Many years ago, Betty S. Flowers proposed thinking about the drafting process in terms of four different personalities: the Madman, the Architect, the Carpenter, and the Judge. Each should have its turn at the helm during the writing process. For…
Continue Reading The personalities of drafting; or, why I learned to stop worrying and started outlining more

Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law. In its first-of-the-term oral argument, the…
Continue Reading A Focus on the Facts

It’s certainly no secret that we live in very partisan and polarizing times. But the reasons for such polarization border on the ridiculous. Indeed, citizens often cannot reasonably and respectfully disagree on matters of public importance, such as abortion, immigration,…
Continue Reading Disagreement, Civility, and Respect

From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public…
Continue Reading Shortcomings in Arguing Original Public Meaning

I recently participated in a panel discussion, organized by Scribes, titled “No Laughing Matter: Pop Culture and Humor in Judicial Opinions.” You can find a recording of the event here. Present company excluded it was a distinguished panel: Hon. James…
Continue Reading No Laughing Matter: Pop Culture and Humor in Judicial Opinions

Dear Readers: A notice from our blog tech staff regarding a change in services: For those of you who enjoy receiving these blog posts delivered to your email account each day, we regret that this service (known as Feedburner) has…
Continue Reading Email blog delivery

Appellate judges read A LOT of briefs. Odds are that they will give yours a single careful reading. After that, they’re likely to use shortcuts to remind themselves of your arguments. Different judges will rely on different sections–some like the…
Continue Reading Embracing the power of "because" in headings

The curse of legal knowledge. Sometimes we call it advocacy bias. You’ve been living and breathing this issue for weeks (or longer). You know it backward and frontward. So what often happens? You forget that once you’re an expert, it’s…
Continue Reading The Curse of Legal Knowledge

Following up on my last post, a few more pointers on writing compelling statements of fact. 4. Prime the pump. There are only two ways to become a great writer: (1) read good writing; (2) try to echo it until…
Continue Reading Fact statements, part II

Appellate decisions may decide a dispute between opposing parties and articulate a rule of law, but they often create new issues that can flood the courts. The Supreme Court’s newly energized reliance on history and tradition, rather than balancing tests…
Continue Reading The New World of Constitutional Appellate Advocacy

I am participating in a Scribes CLE that might be of some interest to readers of this blog. Details below: Webinar – No Laughing Matter: Pop Culture References and Humor in Judicial Writing – October 19 at 12:00 p.m. CDT…
Continue Reading Free CLE: No Laughing Matter: Pop Culture References and Humor in Judicial Writing – October 19 at 12:00 p.m. CDT

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide…
Continue Reading Why Judicial Deference Matters Now More Than Ever

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent…
Continue Reading When to Make a Bold Argument