Journal of Appellate Practice and Process articles from March 2003

Journal of Appellate Practice and Process archives from March 2003

Death row and the cancer ward. (Editorial)
March 22, 2003... On March 21, 2003, I argued a summary judgment motion before the United States District Court in Dallas on behalf of my client, Gary Sterling, who sought federal habeas corpus relief from a Texas death sentence. The Judge was well prepared,...

Confirmation gridlock: the federal judicial appointments process under Bill Clinton and George W. Bush.
March 22, 2003... One of the most important consequences of the 2002 midterm congressional election will be its effect on federal judicial appointments. With the same political party controlling the White House and the Senate for the first time in eight years,...

Appellate judicial appointments during the Clinton presidency: an inside perspective.
March 22, 2003... INTRODUCTION This essay provides an overview of the federal judicial nomination and confirmation processes from the perspective of a former Clinton administration attorney involved in the judicial selection process from 1997 to 2001. It...

First arguments at the Supreme Court of the United States.
March 22, 2003... PREFACE I practiced law for sixteen years, spending much of that time as a member of my firm's appellate-practice group. And though I never said so out loud, I always hoped I'd argue at the Supreme Court. That never happened, and now of...

A chilly reception at the court. (First Arguments at the Supreme Court of the United States)
March 22, 2003... My first Supreme Court argument was a humbling, but ultimately valuable, experience. I represented the Petitioner in Sandra Jean Smith v. United States. (1) Haven't heard of the case? Well, don't feel bad. Even in this era of reduced Supreme...

A first argument in the tradition of many. (First Arguments at the Supreme Court of the United States)
March 22, 2003... INTRODUCTION I first argued before the Supreme Court of the United States on March 23, 1994. I knew when I was hired as an Assistant to the Solicitor General that my job would be to brief and to argue cases before the Supreme Court on...

A rarefied kind of dread. (First Arguments at the Supreme Court of the United States)
March 22, 2003... There's always anxiety involved in representing death-row inmates. But when the Supreme Court grants certiorari in a death-sentenced client's case, nightmare scenarios begin to loom. Of course, there's the fear of losing, and in a capital...

I couldn't wait to argue. (First Arguments at the Supreme Court of the United States)
March 22, 2003... My first and, to date, only argument in the Supreme Court occurred in 1991 in County of Riverside v. McLaughlin. (1) The primary issue in the case concerned the time frame in which a person arrested without a warrant had to be taken in front of...

Pretender in paradise. (First Arguments at the Supreme Court of the United States)
March 22, 2003... I was thirty-one years old and had been at the Southern Poverty Law Center for only two months when the legendary Morris Dees walked into my office and delivered the news: The Supreme Court had decided to hear our case against the Alabama State...

First argument in the United States Supreme Court. (First Arguments at the Supreme Court of the United States)
March 22, 2003... My first case in the Supreme Court was Herrera v. Collins, (1) a capital case out of Texas that raised the question of whether federal habeas corpus can be used to test the issue of actual innocence after an adverse final judgment in a state...

Why me? (First Arguments at the Supreme Court of the United States)
March 22, 2003... When I was asked to write about my first Supreme Court argument, I wondered what could possibly be interesting about that subject. Then I realized that there is at least one good question to ask anyone about his or her first Supreme Court...

Learning (and teaching) from doing. (First Arguments at the Supreme Court of the United States)
March 22, 2003... I. A MENTORING OPPORTUNITY Even more special than the opportunity to argue at the Supreme Court is the opportunity to serve as a mentor to junior attorneys while doing so. My background as a law professor sensitized me to the possibility...

Tilting at windmills. (First Arguments at the Supreme Court of the United States)
March 22, 2003... Prior to joining the Office of the Solicitor General in May 1972, at the age of 33, I had enjoyed a variety of experiences as a lawyer--D.C. Circuit law clerk, Counsel to the Governor of the Virgin Islands, associate in a law firm practicing...

Once is not enough, or how about arguing your first two Supreme Court cases back to back ... and losing? (First Arguments at the Supreme Court of the United States)
March 22, 2003... I have no idea why I've agreed to do this piece. I'm writing in response to a request for my recollections about the experience (better characterized, perhaps, as the ordeal) of my first, and immediately ensuing second, oral arguments before...

First argument impressions of the Supreme Court. (First Arguments at the Supreme Court of the United States)
March 22, 2003... For a lawyer who only occasionally argues an appeal the most disconcerting thing about the Supreme Court is that it is truly a court of last instance: It cannot be reversed on appeal. I never realized before my first appearance at the Supreme...

Twice grilled. (First Arguments at the Supreme Court of the United States)
March 22, 2003... I was fortunate enough to argue two cases before the Court in successive years, a circumstance that I suspect is quite rare for an unknown private practitioner. The experiences have blurred in my memory over time, likely due in no small part to...

Still grateful after all these years. (First Arguments at the Supreme Court of the United States)
March 22, 2003... I sat down to Thanksgiving dinner in 1991 with more than hunger pangs rumbling my stomach. The next day I was off to Washington to make final preparations for my first (and, to date, only) argument before the United States Supreme Court. I...

Public rights, private rites: reliving Richmond Newspapers for my father. (First Arguments at the Supreme Court of the United States)
March 22, 2003... When I've been asked about my first Supreme Court argument, my resume reflex has easily generated a routine reply: The case was Richmond Newspapers v. Virginia. (1) A man was on trial for the fourth time for stabbing a hotel manager to death....

Applications for certificates of appealability and the Supreme Court's "obligatory" jurisdiction.
March 22, 2003... I. INTRODUCTION Since 1925, with the passage of the Judges' Bill, (1) Congress increasingly has afforded the Supreme Court unfettered discretion to decide whichever cases it chooses. (2) The Court's "discretionary" docket includes almost...

Judging federal regulations that preempt state law: the role of the presumption against preemption.
March 22, 2003... In dealing with questions of federal preemption, appellate lawyers often find themselves addressing the presumption against preemption--the principle that a federal statute will not be held to have preempted state law unless that is the clear...

The Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.: the return of patent appeals to the regional circuits.
March 22, 2003... I. INTRODUCTION When Congress created the Federal Circuit in 1982, it gave the new court appellate jurisdiction over patent appeals from district courts around the nation. (1) That jurisdictional grant remained essentially exclusive for...

Legal and appellate weblogs: what they are, why you should read them, and why you should consider starting your own.
March 22, 2003... Most appellate judges and attorneys are familiar with at least some of the ways in which the Internet has affected legal practice in the last several years. Many appellate courts, including the Supreme Court, post their opinions on their own...

Advice from Justice Jackson.(Supreme Court Justice Robert H. Jackson)
March 22, 2003... Country lawyer. Solicitor General. Attorney General. Chief Prosecutor at the Nuremberg Trials. Associate Justice of the Supreme Court. Having neither attended college nor graduated from law school, Robert H. Jackson lived greatly in the law...

Advocacy before the United States Supreme Court.
March 22, 2003... The invitation to deliver this lecture is a signal honor, and the temptation is to respond with a discourse upon some tempestuous issue of world-wide reverberations. But it will encounter less competition and be more useful to the profession to...