How Appealing

Thursday, May 31, 2018

“Jay-Z defeats copyright claims over ‘Big Pimpin'”: Jonathan Stempel of Reuters has this report.

And at the “THR, Esq.” blog of The Hollywood Reporter, Eriq Gardner had a post titled “Jay-Z Triumphs in ‘Big Pimpin’ Appeal as Egyptians Can’t Enforce Moral Rights; The rapper and producer Timbaland were accused of mutilating a song first featured in a 1960 Egyptian film.”

You can access today’s ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Posted at 11:20 PM by Howard Bashman

“[W]e join every court that has directly addressed these issues in holding that it is neither unconstitutional nor a violation of RFRA to print the national motto on currency.” So ruled a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit today in a case brought by a plaintiff whom the opinion describes as “an adherent of what he calls non-theistic Satanism.” Chief Judge Diane P. Wood wrote the opinion of the court.

Posted at 10:55 PM by Howard Bashman

“Two new petitions call on SCOTUS to decide workplace protections for gays, lesbians”: Alison Frankel’s “On the Case” from Thomson Reuters News & Insight has this post.

Posted at 4:24 PM by Howard Bashman

“Republicans Lost The Same-Sex Marriage Fight. Here’s How They Plan To Win The War. Everything the anti-abortion movement did is happening again.” Dominic Holden of BuzzFeed News has this report.

Posted at 11:15 AM by Howard Bashman

“Quiet Time? Oral Arguments Disappear in Federal Appeals Courts; The number and percentage of cases argued at the federal appellate level is fading, leaving firms to ask where their next generation of appellate lawyers can turn for courtroom experience.” Ross Todd of The Am Law Litigation Daily has this report.

Here in Pennsylvania, the answer to that question is the state appellate courts. In particular, the Superior Court of Pennsylvania — the far busier of the Commonwealth’s two intermediate appellate courts — allows oral argument whenever counsel for the appealing party requests it. As a result, the opposite problem frequently arises — having to expend the resources to prepare for oral argument in appeals that objectively do not merit it.

Appellate advocates at the upper levels of our profession may not themselves notice a marked decline in oral argument, because they (or dare I say we) are fortunate to work mostly on cases that merit oral argument even under today’s more restrictive standards. Moreover, when representing the party that won below, a lack of oral argument is often viewed as a good sign — a likely indication of affirmance — which is of course the client’s objective.

The way to have the best chance of oral argument under today’s more restrictive standards is to demonstrate that the appeal merits it. That may not always be possible, because the showing depends more on the case itself than on the appellate advocate’s skills.

In reflecting back on my own experiences, I can only identify one case in particular where I was very surprised that the U.S. Court of Appeals for the Third Circuit did not request oral argument. My client had lost below, and I thought we had set forth a strong case for reversal in our appellate briefs. As a matter of statistics, reversal is far less likely to occur in a case that has not received oral argument. Thus, I had appropriately cautioned my co-counsel and the client that our chances of winning the appeal had greatly decreased once the case had not been selected for oral argument. Yet even this story ultimately has a happy ending, as the Third Circuit ended up reversing without oral argument, which to this day remains a very rare occurrence.

Posted at 10:44 AM by Howard Bashman

“An Epic Case, Its Not-So-Immaculate Concepcion, and a Few Thoughts on Conservative Jurisprudence”: Michael S. Greve has this post at the Law and Liberty blog.

Posted at 10:10 AM by Howard Bashman