Follow our 2015 Ames Finals Coverage HERE.

Welcome to the CRCL Ames 2012 Liveblog!

JW = Judge Wolf, JS = Justice Souter, JR = Judge Raggi

March 23, 2016 - 08:19:21 pm by Adam Mills

And we are done!

FacebookTwitterLinkedInTumblrPocketShare

March 23, 2016 - 08:16:52 pm by Esther Agbaje

Judge Gajarsa: The oral arguments were great. Everyone was very very good. The students will all have great appellate careers in the future. Everyone was poised. Everyone did well with the hypos.

March 23, 2016 - 08:16:02 pm by Mitha Nandagopalan

Judge Marshall: I’ve had that advantage (of the Supreme Court not being able to reverse) for 10 years!

March 23, 2016 - 08:15:37 pm by Esther Agbaje

Judge Gajarsa: The advantage of Ames is that SCOTUS can’t reverse.

March 23, 2016 - 08:15:29 pm by Mitha Nandagopalan

Judge Marshall on the briefs: 1st Circuit’s opinions were longer than the teams’ briefs, so props to the teams for condensing those.

March 23, 2016 - 08:14:56 pm by Adam Mills

Judge McLeese: I didn’t have to rein anything in. You could answer everything.

March 23, 2016 - 08:13:46 pm by Adam Mills

Judge McLeese: I’ve done this a number of years, and I love doing it, because it’s always amazing how great you all are before you’re even lawyers.

I’ve done many Ames problems, and this one was by far the most complex.

The briefs were excellent and exhibited good attention to detail. Covered the issues very well.

Presentation was great. There was a virtual absence of verbal or presentational tics. You were all remarkably polished. Oralists were able to get to an answer in a very polished way.

People handled questions well.

March 23, 2016 - 08:12:04 pm by Mitha Nandagopalan

Judge Marshall: Always a delight.

To Mr. Nguyen: It’s difficult to go first, but you were awesome.

To Ms. Knoll: Always difficult when you have to go to a dictionary definition. Very nice presence and got judges back on point, but don’t pull the court to consider questions it doesn’t have to.

March 23, 2016 - 08:09:03 pm by Esther Agbaje

Yay Mario!!!

March 23, 2016 - 08:08:37 pm by Executive Editor of Online Content

Best Overall: The Daniel J. Meltzer Memorial Team (respondents)

March 23, 2016 - 08:08:04 pm by Executive Editor of Online Content

Best Brief: The Rashid Rehman Memorial Team (petitioners)

March 23, 2016 - 08:07:08 pm by Esther Agbaje

Judge Gajarsa: Forgive the appellants for mis-coloring their reply brief….

March 23, 2016 - 08:06:31 pm by Esther Agbaje

Judge Gajarsa: Ms. Mundell answered the questions and did not lose her composure. She was not taken astray from her arguments.

March 23, 2016 - 08:05:29 pm by Executive Editor of Online Content

Best Oralist: Amanda Mundell

March 23, 2016 - 08:05:08 pm by Esther Agbaje

Judge Gajarsa: Difficult process of deciding the winners. Great writing, research, and presentations

March 23, 2016 - 08:04:40 pm by Esther Agbaje

Judge Gajarsa: Congratulations to the two teams

March 23, 2016 - 08:03:29 pm by Mitha Nandagopalan

Aaaaand they’re back!

March 23, 2016 - 08:03:07 pm by Executive Editor of Online Content

The Verdict is in!

March 23, 2016 - 07:41:55 pm by Adam Mills

The judges are deliberating, and now we wait.

March 23, 2016 - 07:40:48 pm by Adam Mills

Time is up!

March 23, 2016 - 07:40:37 pm by Adam Mills

Mario: Two years is not two late for some circuits, 3 years is not too late for other, and even 4 years have been long enough for some.

March 23, 2016 - 07:40:22 pm by Executive Editor of Online Content

Case is submitted.

March 23, 2016 - 07:40:19 pm by Esther Agbaje

Judge Gajarsa: Congress doesn’t take into account someone who has been out of custody for 2 years.

March 23, 2016 - 07:40:06 pm by Adam Mills

Mario: Congress was trying to curtail discretion, and the appellees want to expand it. Congress intended the removal order to make that risk available. Once an alien gets a removal order, the fear of absconding kicks in.

March 23, 2016 - 07:40:01 pm by Mitha Nandagopalan

Judge Marshall: Isn’t the purpose of this statute to address flight risk?

March 23, 2016 - 07:39:03 pm by Mitha Nandagopalan

Judge Marshall: Do you not look at the context of that statute, i.e. domestic violence, in Johnson?

March 23, 2016 - 07:38:56 pm by Adam Mills

Mario: You can use physical force without causing bodily harm, but you cannot cause bodily harm without using physical force.

March 23, 2016 - 07:38:21 pm by Adam Mills

Mario is up for rebuttal.

March 23, 2016 - 07:38:08 pm by Adam Mills

Amanda: the appellee poses no risk of flight or danger to the community.

March 23, 2016 - 07:37:13 pm by Esther Agbaje

Judge Gajarsa: What is the consequence of the failure to detain the alien?

March 23, 2016 - 07:37:10 pm by Adam Mills

Amanda: At the point where we have a gap in custody, the alien is no longer covered in the way the government argues.

March 23, 2016 - 07:36:38 pm by Adam Mills

Amanda: There were no practical considerations facing the government when the appellee was living freely for two whole years. There are no considerations with respect to the safety of the community that would weigh against having a bail hearing here.

March 23, 2016 - 07:35:49 pm by Adam Mills

Amanda: We don’t reach the “loss of authority” question unless we agree that “when” describes an alien.

March 23, 2016 - 07:35:24 pm by Mitha Nandagopalan

Judge Marshall: If you say ICE has to find them the very day they’re released, even if there’s evidence the agency couldn’t have known until 3-4 weeks later, that would be unreasonable.

March 23, 2016 - 07:34:41 pm by Adam Mills

Amanda: Tonight, we’re considering a situation where the appellee is a law-abiding citizen.

March 23, 2016 - 07:34:23 pm by Mitha Nandagopalan

Judge Marshall: Although ICE has access to a database, not everybody’s in it.

March 23, 2016 - 07:33:58 pm by Mitha Nandagopalan

Judge Marshall: Practically, federal authorities frequently don’t know the exact date and time people will be released.

March 23, 2016 - 07:33:34 pm by Mitha Nandagopalan

Judge Marshall: “When released,” meaning when you leave incarceration, applies regardless of whether you’re released on parole or under supervised release, etc.?

March 23, 2016 - 07:33:14 pm by Adam Mills

Amanda: It’s “when you leave incarceration.” And then subsection c clicks in.

March 23, 2016 - 07:32:24 pm by Adam Mills

Amanda: (on the moment of release) if an alien is not taken into custody under a deportable offense, they are not “in custody” in the operative way. “Custody” means “post-sentencing” custody.

March 23, 2016 - 07:31:55 pm by Executive Editor of Online Content

McLeese trying to parse out what “the moment of release” is.

March 23, 2016 - 07:30:28 pm by Mitha Nandagopalan

Judge Marshall: Is it so clear that someone has to be incarcerated before this statute comes into play at all?

March 23, 2016 - 07:29:30 pm by Mitha Nandagopalan

Shout-out to all the em-dashes out there in the audience!

March 23, 2016 - 07:29:29 pm by Adam Mills

Amanda: Congress chose punctuation to make its meaning clearer. We have an em dash to make the meaning plain.

March 23, 2016 - 07:29:01 pm by Executive Editor of Online Content

MORE GRAMMAR LESSONS, let’s talk about those em-dashes

March 23, 2016 - 07:26:43 pm by Adam Mills

Amanda: We think this is part substantive and part procedural. We know it means something substantive, because we have problems of surplusage and over expansion.

March 23, 2016 - 07:26:10 pm by Esther Agbaje

Gajarsa: The phrase ‘when the alien is released’ is that substantive or procedural?

March 23, 2016 - 07:26:00 pm by Adam Mills

Amanda: In order to decide this issue of chevron deference, we have to decide whether “when released” describes an alien or whether it describes the attorney general’s command.

March 23, 2016 - 07:25:49 pm by Executive Editor of Online Content

grammar lessons on the word – when.

March 23, 2016 - 07:25:37 pm by Esther Agbaje

Gajarsa: Is ‘when’ an adverb or a conjunctive in your argument?

March 23, 2016 - 07:25:27 pm by Adam Mills

Amanda: “When” means immediately or at the time. Almost all the common dictionaries say this.

March 23, 2016 - 07:24:45 pm by Executive Editor of Online Content

McLeese wonders if an administrative policy that allows a gap between release and detention is opposed to the statute.

March 23, 2016 - 07:24:41 pm by Adam Mills

Amanda: If the reasoning for not bringing someone in immediately is because they were overwhelmed, or it was impracticable, then a week would not be too late, but where we have no idea what the government was doing, it might be too late.

