Why Aren’t Briefs Actually Brief?

By Karen Federman-Henry

Fairly often, as I prepare an appellate brief, my husband will offer to write it for me. As he is a retired assistant fire chief, this always intrigues me, so I’ll ask him how he would take all the complex issues I have to address and present them to the court. His reply typically tells me the simplest (and shortest) brief would say, “I’m right and they’re wrong.”

Obviously, I have not used this technique, but it helps to keep this concept in mind when writing a brief. At the most basic level, isn’t that what each of us is trying to say in our briefs? Whether we have 35 pages or 50 pages available to us, it all really boils down to an effort to persuade the appellate court to accept and adopt the position we present on behalf of our client.

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Highlights of FBA’s “Highlights of the Supreme Court’s 2013-2014 Term”

On July 17, the Federal Bar Association hosted its second-annual panel discussion of the highlights of the Supreme Court’s most recent term. Held at the U.S. Courthouse in Baltimore, presenters included the Hon. Benson Everett Legg (Ret.), former judge of the U.S. District Court for the District of Maryland; the Hon. Joseph F. Murphy Jr. (Ret.), former judge of the Court of Appeals of Maryland; Suget Raman, the current appellate chief of the U.S. Attorney General’s Office for the District of Maryland; and Jonathan Biran, a previous appellate chief of that Office and, more notably, current contributor to this blog. (Potential bias alert: Judge Legg is this author’s former employer, and Judge Murphy and the author are currently members of the same firm.) A recap of the event, along with these distinguished commentators’ takes on the cases that most caught their attention, appears below (after the jump).

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Pizza Is the New Broccoli

By Steve Klepper (Twitter: @MDAppeal)

In the 2012 NFIB v. Sebelius challenge to Obamacare, the now-famous broccoli analogy appeared 12 times in the majority, concurring, and dissenting opinions.

Today, we were treated to a (coincidental) same-day Circuit split, with the D.C. Circuit and the Fourth Circuit reaching opposite holdings regarding the legality of subsidies under the federal healthcare exchanges. In the process, Maryland’s own Fourth Circuit Judge Andre Davis has given us a new Obamacare food analogy du jour: Read More…

July 2014 Maryland Certiorari Grants

Ta-da! A new batch of cert grants to get you through the dog days of summer. Check out this sundry lineup of cases — including one on warrantless cell phone searches incident to arrest, a topic that’s all the rage these days in criminal procedure — after the jump.

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Nominations Are Open for the ABA Journal’s Blawg 100

The ABA Journal is taking nominations for its annual Blawg 100 list of must-read legal blogs. Given that the Maryland Appellate Blog is less than a year old, it would certainly be a coup to make the list. If  you think we deserve consideration, and if you’re not a contributor or a person affiliated with a contributor, please consider taking a few minutes to nominate us. The ABA Journal’s post, with a nomination form at the end, is here.

Could Clarence Thomas Be Questioning Whether Citizens United Binds the States?

By Steve Klepper (Twitter: @MDAppeal)

One of the more surprising denials of certiorari this past term at the U.S. Supreme Court was in Iowa Right to Life Comm. v. Tooker. There, the Eighth Circuit, applying FEC v. Beaumont, 539 U.S. 146 (2003), upheld an Iowa law that bans direct corporate contributions to political campaigns but permits such contributions by unions. Over at the Election Law Blog, Rick Hasen noted that Beaumont’s days appear to be numbered under recent Supreme Court election law decisions, but he concluded Chief Justice Roberts “is playing the long game, not wanting to move quickly.”

I agree that Chief Justice Roberts is playing the long game, but it only takes four justices to grant certiorari. In Beaumont itself, Justices Kennedy (concurring in the judgment) and Justices Scalia and Thomas (dissenting) telegraphed a willingness to reexamine the ban on corporate giving in a future case. It’s difficult to see why Justice Alito, having since joined the Court, would hesitate to vote to grant review in Iowa Right to Life, particularly given Iowa’s differing treatment of unions and corporations. Read More…

Team SCOTUS! 9 Action Hero Supreme Court Justices

By Steve Klepper (Twitter: @MDAppeal)

Maryland Court of Appeals Judge Glenn T. Harrell, Jr. likes his movie references. The first time I had dinner with him, he regaled the table with a lively discussion of The Expendables 2 – a cartoonish testosterone-fest featuring a collection of past-their-prime action stars. (Disclosure: I never saw the first one and made it through only 15 minutes of the second.) The Expendables 3 arrives this summer, and, at least judging by the posters, it looks simply awful. In honor of Expendables 3, and of Judge Harrell completing his term as Chair of the MSBA Section of Litigation, I proudly present my list of nine action-hero Supreme Court justices. Read More…

CTS and the Value of Certification Statutes

By Steve Klepper (Twitter: @MDAppeal)

Yesterday’s excellent guest post by Derek Stikeleather managed to set a new record for daily traffic on the Maryland Appellate Blog. Many thanks to Derek (and to Howard Bashman for picking up the post at How Appealing). I’d like to briefly add a small point on CTS Corp. v. Waldburger.

I’ve seen news reports of efforts in the North Carolina Legislature to pass a bill, applying to all pending litigation, declaring that the state’s statute of repose was never intended to apply to tort cases involving contaminated groundwater. [Update: Beth Scherer at the North Carolina Appellate Practice Blog reports that both houses unanimously approved the legislation.] A Marylander might ask why the Fourth Circuit does not simply certify that question to the Supreme Court of North Carolina. Read More…

June 2014 Maryland Certiorari Grants

The Court of Appeals website is listing four June 18, 2014 certiorari grants. The cases, listed after the jump, include authentication of Facebook posts at trial. Read More…

An Open Letter to Law Professors: Use This Case To Show Why Statutory Interpretation Is Not as Easy as It Sounds

By Derek Stikeleather[*]

The simplest rules and standards can often be the most confounding; just ask anyone who has had to divine whether an act was “willful.” The decisions of the Fourth Circuit and Supreme Court in CTS Corp. v. Waldburger offer a vivid case study of how the supposedly simple rules of statutory interpretation, which apply a statute’s “plain language” and “clear intent,” are anything but simple in practice. Both courts analyzed whether CERCLA’s express pre-emption of state-law statutes of limitations also pre-empts state-law statutes of repose. Last summer, a split panel of Fourth Circuit judges reversed a district court judge and held that CERCLA did pre-empt North Carolina’s statute of repose. But a divided Supreme Court, reversing again, held last week that it did not. Read More…

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