I'm reading @mkonnikova's book The Biggest Bluff. In it, she makes a point about the value of early losing, and it has me thinking about how it applies to appellate lawyering. A little 🧵 penguinrandomhouse.com/books/562852/t…
Konnikova is a psychologist who studied under the marshmallow experiment guy. She knew zip about poker, but from von Neumann she got the idea that poker's a good way to understand decisionmaking. So she got a top poker pro, @Erik_Seidel, to mentor her. /2 pokernews.com/news/2019/03/p…
So Konnikova's learning poker from scratch, and one of the first lessons she gets from Seidel and another pro, Action Dan Harrington, is the educational value of losing early on. /3
We don’t know yet if Judge Pryor made an unknowing blunder or a knowing choice. If the former, he should fix it forthrightly and apologize to the public and the judiciary. If the latter, he should resign.
When you welcome into the chambers of the Chief Judge of a US Court of Appeals a person nationally reported to have written, "I hate black people. Like fuck them all," you do something frightening. It is important that Judge Pryor understand that.
When Trump nominated James Ho to the 5th Circuit, a remarkable thing happened. To simplify only a little, all the civil rights groups expressed deep concerns, while all the lawyers said he'd be a splendid judge.
If we don't learn anything from that, heaven help us.
Let me show you what I mean. /2
The Leadership Conference expressed "serious concerns" about his "troubling record of taking conservative legal policy positions" and predicted he'd be a "consistent and reliable vote against civil and human rights litigants." /3 civilrights.org/resource/nomin…
As a young appellate lawyer, I got the idea that one must keep one's hands on the lectern during oral arguments.
I don't remember where I got that idea, but it's fairly common advice. The idea is that OA is formal and gesturing is too casual and can be distracting. 1/
Hands dutifully on podium, my next argument or two stunk.
I'd be at the lectern giving my argument, and the voice in my head listening to myself was shouting, "hey idiot, stop the deadly monotone!" and I couldn't. I had no idea why. Nerves? It was strange and unsettling. 2/
Then I read a book called The Articulate Advocate, by Brian Johnson and Marsha Hunter. Drawing on a robust body of scientific research, they argue that gesturing with your hands and arms is important for effective communication. 3/
1. Progressives are waking up to the importance of younger nominees for federal judges.
But one reason why it's so important hasn't gotten enough attention yet: circuit chief judgeships.
2. Circuit chief judges wield real power. Their control of opinion assignments and administrative control make them the most powerful non-Scotus federal judges. (@marinklevy and Judge Newman have an article on the way in @PennLRev on the office of the chief judge.)
3. Who becomes circuit chief is complicated, but the key part is that you can't become chief once you turn 65.
In practice, this means that younger nominees are far more likely to become chief than older ones.
1. Some legal-writing advice meant esp for first-gen law students.
College taught me that the key to good writing was originality. 1L-year exams taught me that sounding like a lawyer was about spotting every issue.
To become a good legal writer, I had to unlearn both lessons.
2. Good legal writing isn't about coming up with clever new ideas or expressing them in a unique new way. And it's nothing at all like an issue-spotting final exam.
Good legal writing is about clarity.
3. Once you figure out what your most important points are, your job—your only job, more or less—is to state them as clearly as possible.