March 23, 2016 - 07:23:48 pm by Executive Editor of Online Content

McLeese: I’d gotten a hint that in respect to consequences of a gap in taking the alien into custody, that maybe a short gap is OK and a long gap may not be.

 

March 23, 2016 - 07:23:09 pm by Adam Mills

Amanda: Rojas first acknowledge that “when” means “immediately,” but there is a nuanced distinction when talking about “when” as describing what AG has to do. Does “when released” modify the attorney general’s command or the alien.

March 23, 2016 - 07:22:54 pm by Executive Editor of Online Content

McLeese: We should focus first on drawing the line on the definition of the duties of the attorney general. In Rojas, the BIA has already told us that the duty is immediate in terms of timing. Is there more play in the interpretation of the provision as to what moment in time the AG can take ascribed aliens into custody?

March 23, 2016 - 07:22:00 pm by Adam Mills

Amanda: It’s difficult to draw the line here, but we could draw it in a few places. We could say (1) Immediately, (2) as soon as possible, or (3) or as soon as practicable.

March 23, 2016 - 07:21:29 pm by Esther Agbaje

Gajarsa: So timing is a sliding scale then?

March 23, 2016 - 07:21:23 pm by Adam Mills

Amanda: (On timing). Several courts have decided that 4 years is too late under “when.” Some courts have decided that “two years” is two late.

March 23, 2016 - 07:21:13 pm by Esther Agbaje

Gajarsa: What makes “when” too long? 6months?

March 23, 2016 - 07:20:54 pm by Adam Mills

Amanda: The government has to provide the appellee with a bond hearing because she doesn’t fit the relevant exception.

March 23, 2016 - 07:20:35 pm by Esther Agbaje

Gajarsa: Now we get to parse the meaning of the word “when”

March 23, 2016 - 07:20:11 pm by Adam Mills

Amanda Mundell is up.

March 23, 2016 - 07:19:57 pm by Adam Mills

Will: There’s a categorical mismatch here between the federal and state statutes, and at the very least, appellee is entitled to a bond hearing.

March 23, 2016 - 07:19:34 pm by Executive Editor of Online Content

Continuing the Poison line of questioning: contact poison, and now a dirty bomb that kills through radiation

March 23, 2016 - 07:19:32 pm by Adam Mills

Will: Indirect effects of radiation would likely not count as physical force.

March 23, 2016 - 07:18:48 pm by Adam Mills

Will: Poisoning does constitute “use of force” under Castleman

March 23, 2016 - 07:18:24 pm by Executive Editor of Online Content

McLeese: Did Castleman leave for another day whether poisoning is the use of force?

(asked twice! not convinced!)

March 23, 2016 - 07:18:03 pm by Adam Mills

Will: Justice Sotomayor specifically stated that the question of whether poison would qualify as use of violent force was left for another day.

March 23, 2016 - 07:17:41 pm by Executive Editor of Online Content

“even for offensive touching, you don’t touch anyone if you’re poisoning them” – McLeese

March 23, 2016 - 07:17:15 pm by Adam Mills

The judges are pressing Will on the appellee’s reading of Castleman.

March 23, 2016 - 07:16:25 pm by Executive Editor of Online Content

McLeese questioning whether common law was a major interpretation tool in Castleman, opposed to the appellee’s argument.

March 23, 2016 - 07:15:26 pm by Executive Editor of Online Content

McLeese: I thought SCOTUS indicated in Castleman that although violence was not required, that offense did involve the use of physical force. And since those words weren’t in the statute, doesn’t SCOTUS have to be reading in the use of physical force into the statute?

March 23, 2016 - 07:14:01 pm by Esther Agbaje

Gajarsa: The judges questions that the statute covers physical force.

March 23, 2016 - 07:13:54 pm by Adam Mills

Will: The statute does make criminal the causing of bodily harm, but it doesn’t say anything about what kind of force is required to do so.

March 23, 2016 - 07:13:26 pm by Adam Mills

Will: The Ames statute offers a reasonable probability that someone can be covered without the use of physical force. We’re operating under the modified categorical approach.

March 23, 2016 - 07:13:20 pm by Esther Agbaje

Gajarsa: The statute also covers negligence and recklessness.

March 23, 2016 - 07:12:56 pm by Executive Editor of Online Content

“I wasn’t entirely clear whether your position is that whether to qualify in the modified categorical approach the element has to be explicit” – McLeese

March 23, 2016 - 07:12:20 pm by Adam Mills

Will: The Supreme Court of Ames has never read the use of physical force to qualify in the category.

March 23, 2016 - 07:11:46 pm by Adam Mills

Will: The Ames statute. The first thing we need to look at is its text. It criminalizes the “intentional causing of bodily harm.” The court found that the two elements were (1) intent, and (2) bodily harm.

March 23, 2016 - 07:11:45 pm by Executive Editor of Online Content

McLeese coincidentally prompting appellee’s next point. #theirmindsgotogether

March 23, 2016 - 07:10:57 pm by Adam Mills

Will: If congress really wanted to deport anyone who committed an assault, it could have said so clearly in the statute. Congress was really concerned about violent offenders. The appellee is entitled to a bond hearing.

March 23, 2016 - 07:10:26 pm by Executive Editor of Online Content

McLeese: “you’re saying that’s absurd, but it seems that congress wanted to reach simple assault with 16(a).”

March 23, 2016 - 07:10:07 pm by Adam Mills

Will: Florida, for example, criminalized “offensive touching,” and the court found that such a definition was too broad for the federal statute.

March 23, 2016 - 07:09:49 pm by Executive Editor of Online Content

McLeese clarifying the offenses that would prompt deportation–that could get at least a year in prison.

March 23, 2016 - 07:09:25 pm by Adam Mills

Will: The common law definition is too broad for this statute. First, the domestic violence context is inapposite to this context. Second, the dv context holding is limited. That same section was limited by a footnote. The footnote is dicta, however. Third, the practical consequences that would result from an over broad definition are absurd. Using this definition would absurdly increase the amount of deportations, and it would be unjust.

March 23, 2016 - 07:08:49 pm by Executive Editor of Online Content

“Could you view that as dicta rather than holding, since the interpretation of 16(a) wasn’t in front of the court?” – McLeese

March 23, 2016 - 07:07:49 pm by Esther Agbaje

Gajarsa: How do you differentiate twisting a person’s arm from squeezing it as a use of violent force.

March 23, 2016 - 07:07:31 pm by Adam Mills

Will: Domestic violence can be violent, but the court has recognized that in the DV context, violent force extents beyond the more restrictive definition.

March 23, 2016 - 07:07:14 pm by Esther Agbaje

Gajarsa: “I’m still perplexed”. The judge goes into how domestic violence.

March 23, 2016 - 07:06:36 pm by Adam Mills

Will: Context is the metric here. We look to the statutory context to see which definition is appropriate here.

March 23, 2016 - 07:06:23 pm by Esther Agbaje

Gajarsa: Castleman uses common law force, and Johnson uses statutory language.

The judge wants to know how the appellees are going to parse that out.

March 23, 2016 - 07:05:47 pm by Adam Mills

Will: In the second context, the court was looking at a domestic violence situation. In this situation, they were looking at the common law meaning. The supreme court ultimately determined that context determines meaning.

March 23, 2016 - 07:05:35 pm by Esther Agbaje

Gajarsa: Wasn’t it the same statutory language that was interpreted in Castleman?

March 23, 2016 - 07:05:04 pm by Executive Editor of Online Content

McLeese: “I thought it was different in at least two respects: 16(a) uses the word against, and reaches use of force against people and against property”

March 23, 2016 - 07:04:51 pm by Esther Agbaje

Gajarsa: Is that the same language in the statute?

The judge seems to be saying that the language between the two statutes are different.

March 23, 2016 - 07:04:41 pm by Adam Mills

Will: The “use of physical force” should be construed to mean “violent force.” The supreme court has interpreted “physical force” twice. In the first case, they found “physical force” to mean “violent force.” It was the same language as 16a.

March 23, 2016 - 07:03:37 pm by Adam Mills

Will: The ames statute focuses on results, not means. And that fact resolves the issue. The Ames statute does not require physical force. The appellee is entitled to a bond hearing.

 

March 23, 2016 - 07:02:25 pm by Adam Mills

William Winn is up for appellee.

March 23, 2016 - 07:02:11 pm by Adam Mills

And that’s it for appellant for now!

March 23, 2016 - 07:01:52 pm by Esther Agbaje

Gajarsa: The government wants to detain a criminal alien without a bond hearing?

March 23, 2016 - 07:01:48 pm by Adam Mills

Tara: The government is still required to detain appellee if there is some administrative oversight or delay.

March 23, 2016 - 07:01:09 pm by Esther Agbaje

Gajarsa: What are the consequences for the government in the breach of duty (failure to detain immediately)?

