Saturday, December 27, 2014

Reading Your Oral Argument: A Cautionary Tale

Here is the opening argument of the petitioner’s attorney in Marvin Brandt Revocable Trust v. United States, 572 U.S.___(2014). Note Justice Scalia's question and how Justice Breyer came to the poor attorney’s rescue:

ORAL ARGUMENT OF STEVEN J. LECHNER ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument next in Case 12-1173, Marvin Brandt Revocable Trust v. United States.

Mr. Lechner.

Steven J Lechner: Mr. Chief Justice, and may it please the Court:

If upheld, the decision below will upset 100 years of property law and title to perhaps a million acres of land, based upon an implied reversionary interest that the government recently created.

I would like to make three points: First, the decision below violates Leo Sheep, where this Court rejected the government's attempt to create a property interest through implication and reaffirmed that the government does not retain any interest not expressly reserved in the patent or the granting statute.

Two, the decision below is contrary to both the government's argument and this Court's ruling in Great Northern that 1875 Act rights-of-way are easements and are not fees.

And finally, the decision below is inconsistent with the Department of Interior's longstanding interpretation that the 1875 Act granted only an easement.

It is axiomatic that the highest evidence of title in this country is a patent from the government.

When the government issues a patent, it divests itself of title except for those interests expressly reserved.

Here, the patent did not reserve any interest in the 1875 Act--

Justice Antonin Scalia: Counsel, you are not reading this, are you?

Justice Stephen G. Breyer: It's all right.

After Justice Breyer’s words, the attorney continued with his argument.

(ljs)

 

https://lawprofessors.typepad.com/legal_skills/2014/12/reading-your-oral-argument-a-cautionary-tale.html

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