Appellate Advocacy Blog

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

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)

Friday, December 18, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 18, 2020

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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 refused to hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.

  • The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.

  • The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.

    A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here. 

Federal Appellate Court Opinions and News

  • The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police.  See reports by NYU’s First Amendment Watch and CommonWealth.   

  • The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),

Other News

The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.

December 18, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, December 13, 2020

Tips for Zoom Court & Moot Court: Follow In-Person Best Practices Even More Closely

Tired of online court, school, happy hour, family holidays, and more?  Me too.  However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve. 

Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court.  As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.

Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument.  You can see his blog here:  Judge Pierre Bergeron's Tips.  He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.”  Id.  These tips apply equally to in-person arguments. 

Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general.  See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020).  As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.”  Id.  Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.

Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico.  See id.  Thus, “preparing a presentation ahead of time is still crucial.”  Id.  Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam.  See id.  I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom. 

Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire.  Alder recommends:  “Dressing properly means wearing professional attire from head to toe, not just head to waist.”  Id.  “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.”  Id.  The key:  “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said.  Id.

We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges.  This lesson matters even more for online arguments, where the format makes true eye contact impossible.  To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal.  Id.  

Finally, we all need to be more attentive to virtual context clues in online arguments.  “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.”  Id.  Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said.  Id.  As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’”  Id.  And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question. 

In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world.  I know many law students and lawyers feel the same way.  But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.  

Be well!

December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Friday, December 4, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 4, 2020

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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 been asked to block the certification of Pennsylvania’s results in the 2020 presidential election. The case argues that absentee voting provisions were unconstitutional under the state constitution. Experts opine, however, that the Court’s scheduling order asking for responsive briefs one day after the Safe Harbor Deadline indicates that the case is unlikely to affect the election results. The Safe Harbor Deadline is the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in. See reports in USA Today and The Philadelphia Inquirer.

  • The Court heard oral argument about the retroactive implications of their April decision on unanimous jury verdicts. In April, the Supreme Court ruled that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then, the ruling applied only to future cases; the court left unanswered the question of whether the decision should apply retroactively. The current case asks whether April’s decision should apply to prisoners in Louisiana and Oregon convicted in the past by non-unanimous juries. (These are the only states that allowed such verdicts at the time of the April decision).  See reports from NPR, The New York Times, and The Washington Post.

  • James Romoser posted a thread this week about the petitions the Court is considering this week.

Federal Appellate Court Opinions and News

  • While acknowledging North Carolina’s “long and shameful history of race-based voter suppression,” the Fourth Circuit reversed a lower court and upheld the state’s law requiring voters to present photo identification before casting ballots. The court determined that the lower court had improperly considered the state’s “past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster.”  See the order and reports from The Washington Post and The Hill.

  • The Seventh Circuit reinstated ex-Penn State President Graham Spanier’s 2017 conviction for child-endangerment.  The ruling determined that the lower court improperly overturned the guilty verdict about Spanier’s mishandling of claims of sexual abuse against Penn State assistant football coach Jerry Sandusky.  See the order and reports from the Philadelphia Inquirer and ESPN.

Other News

Beth Wilensky posted a thread on Twitter looking at the style and legal writing of an opinion of Third Circuit Judge Bibas. The thread points out the various ways that Judge Bibas employs good writing techniques, including using plain English and simple transitions.

December 4, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Friday, November 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, November 20, 2020

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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 rejected a request to intervene in a case seeking to impose heightened Covid-19 precautions at a Texas prison. The Fifth Circuit stayed a trial court’s order that required increased safety steps at the prison that houses geriatric and vulnerable prisoners and where at least 25 inmates have already died from Covid-19. Oral argument in the Fifth Circuit to determine whether to uphold the trial court order is set for December 3.  See the order and dissents and reports from USA Today and Bloomberg.

  • The Supreme Court granted certiorari in a labor rights case, Cedar Point Nursery v. Hasid, that will look at labor rights in relation to property rights. Relying on  Loretto v. Teleprompter Manhattan CATV Corp., the property owners claim a California regulation that grants union organizers access to workers on private property is a taking because it is "permanent physical occupation of [the] owner's property." Michael Dorf summarizes the issues in the case here

  • A report available this week looks at the Supreme Court’s amicus docket and reviews the last decade’s findings. (Subscription required)

Federal Appellate Court Opinions and News

  • The various attempts to challenge the 2020 presidential election dominate court news still this week. For those interested, a few sources have compiled a description of where things stand: The Guardian, The Washington Post, AP News, and The BBC.  

  • The Eleventh Circuit found unconstitutional two Florida laws that banned conversion therapy for children, finding the laws violated the therapists’ right to free speech. The ruling opines that the First Amendment “does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.” The dissent recognized the compelling interest in protecting children from a “harmful therapeutic practice.” See order and report from Reuters.

  • As Covid-19 cases surge across the country, courts are shutting their doors again and are cancelling juries.  See report from Bloomberg.

November 20, 2020 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, November 15, 2020

Ranking the Current Justices on the United States Supreme Court

Any ranking system contains elements of subjectivity and arbitrariness, and this is unquestionably true when attempting to rank the current justices on the United States Supreme Court. And it should go without saying that every justice on the Court is an incredibly accomplished and well-respected jurist, and among the brightest minds in the legal profession.  

Notwithstanding, based on each justice’s jurisprudence, one can gain a general sense of their effectiveness, influence, and impact on the Court and the rule of law. The following rankings, which are admittedly subjective and unscientific, are predicated on the following factors: (1) the influence, if any, of ideology on a justice’s decision-making; (2) the quality of a justice’s written opinions and legal reasoning; (3) the extent to which a justice’s outcomes reflect a reasonable interpretation of a constitutional provision, statute, or regulation and thus preserve the rule of law; and (4) the degree to which a justice considers the pragmatic consequences of a decision, particularly as it affects the Court’s institutional legitimacy.

1.    Elena Kagan

By all accounts, Justice Kagan is a brilliant legal mind. Justice Kagan possesses outstanding writing skills and the ability to communicate effectively and persuasively with lawyers and laypersons. Additionally, Justice Kagan’s decisions eschew ideology and reflect a balanced approach to constitutional and statutory interpretation, and fidelity to the rule of law.

One of Justice Kagan’s best opinions was a dissent in Rucho v. Common Cause, where Justice Kagan passionately and persuasively argued that partisan gerrymandering was anathema to the Constitution and democracy, and squarely within the Court’s adjudicatory powers. Regarding the partisan gerrymanders in Rucho, Justice Kagan emphasized that they “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”[1]

2.    Neil Gorsuch

Justice Gorsuch has consistently demonstrated that he is a principled originalist. Originalism states that judges should interpret the Constitution’s text based on what the drafters of a particular provision understood those words to mean at the time such provision was ratified. In his opinions, Justice Gorsuch consistently places the rule of law above subjective values or personal policy predilections. Indeed, Justice Gorsuch’s opinions are very well-reasoned and grounded in a faithful interpretation of a constitutional or statutory text. Put simply, Justice Gorsuch is not guided by ideology and his jurisprudence reflects humility and respect for the democratic process.