March 23, 2016 - 07:00:38 pm by Adam Mills

Tara: In the criminal context, rule of lenity has only really come into play with respect to deportation, not to detention.

March 23, 2016 - 07:00:23 pm by Mitha Nandagopalan

Judge Marshall: Do you believe detention is less severe than deportation?

March 23, 2016 - 07:00:19 pm by Executive Editor of Online Content

McLeese: “Step by Step, let’s focus first on the BIA’s decision first. Does the BIA, as a matter of its own administrative law, does it apply a rule of lenity?”

March 23, 2016 - 06:59:57 pm by Adam Mills

Tara: The BIA didn’t expressly address the rule of lenity. The rule of lenity does not really apply in this case. (rule of lenity is basically that the tie goes to the defendant in criminal cases).

March 23, 2016 - 06:59:17 pm by Executive Editor of Online Content

In sorting out the role of Chevron, can you address how the rule of lenity should fit into this analysis? – McLeese

March 23, 2016 - 06:57:54 pm by Adam Mills

Tara: Under chevron deference, our position does not assume the conclusion, because if there is any determination of ambiguity, the court must proceed to step two of chevron deference. Here, the BIA’s interpretation easily passes step two. (It wasn’t arbitrary or capricious).

March 23, 2016 - 06:56:28 pm by Mitha Nandagopalan

Judge Marshall insistent about just giving them a bail hearing.

March 23, 2016 - 06:56:25 pm by Adam Mills

Tara: “when released” speaks to the attorney general’s duty, but it does not narrow the category of criminal aliens. Congress categorically determined that the aliens in question should not receive a bail hearing.

March 23, 2016 - 06:55:58 pm by Mitha Nandagopalan

Judge Marshall: Without regard to the conditions of release (e.g. parole, supervised release, etc.), we know they’re not still in custody, so why retain the language “when released”?

March 23, 2016 - 06:55:16 pm by Executive Editor of Online Content

Marshall pulling out the statute to check the oralist’s statement. Things are getting heated!

March 23, 2016 - 06:55:14 pm by Adam Mills

Tara: The reason the BIA’s interpretation is permissible is because the statistics show that the old system was not working. The words “when released” still retain an important function. They modify the attorney general’s duty, and they make sure there are no other jurisdictional conflicts.

March 23, 2016 - 06:54:54 pm by Mitha Nandagopalan

Judge Marshall: Why even include the words “when released” if you can still detain someone 20 years later?

March 23, 2016 - 06:54:38 pm by Executive Editor of Online Content

Marshall is NOT into legislative history, y’all.

March 23, 2016 - 06:54:21 pm by Mitha Nandagopalan

Judge Marshall: Prior to the statute, every single detainee got a hearing, whether they had absconded or not. Under the Government’s interpretation, are you saying even 40 years later, you wouldn’t have a bond hearing?

March 23, 2016 - 06:54:19 pm by Adam Mills

Tara: The proposed system used to be in place. Congress categorically determined that the aliens in question should not receive a bail hearing. They were looking at a 1995 senate investigative report.

March 23, 2016 - 06:53:02 pm by Mitha Nandagopalan

Judge Marshall: Legislative purpose was clear – to make sure that those who continue to present a threat or who will abscond, are detained. When a person hasn’t done so, all you have to do is have a bail hearing.

March 23, 2016 - 06:52:49 pm by Adam Mills

Tara: The BIA’s interpretation was reasonable. It looked at the legislative history to resolve ambiguities when it was deciding how to interpret the text.

March 23, 2016 - 06:52:03 pm by Mitha Nandagopalan

Judge Marshall: Why would BIA’s interpretation not be an unreasonable interpretation? What does the government lose if a person who’s been out in the community for years after release gets a bail hearing?

March 23, 2016 - 06:51:19 pm by Adam Mills

Tara: The government doesn’t lose their authority to detain just because this didn’t happen immediately.

March 23, 2016 - 06:50:55 pm by Executive Editor of Online Content

McLeese is pushing the use of the word when as temporal, not as conditional.

March 23, 2016 - 06:50:36 pm by Mitha Nandagopalan

Ouch on the student loans (I’ll be able to pay mine off when I’m dead)

March 23, 2016 - 06:50:07 pm by Adam Mills

Tara: (on duty of the AG) there are three kinds of ambiguities in this text. First, “when.” it can function as a condition OR a time constraint. If condition, it doesn’t necessarily convey a sense of immediacy.

March 23, 2016 - 06:49:51 pm by Executive Editor of Online Content

McLeese: When applying Chevron, should we be applying AG’s duty as temporal, requiring the taking of aliens into custody immediately. It seems that we aren’t in agreement as to the use of the word, “when.”

March 23, 2016 - 06:47:43 pm by Executive Editor of Online Content

McLeese: Do you agree with the BIA that the correct interpretation of the temporal nature of AG’s duty is to take aliens into custody immediately?

March 23, 2016 - 06:47:17 pm by Adam Mills

Tara: (on “when the alien is released”) BIA interpreted this clause as recognizing the AG’s duty.

March 23, 2016 - 06:47:04 pm by Esther Agbaje

Gajarsa: “When the alien is released”….those a critical words. What does that mean?

March 23, 2016 - 06:46:43 pm by Adam Mills

Tara: (responding to a question about how long the government had): No specified reason for the two year delay, but the text of the law simply does not permit appellee to be afforded a bond hearing. First, we have chevron deference. Where there is some ambiguity, we have to move to step two.

March 23, 2016 - 06:46:12 pm by Esther Agbaje

Gajarsa: Why didn’t the government act? They knew about the release after the conviction. Why did they not act? Is it fair to detain her again w/out bond?

March 23, 2016 - 06:45:34 pm by Esther Agbaje

Gajarsa: Questions the release that was for 2 years. The government failed to detain her, where was the government?

March 23, 2016 - 06:45:09 pm by Adam Mills

Tara: 1226 was amended due to rising crime and criminal alien individuals not showing up to trials or hearings.

March 23, 2016 - 06:44:11 pm by Adam Mills

Tara Knoll is up!

March 23, 2016 - 06:43:54 pm by Adam Mills

Mario: Because appellee didn’t point to any predicate case, the court should tell the people of ames that they have a right to feel safe.

March 23, 2016 - 06:42:57 pm by Adam Mills

Mario: (on the Ames statute and omissions). If the text included omissions, that would be something different. In the cases cited by Appellee, those statutes had omissions in the text.

March 23, 2016 - 06:42:15 pm by Executive Editor of Online Content

I have a hard time reconciling the idea that similar terms fall under 16(a) but in your argument those terms are distinguished – H. McLeese

March 23, 2016 - 06:41:32 pm by Adam Mills

Mario: Generally, there has to be a duty for someone to be convicted under an omission. But when an omission counts, it’s “the equivalent of a beating.”

March 23, 2016 - 06:41:19 pm by Mitha Nandagopalan

Judge Marshall: Given how many model jury instructions are out there, why focus on Third Circuit?

March 23, 2016 - 06:40:57 pm by Mitha Nandagopalan

Judge Marshall: Why look to model jury instructions of Third Circuit?

March 23, 2016 - 06:40:28 pm by Adam Mills

Mario: There is no such coverage under the Ames statute.

March 23, 2016 - 06:40:18 pm by Executive Editor of Online Content

more puzzlement from H. McLeese

March 23, 2016 - 06:40:12 pm by Adam Mills

Mario: (on crimes of omission) Under 16a, yes. Under the ames statute, no. There is at least one case (5th Circuit) which was an omission. The court there held it was counted as necessarily employing physical force. But there had to be a duty there.

March 23, 2016 - 06:39:43 pm by Executive Editor of Online Content

All the judges at once!

March 23, 2016 - 06:39:08 pm by Executive Editor of Online Content

H. McLeese: “In your view, can a crime that is committed solely by omission be a crime of violence under 16(a)?”

March 23, 2016 - 06:38:57 pm by Adam Mills

Mario: These are crimes causing physical pain.

March 23, 2016 - 06:38:42 pm by Adam Mills

Mario: We have to look at the Ames interpretation. First is a case looking at a broken rib, the second addresses a multi-day hospitalization.

March 23, 2016 - 06:38:04 pm by Adam Mills

Mario: (on Johnson): The way johnson designed violent force was “force causing physical pain.” It seems as though 16a hasn’t been discussed in the property context. Although there are some fire cases, those have also counted. These cases fall under the “violent force”definition.

March 23, 2016 - 06:38:03 pm by Mitha Nandagopalan

Judge Marshall: But that’s lighting a fire where somebody gets injured? And that falls under the common law definition?

March 23, 2016 - 06:37:31 pm by Executive Editor of Online Content

H. McLeese is puzzled: “The statute here reaches not only the physical force of the person, but also property of another. So, if it focuses on proclivity to injure a person, that doesn’t fit with the focus on property in the second half of the provision.” How do we square them?

