This panel will explore media coverage of the United States Supreme Court, historically, currently and with an eye to the future. The panel will discuss the topic from various perspectives, including covering the Court, being covered while at the Court and responding to criticism of Court coverage. In round-robin style, the panel will address a wide-variety of issues regarding the relationship between the courts and the media, including how the press does and should cover cases involving the press (including the recent suggestion to reconsider New York Times v. Sullivan); court use (or non-use) of public information offices; cameras in the Court; the use of confidential or un-named sources in Court coverage; whether there is a move away from near anonymity and secrecy to greater (but still limited) transparency for the Justices. This blue-ribbon panel is not to be missed.
This practical program will provide tips on how appellate lawyers can develop and use effective advocacy skills across their entire practice, including strategic pretrial consulting, trial-court and appellate consulting, reviewing briefs and significant motions, assisting with jury instructions and verdict forms, and conducting effective moot courts. We will examine these activities in the context of, and with a focus on, partnering with trial and in-house counsel throughout the litigation process.
The judges will discuss how they craft their opinions, including whether to issue a published disposition, their use of the parties’ briefs, their interactions with their colleagues in drafting opinions (including responding to concurrences and dissents), their consideration of the expected audiences of their opinions, whether to write a concurrence or a dissent, and their perspectives on petitions for rehearings.
The discussion will be moderated by Richard Schickele, Career Law Clerk, United States Court of Appeals for the Ninth Circuit
Mike Dahn, Senior Vice President of Westlaw Product Management, will discuss the latest applications of AI for legal practice with a specific focus on judicial uses of the technology.
Effective legal writing can take many forms. But sometimes the effort to be creative or distinctive backfires. Legal-writing expert Ross Guberman will discuss how authors can maximize the persuasive impact of their storytelling and reasoning while minimizing the risk of leaving a bad impression. Using surveys of audience members, he will lead a discussion of writing strategies, techniques, and examples that are advanced, innovative, and even extraordinary (though not always in a good way).
This panel will discuss recent United States Supreme Court decisions regarding personal jurisdiction and how courts and litigants are reacting to them. Panelists will include advocates from both sides of the Bristol Myers Squibb case and a state Supreme Court justice.
In 2016, nearly 1.4 million Americans identified as transgender, according to a report issued by the Williams Institute, a think tank based at UCLA School of Law, with adults aged 18-24 identifying as transgender at the highest rates. This plenary panel will focus on current legal issues relating to transgender people. Because audience members may arrive with different levels of knowledge, the first portion of the panel will present a “Transgender 101” overview of transgender issues. This introduction will address foundational concepts of what it means to identify as transgender, as well as a high-level understanding of the modern science of gender. (Spoiler alert—gender is complicated!) The panel will consider some of the common health and economic disparities and societal obstacles that transgender people frequently face.
The panel will then move into a discussion of legal issues concerning transgender individuals currently being litigated in courts, both state and federal, around the country. This discussion will touch on the litigation relating to the Administration’s position on transgender soldiers, pending cases regarding the scope of Title VII’s prohibition of sex discrimination, as well as efforts to expand protections for transgender persons under federal and state laws. The panel will also consider the role of courts in recognizing legal protections for transgender people.
The panelists will include lawyers and advocates involved in the transgender rights movement, and if possible, also a legal academic with knowledge of these issues. At this time, confirmed speakers include Casey Pick of the Trevor Project in Washington, D.C. and Sasha Buchert with Lambda Legal, in Washington, D.C. Attorney Katherine S. Barrett Wiik of Best & Flanagan LLP, who has served as pro bono counsel in two transgender healthcare discrimination cases, will moderate the panel.
Several of the Justices on the Supreme Court, including its most recent appointees, describe themselves as “originalists.” Ideas about originalism have proliferated in recent years. This panel will address the meaning of originalism, its relationship to history, and its contemporary implications.
Noted historian, Joseph Ellis, constitutional theorist, Professor David Strauss, and practitioner, Kannon Shanmugam, will debate these issues.
The independence of the judiciary and the separation of powers are fundamental principles of American democracy and the United States Constitution. To ensure the proper functioning of the separate branches of American government, the legislature, executive, and judiciary act as a check and balance against the exercise of power by each respective branch. What happens to our free society and democracy if the judiciary loses its independence and fails to adequately balance and check the exercise of power by the legislature or the executive? This panel, comprised of judges seated through various selection processes, will examine how judges strive to maintain the independence of their judicial decision-making and the professional and personal challenges their independence present. The panel will examine continuing attacks on the independence of the judiciary, how it undermines nonpartisan decisions and confidence in the judiciary, and troubling parallels from history. The discussion will address topics central to maintaining a free society and our American democracy.”
November 16, 2019
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law
I. First Amendment
Iancu v. Brunetti, 139 S.Ct. ___ (2019). Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.
Nieves v. Bartlett, 139 S.Ct. 1715 (2019). Probable cause generally defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.
Manhattan Community Access Corp. v. Halleck, 139 S.Ct. ___ (2019). Manhattan Community Access Corp., a private nonprofit corporation designated by New York City to operate the public access channels on the Manhattan cable system owned by Time Warner (now Charter), is not a state actor subject to the First Amendment.