3.    John Roberts

Chief Justice John Roberts is among the most brilliant lawyers of his generation – and for good reason. Roberts’s intellect, advocacy skills, and writing ability are second to none.  Additionally, Chief Justice Roberts is, by all accounts, a humble jurist who respects the rule of law, the separation of powers, federalism, and democratic choice. Furthermore, Chief Justice Roberts strives to achieve consensus among the justices (thus avoiding, to the extent possible, divisive 5-4 opinions) and is committed to preserving the Court’s institutional legitimacy.

Importantly, however, the desire to preserve the Court’s legitimacy and status as an apolitical branch has led, perhaps inadvertently, to decisions that invite precisely the criticisms Roberts seeks to avoid. For example, in National Federation of Independent Investors v. Sebelius, Roberts wrote for a 5-4 majority, in which the Court held that the Affordable Care Act’s individual mandate passed constitutional muster under the Taxing and Spending Clause, despite substantial evidence that the mandate was an unconstitutional penalty.[2] Roberts’s decision, which surprised many legal scholars, was seen by some as an attempt to avoid the negative political consequences that a ruling invalidating the Affordable Care Act would engender. However, Roberts’s decisions in McCutcheon v. FEC, in which the Court invalidated a limit on contributions that an individual could make to a national party over a two-year period, and in Shelby County v. Holder, where the Court invalidated Sections 4(b) and 5 of the Civil Rights Act (despite a Senate vote of 98-0 to reauthorize these sections) engendered significant criticism and the very charges of illegitimacy that Roberts ostensibly seeks to avoid.[3]

Put simply, an overarching focus on preserving the Court’s institutional legitimacy invariably involves precisely the element of subjectivity (and, to an extent, arbitrariness), that is anathema to legitimacy itself.

4.    Stephen Breyer

Justice Breyer is a thoughtful and very intelligent jurist who balances fidelity to the rule of law with a consideration of the pragmatic consequences of decisions. And Breyer’s jurisprudence does not suggest that he is guided by subjective values or ideological considerations.  Instead, Justice Breyer's decisions are almost always well-reasoned and balanced, regardless of whether one agrees with the outcome of such decisions. For example, in Whole Women’s Health v. Hellerstadt, Breyer wrote for a 5-3 majority that invalidated a requirement in Texas that abortion providers obtain hospital admitting privileges.[4}

The decision in Whole Women's Health was based on a reasonable review of the record and of precedent regarding abortion rights.

One criticism of Justice Breyer, however, is that he subscribes to a method of constitutional interpretation known as “living constitutionalism,” which states that the Constitution’s meaning evolves over time and that the meaning of a particular constitutional provision should reflect contemporary societal values. The problem with this approach is that it vests nine unelected and life-tenured judges with the ability to identify – for the entire nation – prevailing societal values and to impose those values through decisions that often disregard or manipulate the Constitution’s text.

5.    Clarence Thomas

Justice Thomas is a faithful adherent to originalism. The principle undergirding originalism is that judges do not have the right to unilaterally disregard, manipulate, or change the Constitution’s meaning based on their subjective values or policy predilections.[5] Doing so would be fundamentally anti-democratic and give judges the unfettered right to undermine the democratic process and identify unenumerated rights based on nothing more than their personal values. Justice Thomas consistently adheres to this philosophy.

However, Justice Thomas can sometimes be far too formalistic and eschew any consideration whatsoever of the pragmatic consequences of his decisions. This is not necessarily a criticism, although originalism does not – and should not – prohibit judges from basing decisions on pragmatic considerations where such decisions would be consistent with a reasonable interpretation of the Constitution’s text. For example, Justice Thomas has repeatedly advocated for reversing Roe v. Wade, where the Court held that the right to privacy under the Fourteenth Amendment protects a woman’s right to terminate a pregnancy under certain circumstances.[6] Although the decision in Roe, particularly the reasoning, was arguably one of the worst in the last fifty years, the reliance that women have placed on Roe during this time, and the political and social divisiveness that would accompany overturning Roe, counsel in favor of adhering to Roe’s central holding. Thus, Thomas’s rather rigid position on Roe, and his overly formalistic legal analysis in other cases, leaves far too little room for pragmatic considerations.

6.    Sonia Sotomayor

Justice Sotomayor is an incredibly accomplished jurist who has authored several passionate and well-reasoned dissents, particularly in the areas of abortion and affirmative action. And Justice Sotomayor’s personal story, in which her intellect and work ethic propelled her to Princeton University and Yale Law School, is truly inspiring.

However, in a number of decisions, Justice Sotomayor, whose jurisprudence reflects living constitutionalism, appears to be motivated more by ideology or policy preferences than a commitment to the rule of law. This is arguably evident in the Court’s affirmative action jurisprudence, such as in Schuette v. Coalition to Defend Affirmative Action, where Justice Sotomayor’s reasoning read more like a policy prescription than a legal opinion, and where Sotomayor ostensibly eschewed any workable legal standards for assessing the constitutionality of affirmative action policies.[7] Regardless of one’s views on affirmative action, one gets the sense that Justice Sotomayor will, without exception, uphold any affirmative action policy irrespective of the merits of that policy. That approach is antithetical to the role of and limits on judicial decision-making. 

7.    Brett Kavanaugh

Justice Kavanaugh, a graduate of Yale Law School, had an extraordinarily impressive record as an attorney and a judge on the United States Court of Appeals for the District of Columbia Circuit where, by all accounts, Kavanaugh was a fair and principled judge.

Justice Kavanaugh’s ranking is not a reflection of his jurisprudence. Rather, he has not been on the Court for a sufficient time to adequately assess his jurisprudence, judicial philosophy, and impact on the Court and the law.

8.    Samuel Alito

Justice Alito is extremely intelligent, and a well-respected and accomplished jurist.

However, one gets the sense from both oral arguments and Justice Alito’s written opinions that his decisions are motivated in substantial part by ideological considerations and policy preferences. Indeed, on November 12, 2020, Justice Alito delivered a speech to the Federalist Society in which he criticized the Court’s free exercise jurisprudence, its decision in Obergefell v. Hodges (invalidating same-sex marriage bans), and the protections afforded to free speech.[8]

Note: Amy Coney Barrett: Having been confirmed only a few weeks ago, Justice Barrett has not been on the Court for a sufficient time to justify including her in the ranking.

 

[1]  139 S. Ct. 2484 (2019) (Kagan, J., dissenting).

[2] 567 U.S. 519 (2012).

[3] 572 U.S. 185; 570 U.S. 529 (2013).

[4] 136 S. Ct. 2292 (2016).

[5] Of course, originalism, like living constitutionalism, can also be used as a tool to impose a judge’s subjective values and policy preferences. However, principled originalists eschew such an approach and predicate their decisions on ascribing the meaning that the drafters intended at the time a provision was ratified.

[6] 410 U.S. 133 (1973).

[7] 572 U.S. 291 (2012).