March 23, 2016 - 06:36:28 pm by Executive Editor of Online Content

“The measure isn’t the sentence imposed, but was available under the applicable provision” – H. McLeese

March 23, 2016 - 06:36:24 pm by Adam Mills

Mario: 1 year requirement matters here.

March 23, 2016 - 06:36:09 pm by Esther Agbaje

Gajarsa: Goes into a discussion about the definition of offensive touching and what qualifies as violent.

March 23, 2016 - 06:36:00 pm by Adam Mills

Mario: In the INA, there’s a 1 year minimum sentence.

March 23, 2016 - 06:35:13 pm by Adam Mills

Mario: Even if the court disagrees on whether common law standard applies, Appellants meet heightened standard.

March 23, 2016 - 06:35:12 pm by Esther Agbaje

Gajarsa: Poses a hypo if the Court disagrees with this line of definition would the appellant lose?

March 23, 2016 - 06:35:05 pm by Mitha Nandagopalan

Nguyen: We don’t lose even if the common-law definition doesn’t apply.

March 23, 2016 - 06:35:05 pm by Executive Editor of Online Content

“If we disagree with you that the common law applies, does that mean that you lose?” very pointed.

March 23, 2016 - 06:34:46 pm by Adam Mills

Mario: 16a (at issue here) includes everything, and thus we should go with the common law.

March 23, 2016 - 06:34:26 pm by Esther Agbaje

Gajarsa: Unsure why the legislative history is important to determining the definition of a violent act

March 23, 2016 - 06:34:13 pm by Adam Mills

Mario: Court should look to case law and appropriate senate report for definitional guidance.

March 23, 2016 - 06:33:54 pm by Esther Agbaje

Gajarsa: Castleman discusses common law. He asks that doesn’t the appellant want to follow the Castleman definition?

March 23, 2016 - 06:33:51 pm by Mitha Nandagopalan

Nguyen: Ames statute meets heightened standard under Johnson as well as common-law definition of “use of physical force.”

March 23, 2016 - 06:33:39 pm by Adam Mills

Mario: Because the use of physical force is a term of art under the common law, and this court should give it its common law definition.

Ultimately, the Ames statute meets both the common law definition and the heightened standard required.

March 23, 2016 - 06:33:00 pm by Esther Agbaje

J. Gajarsa: Can’t you distinguish Castleman as a DV case?

March 23, 2016 - 06:32:26 pm by Adam Mills

Mario: (on a difficult footnote): the ultimate conclusion is that “you give these words their common law meaning” unless there’s a clear indication otherwise.

March 23, 2016 - 06:32:20 pm by Executive Editor of Online Content

McLeese is curious about Footnote 4 of Castleman, and not letting up

March 23, 2016 - 06:32:19 pm by Mitha Nandagopalan

Nguyen: Under Turley, “physical force” should be given its common-law meaning because it’s a common-law term.

March 23, 2016 - 06:31:26 pm by Adam Mills

Mario is distinguishing some difficult case law.

March 23, 2016 - 06:31:26 pm by Executive Editor of Online Content

McLeese: How you do you square your argument with Castleman?

March 23, 2016 - 06:30:46 pm by Adam Mills

Mario: This statute is simply a definitional statute.

March 23, 2016 - 06:30:37 pm by Mitha Nandagopalan

Judge Marshall is skeptical that S. 16(a) doesn’t impose any kind of criminal conduct.

March 23, 2016 - 06:30:14 pm by Adam Mills

Mario: Common law definition here: use of physical force means offensive touching. Congress established a floor.

March 23, 2016 - 06:29:52 pm by Mitha Nandagopalan

Judge Marshall: Is the common-law definition consistent from state to state?

March 23, 2016 - 06:29:39 pm by Adam Mills

Mario: We have to look at both the federal and state statutes to see how they work together. Fed statute contains common law element of physical force. Case law supports this.

March 23, 2016 - 06:29:16 pm by Esther Agbaje

Gajarsa: Asking what the state statute means for a violent act

March 23, 2016 - 06:29:09 pm by Adam Mills

Mario: We turn to the state supreme court of Ames for our interpretation of state law.

March 23, 2016 - 06:28:35 pm by Mitha Nandagopalan

Judge Marshall: Do you look always to state law for the whether the definition required under the federal statute is met?

March 23, 2016 - 06:28:19 pm by Adam Mills

Mario: Congress has settled this issue via statute. “A spade is a spade.”

March 23, 2016 - 06:28:14 pm by Executive Editor of Online Content

The first interruption!

March 23, 2016 - 06:27:34 pm by Adam Mills

Mario is up for the Appellant.

March 23, 2016 - 06:26:21 pm by Mitha Nandagopalan

And here are the briefs for Appellant and Appellee.

March 23, 2016 - 06:26:16 pm by Esther Agbaje

Have to make sure you have your notes right. Lest we get a Steve Harvey moment at the end of the night. 🙂

March 23, 2016 - 06:25:36 pm by Executive Editor of Online Content

This is only a little awkward…

March 23, 2016 - 06:25:23 pm by Executive Editor of Online Content

Here’s the record (in case y’all are curious): CLICK

March 23, 2016 - 06:24:49 pm by Esther Agbaje

Go HLAB! Shout out to Mario Nguyen! (my bias for other orgs is showing)

March 23, 2016 - 06:24:45 pm by Mitha Nandagopalan

… and the Daniel J. Meltzer Memorial Team (Appellee)

March 23, 2016 - 06:23:48 pm by Mitha Nandagopalan

Introducing the Rashid Rehman Memorial Team (Appellant).

March 23, 2016 - 06:23:34 pm by Adam Mills

Here are the questions for the night:

  1. Whether third-degree assault under Ames law, see Ames Rev. Stat. § 603-42(1), is an “aggravated felony” under the Immigration and Nationality Act, see 8 U.S.C. § 1101(a)(43)(F).
  2. Whether an alien is subject to mandatory detention pursuant to 8 U.S.C. § 1226(c), where the alien is detained two years after her release from state custody.

March 23, 2016 - 06:21:52 pm by Executive Editor of Online Content

Introducing the Honorable Roy W. McLeese, District of Columbia Court of Appeals

March 23, 2016 - 06:20:57 pm by Executive Editor of Online Content

Introducing the Honorable Margaret J. Marshall, Massachusetts Supreme Judicial Court

March 23, 2016 - 06:20:44 pm by Esther Agbaje

Dean Minow welcomes Judge Arthur J. Gajarsa of United States Court of Appeals for the Federal Circuit

March 23, 2016 - 06:20:09 pm by Executive Editor of Online Content

Introducing the Honorable Arthur J. Gajarsa, United States Court of Appeals for the Federal Circuit

March 23, 2016 - 06:19:16 pm by Adam Mills

She is introducing the judges.

March 23, 2016 - 06:19:02 pm by Adam Mills

Dean Minow is addressing the audience.

March 23, 2016 - 06:18:46 pm by Executive Editor of Online Content

Martha Minow welcomes us all to the Ames Semi-Final (second) round!

March 23, 2016 - 06:18:43 pm by Esther Agbaje

That intro though….Ames is really doing the most.

March 23, 2016 - 06:18:06 pm by Adam Mills

The judges are entering.

March 23, 2016 - 06:16:23 pm by Adam Mills

The second semi-final round begins in just a minute!

Here is some background on the case: https://orgs.law.harvard.edu/bsa/semi-final-round-ames/

March 22, 2016 - 08:08:54 pm by Adam Mills

And we’re signing off!

March 22, 2016 - 08:07:40 pm by Adam Mills

Judge Barron: This is really a hard thing to do, and it’s remarkable that people at your stage are already able to do such a good job with confidence and respect. Also, these are team projects, and it shows. You couldn’t get to this stage unless you work together pretty well.

March 22, 2016 - 08:06:36 pm by Adam Mills

Judges have so many wonderful comments for all the participants!

March 22, 2016 - 08:05:59 pm by Adam Mills

Judge Duffly: Briefs were excellent, excellent. Moved through the questions with poise. Every question was anticipated.

March 22, 2016 - 08:05:23 pm by Adam Mills

Judge McConnell: Great job. No one lost their cool even in the face of very tough questions. “I am in awe of your talent” to everyone.

March 22, 2016 - 08:04:17 pm by Adam Mills

Best Overall Team: Appellee, The Lucy Stone Memorial Team

March 22, 2016 - 08:03:34 pm by Adam Mills

Best Oralist: Caroline Trusty.

March 22, 2016 - 08:03:16 pm by Adam Mills

Best Brief: Appellant.

March 22, 2016 - 08:02:32 pm by Adam Mills

Three awards given. First is best brief, second is for best oralist, and third is for best overall team.

March 22, 2016 - 08:02:04 pm by Adam Mills

The judges are coming back in.

March 22, 2016 - 07:44:53 pm by Adam Mills

They’re all done. The judges have left and now we wait.

