Discover and read the best of Twitter Threads about #appellatetwitter

Most recents (24)

Can someone pls explain why the government has standing to petition in Barr v. AAPC, No. 10-631, to be argued 04/22? Court of appeals held that TCPA "robocall" prohibition was unconstitutional b/c of exemption for certain debt-collection calls ... /1

#appellatetwitter #scotus
... but purported to remedy the content discrimination by "invalidating" the exemption, so that debt-collection calls would also be prohibited--i.e., the court purported to make the prohibition *broader.* There's an interesting question in the case about whether a court ... /2
... has the power to issue such a "remedy" extending the scope of a speech restriction beyond what Congress provided. But why is the government injured by the holding? Judgment is in its favor--the plaintiff group that brought the case won't receive the requested relief ... /3
Read 4 tweets
1/ Transgender pro se litigant politely requests a federal court of appeals to refer to her with female pronouns. Judge Duncan, joined by Judge Smith, string-cites numerous cases in which courts have done just that upon request, "as a courtesy to parties," but then proceeds ...
2/... to refer to her w/male pronouns at least 22 times in a ten-page opinion. Duncan & Smith offer no reason for such heartless, inconsiderate behavior. Let's just say that they lack ... courtesy (at best). Shameful to see in Art. III.

#appellatetwitter
ca5.uscourts.gov/opinions/pub/1…
FWIW (a lot, I think), I'm aware of several lawyers who advocate against LGBTQ rights based upon their sincere religious beliefs but who've nonetheless made an effort to avoid the use of such pronouns as a matter of courtesy and kindness. Would that these judges did likewise.
Read 3 tweets
Excited to share this brief we submitted on behalf of @AdamSFeldman (of Empirical SCOTUS & Optimized Legal) and James E. Daily (of @SkoposLabs) in Google v. Oracle: supremecourt.gov/DocketPDF/18/1… #AppellateTwitter
The brief demystifies the technical nature of the case by offering an analogy between computer languages and Supreme Court opinions. The brief shows what would happen if justices were restricted in the way that a ruling in Oracle's favor would restrict software developers.
It uses Using CJ Roberts's opinion in McCutcheon v. FEC as an exemplar. Here's what would happen to the intro if Roberts had been precluded from using three-word phrases appearing in prior opinions by other justices:
Read 6 tweets
1/ In Thuraissigiam, the SG argues that habeas doesn't apply at all to deportation decisions, such as to deny asylum--a notion that is, at the very least, in some tension with the SCOTUS decision in St. Cyr.

supremecourt.gov/DocketPDF/19/1…

#appellatetwitter
#SCOTUS
2/ In order to address that precedent, the SG writes (p.18):

"[T]his Court suggested in St. Cyr that the Suspension Clause may require 'some judicial intervention in deportation cases.' 533 U.S. at 300."

(He writes the same at p.31, substituting "indicated" for "suggested.")
3/ Here's what the Court wrote in St. Cyr itself, 533 U.S. at 300:

"Because of [the Suspension] Clause, some 'judicial intervention in deportation cases' is *unquestionably* 'required by the Constitution.'" [quoting Heikkila v. Barber, 345 U. S. 229, 235 (1953).]
Read 4 tweets
I'm going to do something I have never done but I hope it will be heard: judges of #appellatetwitter - I have a story for you.

I am currently representing a nurse who was fired from her job after she reported some safety issues. Hospital says it's because she was 1/
and angry, abrasive person.

I didn't represent her at the trial court or CoA, but the record is pretty clear about one thing - the record ain't clear. There's nothing that objectively proves one side's case or the other.

All we really know, for sure, is that my person 2/
was canned about a month after she reported. SJ was granted, improvidently in my opinion.

So another person briefed this case at the COA pointing out the issues of material fact and whatnot. The opinion dropped and it was a doozy.