[8] Sydney Bauer, Justice Alito Takes Aim at Gay Marriage in ‘Politically Charged Speech,’ (Nov. 13, 2020), available at: https://www.nbcnews.com/feature/nbc-out/justice-alito-takes-aim-gay-marriage-politically-charged-speech-n1247772

November 15, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, November 1, 2020

Reforming the Judiciary

In the wake of Amy Coney Barrett’s ascendency to the United States Supreme Court, several elected officials and commentators have suggested that the next president should pack the Court, namely, add more justices to ensure a political and ideological balance.  These concerns are predicated, in part, on the belief that the Court has become too conservative and, under an originalist framework, will eviscerate various civil rights and protections. For example, some commentators contend that the Court will, among other things, invalidate the Affordable Care Act and restrict, if not eliminate, abortion rights and same-sex marriage. These arguments – and the unquestionable divisiveness that has characterized recent confirmation hearings – demonstrate that the Court has become an increasingly politicized institution. And the politicization of the Court threatens its institutional legitimacy and, ultimately, the rule of law itself.

In response to calls to pack the Court, presidential candidate Joe Biden recently announced that, if elected, he would form a commission to suggest reforms to the judiciary:

If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.[1]

But packing the Court is not the answer. Adding additional justices will only further politicize the Court, as future presidents will continue to appoint justices whose interpretive philosophy suggests that such justices will reach decisions that comport with a president’s policy predilections. This does not mean, however, that reforms are unnecessary. Below are a few suggestions that would likely de-politicize the Court, preserve the judiciary’s institutional legitimacy, and protect the rule of law.

1.    Require a 6-3 supermajority to affirm or reverse lower court decisions

Much of the Court’s politicization has resulted from controversial 5-4 decisions regarding socially and politically divisive issues, such as the rights to abortion and same-sex marriage, and the constitutionality of the Affordable Care Act. These decisions have often divided the Court along perceived ideological lines, the consequence of which has been to undermine the Court’s legitimacy and erode public confidence in the judiciary.

Requiring a six-vote supermajority would avoid substantially the problems that 5-4 decisions engender. Specifically, a supermajority requirement would promote moderation because it would require the justices to compromise and thus would reduce, if not eliminate, the influence of ideology on judicial decision-making. As such, the Court would likely avoid the types of decisions that cause a political backlash, either by refusing to grant certiorari in such cases or reaching narrower decisions that effectuate incremental, rather than sweeping, changes in the law. Additionally, this approach is arguably more democratic because it would prevent, at least in some contexts, nine unelected and life-tenured judges from deciding what the law should be for all fifty states.

2.    Deny certiorari in cases where a legal issue is politically divisive and the Constitution is ambiguous.

In recent decades, the Court has decided cases involving politically divisive issues where the Constitution, either through silence or ambiguity, does not clearly resolve that issue. It should come as no surprise, therefore, that such decisions are often decided on a 5-4 basis and engender substantial criticism. For example, in National Federation of Independent Investors v. Sebelius, the Constitution provided no clear answer regarding whether the Affordable Care Act, particularly the individual mandate, violated the Commerce Clause.[2] Given this fact, and given that the Act had been passed by both houses of Congress and signed by President Obama, why did the Court get involved? The result was a 5-4 decision that engendered more criticism than praise, and that undermined, rather than preserved, the Court’s legitimacy. Likewise, in Clinton v. New York, both houses of Congress and President George H. W. Bush signed into law the line-item veto.[3] Notwithstanding, the Court invalidated the legislation, holding that it violated the Presentment Clause even though the Clause, largely because of its broadly worded language, did not provide sufficient, if any, guidance regarding its constitutionality. Again, why did the Court get involved?

Put simply, the Court should be reluctant to grant certiorari in politically or socially divisive cases unless the law or a lower court opinion plainly violates a provision in the Constitution (not the “penumbras” created in Griswold v. Connecticut).[4] Instead, it should defer to the coordinate branches – and to democratic choice.

3.    Allow the Supreme Court to issue advisory opinions

The conventional wisdom is that advisory opinions violate the “case or controversy” requirement in Article III of the Constitution. But the lack of a specific case does not mean that there is no controversy. The word “controversy” can be construed to enable the Court, in some circumstances, to issue advisory opinions regarding a law’s constitutionality.

Such an approach would have substantial benefits. To begin with, it would empower the Court to resolve important legal issues quickly and efficiently. Currently, cases challenging a law’s constitutionality typically take years to reach the Court and frequently involve alleged violations of fundamental rights.  And during this time, the federal courts of appeals often reach opposite conclusions, which creates uncertainty and instability in the law. Perhaps most importantly, if the Court in such cases ultimately decides that a law violates a fundamental right, it means that, for the several years that it took to reach the Court, individuals were being consistently deprived of a particular constitutional protection. Furthermore, given the rapid pace at which technology is advancing, allowing the Court to issue advisory opinions in cases concerning the constitutionality of, for example, searches and seizures, would bring much-needed efficiency, clarity, fairness, and stability to the law. Of course, advisory opinions would be appropriate only in situations that are tantamount to a facial challenge to a statute and thus involve purely legal questions. Some may argue that this approach would likely violate the separation of powers by giving the Court impermissible authority to encroach on the lawmaking process. But if the Court is ultimately going to decide the question after protracted litigation, the argument regarding the separation of powers is unconvincing.

***

Ultimately, to the extent that reforms are needed, they should focus on giving the Court (and lower courts) less power to resolve politically and socially divisive issues, but more power to resolve other issues in an efficient manner. Part of the solution may involve requiring a six-vote supermajority, denying certiorari in particular cases, and enabling the Court issue advisory opinions. Court-packing, however, is not the answer. It should be rejected.

[1] Caitlin Oprysko, After dodging questions about court packing, Biden floats commission to study judicial reforms (Oct. 22, 2020), available at:  https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157.

[2] 567 U.S. 519 (2012).

[3] 524 U.S. 417 (1998).

[4] 381 U.S. 479 (1965).

 

November 1, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Tuesday, October 20, 2020

Tales of Terror! (Or, Waiver at Trial and on Appeal)

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Few words strike more terror into the hearts of appellate practitioners than the word "waiver." It is the monster that lurks under the bed and hides in the closet of those who strive to have issues resolved substantively on appeal rather than simply dismissed.

Waiver can occur at two primary levels: at trial and on appeal. But whenever it rises, it can cause nightmares for you and your client.

Waiver at Trial - The Monster Under the Bed.

At trial, waiver can arise in a variety of ways. It often arises from a failure to preserve error meticulously. Did you get a ruling but fail to make an offer of proof so the court knows what was excluded? Waived! Did you think that the ruling on your motion in limine was good enough, so you didn't renew the objection at trial? Waived! Did you object to an improper or omitted instruction but fail to offer an accurate instruction in its place? Waived! The list goes on and on.

And then there is the infamous Rule 50. Federal of Civil Procedure 50 was practically written by the boogeyman. Rule 50(a) provides that, at the close of evidence, a party challenging sufficiency of the evidence must move for judgment as a matter of law (JMOL) by specifically pointing out the law and facts that entitle that party to judgment. This is presumably so that the challenged party has an opportunity to correct any defect in proof. Rule 50(b) then provides that, after judgment, the sufficiency argument must be renewed if it was not granted the first time.

The traps caused by this two-step requirement have left many appellate practitioners with little to argue. If you did not move for JMOL at both points in the trial, your sufficiency challenge is waived. If your 50(b) points do not match your 50(a) points, many circuits will also find any differing points waived.

