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The 5th Cir.'s en banc dueling opinions about qualified immunity are a must read.

Here's a bit of Justice Willett assailing the doctrine as "insulating incaution." His dissent starts on page 45.…
Er... that should be "Judge Willett."

Old habits...
Judge Willett also responds to the apparent swipe at him from Judges Oldham and Ho, the other Trump judges interested in originalism.

They too dissented here, but disagree with Willett's position on qualified immunity.
Read 4 tweets
In today's criminal justice news, the NC Court of Appeals has *withdrawn* its decision last week in NC v. Ellis – the opinion that held flipping off a cop could be reasonable suspicion to be pulled over

Link here:
The panel is retaining jurisdiction, so they'll try again I guess?

Any insights on this procedure-wise, @NC_CyberLaw?
Read 9 tweets
With @RachelGurvich & @smmarotta‘s indulgence, I want to do a pre-#practicetuesday breakout session for new law clerks. The season for clerk rollover has begun. After three years of clerking - some fresh out of law school, some after practicing - I have opinions.
Let me start with some practical day-to-day tips on doing the job, then let me turn to getting the most out of the job.
Practical Tip #1: Your job is to help get the right legal answer. At some point, Party A will say the law is X, Party B will say it’s the opposite of X, and neither will cite anything. You will have to figure that out. That's your biggest value-added as a clerk.
Read 23 tweets
1/ Thread. Here are some of my appellate litigation rules. I try not to repeat stuff I’ve heard 1,000 times in CLE’s (like don’t mislead the court), but a few have slipped in. Some are in tension with others. That’s life.
-The side with the better story almost always wins.
2/ -The factual statement is the most important part of a brief.
-In a statutory interpretation case, the side with the shortest plausible brief insult likely win.
-Visit your client, even if they’re in prison, especially if they’re in prison.
-Listen to your client.
3/ -Don’t file a writ where a motion will do.
-Writs are squirrelly things.
-Don’t file a motion where a notice will do.
-Always treat crime victims with respect. It’s the right thing to do, and rubbing salt in a victim’s wounds never helps your client.
Read 18 tweets
1/ Once again, the SG in his reply brief in the "Wall" case relies upon a fundamental error: He argues that plaintiffs' claims "necessarily rest on an alleged violation of Section 8005," which isn't designed to protect the plaintiffs' interests.…
2/ But Section 8005 can't be "violated": It's an *authorization* statute that DOD itself has (unpersuasively) invoked as a *defense* to plaintiffs' "ultra vires" claim that there's no authority for the funding transfer. Hence the "zone of interests" test is inapposite.
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While we're waiting on some blockbuster decisions from the Supreme Court on the census and partisan gerrymandering, a few thoughts. Some inside baseball explained. Not for #AppellateTwitter - more for casual readers who care about representation & democracy, but are not mavens.
SCOTUS releases biggest opinions at the end of the term, often on the last day possible. Then they jet out the door, leaving us to scratch our heads.

This year there's a traffic jam; the Court's behind. Big opinions will come Thursday & probably Friday. (mavens - next week too?)
Redistricting reformers are watching two partisan gerrymandering cases, one in NC (Rucho v. Common Cause) and one in MD (Benisek v. Lamone). The two cases are different. Together they will reshape the law for reformers and evildoers alike.
Read 20 tweets
An amazing bit of #AppellateTwitter writing from the Court of Special Appeals in Maryland. This one has it all: drama, Batson challenges, cursing at judges, Shakespere, and more!

1/ This is the tale of "The Scourge of Lexington Park."
2/ The dastardly criminal has been sentenced to life, twice. But issues arose because he repped himself pro se at trial.
3/ As these issues proceeded, the original trial judge gave some flavor to local reaction, describing the Appellate Court as "stupid" and someone should "go get me a rope" to handle the matter.

Yes, hanging judges are still around I guess.
Read 10 tweets
Curious what DOJ/#appellatetwitter folks think about Warren's promise to appoint an OLC head who will reverse OLC's past opinions that preclude indictment of a sitting president.…
Warren does link to my piece with @carriecordero on family separations ... thanks!…
Read 3 tweets
My new one @slate: New Memo Reveals the Census Question Was Added to Boost White Voting Power; Why it won’t matter to the Supreme Court’s conservatives.…
I think many of my liberal friends are going to be unhappy with my pessimism about what the Supreme Court will do in this case.

