Appellate Advocacy Blog

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

Monday, August 19, 2019

Starting a New Term Strongly

Today is the first day of school at many law schools around the country, including the one where I teach. Those schools that haven’t started are likely to begin in the next few weeks. This time of year has me thinking about new beginnings and the rhythm of the academic year. While culturally there is a lot of talk of New Year’s resolutions, those of us on an academic calendar start our new year in August or September, with all the plans and hopes that accompany a fresh start--new students, new courses, new approaches to material.

As summer has wound down, I’ve been reading First, Evan Thomas’s fascinating biography of Sandra Day O’Connor. In the same way that schools operate on their calendar, the Supreme Court operates on the rhythm of its Terms, which begin every year on the first Monday in October. The Court recesses at the end of June, then works on the petitions and other business to prepare for the next October Term.
Justice O’Connor was sworn in just a couple of weeks before the Term began in 1981, and it seems as that first Monday in October approached, she was anticipating what the new Term would hold. For example, Thomas reports that in 1986 upon the appointment of Justice Scalia that “O’Connor had welcomed his high intelligence and verve. . . Scalia, she believed, would be a tonic. ‘Nino Scalia will have a dramatic impact here,’ she wrote in her journal.”
As I start a new school year this August, Justice O’Connor’s example is on my mind. Her strength, will, and energy enabled her to be a trail-blazer, as highlighted in First. And she continued to start each October Term strongly for 25 years, even when dealing with challenges including breast cancer, diagnosed shortly before the 1988 October Term.

For those of you not on an academic or appellate term, do you have a way of creating fresh starts for yourself? Do you still look to the calendar to demarcate your own “terms”?

Any advice you’d like to share for starting strong, whether in academics or practice?

I like to make sure my office and inbox is organized at the start of a new semester, as piles tend to grow during the hectic pace of classes.

I hope everyone who is starting a new term soon has a great start!

August 19, 2019 in Appellate Advocacy, Law School, United States Supreme Court | Permalink | Comments (0)

Tuesday, August 6, 2019

Statements Made in Oral Argument Live Longer than You Might Think.

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I am a big proponent of oral argument. It can, and should, make a difference in complicated cases. No matter how tight our writing is, there is something about the give-and-take of oral argument with a well-prepared panel that refines arguments in a way that is difficult to match. But we also have to be very careful, or the words we say can live on in ways we did not expect.

While I was catching up on my reading following summer vacation with my family (a big thank you to my friend, John Browning, for covering with his excellent guest post while I was gone), I dove into the recent analysis of the Plain Error Doctrine in Justice Oldham's concurring opinion in U.S. v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019). While I found his analysis of the origins and misadventures of the doctrine since the 1800s to be fascinating and recommended reading for anyone who deals with the doctrine or the topic of waiver versus forfeiture of error, what caught my attention most was his reference to a comment by the Federal Public Defender's Office made during oral argument in a different matter. Without going into detail, Justice Oldham used that comment to raise what he considers to be an anomaly in the law.

We already know that some Supreme Court Justices are prone to quoting oral argument in the opinions that they write in the same matter. According to a 2008 analysis, Justice Ginsberg cites the transcript in almost every opinion she writes, with Chief Justice Roberts following a bit behind at one citation to the transcript every other authored opinion. See Frederick Liu, Citing the Transcript of Oral Argument: Which Justices Do It and Why, 118 Yale L.J. Pocket Part 32 (2008). The Justices use the transcript for three primary reasons: (1) to describe an advocate's affirmative position; (2) to record an advocate's concession; and (3) to note an advocate's representation of the record or facts. Being quoted is not necessarily a good thing --  Justices were almost twice as likely to cite statements made by an advocate whose side they opposed than one they supported.

We already know, then, that what we say at oral argument in a given case may be used in the opinion that follows. The oral argument does seem to make a difference, at least to justices on the margins, and the right argument can still sometimes win the day. Of course, the converse is true. Loose lips can sink ships. The impact of the statements made at oral argument is the primary reason I urge advocates to "moot" their appeals.

But what struck me about Justice Oldham's use of the transcript was that he was drawing from other cases. As more courts record oral argument and transcripts become more widely available and searchable, the idea of having my words used in an opinion months or years later is a bit sobering. And it drives home the idea that these transcripts are another important research tool that is easy to overlook.

Don't forget that even our spoken words live longer now than ever. We need to tap into that as a source of research, and be careful with what we say for both the cases we are currently handling and the ones we may handle in the future.

(Image information: WWII era poster from the U.S. National Archives and Records Administration).

 

 

August 6, 2019 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, July 15, 2019

Oral Argument Preparation in SCOTUS

This is a guest post by Raffi Melkonian, a partner at Wright Close & Barger in Houston, Texas.

    The day after I gave my first (and only!) United States Supreme Court argument, I put up a thread on Twitter (where I post as @RMFifthCircuit) about my oral argument preparation. It was well-received, and many people encouraged me to tease it out a little into a blog post or article. This is my first attempt to do exactly that.  A caveat: these thoughts are for people like me. That is, lawyers who don’t normally practice in the rarified air of the Supreme Court. It’s advice for the first-time tourist, not the experienced traveler. Maybe it’s even good advice for the new lawyer preparing for their first appellate argument. So if your name is Paul Clement or Neal Katyal, stop reading!