Recently, the Fifth Circuit recognized an entirely new Rule 50 monster. In Edwards v. 4JLJ, L.L.C., --- F.3d ---, No. No. 19-40553, 2020 WL 5628689 (5th Cir. Sept. 21, 2020), the appellant filed a JMOL and Motion for New Trial (MNT) on March 12, 2019. The trial court entered judgment March 27th without addressing that motion. The appellant then filed another JMOL/MNT after the judgment that was identical to the first, which was denied on May 20, 2019, and then filed a notice of appeal on June 12, 2019.

Appellants thought they had filed everything on a timely basis. They had filed the JMOL appropriately and avoided the Rule 50 traps. And they thought that filing the second JMOL/MNT had extended their deadline to file the notice of appeal until 30 days after it was decided under Rule 4. They even filed their notice of appeal a bit early.

But not early enough, according to the Fifth Circuit. Instead, the court held that the JMOL/MNT had been implicitly overruled by the trial court when it had entered judgment. Then, since the JMOL/MNT filed after judgment was identical to the implicitly-overruled motion, it was really a motion for reconsideration, and did not extend appellate deadlines. As such, the notice of appeal was not timely, and the court did not have jurisdiction over most of the issues in the case.

Waiver on Appeal - The Monster in the Closet.

Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).

This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.

Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").

Indeed, this is part of what makes briefing waiver (or forfeiture) so terrifying. What one justice finds pleasing may cause another justice to find waiver.

And then there is the timeliness of the argument. We consider it a general rule that issues not raised and decided in the trial court should not be considered on appeal, or that issues raised for the first time in a reply brief are forfeited. But the Supreme Court has been careful to preserve the discretion of courts to take up issues, and refuses to pronounce any such "general rule." See Singleton v. Wulff, 428 U.S. 106, 121 (1976).

As a result, one can never be sure when an issue that seems to be dead will suddenly lurch back to life. See Melissa M. Devine, When the Courts Save Parties from Themselves: A Practitioner's Guide to the Federal Circuit and the Court of International Trade, 21 Tul. J. Int'l & Comp. L. 329 (2013). If the court decides that the issue is important, or is required by justice, or involves "basic" issues of pure law, it can resurrect a dead argument sua sponte. Id. Even worse, if you did not address an issue because you considered it waived, you can be deemed to have "forfeited the forfeiture" or "waived the waiver." Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010).

Waiver and forfeiture really are boogeymen. They can ambush you at trial, trick you into making mistakes in your briefing, and even raise dead issues back to life. If you want to sleep well, keep the above issues in mind when preserving error or writing your next brief.

(Image credit: National Gallery of Art: Death and the Miser, c.1485/1490. Bosch, Hieronymus, Netherlandish, c.1450-1516).

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Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976)

 

 

fore

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020
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Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)
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Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)
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Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)

October 20, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Friday, October 9, 2020

Appellate Advocacy Blog Weekly Roundup Friday, October 9, 2020

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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 2020-21 Supreme Court term began this week on Monday, October 5. Why does the new term begin on the first Monday of October? Well, it’s a congressional mandate. For more on how the Court’s sessions were set and what happens on the first day, see The National Constitutional Center. Here’s the list of cases for the October, November, and December sittings. And for commentary on the new term, see reports from NPR, CBS, LA Times, The Hill, The ABA Journal, and CNN.

  • The Court refused to hear the appeal of the former Kentucky clerk, Kim Davis, who gained national attention after she refused to issue marriage licenses for same-sex couples citing her religious convictions. Two of the affected couples sued her for violating their constitutional rights. A lower court ruled the suit could go forward because the couples made a plausible allegation that Davis violated their established right to marry and because Davis was not entitled to qualified immunity as a city official. Although the Court rejected the petition without statement, Justice Thomas, joined by Justice Alito, published a statement reasserting their objections to the landmark case Obergefell v. Hodges, the 2015 case that found a Fourteenth Amendment right to same-sex marriage; the Justices reassert the claim that recognizing a right to marriage could have “ruinous consequences for religious liberty.” See the statement here, and reports from The Washington Post, Bloomberg, The Hill, and The New York Times.

  • The Court refused to reinstate a federal requirement that women appear in person to a medical facility to receive medication to end their pregnancies. The requirement was suspended by a lower court that issued a nationwide injunction in light of the pandemic because needless trip to a medical facility during a health crisis likely imposed an undue burden on the constitutional right to abortion. The Court returned the case to the trial court for a ruling within 40 days, opining that “a more comprehensive record would aid this court’s review.” See the order. For more on this, see The New York Times, The Hill, and Reuters.

Federal Appellate Court Opinions and News

  • The Second Circuit ruled that the Manhattan district attorney can enforce the subpoena seeking Donald Trump’s personal and corporate tax returns. The court rejected the arguments that the subpoena was too broad and that it qualified as harassment. The decision will likely be appealed to the Supreme Court. See the order and reports from The New York Times, AP News, and Bloomberg.  

  • The Ninth Circuit ruled that AT&T must face a lawsuit alleging its affiliate DirectTV violated consumer protection laws by making robocalls to a consumer's cell phone, rejecting an argument that the suit belonged in arbitration. The court ruled that the customer was not bound by AT&T’s arbitration clause, which requires its customers to submit to arbitration any claims against AT&T or its affiliates, because AT&T had not acquired DirectTV when the customer had signed the agreement. See the order and reports from Bloomberg Law (subscription required) and Digital News Daily.

  • The Ninth Circuit upheld a lower court decision allowing the 2020 census count to continue through October. The administration had attempted to end the count on September 30. See order and reports from the San Francisco Chronicle and AP News.

State Appellate Court Opinions and News

The Pennsylvania Superior Court ruled that the federal Protection of Lawful Commerce in Arms Act is unconstitutional and has allowed a suit against gun manufacturers and sellers to continue. The suit alleges a gun that accidentally killed a teenage boy discharged due to a manufacturing defect. Under the Act, the manufacturer and seller would be immunized against the suit. The decision, a first in the country, found that that Act is “constitutional overreach” and violates the Tenth Amendment, which gives power, such as the tort reform intended by the act, to individual states. The court ruled the Act an overreach because it immunizes “the gun industry from every conceivable type of joint and comparable liability known to the common law” even if a product is faulty and causes harm and “regardless of how far removed from interstate commerce the harm arises.” See the order and reports from Reuters, CNN, and The Hill.

October 9, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, September 11, 2020

Appellate Advocacy Blog Weekly Roundup Friday, September 11, 2020

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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

As the Court prepares to begin the 2020-2021 term next month, various groups and scholars are previewing the major cases expected to be heard:

  • Georgetown Law’s Supreme Court Institute will hold its annual press briefing on the major cases to be heard. The event will be held remotely on September 22 and will be available to the public via livestream on the Georgetown Law Facebook page.

  • The Pacific Legal Foundation and National Review Institute will preview high-profile cases. The event will be held via webinar on October 2, register here.

  • Amy Howe of Howe on the Court, is looking at the interesting petitions set to be reviewed during the September 29 “long conference” where the Court meets privately to consider pending petitions. The first of the series is here.

