Monday, November 7, 2016

PJ Gilbert at the gym

Image result for boxer dog boxer rebellion
"There is no generic appellate mind.
We all do our best to decide cases
 in accordance with the law and the
standards of review."
Boxer dogs, Boxer Rebellion and this ... That's the title of this month's column by PJ Gilbert, which is about his ... underwear. [The online title anyway; the print version is simply Arthur Gilbert's Boxer Shorts.] Long story short, a packing error caused him to have to workout in his boxer shorts, and ... nobody noticed. Obviously this raises questions about the reliability of eyewitness testimony. I guess.

Image result for boxer dog and fluff

In Moskovitz on Appeals, Myron teaches that Concise is not the same as short. (Today's theme is apparently 'shorts.') "A lengthy brief can be concise if the author comes to each point quickly, writes clearly and omits fluff. But a 15-page brief can seem interminably long if it is unclear, boring and wanders around the heart of the case."

Law360 presents The Pivotal Election of a Bankruptcy Appeal, about the choice between appealing to the district court or BAP.

The DJ reports (in Asian Americans make inroads in legal profession, but have a ways to go) that Justice Liu teamed with four Yale Law School students for a research project titled "A Portrait of Asian Americans in the Law," which shows that "the growth in the legal industry has aligned with a rapid rise in Asian American law school attendance, but in recent years the group's enrollment has decreased more quickly than any other racial or ethnic group." The 55K Asian-American lawyers today (about 5% of attorneys nationwide) is a jump from the 10K figure in 1990.

Of appellate note: this Ninth Circuit opinion published last week here, where the majority points out how the appellant tried to tiptoe around a central issue in his opening brief, and noted that whether "the omission was intentional or merely negligent, it was a significant error." Finding waiver was not "a triumph of procedural rigidity" because "there are important reasons for holding that an appellant waives an issue if it fails to provide argument about the issue in its opening brief. Rules are enforced to deter the type of improper, or inattentive, conduct that occurred here. Moreover, 'appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.'" But then see the dissent...