    One more thing. This post is not about briefing.  Yes, it’s conventional wisdom that the merits brief is the most important part of the Supreme Court presentation. I think that’s true. And yet, it’s a complicated topic that goes far beyond the scope of this post.  

    Anyway, oral argument is the moment many first-time advocates focus on, and with good reason. It’s the one time you’re alone with the nine justices of the Supreme Court. No one can help you. And, the stakes for your client are high. Not many cases are won at argument, to be sure, but some are lost. In Justice Ginsburg’s words, “I have seen potential winners become losers in whole or in part because of … oral argument.”  But the advocate too has some skin in the game. As I know from scrutinizing arguments on #AppellateTwitter, a lawyer’s missteps at oral argument are judged harshly by the commentariat. You don’t ever want to be that guy.

    So what then? The answer is intense and unrelenting preparation. Listed below are some of the strategies I used to get ready. But remember, excellent lawyers prepare differently. What may work for me won’t work for you, and the reverse. So, as they say on the Internet, Your Mileage May Vary.

  • My grandmother, like many Catholics, would read a small prayer book every morning, a daily devotional. It seemed to me that I needed to know all of the briefs as intimately as she knew her prayers, so I had all the pleadings set out in a binder – our briefs, their briefs, and the various amici – and I read them every morning. I took notes, of course, but mainly the point was to read them again, and again, and again.
  • David Frederick, the famous Supreme Court lawyer, recommends in his book on oral argument that you spend much of your time thinking of questions the Court could ask you. That’s part of my normal oral argument preparation, and I took his advice doubly to heart for SCOTUS. I spent hours thinking of as many questions as possible. I scrawled some of these questions on note cards, some I typed. No question was too benign, and none too difficult. The hardest work was writing out extensive answers to each question.  
  • I wrote a very short outline of what I wanted to say, and practiced in front of a camera at a podium (well, a cardboard box) many times. A picture I posted on twitter of that effort was even turned into a meme by the incredibly creative @AliceLfc4, a court clerk in Florida (here’s proof!). Every 20 seconds or so, I’d pick a question from my pile and ask it to myself, and then answer, and then practice pivoting back to what I was trying to say. This effort required many edits to my note card answers. Some of my answers were bad, others too long. Over time, they became tighter, more focused, pithy. Well, as pithy as I get, anyway.
  • Ultimately, I became convinced that there were only six thematic sentences I needed to say, no matter what. I wrote these on a notecard and practiced saying them during my note card answers. The goal was to say each of the six at least once in any practice session. I got five of them out during the actual oral argument.
  • I did three moot courts in total, beginning about two weeks before the argument. I spent two days before the moot preparing for the argument, and then the entire day after the moot incorporating the feedback. Needless to say, I am ever grateful to the teams at Stanford, Public Citizen, and the Georgetown University Law Center Supreme Court Institute that mooted me.
  • Finally, consider the physical space. I hadn’t been to the Supreme Court since college, and so I picked an oral argument day earlier in the week to observe. This turned out to be a good idea. The space is both overwhelming and tight, and knowing what it feels like helped put me at ease when I went for real. Plus, I had many guests with me, none of whom had been to the Court either. Being able to give them real world advice about the process of getting in and to the courtroom (though really, you can just read Jaime Santos’s go-to thread) was invaluable.

    An article I read before the argument helpfully advised that most advocates do not faint at the Supreme Court’s podium. At the time, I felt that was rather macabre. But with the right preparation, a Supreme Court argument can be enjoyed rather than endured. I know I enjoyed mine.

July 15, 2019 in Appellate Advocacy, Appellate Practice, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, July 5, 2019

Appellate Advocacy Blog Weekly Roundup Friday, July 5

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

@Steven Mazie had an article in the Economist this week reviewing the past term of the Court, its movement to the right, and the emerging political alignment of Justices Kavanaugh and Gorsuch.

The New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States  likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies.  Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage.  Gundy is such a defendant, did not register, and was charged and convicted as a result.  He challenged Congress’ delegation as impermissible.  As the article notes, the Court has long allowed Congress broad authority to make such delegations.  In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board.  The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate.  The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.

FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy.  The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case.  Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.

The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is."  He's now the longest-serving member of the Court and the senior associate Justice.  On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty. 

 

Federal Appellate Court Opinions and News:

In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website.  The case was Oberdorf v. Amazon.com.  More from the CA3blog.

 

State Appellate Court Opinions and News:

The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt.  The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents.  The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder.  In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm.  More here.

 

Practice Tips and Pointers:

#AppellateTwitter discussion this week on Twitter addressed lawyers and social media – many good thoughts throughout the Twitter thread started by @RachelGurvich  right here.

July 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court, Weblogs | Permalink | Comments (1)

Tuesday, June 11, 2019

Conducting Moot Court in Real Appeals - Part 1

Dumier high tribunal of judges

As both a moot-court coach and a real-life appellate specialist, I find myself moving back-and-forth between real appeals and simulations on a regular basis. Each one advises the other, and I think the experience makes me both a better coach and practitioner.

