ct. 1307, 1323 (2021) (Thomas, J., concurring).

[8] 505 U.S. 833, 854-55 (1992) (plurality opinion).

[9] For more on the competing strands of the stare decisis doctrine, see Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 98-112 (2020).

[10] Jones v. Mississippi, 141 S.Ct. 1307, 1330, 1335-36 (2021) (Sotomayor, J., dissenting).

May 11, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, April 26, 2021

Is that an appellate opinion or a novel?

Recently the Fifth Circuit issued a 325 page opinion in an en banc case, Brackeen v. Haaland, which concerns the constitutionality of the Indian Child Welfare Act. The actual per curiam opinion is only 5 pages. But then you have the concurrences and dissents.  Figuring out who joined what part of what opinion could be an LSAT logic game. I want to read all of the opinions, I am interested in ICWA issues, but the time that it would take to really sit down and process it is pretty overwhelming--like reading a novel!

Luke Burton, a career clerk on at the Eighth Circuit, recently published an article in The Journal of Appellate Practice and Process on the need for shorter appellate opinions. In the (short) article, Burton postulates a few reasons why judicial opinions are getting longer and offers some virtues of shorter opinions. I want to just focus on one of his points--public participation in the judicial system.  Burton argues that long opinions "encourage public ignorance of the law and the courts" because "[i]n today's 280-character culture, the public simply does not have the attention span to spend hours reading judicial opinions."  Amen to that.  Long opinions take a long time to read, and then an even longer time to analyze, which can lead to another problem Burton notes--"misinterpretation."  Burton cites an example of misinterpretation from his own court. Misinterpretation, of course, can also destroy public confidence in the courts as an institution and lead to more division and strife.

Some cases are complex and may require lengthy opinions, and perhaps the Brackeen case fits the bill.  Hopefully this summer I will have time to relax by the pool and read it, instead of the latest novel that has been released.  

 

April 26, 2021 in Appellate Practice, Federal Appeals Courts | Permalink | Comments (0)

Sunday, April 25, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, April 25, 2021

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court ruled that courts did not need to find that juvenile offenders were beyond hope of rehabilitation to sentence them to life without parole, ending a nearly two-decade trend of expanding protections for young offenders. The ruling, penned by Justice Kavanaugh, finds that “[i]n a case involving an individual who was under 18 when he or she committed a homicide, a state’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” Justice Sotomayor’s dissent argues that the decision departs from Miller v. Alabama, 567 U. S. 460 (2012), and Montgomery v. Louisiana, 577 U. S. 190 (2016), precedent holding that that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Miller.  The dissent states: “[T]he Court attempts to circumvent stare decisis principles by claiming that ‘[t]he Court’s decision today carefully follows both Miller and Montgomery.’ Ante, at 19. The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.” See the order and reports from The New York Times, NPR, and The Wall Street Journal

  • The Court dismissed as moot the final challenge to the 2020 election, a challenge to the Pennsylvania mail-in ballot deadline. See reports from ABC News, The Hill, and CNN.  

Appellate Court Opinions and News

  • The Eleventh Circuit ruled, with regret, against one of Jeffery Epstein’s accusers, holding that she cannot pursue a claim to hold prosecutors accountable for a non-prosecution agreement reached with Epstein in 2007. See the order and reports from The Atlanta Journal-Constitution and Reuters

April 25, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, March 28, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, March 28, 2021

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court ruled that victims of police shooting may pursue a claim for excessive force under the Fourth Amendment even if the victim is not actually detained at the time of the shooting. The Court held that a “seizure”  occurs the " instant that the bullets str[ike] [the victim]," explaining that “[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” See the order and reports from The New York Times, Reuters, and the Associated Press

  • The Justices met live for the first time since the pandemic shutdowns, which began over a year ago.  See reports from NBCNews and Bloomberg.

State Appellate Court Opinions and News

  • Interpreting Minnesota law, the Minnesota Supreme Court found a victim of rape in Minnesota cannot claim to have been mentally incapacitated and thus unable to consent if she voluntarily consumed alcohol. The court granted a new trial to a man previously convicted of assaulting an intoxicated woman. The Minnesota statute defines “mentally incapacitated” as when “a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.” (emphasis supplied.) The court considered whether “administered to that person without the person’s agreement” applied to all items on the list, including alcohol, and found that it did. The court deferred to the legislature saying: “[i}f the Legislature intended for the definition of mentally incapacitated to include voluntarily intoxicated persons, ‘it is the Legislature’s prerogative to reexamine the . . . statute and amend it accordingly.’” See the order here and reports from The Minneapolis Star Tribune and CBSNews.

  • The California Supreme Court has reformed the CA cash bail system ruling that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” The ruling identifies other means of monitoring that can meet the goals of cash bail, including for example, electronic monitoring, mandatory check-ins, or stays at community housing facilities, and holds that “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” See the order here and reports from The Associate Press, The Los Angeles Times, and The Courthouse News.

March 28, 2021 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, March 12, 2021

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 2021

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court allowed a free speech suit seeking nominal damages to go forward despite the removal from the policy of the restriction on speech. The plaintiff sued his college over its public speaking policies, asking for nominal damages. The college revised its policy and removed the overly-restrictive limits on speech and the lower court rule the case moot. The Court reversed, finding “[t]his case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.” The decision was 8 to 1 with Justice Roberts dissenting. Justice Roberts's dissent warns that the decision will result in court’s having to issue the equivalent of advisory opinions.  He wrote: “Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar.” See the order and reports from The New York Times, ABC News, and the Associated Press.

