November 26, 2008


I always find it amusing when I hear students during moot court arguments rattle off long, complicated section numbers of statutes. You know, "Yes, your Honor, if we look to 18 U.S.C. section 352, subsection (a)(2)(B)(iii)..." On one hand, there are some judges who appear to be impressed by the student's apparent "mastery of the record," but in reality, it has always struck me as a very cumbersome and listener-unfriendly way to discuss statutory law.

Well, as Tony Mauro at the Legal Times blogged about a few weeks back, there may be a simpler way. During the Supreme Court's oral argument on November 10, Assistant to the Solicitor General Nicole Saharsky referred the statute at issue -- 18 U.S.C. 922 (a)(33)(A)(i) and (ii) -- as "Romanette one and two."

Mauro detailed the rest of the exchange:

"Romanette?" asked Chief Justice John Roberts quizzically. "Oh, little Roman numeral," Saharsky replied offhandeldy. No biggie. "I've never heard that before!" said Roberts. "That's ... Romanette."

In all his days in the solicitor general's office and in private practice, Roberts had apparently never run across the term. The audience laughed -- including many, to be sure, who had never heard the word before themselves. Chief justices, along with everyone else, can learn something new every day.

Chief Justice Roberts isn't alone. Eugene Volokh picked up on Mauro's post and blogged about it himself:

The word is in no dictionary that I could find. It appears in no Nexis-searchable publication. A Google search for "Romanette" in English-language pages revealed fewer than 35 pages that used the word before Monday, once all the false positives (the names of people, horses, green bean varieties, blinds, and the like) were removed.

And yet the word, with precisely the meaning Ms. Saharasky used, appears in six court opinions, from federal court in Oklahoma, bankruptcy courts in Texas and Pennsylvania, and state courts in Minnesota, plus ten sources in Westlaw's TP-ALL database (all in practitioner journals, not in traditional law reviews). And the Google hits — mostly from legal documents — come from a similarly wide range of sources: the minutes of a Novato, California City Council meeting, a manual of contract drafting, a transcript of an Idaho Senate commitee meeting, and more. What's more, all but a few use the word as matter-of-factly as Ms. Saharasky did, without any indication that the word is anything novel and unusual; the remaining ones are queries about what the word means or brief discussions of its meaning.

Volokh wonders how a term could be so commonplace in some legal circles -- to the point that its users assume that it's widely known -- but so unknown to others within the same profession. The comments to Volokh's post confirm his observation and seem to reveal that those with transactional backgrounds use the term with regularity (or at least knew of its existence), while litigators tend to be in the dark.

In any event, with so many moot court judges out there who may react the same as Chief Justice Roberts, I hesitate to coach my students to use the term. But it will be interesting to see whether it gradually works its way into common legal parlance.

November 21, 2008

Survey: What kind of appellate arguments work best?

From both the Legal Writing Institute and Moot Court Advisors listservs:

Announcing the 2008 Persuasion Study

What kinds of arguments do appellate judges find most persuasive?

While there is much anecdotal evidence on this question, there is very little empirical research as to what kinds of arguments resonate with appellate judges. A nationwide survey undertaken by a professor at a major Midwestern law school seeks to fill that gap.

The 2008 Persuasion Study will ask volunteer appellate judges, appellate law clerks, appellate practitioners and legal writing professors to review two short, one-issue briefs, both arguing the same side of a fictional case in a fictional jurisdiction. The two briefs will be carefully written to make the best possible argument available, but using different persuasive approaches to the case. Participants will then be asked to select which of the two briefs they found more persuasive.

The survey seeks to include not only appellate judges, but appellate law clerks, practitioners and legal writing professors, to see if there is any discernible difference between these groups. Do appellate judges and appellate law clerks respond in the same way to the same briefs? Are appellate lawyers, as a group, attracted to briefs that judges aren’t? Are legal writing professors teaching persuasive techniques that judges do not respond to?

The success of this survey depends in part on the size of the test population. The larger the sample of each respondent pool, the more likely it is that the test will yield results that accurately measure the attitudes of each group. Please consider volunteering for this study.

If you would like to participate, you may sign up for the study by visiting this site:

You will then be asked to provide your name, e-mail address and type of participant (judge, clerk, practitioner or professor). This information will be used ONLY by the Survey Administrator (a research assistant, not the principal investigator) for the purpose of randomly assigning and distributing briefs and a brief summary of the appellate record for the survey. The Survey Administrator will not disclose the identity of the participants at any time to the principal investigator.

After the survey launches, the Survey Administrator will e-mail to all participants the summary of the appellate record, two randomly-assigned briefs, and a Participant Number. Participants will then review the record as necessary, read the two briefs, and decide which of the two they found more persuasive. Participants will then be directed to the survey website, where they will fill in a short questionnaire using only their Participant Number. The questionnaire will gather a small amount of demographic data (including things like level of court served on, approximate length of time in the current employment position, etc.) and then will be asked simply to report which brief the participant found to be more persuasive.