One area of overlap is in "mooting" appeals. In law school, it is an exercise in practical skill building with formative assessment in the form of constant feedback. In real appeals, it is the best preparation there is for oral argument, no matter how skilled the presenter might be.

Don't just take my word for it:

No preparation for oral argument is as valuable as a moot court in which you're interrogated by lawyers as familiar with your case as the court is likely to be. Nothing, absolutely nothing, is so effective in bringing your attention to issues that have not occurred to you and in revealing the flaws in your responses to issues you have been aware of.

Antonin Scalia & Bryan Garner, Making your Case: The Art of Persuading Judges 158 (2008)

Your opponents are probably doing it. The United State's Solicitor General's office, as well as Appellate Staff throughout the government, conduct at least one moot session before oral argument. In larger cases, it is increasingly considered best practices to do so. Larger firms often conduct multiple moot sessions in-house. Even in smaller matters, informal mooting sessions are becoming more common.

Fortunately, if you are familiar with moot court from law school, you can probably put together a moot round for your argument. You just need a panel, a video camera, a plan, and time. Lots of time.

1.    Pick your Panel Carefully

In general, you want to pick at least three panelists who will represent the type of judges you anticipate will be on your panel. Legal expertise is less important than appellate experience. For this reason, former appellate judges and appellate specialists are often utilized. Appellate specialists can put together a panel for you if you need the assistance.

Why not pick someone who really knows the substantive law? Because they aren't a good emulation of your court. You want people who will read what the court will read (the briefing, key cases, orders/judgments at issue and record excerpts) and then ask you the type of question that this preparation brings to mind. Someone who knows the law very well outside of this exercise might carry the same blinders you have developed during your time with the case.

If you are appearing before a court en banc or a court with more than three justices, you can use more panelists. Most practitioners do not suggest matching the full number, however, as there is diminished value in adding more seats at the moot.

2.     Prepare For Your Session Wisely

You want to have at least one moot round within two weeks of the oral argument so you have time to prepare and adjust based on your session. If possible, discussing the issue even earlier can be of great benefit. Indeed, if you can schedule a time with your panelists to have a roundtable discussion before you finish briefing, that is ideal. Uncovering arguments and answering questions you had not thought of asking in your briefing, rather than in the oral argument alone, is ideal.

Some research into your potential panelists is a good idea. If you are in a jurisdiction that videotapes oral argument, watch recent arguments on related issues to get a feel for how the justices you might get on your panel are approaching your issues. I recently mooted a panel for a public interest group, and noted that one justice in particular on the circuit tended to focus on a particular statutory issue. I flagged that for them during the moot court, and when that issue arose at oral argument, they were able to answer it when others had not and ultimately prevailed.

You may also wish to find someone willing to argue the other side. The moot session can work with just your side if you are experienced. But if you need work on your rebuttal skills or in shaping your appellee or respondent argument to an unexpected approach or to address questions asked to co-counsel, this step can provide you some additional help.

3.     Videotape the Proceedings

Time acquires a very subjective and malleable quality when one is being grilled by a panel of intelligent skeptics about a topic that has great importance. Before you know it, your time is up and you are sitting down trying to remember what was just said. Videotaping the round ensures that you will remember the questions asked and answered, and you can see how you look and act during your moments of panic and introspection. If you need to work on your "uhs" and tendency to sway while speaking, now is the time to do so.

4.     Take Your Time at Every Stage

Finally, make sure everyone takes the time necessary for the process to work. You need to take your time in preparing your argument and answers for the moot session just like a real argument. Your panel needs to take the time to read the briefing and record. After your session, take the time to round everyone up and discuss what worked and what did not, how answers can be refined, and otherwise discuss the round. Then, if you have time, do it again.

Indeed, you can schedule multiple moots with multiple panelists. There are law schools that have appellate clinics who may be willing to do so for free. If you are arguing in the Supreme Court of the United States, book your time with the Georgetown University Supreme Court Institute as early as possible, as they are "first come first serve" when it comes to sides.

If you pick panelists who will ask you difficult and unexpected questions, if you take the time to prepare your presentation, if you review the videotaped proceeding carefully and refine your arguments, and if you are willing to do it all again if need be, you will go far in refining your argument. There is a reason one of the most commonly-heard comments from real judges who sit on panels for moot court competitions is "I wish the real advocates who appear before me were as prepared and skilled as you are."

In the next installment I will talk in a bit more detail about how to actually conduct the moot session to maximize its usefulness.

(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)

 

June 11, 2019 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Wednesday, May 29, 2019

Larsen & Fisher on Virtual Briefing at the Supreme Court

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So let's say you've just presented an oral argument to the United States Supreme Court. You had 30 minutes, and the questioning was heavy and dominated by justices who seemed determined to advocate against your client's position. Naturally, then, you didn't get to press every point you wanted to at the podium. What do you do? The answer, generally, is not to file a supplemental brief laying out what you woulda coulda shoulda said; Supreme Court Rule 25.7 prohibits post-argument briefing without leave of the Court, and having a way-homer moment typically won't cut it. How about this, though: go on a podcast devoted to the workings of the Court. Talk about the "cool stuff" you had "in the can" that you didn't get to at oral argument. Figure that, perhaps, Court insiders are listening. 