American Legion v. American Humanist Association; Maryland-National Capital Park and Planning Commission v. American Humanist Association, 139 S.Ct ___ (2019). The establishment clause does not require the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
II. Voting rights
Rucho v. League of Women Voters, 139 S.Ct. ___ (2019). Challenges to partisan gerrymandering are non-justiciable political questions.
Timbs v. Indiana, 139 S.Ct. 682 (2019). The Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
Tennessee Wine & Spirits Retailers Association v. Blair, 139 S.Ct. ___ (2019). A state law that regulates liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time violates the dormant commerce clause.
Franchise Tax Board of California v. Hyatt, 139 S.Ct. 1485 (2019). Nevada v. Hall, which permitted a sovereign state to be haled into another state’s courts without its consent, is overruled.
Knick v. Township of Scott, Pennsylvania, 139 S.Ct. ___ (2019). Williamson County Regional Planning Commission v. Hamilton Bank, which required property owners to exhaust state court remedies to ripen federal takings claims, is overruled.
IV. Administrative law
Gundy v. United States, 139 S.Ct. ___ (2019). The federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 does not violate the nondelegation doctrine.
Kisor v. Wilkie, 139 S.Ct. ___ (2019) The Supreme Court does not overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
Department of Commerce v. New York, 139 S.Ct. ___ (2019). The secretary of the Department of Commerce did not violate the enumeration clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the district court was warranted in remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision.
V. Civil rights
Fort Bend County, Texas v. Davis, 139 S.Ct. 1843 (2019). Title VII’s administrative-exhaustion requirement is not a jurisdictional prerequisite to suit; it is a waivable claim-processing rule.
McDonough v. Smith, 139 S.Ct. ___ (2019). The statute of limitations for Edward McDonough’s 42 U. S. C. §1983 fabricated-evidence claim against his prosecutor began to run when the criminal proceedings against him terminated in his favor – that is, when he was acquitted at the end of his second trial.
November 16, 2019
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law
I. Criminal cases
A. Fourth Amendment
Mitchell v. Wisconsin, 139 S.Ct. ___ (2019). There are almost always exigent circumstances that justify the police taking blood from an unconscious motorist without a warrant.
B. Double jeopardy
Gamble v. United States, 139 S.Ct. ___ (2019). The “separate sovereigns” exception to the double jeopardy clause is reaffirmed.
C. Eighth Amendment
Bucklew v. Precythe, 139 S.Ct. 1112 (2019). Baze v. Rees and Glossip v. Gross govern all Eighth Amendment challenges alleging that a method of execution inflicts unconstitutionally cruel pain; Russell Bucklew’s as-applied challenge to Missouri’s single-drug execution protocol — that it would cause him severe pain because of his particular medical condition — fails to satisfy the Baze-Glossip test.
D. Due process
Flowers v. Mississippi, 139 S.Ct. ___ (2019). Batson v. Kentucky was violated when the same prosecutor struck 41 of 42 African-American jurors over six trials involving the same defendant.
United States v. Davis, 139 S.Ct. ___ (2019). Title 18 U. S. C. §924(c)(3)(B), which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague.
E. Sixth Amendment
United States v. Haymond, 139 S.Ct. ___ (2019). The U.S. Court of Appeals for the 10th Circuit was correct in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.
Garza v. Idaho, 139 S.Ct. ___ (2019). Under Roe v. Flores-Ortega, there is a presumption of prejudicewhen trial counsel fails to file an appeal as instructed. Flores-Ortega’s presumption of prejudice applies regardless of whether a defendant has signed an appeal waiver.
Given the vital role of linguistic analysis in legal interpretation (now that we’re all textualists, the starting point for analysis is always the text), one might expect that part of learning how to think like a lawyer would be to learn how to think like a linguist. But it’s not. As a result, most lawyers and judges are unaware that there is a body of knowledge that can provide an analytical framework, a toolkit, and a vocabulary that can, in appropriate cases, help in analyzing linguistic issues and framing persuasive linguistic arguments.
Over the past few years, however, attention has been drawn to the use of corpus linguistics as a tool in statutory and constitutional interpretation. Corpus linguistics is an area of study that draws on large databases of naturally-occurring texts in order to study language in actual use, and it has been applied to legal issues in amicus briefs, law review articles, and a few judicial opinions. It has also generated some controversy in the legal academy.
This panel will provide an introduction to what corpus linguistics—and linguistics more broadly—can offer. A number of judges have already expressed an interest in linguistics, and as that number increases, it will be necessary for judges, lawyers, and law professors to start learning how to think like a linguist. This panel will represent an early step toward that goal.
Prof. Mary McCord
Hon. Colleen O’Toole
Pretrial –conditions of release and bail, a Constitutional argument and assignment of error coming to an appellate court near you.
The hour will explore the legal impact of pretrial detention, presumption of innocence, cash bond and bail. The all-star panel will discuss and explore the constitutional challenges surrounding the underpinnings of the right to bail, the right jury trial, and the data which belies our abuse of discretion and court systems’ rubber stamp assumptions: that posting a cash bond is an effective methodology for attendance at trial.
