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Friday, January 31, 2020

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Posted by Howard Wasserman on January 31, 2020 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink


"I hate to break it to you, particularly with some law students here. That is all we do." Cf. Bush v. Gore, 531 U.S. 98, 109 (2000) ("Our consideration is limited to the present circumstances . . .").

Posted by: Kevin Lapp | Feb 3, 2020 12:06:13 AM

Perhaps I'll offer a hot take about this. Law professors and appellate judges' love for hypotheticals, the endemic snobbery (in which I partake) among appellate practitioners towards lawyers who answer hypotheticals with "that's not this case," and Sutton's explanation of why hypotheticals are so central to appellate adjudication, all assume that cases are properly and even necessarily decided by what in the past we would have called "legislative rules," which decide or purport to decide a broad swath of hypothetical cases with quite different facts that aren't before the courts rendering these rules, and which in olden days would be thought of as unnecessary dicta. On the other hand, lawyers who answer "that's not this case" when presented with hypotheticals may be ignorant of how appellate courts decide cases these days, and admittedly not understanding the courts you practice before isn't good lawyering, but their answers arguably reflect a certain wisdom about the preferability of narrow common-law rulings that only say what's necessary and are sensitive to a case's facts.

Posted by: Asher Steinberg | Feb 2, 2020 7:01:30 PM

It encapsulates stare decisis pretty well, too! As Fred Schauer said in Precedent (1987), "Today is not only yesterday's tomorrow; it is also tomorrow's yesterday."

Posted by: Joe Miller | Jan 31, 2020 9:49:41 AM

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