This is one piece of the phenomenon of "virtual briefing," the topic of a thoughtful forthcoming article in the Cornell Law Review by Jeffrey L. Fisher of Stanford Law School and Allison Orr Larsen of William & Mary Law School. Professors Larsen and Fisher trace the rise of virtual briefing—which they define as "online advocacy ... targeted at cases pending at the Supreme Court and outside of the normal briefing process"—as blogs and podcasts devoted to the work of the Court have proliferated. And they offer tantalizing evidence that virtual briefing might be reaching key players at the Court and influencing outcomes. #LawTwitter is mildly atwitter today about the piece's analysis in section II.A of SCOTUS clerks' Twitter habits: some 37 percent of clerks in the 2017-18 and 2018-19 terms had identifiable accounts, and 84 percent of these followed the accounts of podcasts, blogs, and other sources of virtual briefing. And section II.C of the piece presents anecdata about cases where virtual briefing appeared to make a difference. The piece's assessments of the issues raised by the phenomenon and possible paths forward are thorough and thought-provoking. 

May 29, 2019 in United States Supreme Court, Web/Tech | Permalink | Comments (0)

Thursday, May 2, 2019

Admin Law, Stare Decisis Still Left on Court Docket, TBD

As the latest Supreme Court term winds down, the remaining decisions will be cast into one of two main themes, according to Erwin Chemerinsky. Chemerinsky, who argued the Franchise Tax Board v. Hyatt case in January, says the Court will be contemplating standards of review for administrative law, and whether to overrule precedents in several cases. 

Chemerinsky's case, Hyatt, deals with whether Nevada v. Hall should be overruled. Nevada v. Hall set the precedent that a state may be sued in the court of another state. Chemerinsky was surprised to find that when he argued the case, the justices were most concerned with the overarching question of stare decisis and overruling precedent, and not so much with his client who had been harassed by the state of California when he moved to Nevada. Several other cases deal with this larger issue as well. Knick v. Township of Scott, Pennsylvania asks the question whether a person must exhaust all state law remedies before bringing claims in federal court for a taking. A ruling in this case may overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985) that allowed some exceptions to the rule that says a case may be brought in federal court without exhausting all state court claims. Gamble v. United States asks the Court to overrule the "separate sovereign doctrines" that allows prosecution in both federal and state court for the same crime, without implicating double jeopardy. 

Additional cases touch on stare decisis as well, but more specifically implicate administrative law delegation and deference. Kisor v. Wilkie prompts the Court to review whether courts ought to defer to reasonable agency interpretations of ambiguous regulations. Chemerinsky highlights this issue because of the scrutiny the Chevron doctrine has received in recent years. Gundy v. United States will decide the extent of Congress' legislative delegations of power, and whether they are constitutional. The Court has not decided an issue like since 1935, Chemerinsky says.

The most high profile case awaiting ruling is Department of Commerce v. New York that deals with what questions may be asked on the 2020 census. The controversial "citizenship" question is at issue. Detractors say including the question will inhibit responses resulting in a miscount. The question has been included on census forms before from 1820-1950. After that, some households continued to receive the question from 1960-2000. 

The Court's final arguments were on April 24, and it will be issuing opinions until the end of June.

May 2, 2019 in United States Supreme Court | Permalink | Comments (0)

Tuesday, April 16, 2019

The U.S. Supreme Court and Its Political History.

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Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.

I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.

First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.

This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.

This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.

After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.

That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.

In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.

The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.

In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.

There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.

Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.

Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.

(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)

April 16, 2019 in Appellate Court Reform, Appellate Justice, Current Affairs, Federal Appeals Courts, Legal Ethics, United States Supreme Court | Permalink | Comments (0)

Monday, April 8, 2019

Obscenities & The Supreme Court

While many people may be swearing on April 15 because they forgot to do their taxes, the Supreme Court will have swearing on its mind for another reason.  Iancu v. Brunetti poses the very interesting question of whether, under the First Amendment, the government may refuse to register trademarks it deems "immoral" or "scandalous."  Mr. Brunetti was denied a trademark for his clothing brand FUCT (Friends U Can't Trust). The Federal Circuit ruled in Brunetti's favor, and now the Supreme Court will hear the case.

Just two years ago, the Supreme Court ruled in Matal v. Tam, that the "disparagement clause" in the Latham Act is incompatible with the First Amendment.  I think that is likely that Brunetti will succeed too in his trademark quest.

But, the merits of the case isn't want I wanted to blog about.  What is quite interesting in the case are the numerous examples in Brunetti's brief of trademarked and rejected words that could be deemed "immoral" or "scandalous."  National Law Journal, in its Supreme Court Brief email, noted that the briefs are "most assuredly not suitable for minors."  According to NLJ, the brief lists "34 words that might sound scandalous, only three of which have been handled consistently. [The trademark office] has allowed FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? Again, those are mild compared to other unmentionable words and phrases in the brief."  If you would like to read all of the bad words in Brunetti's brief, you can find it here.  The juicy part starts on p. 11.

