Posted 15 May 2014 in Tips and Tactics
The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP.law books Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court. Do’s and Don’ts for an Effective Appeal DO: 1. Know what relief you want (and why). 2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks. 3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result,

Posted 13 May 2014 in Tips and Tactics
I wish I had learned some things earlier. That's especially true when it comes to my writing. So I thought I'd share five writing tips that I wish I had known earlier. The first tip concerns an edit at the sentence level. Other tips will address changes at the paragraph and word levels. Tip # 1: Place important and new information at a sentence's ending. This one is counterintuitive: a sentence's most valuable real estate is not where it starts but where it finishes. At the sentence's ending, a reader naturally stops -- it's sometimes called a "stress position." These natural pauses give a writer an opportunity:

Posted 12 May 2014 in Tips and Tactics
After filing an opening brief,edits you have a month or more to see what your opponent has to say.  The day finally arrives, and you snatch up your opponent’s brief and read it only to discover that your opponent has filed a truly bad brief, an extraordinarily poor piece of work that makes you laugh and cringe at the same time.  How do you respond in your reply brief?

Posted 12 May 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:Alexandria-court First Circuit
  • Jones v. City of Boston, No. 12-2280 (May 7, 2014) (in suit challenging police department's drug-testing program as causing disparate impact based on race, reversing denial of summary judgment for plaintiffs on whether they had proved a prima facie case of disparate impact under Title VII).
Sixth Circuit

Posted 08 May 2014 in Case Notes
If you spend your time following baseball, local governments, and appellate litigation (as I do),Baseball the Ninth Circuit case of City of San Jose v. Office of the Commissioner of Baseball, No. 14-15139, is one to watch. The issues are simple: the City of San Jose would like the Oakland A's to relocate there, but MLB has refused to permit it. Why? According to the City, another team, the San Francisco Giants, "owns" the exclusive rights to San Jose. The City explained that MLB teams have an "exclusive territorial rights agreement,"one that the City claims "constitutes a blatant market allocation scheme that is illegal under the American antitrust laws in all other professional sports." The district court found that

Posted 08 May 2014 in Commentary
When is a judgment a judgment for purposes of res judicata or the doctrine of full faith and credit when the judgment is obtained in one court and sought to be enforced in a different court?  Dictionary Many possible answers come to mind: when the judgment is entered, when the time for appeal has elapsed, during the pendency of an appeal for which no supersedeas bond was provided, when any appeal of the judgment is finished, when the judgment is final in the court that entered it, when the judgment is final in the court in which enforcement is sought. There may be a State and a circumstance in which every one of these possible answers is the right answer.

Posted 06 May 2014 in Commentary
Justice Kennedy is better known for his rhetorical flair than his practical guidance.church-state  But his majority opinion in Town of Greece v. Galloway provides a roadmap local governments can follow to stay out of trouble when beginning city council meetings with a prayer. Town of Greece resolves two issues:  whether prayers must be nonsectarian and whether prayers before city council meetings are coercive. The Court concludes that sectarian prayers that overtly refer to a specific faith are okay—to a point.  Sectarian prayers can go too far

Posted 06 May 2014 in Commentary
In our earlier post, we reported the Supreme Court’s decision in Greece v. Galloway, 8468059167_e8ebfeedbf_zruling that the Town’s prayer practice is not an unconstitutional establishment of religion. This post tracks some commentary on the case: SCOTUSblog has been providing analysis of the divided decision:
The stark difference between the majority opinion in the Allegheny County case and the Court’s new opinion in the Town of Greece case illustrated the progress made by Justice Kennedy toward the Court’s full embrace — although for differing reasons among five Justices who determined the outcome – of the “coercion” test in determining whether a government practice amounted to an “establishment of religion” in violation of the First Amendment.
Eugene Volokh of UCLA School of Law provides his reactions:

Posted 05 May 2014 in Case Notes
In addition to addressing local-government prayer this morning,CellTower the Supreme Court also decided to hear and answer another question impacting local governments: when a city denies a request to place a cell tower, how formally must it act? The Court granted cert in T-Mobile South, LLC v. City of Roswell, No. 13-975, which specifically asks what a local government must do to satisfy the Communications Act's "in writing" requirement at 47 U.S.C. 332(c)(7)(B)(iii):
Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record
As the Eleventh Circuit explained in its decision, some circuit courts have ruled