Learning objectives: The participants will become familiar with the constitutional challenges presented with our present system of cash bail. Discuss and review issues concerning interim appeals concerning excess bail. They will able to discuss the statistical impact on access to justice and the right to jury trial.
An appeal involving a large judgment or time-sensitive circumstances may be resolved at a very early stage if a party cannot obtain an adequate supersedeas bond or a stay. This panel will discuss stay and bond issues, applicable procedural rules, strategy choices, and other difficult judgment enforcement problems that can quickly emerge upon entry of judgment. The panel will focus on how appellate litigants and courts can ensure that all significant legal issues receive measured consideration on appeal.
This star-studded panel will provide a thoughtful preview of upcoming cases for the October 2019 term of the United States Supreme Court. The panel will cover cases of the most significance to the attendees, including constitutional law, immigration, discrimination, criminal law and procedure, and the death penalty. The panelists also will provide insights into potential future issues which the Court may address in the next few terms. This panel is not to be missed.
Did you think that tricky ethical problems plague only trial lawyers? Tom Spahn, Virginia’s preeminent ethics lecturer, explores the ethics labyrinth in the appellate sector, and helps you to chart a safe course through it. This interactive program will include a discussion of how to handle situations where ethics, professionalism, the statutes, your client, and co-counsel all seem to pull in different directions.
Trial and appellate court judges, in most jurisdictions, use law clerks and court staff attorneys to assist in legal research, writing, and making decisions on matters before the court. This begs the question: how “powerful” are law clerks? This panel will discuss the role of chambers/elbow law clerks and staff attorneys; how clerks and staff attorneys influence judicial decision-making; why judges need law clerks; whether career clerkships are beneficial to courts and to appellate counsel practicing before the courts; the differences between how trial court judges and appellate court judges collaborate with law clerks; what appellate practitioners need to know about what goes on behind the scenes in chambers; and the distinction between a judge deferring to a law clerk and engaging/collaborating with a law clerk or staff attorney.
This panel will explore the changing legal landscape for judicial review of agency actions from the viewpoint of state and federal appellate judges, an appellate practitioner, and a scholar in the field. Find out the latest thinking on the constitutional underpinnings for Chevron deference and other legal standards that pertain to judicial review of executive agency action, while examining the policy considerations that motivate the current push and pull between the different branches of government.
Mirror, mirror on the wall, who is the fairest of them all? ….. The judges of course!
How do you know if you are fair? Aren’t all judges fair? When asked in a survey to rate themselves driving most drivers rated themselves 7/10. When rated by others they were rated less.
We are all biased. How do you know if you are controlling or consciously illuminating your bias in your thoughts and in your written or oral communication? How do you know if your language and writing express bias both implicitly and explicitly? The panel discusses bias in thoughts words and deeds and outlines the pitfalls exhibited in communicating both in writings and thought process?
This seminar explores and introduces the concepts of bias both implicit and explicit as it applies to writing, reviewing and evaluating the objectivity of your judgments and work product outcomes. The objective is to raise awareness, to identify personal and professional bias, and to provide the participants tools to evaluate bias in yourself as well as others by utilizing evaluative techniques and self-analysis to improve your work product and outcomes.
Oral argument opportunities in trial and appellate courts have seemed to decrease over time, with more courts taking motions and appeals under submission and issuing decisions on the papers alone. A panel of judges and practitioners will discuss the reasons why courts decide not to hold oral argument, the implications of that decision for public confidence and the diversity and training/experience levels of the appellate bar, and what if anything lawyers and judges might do to address the negative repercussions of this continuing trend.
At AJEI 2015, a band of fearless movie fans, led by the Honorable James E. Lockemy, discussed clips from great movies exemplifying ethical issues facing appellate judges and practitioners, in a panel titled Reel Appeal: Legal Ethics in the Movies. In this long-awaited sequel, the same panelists have reunited to present and explore even more great movie clips (and perhaps an encore presentation or two) and the legal ethical issues they depict. As did the original, Real Appeal II will cover a variety of ethical questions appellate judges and lawyers must answer in the pursuit of justice. Explaining the background facts and circumstances necessary to set the stage for specific ethical dilemmas could require hours, but a moving picture—worth more than 10,000 words—provides immediate context. The marriage of film clips and the rules of professional responsibility not only enhances the impact of our discussion, but also reflects the power of popular legal culture to reflect and reinforce viewers’ attitudes about law, lawyers and the legal system. In an age in which the public regularly questions whether lawyers uphold their oath to “honestly demean [themselves] in the practice of law” and whether judges “faithfully execute [their] duties,” understanding both our ethical obligations and the public’s perception of our ethical obligations is essential to our ongoing efforts to preserve the integrity of our system of law. Although this year’s movie clips are still top secret, the original program featured clips from great movies including And Justice for All, Woman in Gold, Roxie Hart, and My Cousin Vinny, and 2019 Summit attendees can expect similarly exciting and entertaining movies as we return to D.C. and the silver screen.