In any event, the two evenings of moot court were interesting contrasts. They concerned two separate topics from two separate instructors. A few random notes:
- If you're going to judge moot court, you owe it to the students to ensure that you've gone a little bit beyond the bench brief. Some current awareness is always helpful. For one problem, I didn't need to make any effortthe problem is squarely within my practice. The other problem didn't require a lot of extra effort, because it touched on a theoretical problem in federal procedure that I've been wrestling with several years: When is an "exception" jurisdictional, and when is it merely a complete affirmative defense?
- As is typical for first-year studentsand all too common in practicewith only two exceptions (out of 24 students I saw) the policy implications didn't get linked to clients' interests in more than a cursory fashion. It's a lot more fun to talk about policy in the abstract, particularly since that's all one sees in the rest of the first-year curriculum. Unfortunately, that often continues in practice and in the judiciary; that's what makes Justice Blackmun's dissent in DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189, 213 (1989) so unusual.
- Go into an oral argument with an achievable objective (PDF; see logical page 99/numbered page B-1); tell the court the minimum it must find to rule in your favor (being accurate and honest about it, of course). This is especially important if you're representing the appellant: Sometimes you can have a favorable burden of proof on each issue, but need to win each issue to get relief, which allows your esteemed opponent to concentrate on one issue… and will almost certainly lead the judges to concentrate on that single issue, resulting in inadequate consideration of what it takes to win.
There have been a couple of interesting publishing-related news items and issues in the last few days. For the present, though, read Professor Patry's entry of Wednesday, 19 April and think about what this implies for reprinting of public-domain works. Or not, if you don't want a headache.