Saturday, March 08, 2008

On writing an appellate brief

Justice Holmes' frequently quoted aphorism "a page of history is worth a volume of logic" notwithstanding, it would be awesome if I could use logic and common sense a little more, especially in a closed-packet* context.

I've been warned against "deciding what makes sense and making the common law say that" and I'm trying not to. Also, I have an awesome argument that has to do with the subject of the case at bar that I don't think I can use at all because the common law has a different subject. (I'm being evasive here on purpose as I don't want to do anything that could be construed as an honor code violation. If you're at all curious, ask me about this in 72 hours and I can fill you in after the paper is turned in.)

Not a request for help, I can assure you. Just a rant. I'm sure there are ways to sneak my own logic in, I just haven't figured it out yet. I'm sure I will get there with practice. (Pun ignored.)


*We give you the cases you're using and you're not allowed to use any other ones.

Ps. One of the scarier impacts of law school is that I find myself growing a little bit fond of Justice Scalia because honestly, nobody writes a wiseass dissent like that guy.

Luckily, it's easy to sober oneself up.


Joel Monka said...

"I've been warned against "deciding what makes sense and making the common law say that"

Why on Earth not? It has been publicly admitted that that's how Roe V Wade was decided.

Chalicechick said...

"Roe v. Wade" as we think of it was a judicial opinion.

Judicial opinions are horses of a different color.


Comrade Kevin said...

The fine art of weaving what you really think into the context of impartiality. :-)

kim said...

The law is an ass. didn't we hear that somewhere?
we are currently embroiled in some legal matters that show quite clearly that the law is neither logical nor moral.

PG said...

Roe v. Wade was based on extending the liberty right of privacy already declared to be in the Constitution in prior decisions such as Griswold and Eisenstadt. I am not clear on whether CC's assignment is working with the "common law" in the sense of the English body of law that existed prior to the Constitution, particularly in contracts and torts, which Holmes expressly admires in The Path of the Law, or just in the sense of the body of judicial decisions interpreting statutes and Constitution.

Incidentally, I always find it amusing when people's criticism target Roe v. Wade, which is relatively easy because it's about abortion and even pro-choice people are uneasy about abortion, but those same people utterly ignore the cases on which Roe is based -- because they're about contraception, which is very popular.

Chalicechick said...

It's the judical decisions interpreting the Constitution.


PG said...

Scalia is entertaining, but in some instances (like Lawrence) I really prefer Thomas. There's a lot to be said for getting a point across economically and without unnecessarily pissing people off.

Hudson is a bit of an aberration in Scalia's general support of defendants' rights -- for a conservative, he's quite nice to criminals right up until they get convicted, at which point they pretty much can go to hell so far as their constitutional rights are concerned.

Robin Edgar said...

"it would be awesome if I could use logic and common sense a little more"

Indeed it would. ;-)

It would be even more awesome if more U*Us could use logic and common sense a little more. . .

alkali said...

To split the difference here, appellate briefs ought to be a floor wax and a dessert topping.

By way of explanation, Judge Ruggiero Aldisert of the Third Circuit has written a book on appellate advocacy that I can't recommend highly enough. One of the rules of thumb set forth in that book is that a good brief ought to be something a judge could theoretically sign as a written opinion virtually as it stands. That is to say, keep the hyperbolic adjectives and adverbs to a minimum, focus on the key issues, and be sure to engage with the opposing argument. Keep that standard in your head -- "Would a judge actually say something like this in an opinion?" -- as you write and you won't go wrong.

(And read Aldisert's book when you get the time.)

Freewheel said...

Scalia is a great wise-ass, but if you want eloqunce, read the dissents by Justices Holmes and Brandeis. They are the greatest writers who've graced the Supreme Court. (FWIW, Holmes was Unitarian and Brandeis was Jewish).