March 22, 2016 - 07:43:53 pm by Executive Editor of Online Content

Case is submitted!

March 22, 2016 - 07:43:45 pm by Adam Mills

Alex: Under 1292b, there’s no appeal as a matter of right. We sought 1291 so that we wouldn’t have to give up any valid claims. We need this appeal as a matter of right.

March 22, 2016 - 07:43:43 pm by Executive Editor of Online Content

more time given to the rebuttal as long as Loomis talks about 1292(b).

March 22, 2016 - 07:43:17 pm by Executive Editor of Online Content

“in the last 10 seconds, i just want to go back to the 1292(b) issue”  #hbarronspeaks

March 22, 2016 - 07:42:54 pm by Adam Mills

Alex: We can trust neither the labor codes nor the legislature to protect the constitutional rights at stake.

March 22, 2016 - 07:42:42 pm by Alice Wang

Judge McConnell: You want us to just Constitutionalize one type of speech? Why just for public employees?

March 22, 2016 - 07:42:13 pm by Adam Mills

Alex: If the scope of duties was the only thing that mattered here, it might be different. There are a couple of key passages on our side.

Under their theory, police departments could literally admit that they were scapegoating and still prevail.

March 22, 2016 - 07:42:13 pm by Executive Editor of Online Content

Barron asks how to protect against the horribles

March 22, 2016 - 07:40:31 pm by Adam Mills

Alex: The confidential information hypo given would qualify as a compelling interest, and is distinguishable from this case.

 

March 22, 2016 - 07:39:55 pm by Alice Wang

Judge McConnell: If the detective is testifying truthfully but negligently, do we really want to tie the police chief’s hands to not fire him?

March 22, 2016 - 07:39:32 pm by Executive Editor of Online Content

Loomis begins a rebuttal – is quickly interrupted by H. McConnell

March 22, 2016 - 07:39:31 pm by Adam Mills

Alex: Until this is reversed, police officers will fear giving truthful testimony on the stand.

March 22, 2016 - 07:39:02 pm by Executive Editor of Online Content

Barron offers a hypothetical about citizen speech: Does the subpoena make this citizen speech or employee speech?

March 22, 2016 - 07:38:57 pm by Adam Mills

Time for rebuttal.

March 22, 2016 - 07:38:48 pm by Adam Mills

Caroline: In response to the hypo: here it would be citizen speech, but that is distinguishable from the present case.

March 22, 2016 - 07:37:20 pm by Adam Mills

Caroline: The appellant alleges that he was fired for his truthful sworn testimony, but the court only has to determine whether there was an adequate justification. Adequate justification is a mixed question of fact and law.

Contrary to the appellant’s contention, the government does not have to wait for an actual disruption to manifest before it can respond to an employee’s speech. The government is allowed to fire Mr. Avery for poor testimony because giving good testimony was a part of his job.

March 22, 2016 - 07:36:24 pm by Alice Wang

Judge McConnell: Is the adequate justification issue for us to determine or a jury?

March 22, 2016 - 07:36:03 pm by Executive Editor of Online Content

“What does the record show with respect to why he was fired? Does it really show anything that was clear?” – #HBarronSpeaks

March 22, 2016 - 07:35:17 pm by Adam Mills

Caroline: It is true that we have to take all facts in the plaintiff’s favor at this stage, but we have all of the facts we need at this stage. This court can see the record. Per Scott v. Harris, the court need not ignore matters of fact that are apparent from the record.

March 22, 2016 - 07:34:18 pm by Alice Wang

Judge McConnell: If we take up the Lane possibility that officials on their jobs get First Amendment protection, why shouldn’t we remand this case for a jury to decide on adequate justifications on firing the detective?

March 22, 2016 - 07:33:39 pm by Adam Mills

Caroline: Every time a police officer testified in a way the government didn’t like — and police officers testify all the time as a part of their job — it would result in Constitutional litigation. Employee speech does not need to receive any first amendment protection — especially when there are other options for government workers.

March 22, 2016 - 07:32:57 pm by Executive Editor of Online Content

There is a stern back and forth between H. Barron and Caroline Trusty.

March 22, 2016 - 07:32:30 pm by Adam Mills

Caroline: Personnel decisions are not meant to be Constitutional matters. To hold this constitutional would meant that many office disputes would be constitutional litigation.

March 22, 2016 - 07:31:21 pm by Adam Mills

Caroline: Employee speech receives no First Amendment protection. That’s established. The government doesn’t have to show a reason for firing based on employee speech.

March 22, 2016 - 07:30:51 pm by Executive Editor of Online Content

“in the typical case of employee speech like in Garcetti, being told that the employee is on the job is very important to the employer, because then the employer has free reign and the employee will not be reviewed on those questions.”

 

March 22, 2016 - 07:29:33 pm by Adam Mills

Caroline: In the case of releasing confidential information on the stand would serve as an example in punishing truth-telling.

March 22, 2016 - 07:28:37 pm by Executive Editor of Online Content

Barron is the King of Pointed Questions for the Ames round.

March 22, 2016 - 07:28:21 pm by Adam Mills

Caroline: This court should decline to make an exception to Garcetti, because there is no reason to. Further, if this court were to make an exception to Garcetti, it would make it hard for police departments to hold their employees accountable.

March 22, 2016 - 07:27:19 pm by Alice Wang

Judge McConnell: Just because Lane court left the question open, why shouldn’t we make that determination?

March 22, 2016 - 07:26:47 pm by Adam Mills

Caroline: It matters here that it regards testimony inside an employee’s ordinary job responsibilities. Testimony like this is well within Mr. Avery’s regular duties.

March 22, 2016 - 07:26:25 pm by Executive Editor of Online Content

Why isn’t it that if you’re doing speech on the job, then no first amendment protection. but if you’re doing speech not on the job, then it’s a different story? – H. Barron

March 22, 2016 - 07:25:46 pm by Adam Mills

Caroline: Mr. Avery was expected to testify as an investigator, he was trained to testify, and he was paid to testify. All of this indicates that testifying was a part of his regular job duties.

March 22, 2016 - 07:24:51 pm by Adam Mills

Caroline: You have to tell the truth whether you want to or not, but that doesn’t mean that the First Amendment protects your speech. This is really a policy question that the Supreme Court answered in Garcetti. If Mr. Avery is to be protected here, it should be as a Whistleblower under some whistleblower legislation.

March 22, 2016 - 07:23:39 pm by Adam Mills

Caroline is getting asked a lot of questions about what impact Garcetti has on this case.

March 22, 2016 - 07:23:04 pm by Adam Mills

Caroline: It’s true that perjury and court truth-telling requirements apply to every citizen, but testifying truthfully is a part of Mr. Avery’s job. The government can never give him an obligation that legally conflicts with telling the truth.

March 22, 2016 - 07:22:40 pm by Executive Editor of Online Content

“but that’s not quite right. the reason he can’t lie on the stand is because of perjury rules and court rules that the employer didn’t design.” – #hbarronspeaks

March 22, 2016 - 07:22:04 pm by Adam Mills

Caroline: Being able to fire an employee for telling the truth is not a legitimate employer interest. It is Mr. Avery’s job to tell the truth on the stand as a public employee.

March 22, 2016 - 07:21:23 pm by Executive Editor of Online Content

“do you agree with me the government has no interest in firing an officer because he told the truth?” – #hbarronspeaks

March 22, 2016 - 07:20:24 pm by Executive Editor of Online Content

We might say you have to have legitimate reason for terminating an employee on the basis on their testimony, but this can never be a legitimate reason because they are legally obliged to tell the truth on the stand. – H. Barron

March 22, 2016 - 07:19:48 pm by Adam Mills

Caroline: Personnel decisions are not meant to be constitutional matters. (Connick).

March 22, 2016 - 07:18:43 pm by Adam Mills

Caroline: Employee speech receives no constitutional protection. The law is settled.

March 22, 2016 - 07:18:16 pm by Adam Mills

Time is up! Caroline Trusty is up on the employee speech issue.

March 22, 2016 - 07:17:49 pm by Adam Mills

Mengjie: The 5th and 8th circuits have found that when lower courts don’t reach constitutional question, that it serves as an effective denial if the defendant is forced to stand trial. The reason for qualified immunity is to prevent defendants from standing trial, and here, Mr. Avery would be forced to stand trial on some of the central merits.

March 22, 2016 - 07:16:56 pm by Alice Wang

Judge McConnell: Once you find there’s no Constitutional violation, you don’t have to reach a conclusion on qualified immunity.

March 22, 2016 - 07:16:32 pm by Alice Wang

Judge McConnell: Explain to me the ruling of qualified immunity.

March 22, 2016 - 07:15:54 pm by Adam Mills

Mengjie: While not all the situations Rule 41 covers couldn’t have been thought up by the drafters, that doesn’t mean they didn’t intend the rule to cover new situations.