I hope I am pleasantly surprised.
Let's game out for a bit how the evidence of DOJ lying and the real reason for Secretary Ross's decision to include the citizenship question will get before the Supreme Court and what the Court will do with the information, if anything. /1
Read 17 tweets
As advocates, and especially as judges, we must guard against a phenomenon I have identified as “Law Feelings.” #AppellateTwitter 1/
“Law Feelings” can be identified by a sentence that may begin with “I feel that. . .” and go on to state a legal conclusion without reference at any point to a relevant statute, rule, or case. The legal conclusion may, in fact, be contrary to authority. 2/
As an advocate, Law Feelings may come up when one is not entirely prepared to make the argument one unexpectedly finds oneself making. Law Feelings may inadvertently come out at oral argument when asked a difficult question that may be outcome determinative. 3/
Read 8 tweets
About to have a rare judicial ethics/1A combo #AppellateTwitter thread, but let's not bury the lead:

Footnote shade is best shade.

Also, SO TRUE.
2/ That's not a great statement coming from a judge in open court. I get it's a joke...but also veering into political commentary.
3/ "shirty and politically charged comments"

Shirty?!? Really?? Havin' a bit of tea & crumpets while drafting?

Anyway, the Judge engaged in a variety of misconduct.
Read 9 tweets
Franchise Tax Board v Hyatt is the sleeper abortion case you have not heard about. Because, of course, it is not about #abortion.

But the decision - and HOW it is reached - is going to determine how the incoming wave of abortion cases are going to be resolved.

The FTB case came from a tax dispute. A former resident of California sued the California Franchise Tax Board in a Nevada state court, claiming that it had done him all manner of wrongs in investigating his purported tax liability.
California does not want to be sued in another state’s courts. The current law, decades old, allows such suits.

The case has nothing to do with abortion, but everything to do with how to overturn precedent.
Read 23 tweets
OK, so I'm on the plane back to Houston, and I'm going to try to do my retrospective. Obviously, we don't know the result yet, but win or lose, I think my process more or less worked, so here we go. 1/ #AppellateTwitter.
First, get yourself a firm like this one. When the case was granted, @TWapplaw and @HollenbeckRuss came into my office and said, "buddy, you are arguing this case." There might have been a bad word or two in there too to emphasize that message. 2/
I think it's hard to express how key that support is. So I am ever grateful that I work for people who didn't bigfoot me out, but instead let me have this incredible experience. That's a debt that can't be repaid. /3
Read 25 tweets
I am so excited to sponsor @JCamachoLegal's admission to the SCOTUS bar.

I had such a wonderful time going to the Court to be admitted. I was celebrating 25 years in legal practice and went with a group from my law school. 1/
My classmate (who later served as Dean of @kulawschool) Steve McAllister, had clerked for Justice White and Justice Thomas. So he helped make the arrangements.

The Clerk of the Court gave us some history and even wore his suit with tails for the day.
There is so much history and art at the Court.
Read 11 tweets
I got hired a few weeks ago to handle a really crazy appellate-procedure problem, and now that our motion has been filed (it's public) I gotta thread it out here for #AppellateTwitter. Here's what happened: 1/
Client lost ton of money. Client and Co-Plaintiff file suit; Defendants file counterclaims. Four-week trial. Client loses on claims and counterclaims but Co-Plaintiff wins on everything except amount desired in attorney fees. 2/
Client and Co-Plaintiff file separate NOAs because interests are different; Client appealing entire judgment, Co-Plaintiff appealing only amount of fees awarded. Co-Plaintiff requests partial reporter's record (RR) but Client discovers complete RR will cost $20k. 3/
Read 16 tweets
So, not clear what this is or if it is in any way related to Cohen's postposed testimony.
That said, "SEALED DOCUMENT placed in vault." ... is clearly one of the hottest docket entries. #appellatetwitter #lawdork
SEALED DOCUMENT erroneously placed in vault? Or at least not placed in there as part of the Cohen SCO case. So ... stand down?
Read 4 tweets
Partner: "put together a draft opposition brief for me to review."

Associate: "Cool."

*time passes*

Associate: "Done with this brief, might as well go ahead and file it without telling partner!!"

A brief #appellatetwitter ethics thread ⤵️

2/ Partner: "Where is that draft brief?"

Associate: " it is!"

Partner actually revises, associate confesses, BUT SOMEHOW does not get fired.

Learned his lesson, right? Well...
3/ Partner: "Alright, I can't trust you to draft these things. But you can at least get it sent to the printer and filed."

