2020 Winter Edition

    A publication of the Council of Appellate Lawyers   February 2020

    Rule Of Law

    Republic or Bust: Keynote, A Conversation Between Justice Neil Gorsuch and Judge John Sparks, Jr.

    By Namosha Boykin and Kelechukwu Chidi Onyejekwe

    It is easy to overlook the fact that judges are experts in the art of persuasion, but we often do. They prefer to be viewed as umpires – neutral arbiters calling balls and strikes. They do not readily call attention to their mastery of this skill. But sometimes we, their audience, cannot help but notice. During one of the most anticipated AJEI Summit traditions, a visit from a Supreme Court Justice, Justice Neil Gorsuch displayed his skill, persuading his audience one captivating anecdote after another, about life and the law according to Justice Neil Gorsuch.

    In this Issue

    Rule Of Law

    Thinking Like a Linguist

    By Howard J. Bashman

    Justice Elena Kagan observed in 2015, while delivering the Antonin Scalia Lecture at Harvard Law School, that thanks to Justice Scalia we are all textualists now. Yet focusing on the text to determine the disputed meaning of words and phrases, whether they are found in a contract, a statute, or a federal or state Constitution, only begins to describe the inquiry that advocates and courts must undertake, rather than the method or methods that are best suited for resolving that inquiry.

    Prosecution

    Stop Assuming Money Bail is an Effective Tool for Criminal Justice

    By Jennifer Williams

    When is the last time you thought about the current bail system or, more specifically, considered whether money bail is necessary to assure court appearances by persons accused of committing crimes? For attendees at the AJEI Summit in Washington, D.C., if they had not thought about money bail before, they were sure to question the barbaric, archaic, and potentially unconstitutional bail system in America after listening to the panel discussion, “The Culture of Bail in America: The Real Cost of Pretrial Detention.”

    Rule Of Law

    Reel Appeal II: You Can’t Handle The Truth!, or Can You?

    By Mark A. Kressel

    In the long awaited, much anticipated sequel to their 2016 panel, “Reel Appeal,” panelists Kirsten M. Castañeda, of Alexander Dubose & Jefferson LLP, Professor Paul Bergman, of UCLA School of Law, and Mark A. Kressel, of Horvitz & Levy LLP, led by their fearless leader and moderator, Hon. James E. Lockemy, of the South Carolina Court of Appeals, reunited for another presentation of movies, mayhem, and Model Rules of Professional Conduct.

    Appellate Practice

    Poetry in Motion: How Judges Write

    By Candice L. Rucker

    Have you ever wondered about the inner workings of a particular court? Or how a judge’s workload might affect the resolution of cases on his or her docket? For appellate practitioners, answering these questions before oral argument could help litigants more favorably sculpt their presentations—or at least avoid doing something that may damage their case. Former law clerks can provide some insight on a court’s internal procedure or the preferences specific to a particular judge.