Even if there is no clear collusion on the record, this court can make a determination as to whether rule 41 was properly granted by the court.

Lastly, in the alternative, this court should find jurisdiction under the collateral order doctrine to answer the question of qualified immunity.

March 22, 2016 - 07:14:46 pm by Executive Editor of Online Content

“I’m just wondering if this is a proper use of Rule 41….It’s not obvious to me Rule 41 was designed for that purpose.” – H. Barron

March 22, 2016 - 07:13:40 pm by Adam Mills

Mengjie: The drafters of Rule 41 probably intended it to cover other situations, as well, and that ought to go in to considerations about what it covers.

March 22, 2016 - 07:13:19 pm by Executive Editor of Online Content

What I meant was: Rule 41 must have been drafted for a reason. – H. Barron

March 22, 2016 - 07:11:53 pm by Adam Mills

Mengjie: (On the floodgates question) If this court chooses to affirm a summary judgement, the appellant loses a chance to litigate a 1985 claim. Cases that allowed 1292b without certification were in the 70s and there has not been such a feared explosion of litigation.

March 22, 2016 - 07:10:44 pm by Alice Wang

Judge McConnell: Tell me what it is about these two claims, if we rule in your favor, why doesn’t that open the floodgates to every multi-claim suit when the judge makes a ruling about a single claim? What is so unique about this claim?

March 22, 2016 - 07:09:37 pm by Adam Mills

Mengjie: For 1292b, the purpose was efficiency for the judicial system. Even if this course reverses the summary judgment, there’s one consolidated case. In another case, the court found that reversing would lead to a consolidated trial, and granting would lead to no trial, 1292b was granted.

March 22, 2016 - 07:08:42 pm by Executive Editor of Online Content

H. Duffly asks: judicial efficiency v. costs?

March 22, 2016 - 07:08:35 pm by Adam Mills

Mengjie: 1292b was intended for this type of case. It requires that it’s an open question or a question with grounds for substantial debate. One of the sole policies behind 1292b is to promote judicial efficiency.

March 22, 2016 - 07:08:18 pm by Executive Editor of Online Content

“in your view there is absolutely no problem here that bars them from getting a 1292(b) ruling, except that they failed to ask for it?” – Barron

March 22, 2016 - 07:07:05 pm by Emma Rekart

Mengjie: Sometimes 1291 and 54b are not appropriate. 54b is only appropriate with severable claims. 1291 requires a question with substantial grounds of difference. This would not cover all cases.

March 22, 2016 - 07:06:59 pm by Executive Editor of Online Content

So what’s the big deal with saying with a typical close case: use your judgment but do it the normal way? – #hbarronspeaks

March 22, 2016 - 07:06:26 pm by Emma Rekart

Mengjie: Because he left nothing for himself to do and knew this would be appealed, he intended this to be a final decision under 1291.

March 22, 2016 - 07:05:54 pm by Emma Rekart

Mengjie: Under 1291, the SC has noted that whether or not something is a final decision is often a close question. There is no formulaic definition of final. This is a marginal case.

March 22, 2016 - 07:05:13 pm by Executive Editor of Online Content

“what is the big problem if we simply say, ‘that was kinda of clever but you can’t do it that way?'” #hbarronspeaks

March 22, 2016 - 07:04:43 pm by Adam Mills

Mengjie: The district did not make a 54b or 1292 ruling because this is a final decision.

March 22, 2016 - 07:04:31 pm by Alice Wang

Judge McConnell: The district judge attempted to do an end run instead of following the rules set by Congress.

March 22, 2016 - 07:03:57 pm by Alice Wang

Judge McConnell: We don’t write the rules. Congress writes the statutes and approves of the rules. The rules are pretty clear about what the district judge has to do.

March 22, 2016 - 07:03:20 pm by Adam Mills

Mengjie Zou is up. She is speaking on the issue of collusion and jurisdiction.

March 22, 2016 - 07:02:49 pm by Executive Editor of Online Content

Barron steps in! (1 minute in for the appellees)

March 22, 2016 - 07:01:56 pm by Executive Editor of Online Content

“you’d like us to remand? on the second issue? and if you win on the first issue, you’d be ok with us remanding on the second?” #hbarronspeaks

March 22, 2016 - 07:01:54 pm by Adam Mills

Clara: We’d be ok with a remand on second issue if we win on the first.

March 22, 2016 - 07:01:38 pm by Adam Mills

Clara: 3 responses. The more legitimate interests of an investigator are to investigate the crime and relay facts to the court. Second, it’s a huge leap to say that the few words he said were responsible for no conviction. Third, because we’re at the summary judgment phase, all inferences go to the plaintiff.

March 22, 2016 - 07:00:36 pm by Executive Editor of Online Content

“can i circle back? you said it’s not a legitimate interest of the police department to try to maintain a conviction?” #hbarronspeaks

March 22, 2016 - 06:59:47 pm by Adam Mills

Clara: A fair reading of his testimony would show that he was clear, competent. While on the stand he was acting as a citizen. He was held by subpoena, so he would have been there regardless.

March 22, 2016 - 06:59:02 pm by Adam Mills

Clara: Even if he had been fired from his job, because there was a federal subpoena forcing him to be there, it’s unclear how far that argument goes. He would have been there without his job. Further, under Pickering and Garcetti, whether or not you would have been there apart from job duties is not the inquiry.

March 22, 2016 - 06:57:51 pm by Executive Editor of Online Content

“you can’t be fired for being a bad juror, but you can be fired for being a bad detective on the stand.” #hbarronspeaks

March 22, 2016 - 06:57:37 pm by Adam Mills

Clara: With respect to the notion of being “on-the-clock,” it’s not as strong as opposing counsel urges.

March 22, 2016 - 06:56:28 pm by Adam Mills

Clara: If this was said as an intra office memo then yes, Garcetti would control.

March 22, 2016 - 06:55:34 pm by Adam Mills

Clara: (on why she’d have job duties constitutionalized) if anyone should be concerned about honest and good court testimony, it’s the judges themselves. Also, we don’t want to rely on state legislatures to protect employees first amendment rights.

March 22, 2016 - 06:55:05 pm by Alice Wang

Judge McConnell: Why don’t we just require Ames to pass a law to protect people who speak truthfully instead of just public employees?

March 22, 2016 - 06:54:26 pm by Alice Wang

Judge McConnell: I wonder why you want to Constitutionalize this little aspect of public servants’ duties.

March 22, 2016 - 06:54:13 pm by Adam Mills

Clara: The holding in Garcetti was specific to the facts in the intra-office memo. The testimony issue was remanded.

March 22, 2016 - 06:53:24 pm by Adam Mills

Clara: Testimony should always implicate the first amendment when government employees are testifying.

March 22, 2016 - 06:53:15 pm by Executive Editor of Online Content

“Why treat the public employee differently?” – Barron

March 22, 2016 - 06:52:41 pm by Adam Mills

Clara: Government employees don’t check their First Amendment rights at the door when the go to work for the government.

March 22, 2016 - 06:52:31 pm by Executive Editor of Online Content

Barron provides a very clear–too clear–parallel to the private employer and employee relationship. #hbarronspeaks

March 22, 2016 - 06:52:14 pm by Adam Mills

Clara is arguing for a broad reading of Supreme Court precedent regarding public employee protected speech.

March 22, 2016 - 06:51:15 pm by Alice Wang

Judge McConnell: Why did the Lane court carve out the exception if the quintessential speech comment was controlling?

March 22, 2016 - 06:51:13 pm by Adam Mills

Clara: The lane court was clear on the notion that citizen testimony is quintessential protected speech.

March 22, 2016 - 06:50:34 pm by Adam Mills

Clara: It’s important that this court denies the idea that testimony is citizen speech. This would allow government actors to be fired for nefarious reasons. The court should find that all testimony is speech protected by the first amendment.

March 22, 2016 - 06:50:30 pm by Executive Editor of Online Content

i thought under your test we could fire him if his testimony was grating and annoying – #hbarronspeaks

March 22, 2016 - 06:48:53 pm by Emma Rekart

J. Duffly: He said he would testify regardless?

March 22, 2016 - 06:48:48 pm by Executive Editor of Online Content

all the judges at once!

March 22, 2016 - 06:48:18 pm by Adam Mills

Clara: I’d love to get back to the first question under pickering.

March 22, 2016 - 06:48:16 pm by Emma Rekart

J. Duffly: Did you skip the first prong of the Pickering test?

March 22, 2016 - 06:48:02 pm by Adam Mills

Clara: If it could be found that a witness’s irritating testimony not only found a detriment to the government department but also the legitimate workings of the governing process, then yes, a terrible witness could be fired for his terrible testimony.

March 22, 2016 - 06:47:30 pm by Executive Editor of Online Content

“my hypothetical was truthful and in good faith, but it was very irritating.” #hbarronspeaks

March 22, 2016 - 06:46:58 pm by Adam Mills

Clara: Under the second prong of the Pickering analysis, the government could fire a “truly incompetent” witness on the stand. Because it’s a balancing test, it’s hard to set a bright line.

