Armed Forces Appeals Judges Hear Arguments, Offer Advice in Eckstein Hall Session

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Category: Federal Law & Legal System, Judges & Judicial Process, Marquette Law School, Public
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“When you’re done, sit down.”

Pithy but important advice on how to present an oral argument to an appeals court was one of the beneficial things Marquette Law School students had a chance to hear Tuesday. That was when the United States Court of Appeals for the Armed Forces convened for a session in Eckstein Hall, followed by a question and answer session with the court’s five judges.

The court, an Article I entity which hears oral arguments in about three dozen cases a year, heard oral arguments in the appeal of an Air Force staff sergeant, Joshua K. Plant. He was convicted in 2012 of two counts of aggravated sexual assault of a child, adultery, and child endangerment and given a sentence that included 12 years of confinement. Included in Tuesday’s proceedings: Joshua J. Bryant, a third-year Marquette law student, who presented amicus curiae arguments in support of the sergeant’s appeal.​

First, here’s the case the court heard. Then, we’ll summarize some of the advice. Read more »

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The Notorious R.B.G.

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Category: Feminism, Judges & Judicial Process, Public, U.S. Supreme Court
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20150103_135911-1Those of us who teach in gender and feminist studies have long been familiar with Justice Ruth Bader Ginsburg; we regularly deal with her work as both a lawyer and as jurist. This past January, I had the honor of hearing her speak at a conference in Washington, D.C., and was awed by her. So over spring break, I decided to start reading a new book, The Legacy of Ruth Bader Ginsburg, edited by Scott Dodson. I’m not that far into the book yet, but what I’ve read has only made me admire her more.

I’m far from being Justice Ginsburg’s only admirer. She has quite the following, including this woman, who had a portrait of Justice Ginsburg tattooed on her arm. One man put her 35-page dissent in Burwell v. Hobby Lobby to music. Another admirer dubbed her “The Notorious R.B.G.,” a take-off on rapper The Notorious B.I.G, and there’s a whole blog devoted to all things R.B.G. Google “Notorious R.B.G.” to find t-shirts and other merchandise. It’s a title the Justice herself seems to enjoy. (Listen to the video clip here.)

Ironically, while I was starting my book over spring break, Justice Ginsburg celebrated her 82nd birthday. She seems in no way ready to step down from the court. After all, she reminds us, Justice John Paul Stevens served until he was 90. In honor of her birthday, one site gathered some of her best quotes. My favorite: “People ask me sometimes . . . When will there be enough women on the court? And my answer is: When there are nine.”

Wouldn’t have expected anything less from her.

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Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues

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Category: Congress & Congressional Power, Federal Law & Legal System, Political Processes & Rhetoric, President & Executive Branch, Public, Speakers at Marquette
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Judge Brett M. Kavanaugh

So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).

The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.

And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.  Read more »

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Residency Venue in Cases with Foreign Corporate Defendants

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Category: Federal Civil Litigation, Public
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A few years ago, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, in part to resolve, as the title suggests, uncertainties concerning the old venue statute. The effort succeeded in various regards, but Congress may have unwittingly created a new problem in the course of correcting others. Specifically, it’s not clear how to determine residency venue under 28 U.S.C. § 1391(b)(1) when at least one of the defendants is a foreign corporation.

The statute seems to provide two contradictory solutions: First, venue is appropriate in a district only if at least one defendant resides there and all defendants—including the foreign corporation—reside in the state in which the district is located. In this analysis, 1391(c)(2) decides residency questions for all corporate defendants such that a foreign corporation, like any other, is a resident of the given state only if it is subject to personal jurisdiction there. Read more »

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Grilling By Judges? It’s Not Just for Moot Court.

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Category: Federal Law & Legal System, Legal Practice, Legal Research, Legal Writing, Marquette Law School, Public
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NSAPerhaps it is because I just spent an enjoyable few weeks judging the Appellate Writing and Advocacy class moot court rounds, that lately I have taken a few detours while doing research. While reading some of the NSA phone data cases, I watched an enlightening and very entertaining appellate argument online. We may wait a long time to see video recordings of U.S. Supreme Court arguments, but the Circuit Courts of Appeal oblige us for some of their cases, which is a bonus for everyone including students.

Several plaintiffs’ lawsuits that challenge the National Security Administration’s phone records surveillance program are making their way through the federal courts. Plaintiffs in these cases have claimed the NSA data grab violated their rights under the Fourth Amendment or that Section 215 of the Patriot Act, the original basis for the surveillance under President George W. Bush, cannot reasonably be interpreted as allowing the program. For students who participate in a moot court competition, or are considering it in the future, video of the oral arguments in these cases provides an opportunity to learn something about the privacy issues and also to see the types of questions and atmosphere an attorney might expect from a federal appellate panel.

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Discerning the Relationship Between Bankruptcy Judges and Article III Judges

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supreme courtThis summer, the United States Supreme Court handed down a decision in the case of Executive Benefits Insurance Agency v. Arkison that changed how bankruptcy judges, covered under Article I (the Executive Branch) of the Constitution, and district court Article III judges work together. Arkison helped clarify nagging procedural issues between district and bankruptcy courts. At the same time, Arkison verified a significant reduction in the ability of bankruptcy courts to resolve common claims arising in bankruptcy proceedings.