All responses will be held in strict confidence. The principal investigator will never have access to the list of participants or their e-mail addresses, and that list will never be shared with anybody else; only the Survey Administrator will have access to it for the purpose of distributing survey materials.

The registration site is open now; participant registration will continue until December 15, 2008. Survey materials will then be distributed in early January, and the survey will close in mid-February.

Please volunteer to participate in this important study. The larger the pool of participants, the more likely the results will be representative of each participating group.

If you have further questions, you can contact the Survey Administrator at

Sounds interesting. I'm looking forward to participating, and looking even more forward to the results!

November 13, 2008

Chicago-Kent healthiest at Health Law Moot Court Competition

Chicago-Kent College of Law added to its growing trophy case this past weekend by winning the 17th Annual National Health Law Moot Court Competition at Southern Illinois University School of Law. Northeastern University School of Law took second place at the 34-team competition in Carbondale, Illinois. Loyola University Chicago School of Law finished third, while Saint Louis University School of Law finished fourth.

Loyola Chicago won the competition's Best Brief Award. Lauren Sneed from South Texas College of Law took Best Oralist honors, both in the preliminary rounds and overall. I personally saw Ms. Sneed compete at this year's National Entertainment Law Moot Court Competition, and I must say, she's tremendous.

Click here for a full write up of the competition done by Southern Illinois University's student newspaper.

It's been an incredible year for Professor Kent Streseman, Judge David Erickson, and the advocacy programs at Chicago-Kent. This marks their fifth national championship in 2008. Aside from winning both the National Moot Court Competition and National Trial Competition (and according to Dean Krent, one school winning both in the same year is an all-time first), they've also won the National Ethics Trial Competition, the Evan A. Evans Constitutional Law Moot Court Competition, and now, Health Law. Just an amazing year so far. Congrats!

November 12, 2008

My brief reply to Brian Koppen (better late than never!)

Thanks to Brian Koppen, author of the “Law School Advocacy” website I criticized back in September, for so quickly responding to my post. I wish I could say my promised reply was more timely, but it’s not as if there’s urgency to this discussion, and this post certainly won’t be the last on the subject. In any event, like I said in my initial salvo, however much I disagree with Koppen’s rankings system, I respect and appreciate his efforts to start one.

In all, I think Koppen makes some valid points. But I do want to address two particular arguments.

The first is Koppen’s response to my complaint that his rankings system overvalues some competitions (in particular the Pace National Environmental Law Moot Court Competition) and grossly undervalues others (most notably, the National Moot Court Competition). While apparently conceding that the NMC and ABA NAAC competitions have historically been the “big two,” the crux of his argument seems to be that prestige will “shift” away from the NMC and into the arms of Pace. Why? Well, apparently, because his rankings system will change the behavior of the mooting world.

He doesn’t argue that the NMC is poorly run, or that it’s attendance has fallen off, or that moot court faculty advisers and coaches have come to regard the NMC as unimportant, or any other reason that would cause the oldest moot court competition in the country to lose prestige. Rather, his only argument is that because its regional rounds are too small to warrant inclusion in his ranking system, schools will stop sending their best teams to the NMC in favor of the Pace competition.

Goodness, I hope that’s not the case. The primary purpose behind my criticisms was to stop (or at least slow) the trend of those in the law academy citing to Koppen’s rankings as if they’re the absolute final word on moot court strength. Certainly, it’s true that as rankings systems gain recognition, acceptance, or importance, the “ranked” tend to alter their behavior to improve their standing (or, as Brian Leiter has called it, “gaming the rankings”).

But Pace more prestigious than the National??? I’d love to say the day that happens is the day I retire from coaching moot court. Sadly, I really love my job, so I can’t go that far. Still, even if he’s right, pay careful attention to what Koppen has said: He essentially admits that the NMC is more prestigious now, but that due to his rankings system, it will cease to be so in coming years.

Shouldn’t the rankings system reflect prestige, as opposed to dictating it?

And regardless of how you choose to answer that question, the simple fact is that Koppen’s system puts way too much emphasis on one competition–Pace. Unless I’m missing something, a team will receive more points for just finishing in the top ten at Pace than it would for winning the ABA NAAC (which even Koppen, I have to believe, would say is more prestigious than Pace).

This past year, Pace had 70 teams. Under Koppen’s rules, the nine Pace semifinalists received 61 points. The winner, Lewis and Clark, received 69 points. By contrast, for winning the NAAC (which started with 108 more teams), Harvard received just 51 points – 27 for defeating 31 teams at regionals, and 24 for winning the 25-team national finals. Even Koppen can’t admit that Pace is more prestigious than the NAAC, yet his overly rigid system gives the winner of the 70-team Pace 18 more points than the winner of the 178-team NAAC! And any competition with more than 52 teams would necessarily dictate the same result. When that’s the case, it’s time to reevaluate your system.