March 22, 2016 - 06:46:48 pm by Executive Editor of Online Content

“is that the test you want us to adopt: truly incompetent?” #HBarronspeaks

March 22, 2016 - 06:45:59 pm by Executive Editor of Online Content

Barron interrupts 45 seconds in. sorry, clara.

March 22, 2016 - 06:45:51 pm by Adam Mills

Clara: Pickering framework governs here. First, did a public employee speak as a citizen?

March 22, 2016 - 06:45:15 pm by Adam Mills

Clara: Public employees should not have to choose between telling the truth on the stand and keeping their job.

March 22, 2016 - 06:44:52 pm by Adam Mills

Clara is up! Go Clara!

March 22, 2016 - 06:44:42 pm by Adam Mills

A great job by Alex!

March 22, 2016 - 06:44:32 pm by Adam Mills

Alex: “I don’t think it’s true that the drafters of rule 54 wanted it to cover all cases.” It doesn’t cover cases that were actually dismissed. It’s simply not covered here.

March 22, 2016 - 06:43:15 pm by Adam Mills

Alex: Rule 54 doesn’t cover this situation because the claim is dismissed now and there’s nothing to certify. The claims might not be entirely severable.

March 22, 2016 - 06:43:02 pm by Executive Editor of Online Content

Barron is pressing the issue: “you mean they didn’t think about it?” #eep!

March 22, 2016 - 06:42:18 pm by Executive Editor of Online Content

Again, why not Rule 54?

March 22, 2016 - 06:41:28 pm by Adam Mills

Alex: if this court were to refuse jurisdiction under 1291 in this case, expense and access to justice become a problem. It’s expensive to fragment and stall litigation like this.

March 22, 2016 - 06:41:06 pm by Alice Wang

Judge McConnell: You had an option to not seek immediate appellate review and proceeding on the 1985 action. It would be more expensive but more in line with our interpretation of 1291.

March 22, 2016 - 06:40:09 pm by Adam Mills

Alex: (responding to the worry that this argument would allow judges to deliberately shape appellate litigation):Even if there’s a worry about that, there are also large costs in letting legally viable claims go unaddressed.

March 22, 2016 - 06:39:33 pm by Executive Editor of Online Content

H. Barron is not having it. We’re still behind you, Loomis!

March 22, 2016 - 06:38:43 pm by Executive Editor of Online Content

What bothers H. Barron, you ask? that there are other routes around the issue, and the appellants are asking for something new and unintended.

March 22, 2016 - 06:37:29 pm by Adam Mills

Alex: When appellate courts around the country have been concerned about collusion, there’s a reason in the record for that concern.

March 22, 2016 - 06:37:03 pm by Emma Rekart

First question from J. Duffly

March 22, 2016 - 06:36:34 pm by Alice Wang

Judge McConnell: Both 54b and 1291 requires district court to fact find, no? Do you want us to craft a rule that circumvents both 54b and 1291 here?

March 22, 2016 - 06:34:32 pm by Adam Mills

Alex is arguing that accepting the proposed jurisdictional argument here would further more liberal policy considerations of hearing all meritorious claims.

March 22, 2016 - 06:33:31 pm by Executive Editor of Online Content

We’ve got a hot bench!

March 22, 2016 - 06:33:17 pm by Adam Mills

Judge Barron is really pressing Alex about what work rule 54b would do if jurisdiction were found under 1291.

March 22, 2016 - 06:33:03 pm by Executive Editor of Online Content

Barron again: “Since rule 54 exists, why wouldn’t we just say it’s the way to go?…Why go off the track that is not specified in the rules?”

March 22, 2016 - 06:32:07 pm by Executive Editor of Online Content

H. Barron asks, “what’s the point of Rule 54?”

March 22, 2016 - 06:31:31 pm by Executive Editor of Online Content

The questions in front of the court:

1) whether the conditional dismissal of the § 1985 claim undermines the finality of the district court’s judgment and therefore deprives the Ames Circuit of appellate jurisdiction under 28 U.S.C. § 1291;

2) whether the district court erred in granting summary judgment to Rex on Avery’s First Amendment claim.

March 22, 2016 - 06:31:30 pm by Adam Mills

Alex is addressing the jurisdictional issue. About whether the court has 1291 jurisdiction.

He’s arguing that the section in question has a pragmatic application, rather than a purely technical.

March 22, 2016 - 06:30:18 pm by Adam Mills

Up first is Alex Loomis.

March 22, 2016 - 06:27:50 pm by Adam Mills

CR-CL’s own, Clara Spera just got introduced, along with the other oralists. Go Clara!

March 22, 2016 - 06:26:00 pm by Alice Wang

Introducing: The Honorable Fernande R.V. Duffly, Massachusetts Supreme Judicial Court http://www.mass.gov/courts/court-info/sjc/about/sjc-justices/justice-fernande-r-v-duffly.html

 

March 22, 2016 - 06:25:40 pm by Executive Editor of Online Content

Introducing: John J. McConnell, United States District Court for the District of Rhode Island, https://en.wikipedia.org/wiki/John_J._McConnell,_Jr.

March 22, 2016 - 06:24:24 pm by Executive Editor of Online Content

Introducing:  The Honorable David Barron, United States Court of Appeals for the First Circuit http://www.ca1.uscourts.gov/david-j-barron

March 22, 2016 - 06:23:22 pm by Adam Mills

Dean Minnow is addressing the crowd, introducing the judges.

March 22, 2016 - 06:22:35 pm by Executive Editor of Online Content

Martha Minow provides a commercial interruption.

March 22, 2016 - 06:15:13 pm by Adam Mills

Dean Minnow is talking to each team before arguments begin.

March 22, 2016 - 06:06:56 pm by Emma Rekart

Welcome! Ames semifinal round starting in 10 minutes!

March 22, 2016 - 05:46:44 pm by Executive Editor of Online Content

Stay tuned for CR-CL’s annual liveblogging of the Ames Semi-Final!

November 16, 2015 - 09:32:51 pm by Jimin He

And we are done. Good night and good luck.

November 16, 2015 - 09:32:25 pm by Victor Zapana

J. Kagan: First year she has been invited back to preside over Ames argument. “You made it worth my while.”

She thought the problem was superb, and she thanked the two hypo writers: Tejinder Singh and Elizabeth Prelogar (both oralists, the latter a former Kagan clerk).

“You know Harvard is unbelievable, but I’ve seen a lot of Harvard moot courts. . . . This was as good maybe better than any I’d ever seen. All of you were so poised and smart and quick and once or twice funny.”

“You have to find that mix of how to get back to your points and never seem that you are running away from the judge’s questions, and to always look as you are trying to understand and respond to them in as honest and forthright as you can.”

Finally, she thanked the teams, and she complemented the briefs. “In the end, it’s the briefs that win arguments, much more so than the [oral] argument.”

November 16, 2015 - 09:31:09 pm by Jimin He

J. Kagan compliments oralists’ ability to respond to judges’ questions but also weave in their own argument.

November 16, 2015 - 09:29:35 pm by Jimin He

J. Kagan gives a shout-out to the writers of the Ames prompt.

November 16, 2015 - 09:29:13 pm by Jimin He

J. Kagan’s final comments on the competition: Heartwarming experience. Points out this is the first time she’s been invited back for Ames since leaving Harvard for the Supreme Court.

November 16, 2015 - 09:28:35 pm by Victor Zapana

J. Wilkins also complemented their wit and poise. “I’m just honored to be a part of [this] and thank you.”

November 16, 2015 - 09:27:37 pm by Krista White

Thanks everyone for tuning in! Check out archived comments at the bottom of the page.

November 16, 2015 - 09:27:20 pm by Victor Zapana

J. Livingston just thought all four lawyers were magnificent. “It is actually the oralist that is leading the conversation, and they’re doing it so skillfully and with such delicacy and respect to the panel, that from the panelists’ perspective think we are intruding with our question. The oralists know what their points are and no matter what the questions will figure out a way to get to those points.”

November 16, 2015 - 09:23:41 pm by Krista White

SECTION 3!!!!

November 16, 2015 - 09:23:36 pm by Victor Zapana

J. Kagan: “Closest that I’ve ever seen”

AND THE RESULTS:

Best Oralist: Charlotte Lawson (CR-CL EME)
Best Brief: Respondent (Cleary/Naini)
Best Overall: Petitioner (Lawson/Schultz)

November 16, 2015 - 09:23:33 pm by Jimin He

Best overall: Petitioners.

November 16, 2015 - 09:23:16 pm by Jimin He

Charlotte Lawson is best oralist.

Respondent is best brief.

November 16, 2015 - 09:22:54 pm by Jimin He

 

J. Kagan says this is the closest moot court she’s judged.

November 16, 2015 - 09:22:39 pm by Krista White

Justice Kagan: This was incredibly hard. This was the closest call she’s ever seen.