Basically, the opinion didn't 3/
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Picking up on @HeatherWeaverDC's observation about yesterday (and also in response to a few DMs + texts I've gotten):
Some of the lawyers on this website who insist on tweeting _only_ about appellate procedure or writing conventions (or otherwise assiduously avoid expressing any substantive views) have the following view:
It doesn’t matter what someone does (perhaps short of shooting someone on Fifth Avenue) as long as they have some combination of (1) elite credentials; (2) power; (3) fluency in some legal nerd-ery (like, say, the appellate rules).
Read 12 tweets
I’m definitely getting too deep into #lawtwitter and #appellatetwitter. I’m paging through my bluebook looking for citation rules. There’s a pretty simple one for tweets, but what about entire threads?
I’m thinking a “See generally” or other signal to the first tweet in the thread, with a parenthetical giving the gist of the thread and a courtesy link to the @ threadreaderapp unroll of the thread. Anyone else have ideas?
For any who might not be familiar with that site, it’s super handy. There’ll be a neat reply below. @threadreaderapp, please unroll
Read 3 tweets
1/ ICYMI, I've written and co-written a couple of things I hope some readers will find interesting about central questions in each of the Title VII cases being argued in the #SCOTUS today.

#TitleVII #LGBTQ #stephens #zarda #bostock @SCOTUSblog #appellatetwitter
2/ First, in this blogpost I address the argument that T7 doesn't prohibit an employer from adhering to a policy or practice of disfavoring gay men and lesbians alike, e.g., a "heterosexuals only need apply" policy.
(cont.)

balkin.blogspot.com/2019/09/though…...
3/ I explain that that doesn't describe the employers in the two cases the Court is hearing today--nor virtually any other employers one finds in T7 cases--but that, in any event, the Court's doctrines involving other forms of discrimination ...
Read 17 tweets
Two weeks from tomorrow, the US Supreme Court will hear consolidated arguments in 5 cases challenging #PROMESA, Congress's attempts to deal with Puerto Rico's fiscal crisis. The case implicates the reach of Article II's Appointment's Clause. I will be tweeting commentary. 1/X
First, I'll provide some background. Then I'll go through the briefs. I will try and tag all posts #PROMESA, so if you want to mute that term, you can still see my other tweets. 2/
A final note before I begin. I filed an amicus brief arguing the First Circuit's test under the Appointments Clause would do untold damage to territorial self-rule. However, I will do my best to provide even-handed commentary. 3/ #PROMESA
Read 456 tweets
I cannot overstate the importance of just emailing someone if you have a question/want to get coffee/etc. Even if that someone is impressive, important, and/or intimidating. The worst they can say is no (or not respond). #appellatetwitter #practicetip
2/ I have found incredible mentors this way. Cough cough @shonhopwood, @guprisonjustice’s Marc Howard, and @davidjfeder to name a few.
3/ It also gives you the chance to collaborate with some really cool people. For example, I cold emailed the professor behind a large body of work I am relying on for a new article. He agreed to talk, & we just spent 15 min chatting about my research & best ways to frame it.
Read 4 tweets
Check out this new agitprop account - right on cue
We are watching the actual unrolling of a far left political psy-op *before our eyes* - the hit job on Kavanaugh by the @nytimes and now coordination of a @DNC SCOTUS delegitimization campaign via @TakeBacktheCt
It will be interesting to see which members of the uber-elite #appellatetwitter geniuses take the bait on this.

Many of their political inclinations scream out to do it. But their egos scream (probably louder) that they dare not destroy the source of their mutual self regard!
Read 5 tweets
I’m at the @UACDL Appellate Seminar today, and it’s been great. We had the chance to hear from Judge McHugh of the 10th Cir. this morning. I’m going to tweet some of her comments in case my #AppellateTwitter friends are interested.
She started by thanking the defense bad for good work. She said it doesn’t take long practicing law to realize the playing field isn’t level for criminal defendants. But on appeal, it’s like climbing the face of a cliff.
Judge McHugh thinks a good summary of the argument is critical. It frames the issues and argument so she can approach the brief with the question: Can they support this with the facts and law?
Read 10 tweets
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. ca5.uscourts.gov/opinions/pub/1…
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.

supremecourt.gov/DocketPDF/19/1…
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.
Read 3 tweets
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.
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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. medium.com/@teamwarren/no…
Warren does link to my piece with @carriecordero on family separations ... thanks! lawfareblog.com/travel-ban-fam…
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. slate.com/news-and-polit…
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.

thread:
/1
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.
/2
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.
/3
Read 23 tweets

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