  • The Supreme Court ruled that immigrants bear the burden to prove that they have not been convicted of a disqualifying crime when trying to cancel a deportation. Although the attorney general has the discretion to stop a deportation, that discretion does not apply under certain circumstances, like in this case, where the immigrant has been convicted of a “crime of moral turpitude.” The issue here was whether the crime qualified as one of moral turpitude and who bore the burden to prove it. The Court ruled that the immigrant bore the burden and that he had not met the burden of demonstrating that the crime was not a disqualifying crime. See the order and reports from NPR and Bloomberg.

Federal Appellate Court Opinions and News

  • The Second Circuit ruled unconstitutional Connecticut’s “special circumstances” rule, which imposes unique confinement rules for former death row inmates. The rule was created when the legislature abolished the use of the death penalty for future crimes (the inmate, who had been sentenced to death before the abolishment, was re-sentenced when the Connecticut Supreme Court determined that the death penalty was unconstitutional). The rule applied to inmates formerly on death row and imposed confinement conditions more onerous than those of the general population. The Second Circuit agreed that the special terms of confinement were unconstitutional.  See the order and reports from US News and the CT Mirror.  

  • The Second Circuit reversed a lower court ruling denying an injunction against abortion protesters in New York City. The ruling determined that the tactics used by the protestors may violate federal, state, and city laws, like those that prohibit obstructing entrance to a clinic. The ruling recognizes the conflict between the right to protest and the right to be free from harassment: “The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.” See the order and reports from Courthouse News and Law.com.

State Appellate Court Opinions and News

  • The Washington Supreme Court overturned automatic life sentences for younger adult defendants. The case involved the sentencing of two young adults, aged 19 and 20, and determined that the court could not be required to impose the mandatory sentence and must consider their youth in sentencing.  See the ruling and a report from the Associated Press

Other

  • On March 10, the Senate Judiciary Committee’s subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights hosted a hearing titled “What’s Wrong with the Supreme Court: The Big-Money Assault on our Federal Judiciary.” Find the recorded hearing at this link.

March 12, 2021 in Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, February 13, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, February 13, 2021

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press

  • The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic.  See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.

  • The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now.  The two arguments concerned funding for the border wall and the “Remain in Mexico” policy.  See reports in Reuters, The Hill, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.

  • The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance.  The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.  

State Appellate Court Opinions and News

  • The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.

Other

  • Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”

February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Monday, February 1, 2021

Two Great Articles on Remote Oral Argument

Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online.  There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.  

Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic.  The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret  McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics.  Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.

The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted.  The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court."  We are all truly in this together, and we have persevered.  This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form.  How frequently it will be used in the future remains to be seen.

The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general.  He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation."  He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.

Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.

February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Saturday, January 16, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, January 16, 2021

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • This week, the Supreme Court allowed the current administration to carry out three final federal executions, including the first woman to be executed by the federal government since 1953. This administration resumed federal executions after seventeen years without one and has executed thirteen people since July. Justice Sotomayor’s dissent in US v. Higgs, the final case, begins:

After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

See reports in The Wall Street Journal, The Poughkeepsie Journal, CNN, The Washington Post, and The Associated Press

  • In the first abortion decision since Justice Barrett joined the court, the Supreme Court reinstated a requirement that women appear in person to pick up the pill required for medication abortions. The FDA rule had been waived during the pandemic, allowing the medicine to be distributed via mail. See the opinion and reports from The Associated Press, Bloomberg News, and Politico.

  • Taylor Swift became the subject of oral argument this week when the Justices discussed the singer’s request for nominal damages in a sexual assault suit. The discussion occurred during oral argument in Uzuegbunam v. Preczewski, a case asking whether students may sue their college for First Amendment Violations and seek nominal damages.  See reports in The New York Times and The Washington Post.

Federal Appellate Court Opinions and News

  • The Ninth Circuit will allow a SWAT officer’s First Amendment suit against the Las Vegas Police Department (LVPD) to proceed after he was penalized for a Facebook post. The LVPD claimed that the post incited violence but the court stated that the post “could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty.” The decision comes in the wake of the violence at the US Capitol and amid debate about the line between free speech and inciting violence.  See opinion and report in the San Francisco Chronicle.  

  • The Third Circuit ruled that Philadelphia’s plan to open the nation’s first safe-injection site would violate federal law. The ruling is another barrier for the nonprofit Safehouse, which hoped to open the site to combat fatal drug overdoses. The site would have offered support to drug users, including providing intervention for overdoses. The court ruled that the site would violate a federal law making it illegal to knowingly host illicit drug use and drug related activity.  According to the court, only a change in federal law would sanction the site. “[Safehouse’s] motives are admirable. But Congress has made it a crime to open a property to others to use drugs.” See the order and reports from The Wall Street Journal and The Associated Press.  

State Appellate Court Opinions and News

The Colorado Supreme Court updated its common-law marriage standard, which was established in 1987, to better account for same-sex couples. The new standard follows from three rulings and creates a more flexible and gender-neutral test that looks only to whether the couple mutually intended to enter a marital relationship and whether the couple’s subsequent conduct supported that decision. See the rulings here, here, and here and a report in The Denver Post

January 16, 2021 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, January 3, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, January 3, 2021

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 DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

 

Happy New Year from the Weekly Roundup!

In the spirit of welcoming in a new year and reflecting on the old one, here are a few links doing just that: 

  • Chief Justice Roberts's 2020 year-end report on the Federal Judiciary is available here
  • Erwin Chemerinsky offers a year-end review of the Supreme Court in 2020. 
  • Mark Walsh and Nina Totenberg offer separate previews of the remainder of the 2020-2021 term. 

 

We look forward to bringing you appellate advocacy news in 2021.  

January 3, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)