Despite the bad words in the brief, Brunetti's attorney told the Court in a footnote that he didn't expect it would be "necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed."  That decision was probably for the best.  The NLJ article mentions Carter Phillips, who was called twice by the Court and advised not to use bad words in oral argument when he argued the FCC v. Fox case. 

I think that the subject of how litigants and the Court use profane language is fascinating.  Should the word be spelled out?  Should one use asterisks? And, if you dare spell it out, can you then say it out loud at argument?  Dare the justices say the word when announcing the opinion?  According to a 2012 New York Times article, when Justice Harlan announced the opinion of the Court in the Cohen case, he was instructed by Chief Justice Burger not to "'use that word' because 'it would be the end of the court' if he did."  You may recall from constitutional law that Mr. Cohen was prosecuted for wearing a jacket that contained words that, according to his attorney attorney, were "'not actually advocating sexual intercourse with the Selective Service.'"  Despite the Court's reticence to hear the word out loud, in many cases, especially in a case like Brunetti's, it is important to see the word in context.  

I plan on listening to Brunetti's attorney's argument if I get a chance to see if he holds true to his word.

April 8, 2019 in Appellate Advocacy, Appellate Practice, Humor, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Thursday, April 4, 2019

Would the Supreme Court Be Better with More Justices?

Tinkering around with the American governmental structure has become a standard plank for campaigners during run-ups to elections. The latest structural idea some are revisiting is the number of judges on the Supreme Court. George Washington University law professor Johnathan Turley has a laid out a plan to increase the Court to nineteen. 

Turley describes this increase not as court-packing but as a cure to the partisan lock that has become fairly predictable. With more justices, this lock would be eased and the "swing-vote" would not hold so much power in close cases. Turley says the Court may still split but the swing vote would probably not be the same justice every time. In some instances, we have become accustomed to cynically saying that arguments before the Court only have to persuade one person - most recently that person was Justice Anthony Kennedy - since the other justices were so predictable. When viewed from this perspective, it does seem a circumvention of justice when one person can hold so much sway over the decisions of the Court.

Turley makes the point that the number of justices on the Supreme Court is not mandated by the Constitution. The reason we have nine today is because there were nine circuits in 1869, and that's where it has stayed for no real reason except tradition. Turley would increase the Court to nineteen, and two justices would sit on the lower courts each year in order to keep in touch with reality (Turley says "so they don’t lose touch with judging in the litigation brawl that precedes a case that rises to the Supreme Court"). In the build up to fully staff the Court, each president would not be allowed to appoint more than two justices during his entire term. Turley arrives at the number nineteen because he says that is the size of most of our appellate courts and they work well when sitting en banc. 

Glenn Reynolds, University of Tennessee law professor, agrees with increasing the Court, but actually advocates for a mega-court of fifty-nine judges! He says keep the nine already presiding, appointed by the president, and add one for every state, appointed by the state governor. Reynolds says this will allow for a more diverse bench and one not as subject to the political winds as is the smaller insular group of nine. Reynolds has also advocated for elections for the justices. He says that the Court has already become politicized, so elections to ten year terms would make the presidential election turn less on Supreme Court appointments. Several states already elect their supreme court judges (most recently Wisconsin).

Personally I remain sentimental and tend to be attached to tradition, so am not immediately interested in these proposals. But admittedly, as Turley notes, our Supreme Court is the smallest of any major nation, and the ideological lock is a real concern. Since there are no Constitutional rules about the size of the Court, and it would be only engrained practice that would need changing, revisiting the size of the Court may be an idea whose time has come.

 

April 4, 2019 in United States Supreme Court | Permalink | Comments (0)

Wednesday, March 27, 2019

What are your appellate obligations to your client following a guilty verdict and sentencing?

The United States Supreme Court has long held that criminal defendant has the right to the effective assistance of counsel through his first appeal where an appeal is provided to those who can pay for it. See Griffin v. Illinois, 351 U.S. 12 (1956), Douglas v. California, 372 U.S. 252 (1963). This assistance is not without limits. In Anders v. California, 386 U.S. 738 (1967), the Court held that counsel may not abandon a nonfrivolous appeal, but also allowed an attorney to withdraw from an appeal once the appellate court has verified that there are no nonfrivolous grounds to pursue. In Jones v. Barnes, 463 U.S. 745 (1983), the Court recognized that it is the defendant’s authority to determine whether to pursue an appeal, while it is counsel’s responsibility to make strategic choices concerning which issues to raise on appeal.

Late last month, the United States Supreme Court emphasized that a criminal defendant retains the right to an appeal, and that appointed counsel is obligated to note an appeal upon his client’s request, even if his client has waived his right to an appeal in a guilty plea. The Court has previously held that counsel’s performance is deficient when counsel “disregards specific instruction from the defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969); cf. Puguero v. United States, 526 U.S. 23 (1999)). The Court in Roe held that no showing of prejudice would be required when a criminal defendant can provide that he would have taken an appeal, but for counsel’s deficient performance in failing to consult with defendant regarding an appeal where “a rational defendant would want to appeal …, or … demonstrate to counsel that he was interested in appealing.”