November 16, 2015 - 09:21:33 pm by Jimin He

And we’re back with the results!

November 16, 2015 - 09:18:49 pm by Jimin He

I would love to see Clarence Thomas in the chief justice role next year.

November 16, 2015 - 09:12:08 pm by Logan Place

Logan’s Predictions:

Best Oralist: Charlotte Lawson

Best Brief: Petitioner

Overall “W”: Respondents

November 16, 2015 - 09:12:00 pm by Victor Zapana

MY VOTE:
Best Oralist: Schultz
Best Brief: Cleary/Naini
Issue 1: Lawson/Schultz
Issue 2: Cleary/Naini

November 16, 2015 - 09:11:18 pm by Krista White

Predictions:

Best oralist: Charlotte Lawson

Best brief: Toss-up

Overall: Petitioners

November 16, 2015 - 09:10:37 pm by Emma Rekart

Emma’s predictions:

Best oralist: Charlotte Lawson

Best brief: Respondent

Petitioners win

November 16, 2015 - 09:10:04 pm by Jimin He

My prediction
Best oralist: Schultz
Best brief: Didn’t read that carefully, leaning toward respondent?
Issue 1: Respondent
Issue 2: Petitioner

November 16, 2015 - 09:04:23 pm by Krista White

We’ll be publishing final results here as we seem to have crashed the feature below!

November 16, 2015 - 08:13:38 pm by Victor Zapana

Check out the rest of our coverage on the “Cover It Live” window below!

November 16, 2015 - 07:34:00 pm by Jimin He

Martha Minow just dropped by and said hi.

November 16, 2015 - 07:21:23 pm by Nate Burcham

November 16, 2015 - 07:06:16 pm by Logan Place

30 minutes until Ames Finals start. Stay tuned!

March 26, 2015 - 07:59:23 pm by Esther Agbaje

Congratulations to the Ames Semi-finalists for tonight! Good luck in the next round!!

March 26, 2015 - 07:59:12 pm by Krista White

Court is adjourned! Thanks for tuning in.

March 26, 2015 - 07:58:56 pm by Krista White

One of our dedicated LiveBlog followers came to visit — thanks, Lake!

March 26, 2015 - 07:58:32 pm by Esther Agbaje

Bea is impressed with the depth of knowledge on the issues and on the individual cases on which they were questioned.

March 26, 2015 - 07:58:04 pm by Lauren Gabriel

Justice Liu: I would be delighted to see any of you in my courtroom. You would do the profession proud.

March 26, 2015 - 07:57:31 pm by Esther Agbaje

Easterly commends everyone on the tremendous amount of work that they did.

March 26, 2015 - 07:57:23 pm by Krista White

“Better brief” goes to appellees!

March 26, 2015 - 07:56:52 pm by Krista White

Does “better team” mean appellants won? It appears so!

March 26, 2015 - 07:56:35 pm by Esther Agbaje

Better team is Charlotte Lawson and Allison Schultz.

March 26, 2015 - 07:56:22 pm by Lauren Gabriel

Snaps for Susan Pelletier – best oralist!

March 26, 2015 - 07:56:11 pm by Krista White

Judge Bea: “You fielded all sorts of difficult questions… some of them were even relevant questions.”

March 26, 2015 - 07:56:03 pm by Esther Agbaje

Unanimous decision!

March 26, 2015 - 07:55:44 pm by Lauren Gabriel

Judge Bea: You didn’t make it easy for us.

March 26, 2015 - 07:55:00 pm by Krista White

“It’s happening!”

March 26, 2015 - 07:54:46 pm by Esther Agbaje

No reception fare until after the decision is announced. And so we wait…

March 26, 2015 - 07:45:37 pm by Lauren Gabriel

While we wait for results, the bloggers would like to take a second to remember One Direction. Why Zayn?!

March 26, 2015 - 07:43:11 pm by Krista White

Only the truly dedicated remain in the overflow room.

March 26, 2015 - 07:41:20 pm by Lauren Gabriel

Predictions? Esther is betting on the appellants. Krista is with her. Of course, I’ll take the underdogs. #marchmootness

March 26, 2015 - 07:39:15 pm by Lauren Gabriel

Court is adjourned!

March 26, 2015 - 07:39:02 pm by Krista White

Schultz is immediately ready with a citation to the record.

March 26, 2015 - 07:38:55 pm by Esther Agbaje

Bea: Where are there other stores in the record?

Schultz: Page 38.

March 26, 2015 - 07:37:21 pm by Krista White

Schultz: Record indicates that operating Chic Boutique is Mary Bratton’s passion and talent. There’s no indication that she could engage in another line of business without sacrificing her livelihood.

March 26, 2015 - 07:36:37 pm by Lauren Gabriel

Schultz: The appellee’s opt-in claim is one that courts have generally rejected.

March 26, 2015 - 07:35:41 pm by Krista White

Schultz is back for the appellants’ rebuttal.

March 26, 2015 - 07:35:28 pm by Krista White

Pelletier: Chic Boutique is able to change their business practices, or Mary Bratton could do something different to avoid having to serve customer.

March 26, 2015 - 07:35:27 pm by Esther Agbaje

And we’re on to the rebuttal.

March 26, 2015 - 07:33:10 pm by Krista White

Justice Liu: This is very similar to the Boy Scouts, because the Boy Scouts won’t serve certain types of people. Why is this case not analogous?

Pelletier: Analysis in Hobby Lobby is unclear about if focus is burden to the company or to the owners.

March 26, 2015 - 07:31:41 pm by Krista White

Justice Liu: Does this case turn on the fact that Chic Boutique just doesn’t advertise itself as “Chic Boutique: A Christian Store”?

March 26, 2015 - 07:30:49 pm by Lauren Gabriel

Justice Liu: I guess I was just considering the Boy Scouts case – which none of your briefs discuss.

Zing!

March 26, 2015 - 07:29:05 pm by Krista White

Justice Liu: Would this be different if Chic Boutique were a religious entity?

Pelletier: Title 20 deals with public accommodations. Would depend if a church were a place of public accommodation.

March 26, 2015 - 07:28:33 pm by Esther Agbaje

Bea: What if the customer is a Crusader in a suit?

This got some laughs from the audience.

March 26, 2015 - 07:27:47 pm by Esther Agbaje

Pelletier: That hypothetical is not the same because the artist is refusing because of what the customer is asking him to do.

March 26, 2015 - 07:26:45 pm by Esther Agbaje

Judge Bea: Hypothetical; Muslim artist given a commission to do a cartoon of the Prophet. He won’t do it. Isn’t that what’s happening in the present case?

March 26, 2015 - 07:25:31 pm by Lauren Gabriel

Judge Easterly: Bratton has to choose whether to adhere to her religion or pursue her livelihood?

March 26, 2015 - 07:23:22 pm by Lauren Gabriel

Judge Easterly: That seems way way way broad.

March 26, 2015 - 07:23:11 pm by Krista White

Pelletier: Mary Bratton opted into the regulatory scheme by operating a place of public accommodation.

March 26, 2015 - 07:22:25 pm by Lauren Gabriel

Judge Easterly: I don’t understand the opt-in regulatory scheme you’re referring to.

March 26, 2015 - 07:21:23 pm by Krista White

Justice Liu: Difference between the hypo and actual scenario is the denial of service.

March 26, 2015 - 07:20:29 pm by Krista White

Justice Liu: What if Chic Boutique had hung a sign in its window that said “transgender people not welcome here”? But it had a policy of serving them.

Pelletier: It’s not clear that that would be a violation of Title 20.

March 26, 2015 - 07:19:51 pm by Esther Agbaje

Pelletier: Government focuses on the dignitary harm in discrimination suits. She argues that’s the important compelling interest.

March 26, 2015 - 07:18:40 pm by Esther Agbaje

Bea: Compelling govt. interest. Is it one that everyone can access goods and services or is it in ensuring the dignity of an individual? The latter is important, but is that a compelling government interest?

March 26, 2015 - 07:17:45 pm by Krista White

Pelletier: East Ames has a compelling government interest… [interrupted by Judge Bea]

March 26, 2015 - 07:16:33 pm by Krista White

Next up: Susan Pelletier for the appellees.

March 26, 2015 - 07:16:03 pm by Lauren Gabriel

Justice Liu keepin’ it real.

March 26, 2015 - 07:15:52 pm by Lauren Gabriel

Justice Liu: You can’t sue a law.

March 26, 2015 - 07:15:17 pm by Krista White

Justice Liu: Who exactly would the business sue? Only government actor is the court.

Nessim: Such certainty is obtainable by suing the state.

Justice Liu: There would be no case or controversy.

March 26, 2015 - 07:14:16 pm by Krista White

Justice Liu: How could a business go about its business if it had to seek such relief [ase advocated by appellees] on a one-off basis, time and time again?