ABA project illuminates appellate courts
The work of certain courts is well known. Some cases heard by the United States Supreme Court—and, occasionally, cases from trial courts—become high profile for one reason or another and are widely described and dissected in the media. It is in the appellate courts, however, where substantive matters of law are decided day in and day out. Yet few people know about these courts, much less understand how they work.
“There is very little public participation in the Courts of Appeals,” said Judge Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit at a new media and the courts conference in February of 2011. The circuit courts are sometimes dubbed the ‘anonymous courts’ and yet the public impact of their decisions is far reaching.” Years ago McKeown realized that this problem needed to be addressed, and as Chair of the American Bar Association’s Standing Committee on Federal Judicial Improvements from 2006 to 2009, she was in a unique position to tackle it.
In conversation with Judge Nancy F. Atlas of the U.S. District Court for the Southern District of Texas and other members of the Standing Committee, she realized that new media technologies could help bridge the information gap. The result of these efforts was a blog, dubbed “Media Alerts on Federal Courts of Appeals.”
The blog publishes “briefs” on recent opinions in legally significant cases decided in the Federal Courts of Appeals, to provide lawyers, students, reporters, and the public with accurate and unbiased information.
“It’s a daily service, circuit by circuit, which includes short summaries of key cases coming out of the circuits on that particular day,” said McKeown. “We did it through the good graces of law schools and their students.”
The project relies on law schools to decide which opinions should be briefed, and to get the briefs written and posted. When the project launched in 2009, only three of the Circuits—the Ninth, the Fifth, and the Third—were covered by a participating law school. Now, all the Circuits are covered.
“The Media Alerts project is designed to promptly explain significant decisions by intermediate federal appellate courts,” said Atlas. “And to do so in language the public and lay press can understand.”
Atlas, a long-time friend of UT Law, contacted Dean Larry Sager to inquire about his interest in participating by covering the Fifth Circuit. Recognizing its unique pedagogical value, he didn’t hesitate to say yes.
“When Judge Atlas and I agreed that we could have students working at the heart of the media alerts enterprise,” said Dean Larry Sager, “the project became very attractive for us.”
In most of the Circuits, the briefs are written by law professors. UT Law adopted a unique approach and created a for-credit seminar. Led by Stefanie A. Lindquist, associate dean for academic affairs and A.W. Walker Centennial Chair in Law, and Leslie A. Oster, assistant dean and senior lecturer, students study the work of the Circuit Courts and hone their legal writing skills drafting the opinion briefs.
Lindquist’s research focuses on the connection between judicial decision making in the federal and state appellate courts and its effect on public policy. She is widely published in this area and is the coauthor, with Professor Frank Cross, of Measuring Judicial Activism, a book that uses empirical analysis to study the widely discussed concept of judicial activism. She is also coauthor, with Wendy Martinek and Virginia Hettinger, of Judging on a Collegial Court: Influences on Federal Appellate Decision Making, which evaluates the factors that influence circuit court judges’ decisions.
“I was intrigued by this project from the start,” said Lindquist. “In addition to the considerable benefit to our students, the project has an important service aspect. By enhancing public understanding of the functioning of the courts—how the courts work—our efforts enhance the public’s appreciation of judicial dispute resolution, thus enhancing the rule of law.”
Oster was recruited to join the project by Lindquist and Sager because of her experience teaching legal writing and appellate advocacy. She is also involved in the recent effort to expand UT Law’s legal writing and oral advocacy programs.
Entitled, “Circuit Court Precedent,” the seminar is highly collaborative. Students read decisions as they are handed down, debating with each other and with Lindquist and Oster which opinions are “brief worthy.” (Not every opinion published by the Circuit is about a substantive aspect of law. Some, such as affirming denials of habeas corpus writs, for example, are routine matters.) If a case is believed to be interesting or important to the public, it is briefed and posted.
“The students are ably taught how to synthesize the cases,” said Atlas. “They learn to write about cases and complex subjects in a pithy, focused way, a skill that will benefit them throughout their legal careers. UT School of Law started the first phase of the ABA’s effort and is a stellar model for other circuits to emulate.”
In writing the briefs, students strive to be objective—neither endorsing nor criticizing the opinion—and to write so that people without legal training can understand the case and its importance. They work with Lindquist and Oster to make certain their briefs achieve these goals before they are posted.
“Nothing is posted without careful editing,” said Nick Maxwell, a member of the Class of 2011. He has been involved with the Media Alerts project from the beginning and this year, as project coordinator, he is responsible for managing the classroom component. “We use a modified version of a conference to determine who writes particular briefs. Once a brief is posted, the authoring student is asked to present the facts, law, procedural posture, key arguments, and holding to the class. We then discuss the soundness of the arguments and theories presented in the opinion.”
“We also focus on how students communicate these ideas” said Oster. “We work with students on their communication skills, both in writing and in oral presentation, because communicating ideas is at the core of what lawyers do every day.”
In addition to the technical aspects of briefing the cases, the course has evolved to include topics that help students develop a comprehensive understanding of the appellate process. Here, understanding gained from Lindquist’s research is particularly valuable. These topics include standards of review; circuit procedures, workload data, personnel and publication; the history of the Fifth Circuit and the legacy of Civil Rights; and why judges dissent.
Several members of the class of 2010 who participated in the seminar last year went on to clerk at various courts around the country this year: Daniel Aguilar, for Judge Pamela Ann Rymer on the Ninth Circuit; Gregory Baden, for Judge Jack Zouhary of the United States District Court for the Northern District of Ohio, and, for the 2011 Term, for Judge Edith Brown Clement on the Fifth Circuit; Kelli Benham, for Judge Catharina Haynes on the Fifth Circuit; Guha Krishnamurthi clerked for Judge Diane Wood on the Seventh Circuit, Nicolas Rotsko, for Judge Victor Wolski on the Court of Federal Claims; and Michael Stephan, for Judge Cynthia Holcomb Hall on the Ninth Circuit.
Maxwell’s study of the Fifth Circuit has also led to some intriguing outside research. “I’m working on a paper right now that studies class actions in the Hurricane Katrina litigation,” he said. “In general, the Fifth Circuit is hostile to the class action mechanism. There is a lot of post-Katrina litigation in the courts right now, and it’s fascinating to watch how the Fifth Circuit uses procedural rules in its decision-making. Working on the Media Alerts project has given me the opportunity to gain an extraordinary insight into the appellate process.”
The Media Alerts blog is free to the public. To subscribe, visit the project’s page on the ABA website.