In the almost 20 years since that decision, however, many criminal defendants, who have pleaded guilty and, as part of their bargain, have waived their right to an appeal, have not enjoyed their right to have counsel note an appeal on their behalf. In part, I believe it is because many believed that the appeal waiver resulted in there being no nonfrivolous grounds for an appeal, and because counsel believed that no rational defendant would want to appeal and potentially lose the benefit of the plea bargain. Regardless of the rationale, last month the Court once again reminded the bar that the filing of a notice of appeal is a purely ministerial task, and that failing to do so upon defendant’s request is presumptively prejudicial. Garza v. Idaho, 586 U.S. ___ (2019) (slip op., at 14).

I understand the position taken by the government, which may not have agreed to a plea deal absent the defendant’s waiver, but I fundamentally agree with the heart of the Court’s rationale. After all, the criminal defendant is wholly dependent upon counsel when it comes to noting an appeal, although it is the defendant’s decision whether to seek that appeal. Whether counsel agrees with the defendant’s decision is of no import, at least regarding this simple task without which all hope is lost.

As the Court noted in Garza, we cannot expect a defendant to prove he would have had successful claims on appeal where the Court has recognized that the task of determining what claims to press on appeal is typically left to counsel. Id. (slip op., at 12); see also Jones, 463 U.S. 745.

If you represent criminal defendants, make sure you take the time to talk with your clients about their right to an appeal. And, whether or not they have pleaded guilty, if they ask, file a notice of appeal.

March 27, 2019 in Appellate Advocacy, Appellate Practice, United States Supreme Court | Permalink | Comments (0)

Wednesday, March 20, 2019

Not all fun, part of the game: Jacobi & Sag on [laughter] at the Supreme Court

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I've blogged here about laughter at the Supreme Court. And I've blogged about the fascinating empirical work of Tonja Jacobi and Matthew Sag. So I'm thrilled that Professors Jacobi and Sag have trained their analytical lens on laughter in oral arguments at the United States Supreme Court.

Their new piece is Taking Laughter Seriously at the Supreme Court, forthcoming in the Vanderbilt Law Review; they summarize it in two recent posts (here and here) on their must-read blog, SCOTUS OA. This is not the first scholarly effort to track laughter at the Supreme Court: Jay Wexler, for funsies, has been cataloging SCOTUS laughter since 2005, and rhetoric researcher Ryan Malphurs has dug into the communicative function of humor at oral argument (pdf). But Professors Jacobi and Sag take the scholarship of laughter at SCOTUS—and, more generally, the scholarship of oral argument—to entirely new, deeply serious places. They leverage a remarkable dataset: a database of every SCOTUS oral argument transcript from the 1955 through 2017 terms. In the 1.7 million speech events by justices and advocates in 6,864 cases, 9,378 triggered a [laughter] notation in the transcript; about two-thirds of the laughter events were prompted by something a justice said. Jacobi and Sag supplement their text-mining quantitative analysis with old-school qualitative analysis: they read and cataloged all 1,061 episodes of justice-induced laughter from 2010 to 2017.

Their conclusion: laughter at SCOTUS isn't much about fun and frivolity; it's mostly about the modern blood sport of judicial advocacy. 

The piece builds on and reinforces Jacobi and Sag's prior work about shifts in the dynamics of  SCOTUS oral argument. In an era of sharpening division and partisanship, justices have increasingly used oral argument to advocate rather than inquire. And the justices' use of humor at oral argument is of a piece. Just as justices' use of oral argument time to comment and advocate has increased dramatically in the modern era, so too has the [laughter]. In the 1950s and 60s, laughs were few and far between, and they were prompted nearly as often by advocates as by the justices. This mostly continued into the 1980s. But then, in the late 1980s and again in the mid-1990s, the pace of justice-triggered laughter escalated sharply. And it has stayed high.

There's more: at the same time, the patterns of justice-provoked laughter shifted significantly. Justices tend to draw more laughter during arguments with which they ultimately disagree. Put bluntly, they make jokes at the expense of advocates they oppose. This has mostly been true for most justices since 1955. But the "laughter gap" increased significantly in the mid-1980s and again in the mid-1990s. This too is consistent with the broader trends Jacobi and Sag have identified regarding the rise of judicial advocacy in SCOTUS oral argument. The justices also increasingly use humor as a signal of an advocate's weakness: they direct humor at advocates who are losing. This pattern too deepened in the mid-1980s and again in the mid-1990s. And the justices' use of humor reinforces hierarchy on another dimension: it is directly most often at novice advocates, particularly ones on the losing side. And when one looks at the quips that inspire laughter, the data make sense: a massive share of SCOTUS jokes involve putting advocates in their place. One example, from United States v. Kebodeaux

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Screen Shot 2019-03-20 at 6.37.35 PM

So humor in the contemporary Supreme Court is a sharp and serious tool. And Profs Jacobi and Sag have done sharp and serious work.

March 20, 2019 in Humor, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 5, 2019

When the law loses its way

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There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.

Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.

Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”

A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.

Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.

Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:

The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.

After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).

And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.

Not surprisingly, a long catalogue of abuses followed.

In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.

In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money -  donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.

In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.

More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.

These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.

Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.

Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.

