Appellate Law & Practice

CA1: first cleans up on immigration

The First cleans up its immigration docket, denying petitions for review from Albanians, Indonesians, Hatians, and Pakistanis.

• Vaka v. Gonzales, No. 05-2802 (unpublished) is a case of an Alabanian not showing that the political oppression was really that bad.
• Heydemans v. Gonzales, No. 05-2529 (unpublished) denies a petition for review of Indonesian Christian because the petition for asylum was untimely.  No specifics are given, except that information was included with the brief that wasn’t included below.
• Abdullah v. Gonzales, No. No. 05-2023, involves the asylum claim of a Pakistani, and his motion to reopen.  The First appears to bend over backwards to help the BIA, which found that the arguably newly discovered evidence didn’t change things.  As to the substance of the matter, the court accepts the determination that this allegedly politically oppressed person could have found refuge elsewhere in Pakistan.
• Jean v. Gonzales, No. 05-2724, affirms the conclusion that things have gotten better in Haiti for opponents of Aristide.
• Bollanos v. Gonzales, No. 05-2791, affirms the conclusion that there are changed circumstances in Albania.

CA1: nothing doing

They must be eating beans or chowder or something in Boston.  This explains the lack of opinions, and the reason for my extraneous posts.

Council of Appellate Lawyers and Appellate Judges Summit

The ABA's Council of Appellate Lawyers and Appellate Judges Conference are putting on a joint program for lawyers and appellate judges. The program will be held in Dallas on November 9-11, 2006. Usually the attendance is split around 50-50 between judges and lawyers, so if you're a lawyer who likes face time with judges, or a judge who likes face time with lawyers, then you'll enjoy this program. (An anecdote: A lawyer friend of mine who attended this conference a couple of years ago found himself sharing a taxi with a Third Circuit judge by the name of Alito.) If you're interested in registering, click here to download the brochure.

9th Circuit appellate workshop

Here is a brochure for an appellate-practice workshop being offered by the Federal Bar Association and the Ninth Circuit Court of Appeals. To participate in this workshop, you have to write a short brief — "filing" deadline is September 15. The workshop itself will be held on the afternoons of October 25–26 at the Ninth Circuit courthouse in San Francisco. There, an appellate judge or experienced appellate lawyer will critique your brief. There will also be presentations on brief-writing topics and, on the second afternoon, a mock oral argument of the case.

Competitive law review writing

I recently started writing another law review article.  No particular reason.  But, because people in private practice only see marginal rewards for writing one's sixth, seventh, or eighth article, I was thinking of ways to get motivated to write law review articles.

Has anyone thought about the possibility of a law review article writing competition?  The rules would go something like this:

• All work must be done in 24 hours on a computer with only access to WL and a bluebook.  No other internet sites may be accessed.   Participants are provided with a computer and printer.
• All sleeping and eating must be done in public – that is: cots and cafeteria food and coffee.  Those leaving the arena (e.g. a convention center) would not be allowed back in.
• Organizers reserve the right to watch people use the bathroom.  (Like bar examiners.)
• No outside assistance is allowed.  Use of a cellphone results in automatic disqualification.  Provisions would be made for security details of VIPs.
• Only associates with one year or more of experience are eligible.  No professors are eligible.  But, perhaps there should be special divisions for professors, judges, and political appointees.  We would get to see how smart Kozinski and Thomas really are.  There is no reason for a law student’s division.  Team competition is definitely out of the question.

It would be like a big "write-on" competition for law journals yet without the immense amounts of tacitly approved cheating.

Scoring would be based upon the sum of the rankings of the acceptances received in the first two months after the articles are dispatched.   (E.g. a paper that is accepted at Yale and Stanford LRs receives a score of 385, because Yale is the 193rd lowest school, and Stanford is the 192d lowest school, etc.  Specialty journals are scored 25 points below the main law review, and in no event less than one point.)

The prize would be a set of steak knives, two weeks in Philadelphia, or a Porsche to be donated to the winner's favorite charity.

CT: Having an unpopular kid isn’t a crime (a treatise on constitutional vagueness)

Lawyers thrive on being accepted by others. It is very important to be “well-groomed” and maintain a clean appearance. Not doing this would mean that people would have an excuse not to like us. If we are not liked we might get sad and kill ourselves. These are the facts of life. Therefore, any parent that lets the kid go to school in a manner that doesn’t show good grooming, is risking their kid’s life, because he might get teased and kill himself.  The fact that the parent works full-time at Walmart is no excuse. The kids must have tip-top hygene, and not have “slightly offensive” smell. The house must be tidy.