Federal Appellate Court Opinions and News

The Eleventh Circuit overturned a lower court ruling concerning the 2018 Florida Constitutional amendment that granted the right to vote to former felons who have completed their sentences. The dispute came down to the definition of what it meant to complete the sentence. The Eleventh circuit upheld the interpretation of the law that includes fines, fees, and restitution as part of the sentence. The lower court had held that that interpretation constituted an unconstitutional “poll tax.” This ruling rejected that characterization and determined that fines, fees, and restitution are “penalties, not taxes,” holding that “[b]ecause court costs and fees are legitimate parts of a criminal sentence — that is, part of the debt to society that felons must pay for their crimes — there is no basis to regard them as a tax.” See the ruling and reports from Bloomberg News, CNN,  The Orlando Sentinel, and Reuters.

Other

While many courts continue to hold proceedings remotely, some courts are resuming in-person appearances; safety is a high priority.  See reports from NPR looking at New York City and from The Associated Press covering New Hampshire and a release from the Administrative Office of the US Courts. 

September 11, 2020 in Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 8, 2020

Requests for Extension of Time on Appeal and the Standards of Appellate Practice

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On January 1st, 2020, while on vacation with my family, I was pushed by a passing speadboat into a concealed piece of broken pipe while snorkeling, resulting in a quick trip to the emergency room and 18 stitches. At least I got my bad luck out of the way, I consoled myself, and the rest of 2020 would be better. Right?

I thought about that naivete while I was writing a motion for extension of time in an appeal yesterday. I sought the extension because, the week the clerk certified the record to the court, I was caring for my mother and eventually admitting her to the hospital. The next week, one of my partners at work tested positive for Covid-19, and we had to unexpectedly extend and tighten our work-from-home rules. This week, my wife is going to have surgery. And while I am trying to care for everyone and help my children with school, while keeping up with work, I am hobbling around on a broken foot that is not healing as it should. 

Fortunately, the court I am preparing this appeal in has adopted a code of appellate practice, in this case, the Texas Standards for Appellate Conduct. Adopted in 1999, Texas was the first jurisdiction to adopt such standards specifically for its appellate practitioners. Since then, several courts have adopted similar standards and expect those practicing in the courts to follow them.

In many ways, these standards codify a practice of civility that has traditionally been followed by those who practice regularly in appellate courts. And while the standards are not mandatory, and cannot provide a basis for sanctions, following them is expected and deviation is strongly disfavored.

Being gracious with requested extensions is addressed twice in the standards. First, Standard 10 of a "Lawyer's Duties to Clients," requires that "Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client's lawful objectives. A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel." And again, Standard 2 of a "Lawyers' Duties to Lawyers," states that "Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel."

These two rules are based on different stated principles. First, that the lawyer's duties to the client must be placed in the context of the system in which they work, which also involves duties owed to the courts and opposing counsel. And second, that only if opposing counsel treat each other with dignity and respect can the effectiveness and integrity of the system be preserved.

Some refer to these rules of comity as part of "the golden rule" You should treat opposing counsel as you would wish to be treated. By including this instruction in the section referencing client duties, and by requiring that the standards be given to clients, the rule is placed in the proper context and explained before any accommodations are sought.

If these general principles are not enough to convince you to act fairly with opposing counsel, then the potential loss of credibility should. Courts do not appreciate it when opposing counsel oppose reasonable requests for extension of time. As the Ninth Circuit explained, "Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).

If there is some reasonable basis for the extension, then it will likely be granted. Opposing such a request not only makes you look unreasonable, but can create a stigma for you to carry around the next time you appear in that court.

Coronavirus, murder hornets, ransomware attacks, fires, rioting, and whatever comes next have already made this an extraordinarily difficult year. Indeed, the practice of law is difficult even in the best of times. A bit of grace is always appreciated, even in good years, and is doubly appreciated now. Not just by opposing counsel, but also by the Courts.

(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908)

 

 

September 8, 2020 in Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Friday, August 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, August 14, 2020

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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 rejected a request to stay a trial judge’s ruling that suspended a requirement that an absentee ballot be filled out in front of a witness or notary, thus making absentee voting in Rhode Island easier. The court noted the contrast to last month’s ruling (Merrill v. People First of Alabama) that upheld a similar Alabama witness requirement for absentee ballots, stating that unlike “cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition.” Thus, the Court found that the groups challenging the ruling “lack[ed] cognizable interest in the State’s ability to ‘enforce its duly enacted’ laws.”  See the order here and reports from The New York Times, CNN, and Politico.

  • The Court denied a request from the NCAA to stay a lower court ruling that allows colleges to provide education-related expenses to athletes. The challenged Ninth Circuit ruling upheld a district court’s injunction that found that the NCAA violated antitrust laws by barring schools from providing such expenditures to student athletes. The injunction will therefore stay in place pending the NCAA’s appeal. See reports from CNN and USA Today.

  • The Federalist Society’s D.C. Lawyers Chapter hosted its annual U.S. Supreme Court round up this week covering the 2019-2020 term. A recording of the event is available at this link.

Federal Appellate Court Opinions and News

  • The Eleventh Circuit upheld a lower court’s decision finding unconstitutional a Florida school’s transgender bathroom policy that prohibited a transgender student’s using the bathroom that matched his gender identity.  In upholding the decision, the court recognized that “[a] public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use.” The Eleventh Circuit ruling will affect school policy in Florida, Georgia, and Alabama. See order and reports from Courthouse News, CBS News, and Law.com.

  • The D.C. Circuit blocked a lower court’s order that Hillary Clinton be deposed as part of a lawsuit seeking records related to her use of a private email while Secretary of State. The ruling found that the stated topics for Clinton’s deposition were “completely attenuated from any relevant issue in [the FOIA] case.” See the order and reports from The Hill, Law.com, and Politico.

  • The Second Circuit upheld a lower court ruling that challengers lacked standing for their claims that NY gun licensing laws violated their Second Amendment rights. The challenge was to NY’s general prohibition against the possession of a firearm without a license. See the order and report from Bloomberg Law.

  • The Eighth Circuit has vacated and remanded for reconsideration a district court’s 2017 order enjoining four Arkansas abortion law that ban certain procedures and impose criminal penalties on doctors. The challenge claimed that the requirements of the laws could block access to all abortion procedures. The Eighth Circuit relied on Justice Robert’s concurrence in the June 29, 2020, decision in June Medical Services L. L. C. v. Russo and remanded for reconsideration in light of Justice Robert’s emphasis that “wide discretion” should be given to legislatures “in areas of medical uncertainty.” See the order and reports from Courthouse News, CNN, The Hill, and The National Law Journal.

State News

Recognizing the racists origins of the phrase, a Massachusetts court has refused to use the term “grandfathering” in its orders.  See footnote 11 in the order and a report from The New York Times.

August 14, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, August 1, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, August 1, 2020

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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 refused to lift a July 2019 order that stayed a permanent injunction against the use of Pentagon funds to build the border wall. The Ninth Circuit had affirmed the injunction, finding that the administration’s “transfer of funds here was unlawful.” The Ninth Circuit reasoned that “the Constitution delegates exclusively to Congress the power of the purse” and that “[t]he executive branch lacked independent constitutional authority to authorize the transfer of funds.” In July 2019, the Supreme Court stayed that injunction pending the resolution of the administration’s appeal. This order denies a request to lift that stay, allowing construction to continue. See the order here and reports from The New York Times, CNN, The Washington Post, and Reuters.

