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Application (22A902) granted by the Court. The application for stay presented to Justice Alito and by him referred to the Court is granted. The April 7, 2023 order of the United States District Court for the Northern District of Texas, case No. 2:22-cv-223, is stayed pending 1/x
disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is 2/3
granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Thomas would deny the application for stay. Justice Alito dissents. (Detached Opinion) 3/3
#appellatetwitter #lawtwitter #lawfare
#appellatetwitter #lawtwitter #lawfare
A š§µ:
Representation matters.
Seeing someone who looks like you in a position of authority is empowering.
#RepresentationMatters #appellatetwitter #lawtwitter
1/4
Representation matters.
Seeing someone who looks like you in a position of authority is empowering.
#RepresentationMatters #appellatetwitter #lawtwitter
1/4
Not only can it inspire you to pursue a similar career, but hearing from such speakers can give you valuable insights into how to triumph over challenges & opportunities you may encounter.
This is why we hold so many judicial brown bags every year for our students.
2/4
This is why we hold so many judicial brown bags every year for our students.
2/4
During these sessions, state and federal judges speak to a small group of students and answer their questions.
Over the past few weeks, we've been honored to have been joined by judges from the Seventh and Eleventh Circuits, DC Court of Appeals,
3/4
Over the past few weeks, we've been honored to have been joined by judges from the Seventh and Eleventh Circuits, DC Court of Appeals,
3/4
āØAttn law students & junior lawyers interested in clerking at the U.S. Court of Appeals for the Federal CircuitāØ
I'm moderating a FREE webcast on April 10 with three fabulous recent law clerks who will discuss how to get a clerkship and what the role is likeš
I'm moderating a FREE webcast on April 10 with three fabulous recent law clerks who will discuss how to get a clerkship and what the role is likeš
The esteemed panelists are Angela Gao of Williams & Connolly, Haley Tuchman of Jenner & Block, and Frances Zhang of Ropes & Gray.
The webcast is co-sponsored by two orgs dear to my ā¤ļø: the Federal Circuit Bar Association and
@AppellateProj
The webcast is co-sponsored by two orgs dear to my ā¤ļø: the Federal Circuit Bar Association and
@AppellateProj
Bonus: all law students who register get a complimentary FCBA student membership that remains valid until one year after graduationšš
Registration link & details: fedcirbar.org/Programs-Sponsā¦
Registration link & details: fedcirbar.org/Programs-Sponsā¦
Good morning! Will Milliken here. Iām a director in Sterne Kesslerās Trial and Appeals Group and co-chair of the firmās Appellate Practice. Iāll be providing real-time analysis of todayās #SCOTUS argument in #Amgen v. Sanofi.
#AppellateTwitter #SCOTUSLive 1/
#AppellateTwitter #SCOTUSLive 1/
The #Amgen case concerns the standard for the patent-law requirement of "enablement," found in section 112 of the Patent Act. 2/
Under the enablement requirement, a patent must contain enough information to allowāor āenableāāpeople of ordinary skill in the relevant field to reproduce what the inventor claims to have invented. 3/
#SCOTUSš§µIn 2014, police task force members misidentified James King as a criminal and brutally beat him. The officers never identified themselves, so bystanders believed they were witnessing a murder and called 911. Today, @IJ filed cert (for the 2nd time). #AppellateTwitter 1/ 
Litigation for the past 9 years(!) has been a case study in immunity doctrines, and has already been to the U.S. Supreme Court in Brownback v. King. I'll walk through that, but lets start with James telling his story: 2/
To begin, Mich. prosecutors charged *James* with multiple felonies. So at 21 he had to stand trial and face decades in prison. If the gov't can get a plea or conviction, most constitutional claims against police die. Thankfully, a jury acquitted James (and he refused to plea). 3/
At today's preliminary injunction hearing, Judge Matthew Kacsmaryk "applauded the 'excellent, superb' arguments from both sides, saying it was a 'smorgasbord of appellate-grade work.'" 1/
texastribune.org/2023/03/15/fdaā¦
texastribune.org/2023/03/15/fdaā¦
Kacsmaryk seems to have an appellate court fetish. At last Friday's conference, Kacsmaryk asked the parties not to publicize today's hearing to avoid "any unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding." 2/
But hearings like today's should not be like oral argument at a federal appeals court. The 5th Circuit requires courts to consider questions of fact and law in resolving preliminary injunction motions. 3/
What does a brief look like when a dozen legal writing superstars (from @wilsonsonsini, Williams & Connolly LLP, and others) team up to write it?
Google's brief in Gonzalez.
We read a ton of legal writing, and Lisa Blatt and her team created magic here.
Let's see how. 1/x
Google's brief in Gonzalez.