Well, that is what a prosecutor in Connecticut thought. And a jury found, and convicted the defender for “risk of injury to a child in violation of [Connecticut] General Statutes § 53-21 (a) (1).” And a judge accepted.

At long last, the Connecticut Supreme Court reverses in CT v. Scruggs. Relying on an unpreserved constitutional claim, the court holds that, the state must show the “statute is unconstitutionally vague because it did not provide her with adequate notice of the line dividing lawful conduct from unlawful conduct in this context.”

The end of PMBR?

Odds are, if you are reading this, you are a lawyer. If you are a lawyer, you passed the bar. Many, if not most of you credit your success to PMBR (although you may tell people that you just looked over the freely available tests.) Anyway, Judge Fullam has decided (adjudication) that PMBR not only copied most of its questions from the actual bar exams, but it can’t do it.

This makes me so angry. PMBR actually teaches people the distinctions that make the law go around. Many people that went to top law schools graduate without knowing what sort of distinctions matter. PMBR remedies that.  Now, what I wonder is whether people are going to be howling about this as much as they howled about how it was “wrong” for a judge to determine that warrantless wiretapping just might violate the constitution or the FISA. This is far more important as it goes to the very heart of democracy: lawyers and how they understand the law. Without a bar chock full of lawyers that understand distinctions, there wouldn’t be much point in our country, anyway.

There are a few bizarre things about the MBE and this decision, but you can read them below:

La. Supreme Court upholds 1-year extension of statute of limitations on Katrina/Rita insurance claims

This year, the Louisiana Legislature added a year to what was a one-year prescription (statute of limitations) on insurance claims, specifically for claims arising from Hurricanes Katrina and Rita. Yesterday, the Louisiana Supreme Court upheld the legislation against constitutional attack. Justice Traylor, for a unanimous court, wrote, "We exercise our supervisory authority in an expedited manner to determine whether Acts 2006, Nos. 739 and 802, which extend the prescriptive period under which certain insurance claims arising from Hurricanes Katrina and Rita may be filed and which may alter the insurance contractual provisions regarding the time period in which to bring a claim, are constitutional. After review of the relevant state and federal law, we find that the legislative acts at issue are constitutional." State v. All Property and Casualty Insurers Authorized and Licensed to Do Business in the State of Louisiana, No. 2006-CD-2030 (La. 8/25/06).

The case's route to and through the supreme court is unusual. As noted on pages 4-6, on August 17 the state attorney general petitioned the supreme court for a supervisory writ before the district court heard the matter, due to the urgency–the anniversary of Katrina was then just two weeks away. The supreme court granted the writ and ordered an expedited decision by the district court no later than Wednesday, August 23, after which either side could petition the supreme court for immediate review, bypassing the intermediate appellate court. The district court complied, issuing its decision on August 23. Briefs in the supreme court were due by 4:00 p.m. Thursday, August 24, with oral argument held Friday, August 25, at 9:30 a.m. The supreme court's decision came out that evening. Applications for rehearing were due today (8/26) at noon Central time.

CA1: Columbian loses asylum bid

Berrio-Barrera v. Gonzales, No. 06-1294. In this case, the petitioner, from Columbia , claims to have been kidnapped by one of the many groups in Columbia who kidnap people and might have some connection to some political party. The IJ held that no nexus was shown between the kidnapping and his views, and therefore, since there was no objective showing of persecution, he must have been kidnapped for money, albeit by a political group. His claim that he was part of an oppressed social group fails, because he didn’t develop it below. There is one procedural wrinkle that is cause for, uh, pause:

Because the BIA adopted and affirmed the IJ's decision, but also added an additional ground, this court reviews the IJ's decision as though it were the BIA's to the extent of the adoption, and the BIA's decision as to the additional ground.

This may indicate that petitioners don’t have a chance to contest any additional grounds the BIA might have come up with.

CA1: Bangladeshi beaten, but not oppressed

Ali v. Gonzales, No. 05-2490 (unpublished) (8/25/06).  The petitioner, a Bangladeshi, was beaten by some protesters from a different political party.  This, apparently, doesn’t count as political persecution, and he didn’t show why.  Everything else that happened to him, is considered not to be closely-enough connected to his political beliefs.