  • The Court rejected another church challenge to Covid-19 restrictions, this one to Nevada’s 50-person limit to religious services. The challenge argued that churches faced tougher restrictions than casinos. The decision was without explanation and Justices Alito, Gorsuch, and Kavanaugh dissented. See the order here and reports from The New York Times, The Associated Press, and Reuters.

  • UCI held its 10th Annual Supreme Court Term in Review discussing the key cases from the Court’s October 2019 term. The event is available at this link.

  • Justice Breyer spoke with ABA President Judy Perry Martinez on July 29 during the organization’s annual meeting.  Find the discussion at this link.

Federal Appellate Court Opinions and News

  • The First Circuit vacated the Boston Marathon bomber’s death sentence, finding that the lower court did not adequately consider the effect of publicity on the jury that recommended the sentence. The order affirmed most of the conviction but ordered a new trial over only the sentence of death. The  order concludes: “But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution.” See the order and reports from The Washington Post, Reuters, and The Wall Street Journal.  

  • The D.C. Circuit ordered a rehearing en banc on the dismissal of the case against Michael Flynn and vacated a decision that dismissed the case. The order directs the parties to “be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” which presumably relates to the principle argument that the writ of mandamus that directed the trial judge to dismiss the case was unwarranted because an alternative was available. The court will hear argument on August 11. See the order and reports from APNews, The New York Times, Reuters, and Bloomberg News.

State News

The Times-Picayune of New Orleans reports that Louisiana is among the states that have granted diploma privileges in light of concerns about sitting the Bar exam during the pandemic. Diploma privileges allow recent law school graduates to practice without taking the Bar exam. States have handled the concerns in a variety of ways, including administering the exam as usual, postponing the exam, offering the exam online, and granting diploma privileges. For a full list of the status of the 2020 bar by state, see this link

August 1, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 28, 2020

Manageability Is For Suckers

Much of the initial commentary on the Supreme Court’s fractured opinion in June Medical Services v. Russo focuses on the future of abortion rights, delving into the analytical choices made by Justices Breyer, Roberts, and Alito. But one overlooked theme from the opinion came from Justice Gorsuch’s brief discussion of justiciability. In his dissenting opinion, Gorsuch alluded to a broad requirement for manageable standards—even in cases not previously considered political questions—that could render the Court’s footprint in constitutional litigation significantly smaller over time.

Justiciability was not the only focus in Justice Gorsuch’s dissent. He primarily critiqued the plurality for improperly equating the factual record in June Medical Services with the factual record in Whole Woman’s Health v. Hellerstedt, decided four years earlier.[1] Gorsuch argued that Whole Woman’s Health included a fully-developed factual record specific to the medical and economic realities of Texas; the plurality erred by relying on that same record to find that the admitting privileges law at issue offered no benefit to the health of women in Louisana.[2]

But Gorsuch’s critique went beyond the way the plurality applied the wrong facts to a legal test that required states to show that their laws accrued some benefit to women’s health. Instead, he critiqued that test directly as one that was so malleable as to be hardly a legal test at all, or at least not the sort of test that the Supreme Court should promulgate in good conscience.[3]

Justice Gorsuch argued that any legal test created by the Court should at least be “replicable and predictable,” making it easier for lower courts to follow the Supreme Court’s jurisprudence.[4] Gorsuch then noted that “an administrable legal test even lies at the heart of what makes a case justiciable.”[5] The plurality’s test was not sufficiently manageable; Gorsuch equated its “all-things-considered balancing of benefits and burdens” to a “hunter’s stew,” whereby judges with wide discretion would combine any factual details that “look interesting” into a decision.[6] Driving home his point, Gorsuch quoted last term’s opinion in Rucho v. Common Cause—where the Court found that extreme partisan gerrymandering is a non-jusiticable political question because allegedly there are no “judicially discoverable and manageable standards for resolving” the issue.[7] This component of the political question doctrine, which the Court typically deploys to avoid deciding issues the Justices feel are best resolved by other branches, was thus central even to constitutional questions concerning individual rights under Gorsuch’s formulation.

If the Court deploys a strict understanding of the political question doctrine’s manageability requirement to any legal test, it could undermine many of the Court’s malleable, yet effective, legal standards. Gorsuch’s manageability requirement would seem to prohibit any test that examines the totality of the circumstances or even a wide array of nuanced factors sure to vary from case to case. The manageability requirement urges the Court to generate more bright-line rules that remove discretion from the lower courts, possibly at the expense of carefully-constructed rulings that improve accuracy in individual cases.

A broad manageability requirement could quickly take hold on the Court. In his own dissent in June Medical Services, Justice Thomas argued that stare decisis did not apply to Roe v. Wade and its progeny, in part, because “poorly reasoned precedents that have proved themselves to be unworkable” are ripe for overruling.[8] Though Thomas’s workability language varies slightly from Gorsuch’s manageability requirement, the sentiment is the same; the Court should not intervene in issues where the only legal tests available are too malleable for lower courts to implement in “replicable and predictable” decisions.[9]

The Supreme Court should strive to give the clearest directives possible to lower-level actors. But a broad manageability requirement in all cases would seemingly preclude the Court from resolving many of the pressing problems on its docket, even when the questions they present are in no way political. Whether Justice Gorsuch and others press for such a manageability requirement should be at the forefront of court-watchers’ minds, both in abortion litigation and elsewhere, for years to come.

 

[1] June Medical Serv. v. Russo, 591 U.S. __ (2020) (Gorsuch, J., dissenting) (slip op. at 14-15).

[2] Id. at 14-15

[3] Id. at 16-18.

[4] Id. at 16.

[5] Id.

[6] Id. at 17.

[7] Id. at 16 (quoting Rucho v. Common Cause, 588 U.S. ___ (2019) (slip op. at 11)).

[8] Id. (Thomas, J., dissenting) (slip op. at 18).

[9] Id. (Gorsuch, J., dissenting) (slip op. at 16).

July 28, 2020 in Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, July 18, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 18, 2020

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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’s vacatur of preliminary injunctions this week allowed the executions of three federal inmates and ended the 17-year hiatus from federal executions. Justice Breyer (joined by Justice Ginsburg) and Justice Sotomayor (joined by Justices Breyer, Kagan, and Ginsburg) each wrote dissents in both. See the orders here and here and reports in The New York Times, The Wall Street Journal, and The Associated Press.

  • The Supreme Court upheld the stay of a trial judge’s order finding unconstitutional Florida’s restriction on the voting rights of people with felony convictions who are unable to pay fees and fines, thus allowing the restrictions to continue. The restrictions limit a 2018 amendment to the Florida Constitution that sought to end the disenfranchisement of people convicted of felonies, except for murder and rape, “upon completion of all terms of sentence, including parole or probation.” Justice Sotomayor’s dissent recognizes that the “order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.” See the opinion and reports in The New York Times, The Washington Post, The Associated Press, and Reuters.

  • This week, Justice Ruth Bader Ginsberg announced the recurrence of her cancer, stating that chemotherapy is yielding “positive results” and that she has no plans to step down.  See the statement and reports from The New York Times and Reuters.   

Federal Appellate Court Opinions and News

  • The District of Maryland suspended a rule requiring an in-person doctor’s visit to get medication for a medical abortion, stating that, during Covid-19, the requirement likely violated the constitution as a substantial obstacle” to obtaining an abortion.  See reports from PBS, The Hill, Forbes, and Time.