We read a ton of legal writing, and Lisa Blatt and her team created magic here.
Let's see how. 1/x
What makes this brief so special is that it's a tour de force in a tricky (but powerful) technique: Emotional priming.
YouTube was accused of recommending ISIS terrorist videos to users. So the crack-shot team knew they had to do some emotional work before the legal stuff.
YouTube was accused of recommending ISIS terrorist videos to users. So the crack-shot team knew they had to do some emotional work before the legal stuff.
Let's start with the big picture. Because priming requires you to first figure out your end goalsāwhat are the emotional or ideological targets you're aiming for?
It's worth reading Google's introduction with this in mind. But here is some of what they may have shot for:
It's worth reading Google's introduction with this in mind. But here is some of what they may have shot for:
A nice example of police testilying from the 5th Circuit. #appellatetwitter
drive.google.com/file/d/1ipnvuZā¦
"Ducksworth was charged with disorderly conduct and resisting arrest." 1/
drive.google.com/file/d/1ipnvuZā¦
"Ducksworth was charged with disorderly conduct and resisting arrest." 1/
"At Ducksworthās municipal trial Landrum submitted an affidavit claiming that Ducksworth unlawfully refused to follow Landrumās commands to leave the car wash." 2/
"But on the stand, Landrum admitted that this affidavit was inaccurate because he had not ordered Ducksworth to leave the premisesāonly Welch had." 3/
We had #ChatGPT write a legal brief.
But instead of giving it a simple open-ended prompt, we taught it how to use some of the techniques used by the best legal writers in the world.
Check out what it came up withāif only more legal writers wrote this well. 1/x
But instead of giving it a simple open-ended prompt, we taught it how to use some of the techniques used by the best legal writers in the world.
Check out what it came up withāif only more legal writers wrote this well. 1/x
To celebrate the upcoming launch of Write.law's new AI legal writing practice, we had our team work with GPT to write a motion from start to finish.
All we used was a simple list of factual details, some legal research notes, and our teams' prompts.
2/x
All we used was a simple list of factual details, some legal research notes, and our teams' prompts.
2/x
If you'd prefer an interactive version of the whole motion (complete with breakdowns of how we got GPT to craft each part of the motion) check it out here: write.law/writing-walkthā¦
Ok, let's break it down!
3/x
Ok, let's break it down!
3/x
šAre you a junior law firm lawyer? Will you be in the years to come? Do you mentor junior lawyers?
Then listen to Ep. #098 of #HowILawyer featuring:
ā¢ Sean Marotta (@smmarotta from @HoganLovells) &
ā¢ Michelle Strowhiro (@strowhiro from @McDermottLaw)
Link š
Then listen to Ep. #098 of #HowILawyer featuring:
ā¢ Sean Marotta (@smmarotta from @HoganLovells) &
ā¢ Michelle Strowhiro (@strowhiro from @McDermottLaw)
Link š
These lawyers are so thoughtful about mentorship and building our profession. I learned SO much from this awesome episode.
I am so grateful to Sean and Michelle for their candor and advice. Great chance to hang with #lawtwitter #appellatetwitter #pentwitter all stars.
I am so grateful to Sean and Michelle for their candor and advice. Great chance to hang with #lawtwitter #appellatetwitter #pentwitter all stars.
1/ Robin Keller, until recently a retired equity partner at @HoganLovells who was still serving clients, writes for @WSJopinion about how the firm fired her for defending the #SCOTUS decision in Dobbs (which overruled Roe and Casey).
bit.ly/3gIQT8v
bit.ly/3gIQT8v
2/ For background, here's a July 2022 story by @Kathryn1 for @ATLblog about the controversial call where Robin Keller shared her views on Dobbs and abortion. Keller was suspended soon after.
bit.ly/3XIdwKI #SCOTUS #lawtwitter #appellatetwitter
bit.ly/3XIdwKI #SCOTUS #lawtwitter #appellatetwitter
3/ I expect I'll have more to say about Robin Keller and Hogan Lovells later.
For now, see my Notice and Comment post from last month, "Can A Conservative Work In Biglaw," and the almost 100 comments it garnered.
bit.ly/3U42vkp
For now, see my Notice and Comment post from last month, "Can A Conservative Work In Biglaw," and the almost 100 comments it garnered.
bit.ly/3U42vkp
Two executions are scheduled for today in the US:
ā¢ Arizona seeks to kill Murray Hooper this afternoon.
ā¢ Texas seeks to kill Stephen Barbee this evening.
Both have applications for a stay of execution pending at #SCOTUS, which has not been receptive to most such requests.
ā¢ Arizona seeks to kill Murray Hooper this afternoon.
ā¢ Texas seeks to kill Stephen Barbee this evening.