Arkison began as a seemingly conventional case. In 2006, Bellingham Insurance Agency filed for Chapter 7 bankruptcy. Peter Arkison was assigned as the trustee. Mr. Arkison filed a fraudulent conveyance complaint against Bellingham, something not uncommon in a bankruptcy proceeding. In fact, Title 28 specifically grants bankruptcy courts the ability to hear and determine such claims. The bankruptcy court granted summary judgment on Mr. Arkison’s claim.

The black letter language in Title 28 and Supreme Court precedent contradict each other. Read more »

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President Obama’s Executive Orders are Constitutional

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Category: Constitutional Law, Immigration Law, President & Executive Branch, Public
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452px-Barack_Obama_basketball_at_Martha's_VineyardA “head fake” is a basketball move where the player holding the ball feints as if starting a jump shot, but never leaves his feet.  Done correctly, it causes the defender to jump off of their feet in anticipation of the shot, arms flailing helplessly.  Meanwhile, the shooter calmly resets and scores a basket while the defender is harmlessly suspended in the air.

Just over two weeks ago, the mid-term elections supposedly signaled the end of President Obama’s ability to drive the policy agenda in Washington.  Last Thursday night, the nation’s “Basketball Player in Chief” executed a brilliant head fake on immigration policy, disproving this conventional wisdom.  Hints that the President intended to “go big” and use his executive authority to conduct an overhaul of the Immigration and Nationality Act had generated anticipatory paroxysms of outrage by Republicans, who hit the airwaves with charges of constitutional violations and threats of impeachment.  However, the executive actions that the President actually announced last Thursday were more modest in scope than what Latino groups and reform advocates wanted, and far less provocative than congressional Republicans feared.

The executive actions on immigration fall well within the Executive Branch’s established authority to set priorities in the enforcement of Immigration Law and clearly within the constitutional power of the President.  Meanwhile, the President’s Republican critics have already committed themselves to a campaign of outrage and indignation, even though it is increasingly evident that they lack a legal basis to attack the President’s actions or a political strategy to undo them.  The President’s head fake is evident when the details of the Executive Orders are examined. Read more »

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Five Oral Argument Tips

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Category: Judges & Judicial Process, Public, Seventh Circuit
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This past summer I had the amazing opportunity to intern with the United States Court of Appeals for the Seventh Circuit (thank you, Professor Hammer, for organizing such a rewarding internship program). I would highly recommend this internship to anyone. For me, the internship was truly a once in a lifetime experience since, as many of you may know, I am a major moot court nerd. While interning at the Seventh Circuit, I observed upwards of seventy oral arguments, including a rehearing en banc, a Foreign Intelligence Surveillance Act case, and a death penalty case. During these arguments, I would take notes on attorney conduct, questions from the judges, and the overall atmosphere of the courtroom. I would like to share with you the top five oral arguments tips I learned while at the Seventh Circuit.

(1) Answer the Judge’s Question Directly

Questions are a gift because they allow you to know exactly what is bothering the judge. Too often, people see questions as an interruption or a nuisance and, thus, fail to take full advantage of the opportunity the question presents. I cannot tell you how many times I heard the phrase, “You’re not answering my question,” and the follow-up phrase, “It’s a simple yes or no answer.” The best way to handle questions is to answer directly—preferably with a yes or no when appropriate—and then say, “Let me explain.” This answers the judge’s question and also signals that further explanation is necessary. When you dodge a judge’s question, you lose credibility and frustrate the judge.  Read more »

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Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

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Category: Business Regulation, Constitutional Law, Corporate Law, First Amendment, Health Care, Public, Religion & Law, U.S. Supreme Court
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the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted. Read more »

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Supreme Court Roundup Part One: McCutcheon v. FEC

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Category: Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme Court
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Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent. Read more »

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SCOTUS Arguments Can Become “Must-See Television”

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CaptureThe United States Supreme Court prohibits cameras during its oral arguments, although each argument is audio-recorded. But, as Last Week Tonight host John Oliver points out, audio recording makes television coverage of those arguments “basically unwatchable” because television must present its coverage of the arguments by using artist renderings of the proceedings with audio clips.

Yet, as Oliver also points out, what happens at the United States Supreme Court is important and the public should pay attention. Oliver has a solution: the real dogs, fake paws Supreme Court. (Warning: some language is Not Safe For Work (NSFW).) Read more »

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Justice Ginsburg on Empowering Oral Argument

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Category: Judges & Judicial Process, Legal History, Legal Practice, Public, U.S. Supreme Court
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Justice GinsburgAn interview with Justice Ginsburg appears in the October issue of Elle magazine.  In the article, Justice Ginsburg describes her first oral argument before the United States Supreme Court.  Any advocate could relate to her story:

I had, I think, 12 minutes, or something like that, of argument.  I was very nervous.  In those days, the court sat from 10 to 12, and 1 to 3.  It was an afternoon argument.  I didn’t dare eat lunch.  There were many butterflies in my stomach.  I had a very well-prepared opening sentence I had memorized.  Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me and that’s my captive audience.

Justice Ginsburg argued on behalf of Sharon Frontiero in Frontiero v. Richardson.  In that case the Court held that the United States military could not differentiate on the basis of gender in how it provides benefits to service members’ families.

In the interview, Justice Ginsburg recounts that as she spoke before the Court during oral argument her confidence grew:

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did.  So I relied on myself as kind of a teacher to get them to think about gender.

 

Read more »

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