Appellate Law & Practice

Blawg Review #117.

Austin Criminal Defense hosts Blawg Review #117. You need to stop whatever you are doing and read it. Now! Seriously! If you read this far, you are not listening! Sheesh.. kids these days.   

News flash: Rehnquist Was Not A Good Man

• Tnx C&F.  I, am, like, totally shocked to find out that he was a racist.  Of somewhat more interest, is whether people will start to argue that decisions which he either authored, or cast a deciding vote are of less value, because of his racism and drug use.  (And, just so you don’t call me a political hack, I state emphatically that Justice Roberts is a good man.  Even though I disagree with him on some things, he is smart, capable, and as close to moral as you can get.)
• ACS’s weekly bulletin presents well-documented some judicial dirt on the Michigan Supreme Court.  Apparently, people are calling each other children, and unfit to be justices.  From the memos posted, it seems that these people are overdoing the politics.  However, the people of Michigan like a politicized Supreme Court, and it is their democratic choice.  Take a look at this dissent.  The bulletin writes, "Also among Justice Weaver’s concerns is an internal court memo in which Chief Justice Taylor described her as a “petulant ‘only child” who is “holding her breath’ until she gets her way.”  Why do judges even bother to talk about congeniality, when this is the way they think about each other.  "

La. Supreme Court to begin webcasting oral argument

Yesterday, the Louisiana Supreme Court announced that this month, the court will begin live webcasts of oral argument:

According to John T. Olivier, Clerk of Court, and Peter Haas, the Louisiana Supreme Court’s Information Technology Director, the stream is provided using a series of three cameras located in the courtroom, which allows for likenesses of the full bench, an individual Justice, and the attorney addressing the Court to be broadcast in real time.

Oral arguments at the Louisiana Supreme Court are scheduled every six weeks, with the next arguments running Tuesday, January 16 through Friday, January 19, 2007. Usually, there are two sessions of arguments each day, beginning at 9:30 a.m and again at 2:00 p.m (There will be no morning session on Tuesday, January 16, 2007 and no afternoon session on Friday, January 19, 2007.)

To view the web broadcast, visit www.lasc.org and look for the icon.

The price of rights

SL&P has an interesting post and comment thread on the issue of whether attorneys for criminal defendants are out of their league when arguing before the Supreme Court, and are unprepared or file briefs that are not comprehensive?

This raises a few issues:

1. If the U.S. Supreme Court is so great, why does the quality of advocacy matter?;
2. Why is it that I constantly hear judges tell lawyers not to file long briefs, and to not mention certain issues?  (Is it because they are not as smart as the judges on the US Supreme Court, who will always get long, comprehensive briefs – at least from the party that seeks to jail or execute people with greater ease.);
3. Why does Law.com seem to always reach the conclusion that lawyers for large firms or the government are genetically superior, even if they are first-timers at the Supreme Court;
4. Should the U.S. Supreme Court institute real qualifications for its bar.  For example, should it require that all counsel have “substantially prevailed” in at least five cases from Circuit Courts of appeal, and that in two of those cases, the counsel obtained a reversal of the lower court, and that in at least two of those cases, counsel represented someone besides the government?

Luttig resigns

Story here.  Now who will we get to explain how the executive can do whatever it wants?

CA1: homophobia on habeas coming to the First

The Gay News Blog has an interesting post entitled, “Gay-history experts could free man convicted of murder 25 years ago.”

The post states that:

On May 5, the US Court of Appeals for the First Circuit will hear arguments in Wayne Blyth Healy v. Luis Spencer… Healy’s lawyer, Wendy Sibbison, is a relatively new legal tactic that uses historical and literary scholarship to help judges and juries better understand how the culture of the past influenced courtroom decisions…. Not only had the state prosecutor used a blatantly homophobic strategy that emphasized a “homosexual element to the murder,” argued [US District Court Judge Michael A.  Ponsor], but the state also suppressed (either intentionally or not) vital evidence that no sexual encounter had taken place.

GNB gets the name of the District Court judge wrong, but you can read the DCT's 112-page order regarding an evidentary hearing here.

CA1: Selya’s Replacement

Senator Lincoln Chaffee recommends former Justice Robert G. Flanders, Jr. of the Supreme Court of Rhode Island to replace Selya.  I wonder if this means that there won't be as many big words used in the First.  Tnx CA1FDblog

You can read about all the stock he owns here.

Here we go again

Scalia seems to tip his hand regarding detainee procedures. (Though in Hamdan, the petitioner isn’t seeking a “full” jury trial.) I guess it remands to be seen whether Scalia will recuse himself, declare that it is acceptable to prejudge cases , or make a mental note to stop talking to non-lawyers.

 

CAFED: Who wears the semi-pants?

In Re Joanne Slokevage, 05-1389.  Like most of you, I live in fear of America falling into moral decay.  This case finds that some pants are not entitled registration as a trade dress mark.  I don’t really know what that means because I was absent the day they taught IP, but I know that the opinion includes the following graphic of the pants.

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation.

Their website says that their product is "So unique, it is patented."  I forgot how I learned about this, but DoTD has some substantive commentary as does TTABlog.  See the motion decision on reconsideration  at the PTO here.

Attention Louisiana appellate lawyers

The Louisiana State Bar Association has created an Appellate Section, which you can join for a measly $15. According to the recently mailed section-membership application:

The purpose of this Section is to provide a forum to study and discuss appellate-practice issues; to disseminate information regarding recent developments in this area to the mebers of the Association; and to establish liaison with the appellate courts covering Louisiana to further the rule of law, and improve the administration of justice and the practice of law before the appellate courts.

The section-membership applications have been mailed out; they must be returned by March 31 with section dues. If you're interested in the Appellate Section and its goals, please check off the "Appellate" box on the form before you return yours. You can also join by visiting the LSBA web site, clicking on Membership, then clicking on Section Member Application.