As to the issue of whether Koppen’s rankings favor the programs that enter the most competitions, he makes a good point that a “larger” program will develop more advocates, and that by itself is a good thing. I don’t necessarily disagree. The problem, though, is that oftentimes a larger program is simply the result of a larger student body. We don’t (or at least shouldn’t) say one law school is better than an other because it graduates more students. My law school (Texas Tech) has a student body of almost 700. The University of Texas has nearly twice that amount—almost 1,300 students. Wouldn’t you expect us to have less competition teams than Texas? Our budget is smaller, and while I have no idea what percent of UT’s budget is dedicated to advocacy programs, I can say with some confidence that it wanted to send more teams to competitions than Texas Tech, it could easily do so.

In short, I think Koppen's rankings are at best unreliable and at worst misleading. But I thank him for his response, which I think shows he’s given a sufficient amount of thought to his system.

The discussion shall continue...

November 11, 2008

The ABA redeems itself

I'm thrilled to report that the ABA has revised the brief deadline for the National Appellate Advocacy Competition. Instead of being due January 5, the electronic version of teams' briefs are now due January 12.

As I said in my post last week, the ABA NAAC is one of the best (if not THE best)-run competitions in the country. The subcommittee's decision to give the students an extra week shows that it is committed to maintaining the NAAC's outstanding reputation.

Incidentally, the problem has been released via e-mail to those teams that have registered and paid their registration fees.

November 4, 2008

Frustration with the ABA

I'm not real thrilled with the ABA right now. The relevant dates for its National Appellate Advocacy Competition have been out for some time, but only in the past few weeks have I come to realize just how burdensome they are. I know the NAAC subcommittee consists mostly of law school professors, but you wouldn't know it by the problem release date and brief deadline.

In years past, the NAAC problem was distributed in early December -- typically just before students start taking their exams. No big deal, though, because the brief deadline always fell in mid-January, giving students at most schools the opportunity to finish up their exams before turning their attention to the problem and allowing them at least 30 days to research and write.

This year? Not quite. The problem will supposedly be released some time next week, although the ABA hasn't indicated whether schools will get it Monday the 10th, Friday the 14th, or sometime in between. That's certainly nice of them to release it a bit earlier than usual, but don't forget what most students are (or at least should be) doing right now: Going into "lockdown mode" for their exams. At many schools, exams will start just after Thanksgiving. But even at schools that start exams a week later, this is no time of year to be introducing new extracurricular activities to students. This is the point in the semester when students want and need to be wrapping up their outside involvements to concentrate on their classes.

And the kicker? The brief is due January 5. So yeah -- students don't really have the option of waiting until after exams to start work on their briefs, because two or three weeks (which include holiday travels and family gatherings) just isn't enough time to tackle a complex moot court problem. Consequently, it forces students to spend the two weeks leading up to Thanksgiving -- time they should be spending synthesizing a semester's worth of reading and notes -- working on a brand new moot court problem. And what about students who are preparing for the regional rounds of the National Moot Court Competition (scheduled to take place over the next few weeks)? Many of them will likewise compete in the NAAC, which means the new deadline forces them to take on two moot court problems at once.

That's plain silly. I suspect that the ABA made the change to allow sufficient time for its brief graders to do their jobs before the regional rounds start in late February. That's certainly an acceptable reason, but I wonder whether it's really necessary -- the old deadline allowed for more than five weeks of regional grading. That should be more than enough time, especially considering the regional graders are only responsible for scoring eight briefs.

A closer look at the NAAC's "Confidential Information for Participants Only" page (to which I won't link, because the ABA has designated it solely for the eyes of students and coaches) confirms my guess. According to the cover letter the NAAC subcommittee will send to its regional brief graders, scores are due back February 2 -- nearly a month before the first regional! Certainly, I recognize that to some extent, the ABA is scheduling in wiggle room for tardy graders. I also appreciate the fact that the permanent staff at the ABA's Law Student Division consists of just two people, and that gathering and compiling brief scores for 200-some teams can't be done in a day. But a whole month? That seems a bit overboard, particularly when the ABA is able to get the briefs of the 24 national-qualifying teams re-graded (and scores compiled) in less two weeks.

But even assuming that the ABA really does need a whole month to compile scores from its brief graders, why not release the problem earlier? If you decide to so heavily burden the students and interfere with their studies, the least you could do is release the problem in early-to-mid-October, recognizing that from mid-November through mid-December, students should be focused on their classwork.

Don't get me wrong -- I think the ABA NAAC is one of the best moot court competitions in the country. In my mind, it sets the standard by which other competitions should strive to achieve. Moreover, the Law Student Division is incredibly well run, and I'm amazed each year by the quality, professionalism, and helpfulness of its staff. But this year's scheduling change is unfortunate. Either allow the students a full month to research and write after their fall exams, or release the problem earlier to allow the students a better head start before they must turn to their classwork.

November 3, 2008

Southwestern first at Wechsler First Amendment Moot Court Competition

Congratulations to Southwestern Law School, which won the Burton D. Wechsler First Amendment Moot Court Competition held October 23-25. Cleveland State University's Cleveland-Marshall College of Law finished second. Florida International University College of Law and Brooklyn Law School were semifinalists.

Brooklyn was awarded Best Brief, while Daniel Rivera of Florida International won Best Oralist.

Click here for full results. Southwestern's website report is here.