(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)

March 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 12, 2019

Appellate Advocacy 101: On the Basis of Sex

Last night, I watched On the Basis of Sex with first-year law students.  Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972).  Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.

On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy.  The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument.  After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks.  Below are some of the lessons learned.

Appellate Practice Is a Lot of Work

Most of the movie occurs outside the courtroom.  Students saw Ginsberg meet with Moritz to discuss taking an appeal.  They saw her strategize with other attorneys about arguments.  She works with her husband, a tax attorney, and her staff and students at Rutgers Law School.  She researches, writes, and rewrites the appellant’s brief.  When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one.  She takes a settlement offer to her client.  Before oral argument, Ginsberg practices before a moot court and then before a mirror.  Ginsberg works hard.  The process takes a long time. 

Oral Argument Is a Little Scary

The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit.  Students noted how different oral argument looks from the trials they had seen on TV.  There is no jury.  A lone attorney stands before a panel of three judges.  They remarked how Ginsberg was nervous and awkward at first.  The judges directed the course of the argument.  They interrupted with questions. 

The students began to imagine what it will be like when they argue in April.  We discussed how preparation goes a long way toward easing nerves.  I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society.  I encouraged them to practice in front of a mirror like Ginsberg.  I shared that it is normal to be nervous, especially for your first argument.   

One Case Can Be Two Different Stories

The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code.  The law was clear.  Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man.  Had he been a woman, divorced, or a widower, he would have been eligible for the deduction. 

The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case.  The IRS portrayed Mr. Moritz as a tax cheat.  Ginsberg held him up as a loving and devoted son.  The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender.  Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.

During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped.  Ginsberg picked up on this point during her rebuttal.  She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change.  Students were struck by this exchange.  Each side used the same words to make two very different points.

At the end of the evening, students left our gathering excited, inspired, and a little nervous.  I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way.  Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers.  Through this movie, Justice Ginsberg is still doing just that.

February 12, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, February 8, 2019

Appellate Advocacy Blog Weekly Roundup February 8, 2019

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

The Supreme Court voted this week by a 5-4 margin to a Louisiana abortion law from going into effect pending appeal.  The law would have required abortion providers in Louisiana to have admitting privileges at nearby hospitals.  Justice Kavanaugh filed a dissent.  The Court's vote likely signals that the Court will hear the case during its next term.

Justice Ginsburg made her first public appearance since her recent hospitalization for cancer surgery, appearing Monday night at an event at the National Museum for Women in the Arts in Washington, D.C.

      

Federal Appellate Court Opinions and News:

Fifth Circuit Court of Appeals Judge James Ho authored a dissent this week in which he concluded that Title VII prohibitions on sex discrimination do not extend to prohibit discrimination against LGBT workers.

 

State Appellate Court Opinions and News:

In Texas, the chief justice of the Texas Supreme Court called this week for the state to do away with its system of electing judges by political party when he gave an annual speech to the state's legislature.

 

Practice Pointers:

The ABA's Council of Appellate Lawyers publication Appellate Issues is out with its January issue.  The issue features articles about the programming during the 2018 Appellate Judges Education Institute Summit from last November.

On #AppellateTwitter this week, Ross Guberman noted an interesting split between appellate attorneys writing "this appeal presents the issue whether a court . . ." vs. ". . . the issue of whether a court . . ."
     

February 8, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Wednesday, February 6, 2019

US Reports the easy way

DyG7jQTVYAAm8jqThe official U.S. Reports versions of Supreme Court opinions have been online for a long time. Seriously: all you need to do is cruise over to the Library of Congress's site, do some scrolling and some clicking to hunt down the volume you need, then do some more clicking and some more scrolling to get to case you need. Or, for relatively recent cases, you can go to the Supreme Court's site and do a slightly less elaborate click-and-scroll dance.

It's as tedious as it sounds.

That's why I'm celebrating scotuslink.com, a nifty little online service from Orin Kerr and a dev who goes by the Twitter handle of birds five underscores (@birds_____). The concept is simple: you go to the site, plug in the U.S. Reports citation, and get routed to a PDF copy of the case. The service generates the snarly URI required to get where you need to go in the LoC or SCOTUS catalogs. No searching or scrolling required. I've found it a big time/aggravation-saver for cite-checking and for diving into oldies like Chisholm v. Georgia

A nice bonus: the design and code are great: simple, clean, and thoughtful.

Dive in.

February 6, 2019 in United States Supreme Court, Web/Tech | Permalink | Comments (1)

Friday, January 25, 2019

Appellate Advocacy Blog Weekly Roundup January 25, 2019

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court News and Opinions:

The Supreme Court is out of session for a few weeks, now that the January sitting is over, although this week saw the issuance of some orders and decisions from last week's conference.

The Washington Post reported earlier this week about how the Court has maintained a relatively "low-key term," delaying taking up a variety of divisive issues such as immigration, abortion, and sexual orientation and gender identity, while also signaling some interest in other controversial topics like transgender service in the military and the Second Amendment.  CNN had a similar story.

Earlier this week, over the objection of the four more liberal members of the Court, the Justices allowed the Trump Administration's ban on transgender members serving in the military to go into effect while the issue is litigated in lower courts.  MSNBC had a report.  CNN also reported, noting the impact the Court might have upon the 2020 Presidential election.

