Tuesday, May 26, 2009

Oh Hail It's Tuesday.

Hi online addicts!

Welcome to your work week, folks.

Well I hope you all had a restful and peaceful Memorial Day weekend, and at least paused for a moment to honor the many who have sacrificed so much in defense of our country.

Somehow I windsurfed myself all the way out to Elliott Key yesterday, so I apologize for not getting a post up to mark the holiday. And thank you US Coast Guard, I owe you one.

I see everyone is buzzing about Obama's Supreme Court pick. Is it just me or is there something slightly anti-climactic about the selection at this point in the game?

I happen to like the jurisprudence out of the 2d Circuit generally, at least on civil matters. They seem to understand antitrust law, business litigation, and damages issues. Lots of good lawyers litigating the nation's key business disputes in a fair-minded, intelligent forum.

Most of the criticism from the right so far has focused on Judge Sotomayor's PCA on a white firefighter discrimination case -- you can read Ed Whelan's gloom and doom report on the judge's transgressions here.

To me that's a big yawn -- we know appellate courts do this all the time to preclude further appeals when the issues are not properly framed or the case not the right vehicle to adjudicate certain open legal questions. If that's the best they have, she seems like a lock.

Speaking of appellate courts, I found this article pretty interesting:

A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side would win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Chief Justice Roberts heard about Ms. Shullman’s study while he was a federal appeals court judge, and he decided to test its conclusion for himself. So he picked 14 cases each from the terms that started in October 1980 and October 2003, and he started counting.

“The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.

Judge Roberts had argued 39 cases in the Supreme Court, and he was considered one of the leading appellate advocates of his generation. He sounded both fascinated and a little deflated by the results of his experiment. “The secret to successful advocacy,” he said playfully, “is simply to get the court to ask your opponent more questions.”
This certainly comports with my anecdotal experiences with a "hot" bench. When you walk up to the podium and can barely get your name out before the questions begin, you stand a pretty good chance of losing.

Sarah, btw, is now an associate at SSD in Palm Beach.

Boy, to have your law review article quoted in the Times and by the Chief Justice -- congrats Sarah!

Of course, I thought my hot-button law review article -- analyzing the increasingly flustered and bewildered facial expressions of Harry Morgan's night court judge in Holiday Affair -- would be nearly as influential, but alas time (and Westlaw citations) have not been so kind.

Darn eggheads!


  1. Definitely agree on judicial questions.

  2. She is a strong choice, centrist with a great personal background.

  3. Whoa! You windsurfed out to Elliott Key? I'm impressed.

  4. I believe one and all must glance at it.
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