Both have applications for a stay of execution pending at #SCOTUS, which has not been receptive to most such requests.
Two other states have executions scheduled for tomorrow, for a total of four executions scheduled for this week:
ā¢ Oklahoma seeks to kill Richard Fairchild.
ā¢ Alabama seeks to kill Kenneth Smith.
ā¢ Oklahoma seeks to kill Richard Fairchild.
ā¢ Alabama seeks to kill Kenneth Smith.
BREAKING: #SCOTUS will not stop Arizonaās 10a MT/noon ET scheduled execution of Murray Hooper.
Good morning! Will Milliken here. Iām a director in Sterne Kesslerās Trial and Appeals Group. Iāll be live-tweeting todayās #SCOTUS argument in Andy #Warhol Foundation for the Visual Arts v. Goldsmith.
#AppellateTwitter 1/
#AppellateTwitter 1/
The #Warhol case concerns the scope of the āfair useā defense to copyright infringement, and, specifically, whether Andy Warholās āOrange Princeā work is a fair use of the Lynn Goldsmith photograph on which it was based. 2/
Ok, I promised I was going to tell a story about a case I've been working on. I said I'd wait a couple weeks but I can't wait. Buckle up. This is about the police and 4A violations. Full disclosure: Iām telling this story as an advocate for Mrs. W. 1/ #AppellateTwitter
One night around 2am, police get a 911 call about "trespassers." When they show up, they find out it's a 22yo woman in a nice suburban neighborhood, calling to complain about her 14yo brother's friends, who came over looking for him (and for a āgrinderā) when he wasn't home. 2/
One of these 14yos lives next door, which is where the boys went when they left. The officers laugh with Mom, about Big Sister's attempt to get Little Brother and his friends in trouble. Then they offer to go next door and give the boys a "scare." 3/
A disappointing update in Dawson, where @BryanLammon and I filed in support of rehearing regarding the Rule 3(c) amendments. #CA10 today amended the opinion, saying in a footnote that the amendments are not retroactive. And denied our motion for leave to file.
#AppellateTwitter
#AppellateTwitter
āļøThis week many law students start On Campus Interviewing.Every single interview will end with āwhat questions do you have for meā?
Some of my favorites š§µš
Some of my favorites š§µš
0/ But before we start some reminders.
ā¢ Questions are part of the interview. You are still being assessed.
ā¢ This wonāt be your last opportunity to ask questions so be strategic.
ā¢ Ask questions that show interest (ask questions that show hesitation post offer)
ā¢ YMMV
ā¢ Questions are part of the interview. You are still being assessed.
ā¢ This wonāt be your last opportunity to ask questions so be strategic.
ā¢ Ask questions that show interest (ask questions that show hesitation post offer)
ā¢ YMMV
1/ Good āwhat questions do you have for meā questions
ā¢ Teach you about firm culture
ā¢ Show interest in firm
ā¢ Demonstrate youāve done research in advance
ā¢ Lets the interviewer talk about their favorite parts of job
ā¢ Open up new opportunities for you to talk about yourself
ā¢ Teach you about firm culture
ā¢ Show interest in firm
ā¢ Demonstrate youāve done research in advance
ā¢ Lets the interviewer talk about their favorite parts of job
ā¢ Open up new opportunities for you to talk about yourself
In #QualifiedImmunity news, a 2-1 5th Cir. granted QI to a group of Castle Hills, TX officials who conspired to throw @IJ client and then-72yo Sylvia Gonzalez in jail for exercising her #FirstAmendment rights to speech and petition. #AppellateTwitter
š§µ 1/
ca5.uscourts.gov/opinions/pub/2ā¦
š§µ 1/
ca5.uscourts.gov/opinions/pub/2ā¦
More specifically, the court held that because there was probable cause for a made-up misdemeanor charge, it did not matter that the mayor, police chief, and others conspired to have Syliva jailed for speaking out. (The decision represents a narrow interpretation of Nieves.) 2/
Although @IJ and Sylvia proved that, over a decade no one in Bexar Cnty. TX has EVER been charged under the statute used to charge Sylvia for similar conduct, the only sufficient evidence is proving a negative; find people who jaywalked and DIDN'T get a ticket. (Impossible.) 3/
Iām gonna say this before things get out of hand on legal SCOTUS. B/c it is true that many brilliant attys & profs, especially women, have been predicting this moment since 2018. The voices of the ācalm downā folks (largely men) were given greater prominence and credibility.
#AppellateTwitter presented the Court and the cases that many of us were litigating as just part of the elaborate secret world of elite litigators. They assigned complex, tactical motives to the Courtās every decision & assumed good faith.
So let me make sure weāre clear that it was civil rights lawyers who have been ringing the alarm for DECADES. When many focused on Robertsā brilliance & charm. When we took heat from our own community & opposed Justice Thomas BEFORE the Anita Hill allegations.
