Appellate Practice; Class, 10.5.

16
Marlene Dail has colored paper
Electronic copy must be IDENTICAL to hard copy
Have purpose in everything write
Circuit opinion post-Zubik
DONT FOLLOW BBOOK, we are pretending there isnt a Zubik in the S. Ct. NO
subsequent history.
Pryor concurrence
S. Ct. binding authority, but SA says S. Ct. caselaw is not dictating an answer on any of
these points.
Could cite CFR and Fed. Reg. to say regulation was adopted, but if talking about what
reg. provides, need CFR.
Hobby Lobby: use in various ways on both sides; either to neutralize or use it for
something beneficial.
Interim orders: werent orders on the merits, were stays orders for stays pending appeal,
emergency applications referred to the court. L Sisters, Wheaton, Zubik, signals of
something (or not) Wheaton Coll. is bandied about in these opinions to some extent.
Appellees may try to argue the notice
In real case, parties didnt make that argument invented by a judge, not think
that was enough or solved problem.
o govt has a counter.
Everything is like a thrust and parry.
strict scrutiny run through in favor of govt
penalties mandate accommodation, the scheme three legs of school
probably dont call it a scheme thats a poll testing word.
Mandate contraceptive coverage reqt, but not 3 words
preliminary injuction /p de novo /s (law or legal) - Homestead
Flow:

take the reader on an adventure with you; holding the hand of the readeris ther
any risk the reader isnt with me? b/c of missing context, vagueness, ambiguity?
Not hitting any rocks in the creek. Want reading to be easy, not taxing.
Transitions b/t sentences and paras. link backwards your paragraphs.
Start sentence with BUT, not HOWEVER
connective tissue + signal lets your writing lean forward as you move along.
SA: Might artificially divide paragraph just to make a short para.
equally important, nonetheless
Be a police officer on your first sentences expressing main idea
never say the fact that just say that
and so could be maybe or therefore
DONT SAY HENCE
DONT SAY STATE say says/said

Qs:
need to officially name CNS/Heartland as Nonprofit Employers?
Summary of argument?
See SAs slides on minimizing to be verbs
Stress position what do you want to emphasize? [put it at the end of sentence]
only use passive voice with a purpose
Government/TX/Court is not they
rule operating in the present tense. Ct. HELD.
NO CONTRACTIONS
denial of rhg en banc
italics sparingly or not at all. try not to use to emphasize or argue
Tone: chin in the air
tone cant be overheated, dont come across as snarky.
persuasion is subtle, not shallow. your reasoning and analytical steps are what
matters.
premise is faulty, argument does not withstand analysis or scrutiny. district ct.
reflects a fundamental misunderstanding b/t x and y [not here, but say overlooked
instead of ignored]
reliance on a case/argument is misplaced
analysis turns case x on its head
by this logic, . . .

TX:
1-2 Overview with afftive casting
basic rule for context
casting of whats going on + overview of points
3-6 Offense, afftive argument built on bits of rationale from another case
7-8 Defense
9-14 Back on offense
Consider making a point, then getting to the case, then using principles from the case.
Not just making points out in the dark but linking to points from argument and precedent.
Consider saying in effect, or at bottom rather than accusing the other side of
something.
counterargument get into district cts reasoning
This Circuit should join the ___ Circuit in holding that ____
link to more generic principles from case law that they have. Leaning on analogous
authority from S. Ct.
Implications of cts decisions. Consequentialism, then assuage the reader this is not to
say what are limits
Qs for Office hours:
Not sure what to do with penalty argument and the fact that it would require
breaking the law to trigger the penalty?
How much to argue about what the s put in their complaint v. what the
Magistrate Judge said?
As Im arguing, just feels like Im making conclusory statements, having a hard
time.
Cite to conscientious objector hypo?
no appearance of complicity
1. put the blinders on argue why not substantial burden w/o flipping (complete
separation), indeed hobby lobby said, really this is an opt out, then go to trigger,
religious orgs cannot be arbiter of line
can see, e.g., parenthetical quote priests for life
third party will be choice