D.C. Circuit Review – Reviewed: On Mock Trials

by Aaron Nielson — Friday, Feb. 16, 2018@Aaron_L_Nielson

Apologies again; this post is also a quick one.

I don’t often agree with Richard Posner.* But I’m sympathetic to his criticism of “mock trials” involving real judges. This is how they work. A pair of (often famous) lawyers reimagine historical — or historical-ish — cases before a panel of honest-to-goodness judges while an audience (of largely lawyers) watches. Often these mock trials occur in real courtrooms. As a rule, I don’t like them! To be sure, some lawyers do enjoy such mock trials; that’s okay — we can like different things. And I know that some judges also enjoy them; indeed, some judges I respect a great deal participate. That’s fine too — to each their own. But again, as a rule, I don’t like mock trials.

Why not? For reasons similar to those identified by Posner. As he explained in a 2013 article (that, alas, could have been much shorter and less dour):

The judges and Justices tend not to take their role in the mock trials as seriously as the lawyers do …. Often they joke and clown — and when they do, the lawyers often take this to be an invitation, which they gladly accept, to join in the fun, provoking laughter by the audience. This is low comedy, and I find it distasteful. I understand the temptation: the trials are generally remote in time and culture from modern America, and the contrast with modern law and modern legal procedures invites cheap humor. By “cheap humor” I mean the kind of jokes that circumstances enable someone who is not witty to make. … The participants, notably including the judges, find it almost impossible to refrain from joking and to avoid anachronism — that is, to avoid trying the case in whole or part under modern law. The anachronism is the basis of the jokes — the cheap humor that pervades the mock trial genre.

Moot courts are one thing; they help students learn about the law and are usually serious in tone. Mock trials, however, are something else; they are often silly. And the “jokes,” generally, aren’t even funny. If we are going to have mock trials, I would much prefer a real question-and-answer approach that explores the hard questions. Judges are good at asking hard questions — they do it for a living. Most judges, by contrast, are not that funny — at least not consistently. (Most law professors are also not funny, myself included.) Hence, in my opinion, the best mock trials don’t try for humor. Rather, they are about thinking. Of course, I’m not a sourpuss; a good joke that arises organically is welcome. But the goal shouldn’t be humor.

That’s why I’m excited to see that the D.C. Circuit Historical Society (a great resource) is hosting a mock trial that promises to be intellectually engaging. Here is the information:

From Goldwater to Zivotofsky: The Political Question Doctrine in the D.C. Circuit

In December 1978, President Carter decided to recognize the People’s Republic of China, instead of the Republic of China, simultaneously invoking the termination clause of the Mutual Defense Treaty with Taiwan. Senator Goldwater and other members of the Senate and House sued, contending that termination could not be constitutionally effective without concurrence of the entire Congress. D.C. District Judge Oliver Gasch enjoined the Secretary of State from taking action to implement the termination, holding that the U.S. could not terminate the Treaty until the President’s actions received the approval of two-thirds of the Senate or a majority of both Houses of Congress. President Carter appealed contending that the case presented a non-justiciable political question that should not be resolved in the courts but rather through give-and-take accommodation of the political process. The D.C. Circuit reversed on the merits, concluding that the President had not exceeded his constitutional authority; no judge would have declined to exercise jurisdiction by reason of the political question doctrine. The Supreme Court reversed without argument and ordered the case dismissed, with a plurality concluding that the case was non-justiciable under the political question doctrine.

Our program will include a reenactment of arguments presented to the D.C. Circuit sitting en banc in 1979 on the political question issue in Goldwater v. Carter. Professor Stephen Vladeck will set the stage. Erin Murphy will argue for President Carter, Harold Koh for Senator Goldwater. Senior Circuit Judges Edwards and Williams, who reached opposite conclusions on the political question/justiciability issue in a 1991 case, will preside. Following the reenactment, Paul Smith will moderate a discussion exploring the scope and viability of the political question doctrine today. Panelists will include Professor Vladeck, the advocates Ms. Murphy and Professor Koh, as well as Beth Brinkmann.

The event will be on March 7, 2018 at 4:30 in the D.C. Circuit’s Ceremonial Courtroom. And it’s free. I don’t think I’ll be in Washington, D.C. on the 7th, but if you are, check it out.

The D.C. Circuit decided three cases this week, none of which will be featured in a mock trial 40 years from now.

In Chichakli v. Tillerson, Judge Wilkins (joined by Judges Kavanaugh and Randolph) concluded that disclosures made by the Office of Foreign Asset Control and the Department of State complied with the Privacy Act as a “proper routine use of the information.” It seems that OFAC concluded that the appellant “was acting on behalf of an arms-trafficker.” Appellant filed suit, claiming that OFAC violated the Privacy Act. The Court was not persuaded.

In Stolz v. FCC, Judge Millett (joined by Judges Edwards and Williams) rejected a petition challenging the FCC’s approval of a license transfer application. This is a technical case, but here is an important thought: “If an agency wants a procedural requirement to have the type of claim-foreclosing consequence the FCC attached here, it needs to be explicit about the rule and upfront about consequences of noncompliance. The FCC may not, like Nero, lay out its procedural requirements in a way that makes them ‘harder to read and easier to transgress.'” This point, however, did not change the panel’s ultimate judgment: “While Stolz wins that procedural battle, he loses the war.”

Finally, in South Coast Air Quality Management District v. EPA, a “NAAQS” case, Judge Sentelle (joined by Chief Judge Garland and Judge Rogers) agreed — quotations omitted — that “there is no legal basis for allowing states to credit reductions achieved at sources outside the nonattainment area.” The Court also considered arguments advanced by various environmental groups and ruled in their favor on multiple grounds:

Specifically, we grant Environmental Petitioners’ petition and vacate as to (1) waiver of the statutory attainment deadlines associated with the 1997 NAAQS; (2) removal of New Source Review and conformity controls from orphan nonattainment areas; (3) grant of permission to states to move anti-backsliding requirements for orphan nonattainment areas to their list of contingency measures based on initial 2008 designations; (4) waiver of the requirement that states adopt outstanding applicable requirements for the revoked 1997 NAAQS; (5) waiver of the § 7505a(a) maintenance plan requirement for orphan nonattainment areas; (6) creation of the “redesignation substitute”; (7) creation of an alternative baseline year option; (8) elimination of transportation conformity in orphan maintenance areas; and (9) waiver of the requirement for a second 10-year maintenance plan for orphan maintenance areas.

I suspect a lot of Clean Air Act lawyers will give this one a close read — there is a lot going on. Thankfully, the Court did not try to be funny.

 

* After all, I worry a great deal “about doctrine, precedent, and the other conventional materials of legal analysis”!

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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