Today, SCOTUS once again holds Bivens, which says you can sue federal agents for violating the Constitution, cannot be extended.
Bivens, more than any other case, shows the difference between liberal and conservative legal thinking. 1/ #appellatetwitter
supremecourt.gov/opinions/21pdfā¦
Bivens, more than any other case, shows the difference between liberal and conservative legal thinking. 1/ #appellatetwitter
supremecourt.gov/opinions/21pdfā¦
The basic problem is that oftentimes money damages is the only possible remedy for a violation of your constitutional rights. For instance, if the government ransacks your house and you are innocent, you won't get prosecuted, but your house is still ransacked. 2/
Because there's no prosecution, you can't take advantage of the exclusionary rule and get unlawfully seized evidence thrown out. So as Justice Harlan said, "it's damages or nothing"- either you can recover damages, or you are just stuck with a violation of your rights. 3/
Colorado prosecutors falsely accused defendant of rape, convicted him, destroyed DNA evidence that could have exonerated him, and when the actual rapist confessed, threatened HIM with perjury charges, causing him to recant. 1/ #appellatetwitter
ca10.uscourts.gov/sites/ca10/filā¦
ca10.uscourts.gov/sites/ca10/filā¦
Eventually, when the real rapist once again confessed, forcing a vacation of the defendant's conviction, the Colorado prosecutors tried him again! This time, the jury acquitted him. This guy spent approximately TWENTY SEVEN YEARS in prison. 2/
That included 20 years after the destroyed DNA test, and three years after the prosecutors threatened the perjury charge against the confessor. Held, his 1983 suit was properly dismissed- no constitutional violations. 3/
1/ #lawtwitter #appellatetwitter W all the talk of overruling, Iām wondering about what it actually takes to overrule a precedent. I mean, does just saying āwe overruleā do the job? Or must the overruling case actually hold a rule of lawā¦
2/ thatās incompatible with the rule (not the policy outcome) of the case said to be overruled?
My curiosity on this was piqued by realizing how Barnette said multiple times that it overruled Gobitis, but obviously didnāt, bc it dealt with a sharply distinct issue. ā¦
My curiosity on this was piqued by realizing how Barnette said multiple times that it overruled Gobitis, but obviously didnāt, bc it dealt with a sharply distinct issue. ā¦
3/ Any other pairs of cases like this? Anyone written on this?
Assuming no oneās used it already, I dibs the title āHow to Overrule Without Really Succeeding.ā
Assuming no oneās used it already, I dibs the title āHow to Overrule Without Really Succeeding.ā
1/ THREAD. Here's my "explainer" about the leaked draft #SCOTUS opinion in Dobbs, the major abortion case, which @Politico published last night.
bit.ly/3s90aZU #appellatetwitter
bit.ly/3s90aZU #appellatetwitter
2/ Yes, it's a huge breach of #SCOTUS confidentiality, unlike anything I've seen in my 25 years of following and writing about the Court. (And it's a huge scoop for @alexbward and @joshgerstein of @Politico; whoever leaked to them put a lot on the line.)
3/ Please note: my post is about the leak itself, not the substance of the opinion or underlying issue of abortion.
For a reader's guide to the opinion, here's one by @EdWhelanEPPC, with page references to different sections:
bit.ly/3kA8q0N
For a reader's guide to the opinion, here's one by @EdWhelanEPPC, with page references to different sections:
bit.ly/3kA8q0N
1/ I realize @ProfDBernstein is speaking tongue in cheek, but I do like how district judges sometimes share draft dispositions with the parties and let them point out factual errors, analytical issues, and the like. #SCOTUS #appellatetwitter
3/ Clarification: @ProfDBernstein is serious. š
I do think this presents some logistical challenges, including crazy lobbying after the release of initial drafts in controversial cases, but it's an interesting thought experiment.
I do think this presents some logistical challenges, including crazy lobbying after the release of initial drafts in controversial cases, but it's an interesting thought experiment.
I will leave it to you to decide whether you think this is right or not, but the fact the Boston flag case is unanimous reflects the death of an Establishment Clause theory that a lot of people have asserted for a long time. 1/ #appellatetwitter
supremecourt.gov/opinions/21pdfā¦
supremecourt.gov/opinions/21pdfā¦
That theory is the notion that the government is barred by the First Amendment from having any religious expression come out of its metaphorical mouth at all. It's a theory that has longstanding roots. 2/
Go back to the first school prayer case, Engel v. Vitale. There, SCOTUS held that public school teachers couldn't lead prayers in class. Nowadays we'd interpret that as a prohibition on religious coercion, but at the time, many people thought it stood for a much broader rule. 3/