Associate: "Sure thing boss!"

*proceeds to get it printed but not filed*

*lies to partner about it*

Read 10 tweets
Incidentally, this decision comes from a three-judge panel in which all three were nominated to their position by Trump.
Query: Is this the first decision from a three-Trump-appointee panel? #appellatetwitter
"Before: THAPAR, BUSH, and NALBANDIAN, Circuit Judges."
Read 7 tweets
I listened to 14 oral arguments in the Fifth Circuit in the last two days while prepping for my own. Of those 14 appellants, 8 or so of them gave the same kind of bad oral argument, and I thought a quick note about what's wrong with it would be interesting. #appellatetwitter 1/
So what's the bad thing? It's the stream-of-consciousness oral argument - where you sort of recite at great length all your many grievances with the district court, interspersed with the points you're actually trying to make. 2/
So I heard the following question maybe 20 times: "Counsel, the thing you just said? Is that part of the case presented to us?"

And inevitably, the answer was something like "No, your honors, but I'm trying to tell you how this all went so wrong" /3
Read 10 tweets
Hey there! We’re at the US District Court for DC, arguing in our case on behalf of Bryn Esplin & Fatma Marouf, a married same-sex couple denied the opportunity to foster a refugee child because they don’t "mirror the holy family"—whatever *that* means. Follow along!
Arguing in court today is LL's own Senior Attorney Jamie Gliksberg (pictured in first tweet), joined by our Director of Constitutional Litigation @camillabtaylor & Ken Cho of @HLCitizenship. Opposition includes lawyers from @TheJusticeDept & @USCCB. Go team!
Judge Amit Mehta is presiding. We’re here to hear arguments on the DOJ’s Motion to Dismiss. The federal government is trying to say they're not responsible, and they want to toss the case.
Read 53 tweets
Thread - 1/Trump supporters WON — AGAIN — in the 9th Circuit, of all places — YASSS! 🙌🏽🙌🏽🙌🏽 There were NO votes to rehear our victory on qualified immunity en banc, meaning the case goes forward unless San Jose wastes more time and seeks SCOTUS cert. #appellatetwitter ... /
2/Refresher—on June 2, 2016, after a great @realDonaldTrump campaign rally (I was honored to lead the #pledgeofallegiance at the start, and to meet candidate Trump backstage), San Jose’s finest forced the attendees leaving the rally to run a gauntlet of vicious, armed criminals./
3/Wielding Mexican flags and bags of rocks and sucker punches and acting in concert, who assaulted my our clients aged from early teens through their 70s. San Jose police stood there and watched, did nothing, and in fact enabled and encouraged the violence through inaction .../
Read 12 tweets
Livestream of DC Circuit argument (starting momentarily) in Garza v. Hargan, AKA the @ACLU's Jane Doe case re abortion rights of unaccompanied immigrant minors #appellatetwitter #justiceforjane…
Oyez, oyez, oyez. @brigitte_amiri's name mispronounced in the intros, taking that as a good omen.
DAG focusing on breadth of the district ct order they're appealing, says he will circle back to mootness and class cert. Citing Bellotti to say gov't has a role to play in youth decisions. 1st question hones in on how ORR still gets to play role while complying with this order.
Read 67 tweets
THREAD on new 9th Circuit decision in Rodriguez v. Swartz, our (@ACLUaz @sdACLU + @ACLU) cross-#border shooting case: On Oct. 10, 2012, a U.S. Border Patrol agent on duty in Nogales, AZ fired between 14 & 30 bullets across the #border.…
Approximately 10 of those bullets hit J.A. Rodriguez, a 16 year old boy peacefully walking down the street on the other side of the #border wall, in Nogales, Mexico.
The 9th Circuit opinion first *affirms* the AZ district court's decision denying Agent Swartz qualified immunity: 📢📢📢"It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason." Slip Op. at 9.
Read 25 tweets
This is a really important story that isn’t getting much play outside of #appellatetwitter. I’ll scope about it shortly
My service is weak here, so I'm reduced to tweeting.

Basically the DOJ is refusing to defend Obamacare in Court, on the grounds that they think it's unconstitutional. This is not good, and I say this as someone who is not a fan of the ACA by any stretch.
The norm prior to the Obama administration was that administrations would defend *even those laws they disagreed with* in court so long as there were non-frivolous arguments that those laws were constitutional.
Read 10 tweets

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