  • The Ninth Circuit upheld a Montana court’s decision to reinstate the protections for the grizzly bear population in the Yellowstone area.  In 2007 and 2017, the Fish and Wildlife Service attempted to remove the grizzly from protection under the Endangered Species Act. See the opinion and reports from the Jurist and Bloomberg Law.

  • The Northern District of Georgia permanently struck the state’s anti-abortion law, which banned abortion after detection of a fetal heartbeat. The opinion ruled that the law constituted a “pre-viability abortion ban” and thus violated the right to obtain an abortion.   See the opinion and reports from Time and the Atlanta-Journal Constitution.

July 18, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 7, 2020

Briefing Beyond Words - by Mark Trachtenberg

Today we have a guest post by Mark Trachtenberg. Mark is a partner with Haynes and Boone, LLP in Houston, Texas. He is board certified in civil appellate law by the Texas Board of Legal Specialization. You can learn more about his practice here.

I.     Introduction

    For decades, trial lawyers have understood the importance of visuals in persuading a jury. Now, appellate lawyers are learning that visuals can be just as powerful a tool for a judicial audience. With an influx of a media-savvy generation of younger lawyers into practice, a revolution in digital technology, the enormous proliferation of photographs and images in social and traditional media, and the explosion of tablets and laptops, the age of visual advocacy has arrived. Before filing any brief in the trial or appellate court, a lawyer should ask herself whether any portion of her argument could be enhanced or simplified through the use of a visual.

II.    How to use visuals effectively.

    To obtain examples of effective visuals, I surveyed my colleagues at Haynes and Boone, other appellate practitioners and a few appellate judges. I also attempted to find examples via Westlaw or other search engines. This survey culminated in an Appendix available here, which is organized by category of visual, including photographs and images, charts and graphs, tables, maps, timelines, flowcharts, diagrams and the like.

    From my survey, I have identified a few overarching lessons about effective use of visuals.

    First, craft each visual with the care you take with the text of your brief. Consider different alternatives. Ask colleagues for their opinions on which format is most effective. Continue to try to edit and improve the visual, as you would the rest of your brief. Ascertain whether the visual advances your argument or is merely decorative and thus potentially distracting. If the visual is misleading in any way, it will harm your credibility with the court, just as an improper record cite would.

    Second, as a general rule, embed the visual in the text of your brief, rather than include it in an appendix. The point is to have the visual reinforce the text and not force a judge or a clerk to toggle back and forth between the body of the brief and the appendix. While stashing a visual in an appendix may have been necessary in the era of page limits, that is not the case today.

    Third, visuals should simplify your argument, not make it more complex. Visuals that have too many words or try to cram in too many concepts are often counterproductive because they distract the reader or divert attention from the flow of your argument.

    Fourth, frame the significance of the visual in the sentence or paragraph immediately preceding it, to prime the reader as to what he or she should be looking for. A good example can be found at Tab A-12 of the Appendix, where attorneys for Apple discuss Samsung’s surge in market share after introduction of a model allegedly copying the iPhone, before that surge is reinforced visually.

Samsung 2

    Fifth, use color in graphs, charts, etc. to help break up long, monotonous blocks of black and white text. Color can be an important tool to show contrasts, similarities, or relevant groupings. In Tab G-4 of the Appendix, for example, the author uses color to show the appellant’s control of key levers of a joint venture.

Chart 2

    Sixth, in deciding whether to include a visual, remember that you are still addressing an appellate court, not a jury. Including a picture of a deceased plaintiff to generate sympathy or outrage is the equivalent of making a jury argument a state’s high court.

    In this paper and powerpoint, I highlight examples of effective visuals from each designated category and offer some thoughts about in which contexts they might be most helpful.

III.    The future of visuals

    While the paper focuses on embedding still images, photos, and graphics in briefs, technology permits much more, and developments in multimedia creation, storage and display continue at a rapid pace.

    Already, litigants have made videos played at trial accessible to appellate courts via a clickable Internet link.[1] But, if megabyte limitations on e-filings can be overcome or are loosened, it will not be long before video and audio files are directly embedded into e-briefs. An advocate could thus prominently feature footage from a security video, a police dashboard cam or body-cam, a surgical procedure, or the like in the heart of a brief, instead of relegating it to an appendix or record cite. Likewise, any key video deposition clips played to the jury could also be embedded in a brief. Audio files—like a 911 call, for example—could easily be embedded too.

    Animations could feature more prominently in appellate briefs, instead of being used only in jury trials. A quick search of the websites of various trial graphics companies illustrates how effective these animations can be.[2] One consultant artfully explains that: “If a ‘picture is worth a thousand words,’ then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.”[3]

Another scholar speculates that other embedded technology in briefs might include, among other things:

  • Graphics Interchange Format, or GIFS;
  • 360-degree panoramas (of accident scenes, etc.);
  • Powerpoint decks that would allow the viewer to scroll through a slideshow composed of images, graphics, or other information; or
  • Rollover/hover states, which would display new information over the existing text or graphic when the cursor hovers over it.[4]

    As a paradigmatic example, the scholar points to an article posted in Medium in which the author weaves together a host of embedded images, screenshots, maps, and audio files to tell a story about a harrowing encounter with the San Francisco police.[5]

    If The New York Times is any indication, change is coming. In the 20th century, that newspaper earned the nickname “The Gray Lady” for its heavy reliance on text and the absence of color (the first cover with a color picture was published in 1997). Now, its website is a “pulsing quilt of video and interactive graphics,”[6] podcast links, and even virtual reality experiences.

    For too long, tradition and inertia have led to a significant underutilization of photos and other images in legal briefs. But those days are over. If 81-year old Justice Stephen Breyer and 70-year old Justice Samuel Alito can effectively embed visuals in their legal writing as they did in opinions issued last week (see below), so can you![7]

 

[1] See Petitioner’s Brief on the Merits, BNSF Railway Co v. Nichols, No. 12-0884, at 3 (Tex. June 19, 2013), available at http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9730f55f-c6b0-4408-9b92-afcd8f9d2805&coa=cossup&DT=BRIEFS&MediaID=8f049b10-6caa-45cd-aa2f-f0ba38599a46; see also Tab A-4.

[2] See, e.g., (1) https://courtroomanimation.com/results/, (2) https://www.legalgraphicworks.com/services/animation/, or (3) https://www.decisionquest.com/services/litigation-graphics-consulting/legal-animation/.

[3] Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. L. Tech. 161, 190 (2000) (author is a professor and litigation consultant).

[4] See Elizabeth G. Porter, Taking Images Seriously, 114 Colum. L. Rev. 1687, 1749-50 (2014).

[5] Id. at 1750-51 & n.294 (citing https://medium.com/indian-thoughts/good-samaritan-backfire-9f53ef6a1c10).

[6] Id. at 1693.