On Tuesday, the Court granted cert in a case involving a challenge to New York City's limits on transporting personal firearms, bringing an opportunity for the Court to provide clarity on its Second Amendment jurisprudence.  With the shifting makeup of the Court now leaning more conservative, there is speculation that the Court will create a test for handgun restrictions that invalidates many local laws.  The case is New York State Rifle & Pistol Association Inc. v. City of New York. More about the case and what the eventual ruling  might  mean for the Second Amendment and gun regulations from the Atlantic and National Review.

Federal Appellate Court News and Opinions:

The Eighth Circuit Court of Appeals recently issued a decision in a case that provided some discussion of interest to appellate advocates concerning the procedural distinction between an appeal from a decision granting summary  judgment and a decision denying a motion for reconsideration and the respective standards of review.  The case is SPV-LS, LLC v. Transamerica Life Insurance Company.  Thanks to reader Ben Rand of Harris Beach for the tip about this opinion.  According to Rand (quoting one of the firm's attorneys): "The court focused procedurally on the appellant's efforts to conflate [the decision granting summary judgment and the decision denying reconsideration and the respective standards of review], and the Eighth Circuit carefully distinguished between the separate and distinct standards of review. If there were doubts in the Eighth Circuit regarding these concepts and related standards of review, the Eighth Circuit laid them to rest in this decision."

State Appellate Court News and Opinions:

The Arizona Supreme Court was scheduled this week to hear arguments in a case concerning how far business owners can go in refusing to serve customers because of their sexual orientation.  The case presents the question of whether the owners of a business can refuse to use their talents to design custom wedding invitations and other materials if the couple is of the same gender or whether they are required to serve the couple under a city of Phoenix ordinance barring places of public accommodation from sexual orientation discrimination.  More from Tucson.com. 

Practice Pointers:

Law.com had an article this week feature #AppellateTwitter's Neal Katyal and discussing how he handles juggling multiple and back-to-back appellate arguments.

Appellate Twitter's Matthew Stiegler had a blog post this week providing advice to lawyers preparing for their first-ever oral argument.

Appellate Job Postings:

The Constitutional Accountability Center has a posting for an Appellate Counsel position.

The California Office of the Attorney General has a posting for a Solicitor General position.

January 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, January 11, 2019

Appellate Advocacy Blog Weekly Roundup Friday, January 11

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

The Supreme Court heard arguments this week in Franchise Tax Board of California v. Hyatt.  The case, in which microchip inventor and multimillionaire Gilbert Hyatt alleged that a California tax board investigator had harassed him by peering through his windows and examining his trash, has been before the Court before. In 2003, the Court denied immunity to California’s Franchise Tax Board.  In 2016, the case was before the Court again, and at that time the Court split 4-4 on the question of whether to overrule Nevada v. Hall, a precedent that allows one state (and its agencies) to be sued in another state’s courts.  After a remand on damages, the case is now back, and with a full number of Justices, the Court will this time answer the question of whether to continue the precedent of Nevada v. Hall or overrule it.  Aside from the specific issue of states being sued in other states' courts, the case also holds implications for how the current makeup of the Court views precedent and the advisability of overruling it.

Read More:

This week’s SCOTUS101 podcast featured discussion about Justice Ginsburg’s absence from oral argument, Justice Kavanaugh’s first opinion, and an interview with #AppellateTwitter’s Sean Marotta.

Listen:

This week’s practice pointers come courtesy of the 2018 edition of the Georgia Bar Journal, in which #AppellateTwitter’s Chief Judge Dillard of the Georgia Court of Appeals was interviewed.  Tessa talked about it at length in her post on this blog earlier this week.

Read More:

January 11, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, November 2, 2018

Appellate Advocacy Blog Weekly Roundup Friday, November 2

 

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court Opinions and News:

The Supreme Court has proposed a number of revisions to the Court’s Rules and has invited public comment.  Among the highlights are proposals to lower the maximum word count on merit briefs and tighten filing deadlines.  See more HERE.  

This week the Court denied entry to court to a tribal leader wearing a headdress, making headlines.   Read the story HERE.  The tribal leader, Yakama Nation Tribal Council Chairman JoDe Goudy, was attempting to enter court to hear arguments involving a treaty between his tribe and the federal government, and he insisted on wearing his tribal regalia.  Representatives of the Court indicated that Goudy had been notified ahead of time that head coverings are only permitted in the courtroom for religious or medical reasons.

Justice Sandra Day O’Connor’s announcement that she is withdrawing from public life in the wake of early onset dementia continues to ripple through the legal community; her impact on the American legal landscape really can’t be overstated.  The Washington Post had this opinion piece.  

 

State Appellate Court Opinions and News:

On Thursday this week, the Nebraska Supreme Court heard oral argument in a case involving the Keystone XL Pipeline.  A link to video stream is available HERE

State courts involved in impeachment battles may mark a worrying new trend to challenge judicial independence and legitimacy:  Story HERE.

November 2, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

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Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

Special thanks to Alison Doyle for her help with this blog post.

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)