News

      Highlighting excellent appellate advocacy in the Supreme Court argument over Mississippi's abortion case, CCL's Robert S. Peck highlighted some of the best advocacy moments during the argument in a post on the Appellate Advocacy Blog. The post discusses Can an Oral Advocate Learn Anything from Last Week's Supreme Court Hearing on Abortion? 

     CCL President Robert S. Peck passed along advice from a federal circuit judge to "Answer the Question" in his biweekly posting on the Appellate Practice Blog today.

     The advice came from Fifth Circuit Judge James Earl Graves, Jr. on November 13 during the 2021 Summit of the Appellate Judges Education Institute. Judge Graves lamented the fact that, too often, oral advocates are so determined to make their point that they fail to answer the judges' questions. Because it is the judges who will decide the case, answering the question is critically important, even when the question indicates confusion on the questioner's part.

     During a discussion moderated by CCL President Robert S. Peck, twenty-four state supreme court chief justices discussed lessons learned during the pandemic and what the courts might take away from the advancements in technology and remote access that the courts were required to adopt. 

     A consensus emerged that, although live presentations are generally preferable, the option of providing remote opportunities to interact with the court for shorter sessions should be available to save time and money in traveling to court for a brief audience with the judiciary. Several states established remote access points to enable those without Internet access or computers to take part in court proceedings.

     The session was part of the National Center for State Courts (NCSC) meetings in Washington, DC. The Conversation with the Chief Justices is held in conjunction with the Conference of Chief Justices, the NCSC Lawyers Committee, and the NCSC General Counsels Committee. 

     CCL's Robert S. Peck told judges and appellate lawyers meeting in Austin, Texas that the current Supreme Court term will expose even more fissures between the justices on issues that have implications for the nation's political climate than last term when Justice Amy Coney Barrett joined the Court.

      In a morning session of the 2021 Appellate Judges Educational Institute, Peck joined Washington, DC lawyer Kannon Shamugam and Texas lawyer Jaime Santos in previewing, and, in some cases reviewing, October Term 2021. The discussion included cases on abortion, guns, religion, and civil rights. The four-day summit is one of the premier appellate education events each year and is sponsored by the National Judicial College.

     With the Biden Administration's vaccine mandate for large employers due to go into effect in January, the Fifth Circuit and several other courts are considering challenges that seek to stop the mandate. In a story on the Bloomberg Law website, CCL's Robert S. Peck is quoted that, strategically, the administration might wait to see what different courts decide initially before seeking the U.S. Supreme Court's intervention, given that there is still time before the mandate is due to go into effect.

     The story can be found at White House Biding Its Time in Fight Over Shot-or-Test Mandate.

     CCL President Robert S. Peck argued against a suggestion to rename the Supreme Court building after the first Justice John Marshall Harlan, a topic of discussion because of an advocacy piece published by Politico. In his biweekly post in the Appellate Advocacy Blog, a part of the law professors blog network, Peck called the suggestion provocative, but ultimately inconsequential because it was unlikely to occur.

     The suggestion by Sarah Isgur, nonetheless, was fun to discuss, Peck said, because it caused some reflection both on the Court and Justice Harlan. Still, he concluded that a building dedicated to the rule of law and not of men should not be named after any individual. Moreover, to Isgur's suggestion that it would help tell the Court's story, Peck said that the Court's story was better told through its decisions. The blog posting can be found at A Provocative Suggestion to Name the Supreme Court Building After a Single Justice.

     CCL President Robert S. Peck told conference attendees at Hastings Law School in San Francisco to expect a new revolution in products liability because technology changing the relationship between a manufacturer and buyer. The presentation was part of a two-day academic symposiums, "The Internet and the Law: Legal Legal Challenges in the New Digital Age," cosponsored by the Pound Civil Justice Institute and the UC Hastings Center for Litigation and the Courts.

     Peck described today's "smart" or connected products as providing a continuous connection between the manufacturer and the product. Through data retrieval, security updates, and other over-the-air connections that occur without intervention by the user, the manufacturer maintains contact with the device. In many instances, while the purchaser owns the hardware, the software remains in the manufacturer's name and is merely licensed to the user. This co-ownership arrangement, Peck said, has the potential to change standards for personal jurisdiction and reinvigorate strict liability. He further described the historical development of products liability, which has taken several revolutionary leaps in response to changing technology, first with the development of railroads and, most prominently, with the invention of automobiles.

     Papers from the academic symposium will be published in a future issue of the Hastings Law Journal. For more information on the symposium, see The Internet and the Law.

     In a member consultative group meeting on proposed changes to the Restatement of Law (Torts) on remedies, the American Law Institute is considering changes that both update and advance the law governing remedies in tort cases. The meeting, in which CCL's Robert S. Peck participated, reviewed the first initial draft of parts of the new Restatement.

     On a luncheon panel sponsored by the RAND Institute for Civil Justice and the Feinberg Center Risk Management and Compensation, CCL President Robert Peck suggested that new procedural rules for cases assigned by the Judicial Panel on Multidistrict Litigation were not needed, but that some rethinking of the system would help.

     Peck was joined on the panel by University of Connecticut law professor Alexandra Lahav, experienced plaintiffs' MDL attorney Christopher Seegar, Bayer general counsel Scott Partridge, and U.S. District Court Judge Brian Martinotti.

     The panel was organized around the theme of when is an MDL too big. MDLs now constitute more than half the federal docket, in large measure filling a void left by new decisions that discourage the use of class actions. Recent MDLs in the news include lawsuits over opioids, Roundup weed killer, and the BP oil spill.

     While Partridge bemoaned the size of the cases, calling it "bet-the-company" litigation, Seegar advocated allowing some creativity in reaching solutions, giving the example of his work in the NFL concussion litigation. Peck suggested greater use of subclasses and additional judges when MDLs get bogged down due to size and a single presiding judge, as well as recognition of opportunities to allow individualized justice in the context of the aggregation of cases.

     The MDL system was originally intended to clear out common pretrial issues efficiently, but has developed into a means of disposing of the mass of litigation through settlement. Professor Lahav said this was a function of the concept that, if you build it, they will come.

     In his most recent contribution to the Appellate Advocacy Blog, CCL President Robert S. Peck posted a discussion entitled "Qualifying Qualifying Immunity." The blog post discusses two recent U.S. Supreme Court per curiam decisions reinstating qualifying immunity for police officers, as well as CCL's experience with the judge-made doctrine. 

     Despite its long existence, the doctrine of qualifying immunity continues to have uneven application, especially between circuits, and applications that can fairly be described as insensible.