“Senate Confirms Loretta Lynch as Attorney General After Long Delay”: Jennifer Steinhauer of The New York Times has an article that begins, “After one of the nation’s most protracted cabinet-level confirmation delays, the Senate Thursday approved Loretta E. Lynch to be attorney general. She is the first African-American woman to hold the position.”

“What Same-Sex Marriage Teaches About Social Change and the Supreme Court”: Law professor Michael C. Dorf has this essay online at Justia’s Verdict.

And at his “Dorf on Law” blog, he has a related post titled “What’s at Stake in Next Week’s SSM Oral Argument?”

“Constitution Check: Might the Supreme Court take a pass on same-sex marriage now?” Lyle Denniston has this post today at the “Constitution Daily” blog of the National Constitution Center.

Reader email regarding FRAP word limit reduction compromise: A reader emails:

I am an appellate practitioner in Texas who read with interest your summary of the proposed reduction of the briefing word limit. I am encouraged by the idea that, under the proposed new rule, appellate courts will grant leave for expanded word volume more readily. But I wonder whether any discussion occurred about disrupting current judicial attitudes.

For example, the Fifth Circuit requires a draft brief to be tendered with a motion to exceed the word limit, which must come ten days in advance of the brief due date. It is unclear if that draft must itself be over the default word limit or simply enough to show the complexity of the case. But, either way, this requirement stands as a practical disincentive to seeking an expansion. Attorneys may not wish to make public their unpolished drafts. Yet that may be unavoidable under this local rule, particularly when a case has been accelerated and a brief must be turned around in short order. Was there any discussion about advising circuit courts against local rules having the effect of disincentivizing motions for expanded words, or advising that the procedure for obtaining expanded words should allow that relief upon only a showing in a motion of good cause, without further obstacles?

Day two of the FRAP advisory committee’s meeting will occur tomorrow morning, and I am posting this comment so that the committee may be able to take this concern into consideration at that time.

“Justices Drop Another Clue About Obamacare’s Future”: Law professor Noah Feldman has this essay online at Bloomberg View.

“BofA questions judge’s impartiality as it appeals big fraud verdict”: Jonathan Stempel and Nate Raymond of Reuters have this report.

And Alison Frankel’s “On the Case” from Thomson Reuters News & Insight has a report titled “BofA ‘Hustle’ appeal tests Justice’s novel use of old S&L statute.”

You can access the 91-page, 20,900-word brief that Bank of America filed yesterday in the U.S. Court of Appeals for the Second Circuit at this link.

“View from the Courtroom: Justices sometimes face off with each other in raisin case.” Mark Walsh has this post at “SCOTUSblog.”

“How Wall Street came out on gay marriage”: Lawrence Hurley of Reuters has this report.

“Meet The Lawyer Who Set The Stage For Nationwide Marriage Equality”: Sahil Kapur of TPM DC has a report that begins, “Paul M. Smith keeps a cutout of a 12-year-old Washington Post newspaper article on the wall of his law office near the White House.”

“Monroeville board: No more ‘To Kill a Mockingbird’ after this year.” Columnist John Archibald has this essay at AL.com.

“After court adjourns, 9th Circuit judge’s movie nights are a hit”: Maura Dolan has this front page article in today’s edition of The Los Angeles Times.

A 13,000-word limit and easing expansions of that limit in cases meriting more words unanimously clears the Advisory Committee on Rules of Appellate Procedure after extended discussion: Today I was pleased to attend the FRAP advisory committee’s meeting in Philadelphia, at which the committee considered, now that the comment period has concluded, the pending proposal to reduce the maximum word limit for federal appellate briefs from 14,000 words to 12,500 words.

The three lawyers in private practice on the committee each spoke during the initial round of discussion to oppose the reduction proposal, expressing somewhat differing degrees of opposition. The lawyer in private practice who serves as the Standing Committee’s liaison to the the Appellate Committee spoke in favor of the word count reduction proposal. All four federal appellate judges on the committee spoke strongly in favor of the proposal.

Ultimately, the Appellate Committee’s chair had a compromise ready to offer all concerned — adopting a 13,000-word limit and adding into the rule’s comments a statement urging federal appellate courts to recognize that in complicated cases, or cases involving multiple parties, those courts should ease their current reluctance to grant expansions of the word limit.

To be sure, the committee today approved a reduction of two-thirds of the amount of the reduction originally sought, which is not a compromise precisely in the middle between the current limit and the smaller word limit published for comment. However, setting the new word limit at 13,250 (and a corresponding reply brief limit of 6,625 words) — representing the exact midpoint between those two options — would result in word limits that are much more difficult to remember. And adopting a new word limit of 13,500 words wouldn’t achieve much of a word count reduction, while likewise producing the still difficult-to-remember reply brief limit of 6,750.

A title for this post that I was originally contemplating would have stated, “Bad lawyers ruin it for themselves and for many of the rest of us.” In essence, the comments that the judges on the committee made in favor of a word limit reduction focused largely on the unnecessary prolixity of so many of the briefs received in cases viewed as not very difficult, filed by lawyers who are not among the most talented appellate practitioners. To the extent that those lawyers’ prolixity caused them to file briefs within the 13,001-word to 14,000-word range, such lawyers will now be limited to filing briefs not longer than 13,000 words. It may also end up that talented, well-known appellate advocates, and government lawyers, will have an easier time obtaining expansions of the word limits than lawyers who are unknown to the judges considering such motions.

If all goes as planned, appellate judges, once this amendment goes into effect, should become much more willing to grant word limit expansion motions. Whether the implementation of this amendment will cause federal appellate judges to conclude that their time is not being wasted as much by unnecessarily long briefs remains to be seen, especially since the percent of briefs being filed that fall between 13,001 words and 14,000 words is already quite small.

Four more things must occur before this rule amendment goes into effect. The Standing Committee must approve the amendment. The Judicial Conference of the United States must approve the amendment. The U.S. Supreme Court must sign-off on the amendment. And the U.S. Congress must refrain from vetoing the amendment.

Individual federal appellate courts will have the ability under the amendment to retain the current 14,000-word limit or any other limit larger than 13,000 words. My expectation, however, is that none of the 13 federal courts of appeals will opt-out of the word count reduction once it goes into effect.

Readers who wish to comment on today’s developments are invited to send me an email for possible publication here. In addition, assuming that the word limit amendment takes effect, this blog will follow with interest reports from readers discussing the willingness of the various federal appellate courts to grant word limit expansions in individual cases and the delay involved in obtaining such expansions.