Peck Rebuts Criticism of Unenumerated Constitutional Rights

May 15th, 2022

     Responding to critiques about unenumerated constitutional rights, CCL President Robert S. Peck devoted his post to the Appellate Advocacy Blog to the subject, explaining both textual and originalist justifications and for proper application of common-law interpretative methodologies. 

     In Denying Unenumerated Rights, Peck explains that all sections of the political spectrum have their favorite implied rights that they insist is embodied in the Constitution. The disagreement, then, is not about the existence of such rights, but how they are read into the Constitution.

DC CBS Station Interviews CCL's Peck about Leaked SCOTUS Abortion Decision

May 4th, 2022

      CCL President Robert S. Peck explained the process the justices follow in drafting opinions to explain why the draft decision in the Mississippi abortion case can be authentic but not final for WUSA-9, the CBS affiliate in Washington, DC.

      As Peck explained, the chief justice or the most senior justice in the majority assigns the opinion, which, once a draft is completed, is circulated to the other justices. Some justices will join immediately; others will agree with its thrust by ask for changes. Still, others who are planning to dissent will incorporate responses to some of the arguments in the draft opinion. This process of back and forth continues until final opinions, majority, concurring, and dissenting, are complete.

Peck Discusses "Art of Rebuttal"

May 1st, 2022

      CCL President Robert S. Peck discussed four key ingredients to "The Art of Rebuttal" in a post to the Appellate Advocacy Blog, sponsored by the Law Professor Blog Network, to which he contributes every two weeks. 

      Peck's essential advice was to answer your opponent's best argument, answer questions posed by the judges to your opponent, don't waste time reiterating a point the judge has already made for you, and don't feel the need to use all of your time. 

CCL President Participates in ABA Section Council Meeting

April 30th, 2022

     CCL President Robert S. Peck finished two days of meetings of the American Bar Association's Tort Trial and Insurance Practice Section (TIPS) in Baltimore. The council is the section's governing body. Peck has served on the TIPS Council for 15 years and will be ending his tenure on it in August. During the meeting, Peck recounted his representation in the ABA House of Delegates during its February meeting and gave a preview of issues that will be raised at its August meeting.

CCL President Participates in AAJ Legal Affairs Committee Meeting

April 22nd, 2022

     CCL President Robert S. Peck participated in the Spring 2022 meeting of the Legal Affairs Committee of the American Association for Justice, where he spoke about his recent argument in the Ohio Supreme Court in Brandt v. Pompa, a constitutional challenge to the damage cap applicable to personal-injury lawsuits.

      In Brandt, under a state statute, the trial court reduced a $20 million jury verdict to $250,000 where the plaintiff had been the victim, as an eleven- and twelve-year-old, of more than 30 sexual assaults by a friend's father, who had drugged her during sleepovers. Peck argued that the statute violated the state constitutional right to trial by jury, but also was unconstitutional as applied to Brandt because the legislature had no justification for treating her differently from those suffering permanent physical injuries, whose damages are not capped.

      The case, argued in late March, is currently under advisement, with a decision expected before the end of the year.

Blog Post Reflects on Judicial Nomination Hearings Gone Wrong

April 17th, 2022

      CCL President Robert S. Peck bemoaned the theater and lack of substance in the Senate Judiciary Committee's hearing on the nomination of Judge Ketanji Brown Jackson to the Supreme Court in an Appellate Advocacy blogpost.

       Reviewing some of the questions asked, Peck gave alternative "tongue-in-cheek" answers in place of the more appropriate ones given by Judge Jackson, who demonstrated an unflappable temperament in the face of exceedingly silly and posturing questions. The post can be found at "Tongue-in-Cheek Answers to Bizarre Questions."

Blog Post Discusses Influence of Politics in Appellate Decision-Making

April 3rd, 2022

     CCL President Robert S. Peck discussed the continuing impact of political outlooks on appellate decision-making in a post on the Appellate Advocacy Blog of the Law Professor's Blog Network.

     Even so, the theory of the law is that logic and reason control outcomes -- and usually it does, as evidenced by the frequency of 9-0 decisions on an ideologically diverse U.S. Supreme Court. However, on hot-button issues, where either a statute or the Constitution provides no singular answer, the post explains that judges imbue their decisions with the lessons of experience or past determinations that result in diverse views when reading the same language, precedents, and arguments. The post suggests that, while this type of political-outlook influence has always been true, the frequency of it seems to be increasing as the division of judicial philosophies often seem to reflect diverse political views.

     The post can be viewed at The Logic of the Courtroom, the Skewing Influence of Politics.

The Best Qualified Nominee

March 20th, 2022

     Critics of the nomination of Judge Ketanji Brown Jackson have leveled several poorly taken criticisms to score political points against her confirmation. One of the many arguments made is that she may not be the "best qualified" person to serve on the Court, despite her sterling credentials. In a post for the Appellate Advocacy Blog of the Law Professors Blog Network, CCL President Robert S. Peck explains why the critique is without any force.

      His post shows that no objective criteria exists to determine the most qualified potential nominee. In addition, he demonstrates that some of the most celebrated of Supreme Court justices were not considered the most qualified candidate for a seat, yet history has vindicated their selection. In addition, he notes one justice who was widely considered the most qualified turned out to be a dud.

      The post can be found here.

CCL Defends Free-Speech Doctrine

March 6th, 2022

     Arguing that exempting "low-value" speech that causes emotional distress from constitutional protection will often provide a weapon in the hands of those in the majority against dissenters, CCL President Robert S. Peck took up a debate with a fellow blogger on the Appellate Advocacy Blog, a feature of the Law Professor Blogs Network. 

     A week earlier, Adam Lamparello, an associate professor at Indiana Tech Law School, provocatively advocated that brutalizing speech should be subject to regulation. Peck responded by describing instances where anti-racism demonstrations were the object of attempted censorship because of the discomfort it transmits to those in power who may not be combating it. Peck noted that today's controversies over critical race theory and LBGQT expressions arise because majorities believe that their communication constitutes an attack on traditional values.

     Peck also pointed out that free speech has a safety-valve function that allows the expression of disturbing thoughts so that it does not retreat to the underground, where it can fester unimpaired by counter-speech and emerge surprisingly and in more virulent form. 

Peck Blogs about Arguing in the Age of COVID

January 16th, 2022

  In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about the uncertainty counsel often faces about whether arguments will be in-person or remote during the COVID-19 pandemic. While preparation remains largely the same, the dynamics vary between the two, which he demonstrates through several anecdotes. The post is Arguing in the Age of COVID