[7] See June Med. Servs. L.L.C. v. Russo, No. 18-1323, 591 U.S. —, slip op. at 33 (June 29, 2020) (Breyer, J., plurality), https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf; Espinoza v. Montana Dep’t of Rev., No. 18-1195, 591 U.S. —, slip op. at 4-5 (June 30, 2020) (Alito, J., concurring), https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

Blog 5
Blog 5

July 7, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, July 6, 2020

Another Great Statutory Interpretation Case out of Washington State

Almost three years ago, I posted about a statutory interpretation case out of the Washington Supreme Court that addressed the thorny question of whether a riding lawn mower is a vehicle. It seems that Washington State is at it again with this fascinating case out of the Ninth Circuit.  The question--Does "and" mean "and" or does it mean "or?"  At issue--who exercises jurisdiction over non-Indians who commit crimes on the Yakima Nation's reservation.

The history of the case is rather complicated, but the key provision is quite simple.  At the request of the Yakima Nation, Washington Governor Jay Inslee issued a Proclamation in 2014 that "retroceeded" to the federal government jurisdiction over certain civil and criminal matters that occurred on the Yakima Nation Reservation.  Paragraph two of the Proclamation stated (my emphasis):

Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.

In an accompanying letter, Governor Inslee explained that the "and" in that last sentence meant "and/or," and, according to the opinion asked the Interior Department  to make that clear when it accepted the Proclamation. It didn't.  Over the intervening years, there were several interpretations of the language by different parts of the federal government and the court system.  The most lasting interpretation appears to be a memorandum from the Office of Legal Counsel, which sided with team "and/or,"  resting heavily on the usage of "in part" in the first line.

In September 2018, the events giving rise to this case occurred. The Yakima Nation brought this particular claim seeking a preliminary injunction for team "and."  Unfortunately for them, the Ninth Circuit didn't agree.  

There is some delightful language in the Ninth Circuit opinion. Judge Ryan Nelson, writing for the majority, explained that while the "most common meaning" of and is "together" or a conjunctive usage, it isn't always used that way.  It can, he says, mean "or": 

Examples of “and” used to mean “or” abound. For example, a child who says she enjoys playing with “cats and dogs” typically means that she enjoys playing with “cats or dogs”—not that cats and dogs must both be present for her  to find any enjoyment. Similarly, a statement that “the Ninth Circuit hears criminal and civil appeals,” does not suggest that an appeal must have a criminal and civil component for it to be properly before us. Nor would a guest who tells a host that he prefers “beer and wine” expect to receive “a glass of beer mixed with wine.” OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J., dissenting). In each instance, the common understanding is that “and,” as used in the sentence, should be construed as the disjunctive “or.”

Seems pretty logical to me, but I would naturally use "or" in that last example (although I dislike beer so I wouldn't even say that last example).  Judge Nelson goes on to explain,

The same is true here when we examine “the broader context” of the Proclamation, Robinson, 519 U.S. at 341, in particular the Proclamation’s use of the term “in part” in Paragraphs 2 and 3. In both Paragraphs 2 and 3, the State “retrocede[s]” criminal jurisdiction “in part,” but retains “criminal jurisdiction” over “offenses involving non-Indian defendants and non-Indian victims.” If “and” in those  sentences is interpreted to mean “or,” the retrocession “in part” makes sense. Under that interpretation, the State has given back a portion of its Public Law 280 jurisdiction— jurisdiction over crimes involving only Indians—but has kept Public Law 280 criminal jurisdiction if a non-Indian is involved.

Interpreting “and” in those Paragraphs as conjunctive, however, does not give “in part” meaning. Under that interpretation, the State has retroceded all jurisdiction that it received under Public Law 280—that is, criminal jurisdiction over all cases involving Indians. If that is the case, Paragraphs 2 and 3 are no different than Paragraph 1, which retroceded “full civil and criminal jurisdiction” over certain subject matters. But that cannot be right, because Paragraph 1 uses the phrase “full,” whereas Paragraphs 2 and 3 use the phrase “in part.”

Looking at the Proclamation, this does seem like a logical reading of it, although I wonder why "and/or" wasn't used in the original drafting of the Proclamation.  It seems like that would have saved everyone a lot of trouble.

Regardless, let this be a lesson for drafters of statutes and Proclamations.  Have a happy Monday AND (and I do mean AND) a good week.

July 6, 2020 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, Humor, Tribal Law and Appeals | Permalink | Comments (1)

Saturday, July 4, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 4, 2020

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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.

Happy Independence Day!

 

US Supreme Court Opinions and News

  • The Supreme Court issued a much-anticipated order on abortion this week, striking a Louisiana law that required doctors performing abortions to have admitting privileges at nearby hospitals. The Louisiana law was “almost word-for-word identical to Texas’ admitting privileges law,” which the Court struck in 2016 in Whole Woman’s Health v. Hellerstedt. Justice Breyer penned this order, joined by Justices Ginsburg, Sotomayor, and Kagan, and found the Louisiana law to be an unconstitutional inference with a woman’s right to obtain an abortion. Like in the 2016 decision, the ruling finds that the law’s requirements have no medical benefit. Justice Roberts, who dissented in the 2016 Texas decision, concurred in the judgement, writing that he still believed the 2016 ruling to be “wrongly decided” but that stare decisis compelled this decision. See opinion and a sampling of the many reports from The New York Times, The Wall Street Journal, The Washington Times, and NPR.

  • The Court ruled that a Montana tax break that excluded religious institutions discriminated against religious schools, finding that states must allow religious schools to participate in programs that provide scholarships.  See opinion and a report from The New York Times.

Federal Appellate Court Opinions and News

  • The Seventh Circuit, after a three-year delay, reinstated some Wisconsin limits on voting, including laws on voter ID and early voting procedures. The court overruled the lower court that found that many of Wisconsin’s election laws disproportionately affected the ability of minorities to vote. The court found no evidence that lawmakers intended to discriminate against minorities, finding “[t]his record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.” And the court found that the limits did not violate the First Amendment or the Voting Rights Act because “they leave all voters with equal opportunities to participate.” See the opinion and reports from The Milwaukee Journal Sentinel, The Courthouse News, and  The Election Law Blog.
  • A panel of the D.C. Circuit ordered the immediate dismissal of the criminal case against Michael Flynn.  See reports from The New York Times, The Associated Press, and The Hill.

State News

The Pennsylvania Supreme Court ruled that the state legislature cannot unilaterally end the governor’s pandemic shutdown orders. Specifically, the ruling determined that the lawmakers resolution to end the orders was a “legal nullity” because it was not presented to the governor for signature or veto. See reports from The Associated Press and The Patriot-News of Harrisburg.

July 4, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, June 27, 2020

Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online:  Preparation and Professionalism

 In March, we had only hours to transition from in-person teaching and law practice to remote options.  As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms.  Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work.  I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online.  (If you could not attend, you can view asynchronous postings here:  https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.)  Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend. 

Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.”  The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward.  As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.”  Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020).  Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances.  In other words, be prepared and yes, wear pants.

Part of our preparation for oral argument today should include a test run of our technology.  Whenever possible, appellate practitioners should do moot courts before oral arguments.  Now, we should make our moot courts a test of both online systems and legal arguments.  Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms.  Id.  They expect us to be familiar with the platforms as well.  In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation. 

We should also be as professional as possible in every detail of our online appearances.  Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance.  The ABA panel stressed smaller points as well.  For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking.  Id. at 2.  Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level.  The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument.  Id.   Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking.  Id.  Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.  

We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves.  For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.”  Id. at 3.  Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.   

June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)