Rush hour = power hour.

Endgadget reports on a proposal to turn interstates and freeways into power generators by using wind turbines installed over the road and in the "Jersey Wall" barriers that separate the traffic lanes to harness the wind generated by passing cars and trucks and turning it into electricity.

Interesting idea but I think installing them in the halls of Congress would generate more power than the entire Eisenhower Interstate System.

Roberts is the new Rehnquist (J not CJ).

Whatever your politics or judicial philosophy, you have to admit that the new Chief Justice of the United States has made SCOTUS watching a lot more fun. He has a great sense of humor both on and off the bench, his opinions have always been regarded as crisp and increasingly his dissents are just plain fun to read. Some excerpts:

"We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to 'clearly established' federal law. ... When the state courts considered these cases, our precedents did not provide them with 'clearly established' law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses."

******

"Whatever the law may be today, the Court's ruling that 'twas always so - and that state courts were 'objectively unreasonable' not to know it - is utterly revisionist."

******

"I do not understand how the author of today's opinion can say that Johnson had no effect on Penry I, when he joined a dissent in Johnson stating that the majority opinion 'upset our settled Eighth Amendment jurisprudence.' Now Johnson is dismissed as just an application of 'basic legal principle[s],' over which Justices can disagree; back then it 'upset our settled Eighth Amendment jurisprudence.'"

******

"AEDPA requires state courts to reasonably apply clearly established federal law. It does not require them to have a crystal ball."

******

"In today's decisions, the Court trivializes AEDPA's requirements and overturns decades-old sentences on the ground that they were contrary to clearly established federal law at the time - even though the same Justices who form the majority today were complaining at that time that this Court was changing that 'clearly established' law."

******

And my personal favorite thus far (I am still chuckling over this one) from Abdul-Kabir v. Quarterman:

"[P]erhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented 'clearly established' federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.

Reading Robert's dissents is a trip down memory lane for me. The humorous yet "we are close friends who strongly disagree" tone is reminiscent of the Justice Rehnquist that Roberts clerked for rather than the Chief Justice Rehnquist who evolved later. Frankly, I like it a lot better than the "you must be an idiot if you disagree with me" tone so prevalent in Justice Scalia's dissents.

To argue or not to argue, that is the question.

Ken at CrimLaw wants to abolish oral arguments in appellate courts. His primary reason is that "appellate court decisions are supposed to be dispassionate, considered, legal decisions." Well, I certainly can't argue with that statement but frankly I fail to see how oral arguments necessarily detract from achieving that laudable goal.

I will be the first to admit that oral argument often makes no difference in the outcome of the appeal and indeed, some appellate courts have largely dispensed with it. Furthermore, Ken is also correct that "an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges." However, I would nevertheless offer this modest dissent to Ken's post.

First, a historical perspective. Although I don't agree with Ken's characterization of them as "relics" of times gone by, oral arguments are indeed rooted in the Anglo-American legal tradition of an adversary proceeding, which in turn evolved from the medieval concept of trial-by-combat. The very nature of this model would seem to imply that at some point the "champion" doing battle on behalf of his client will actually have an opportunity to set foot in the "arena." I concede that there are those who might prefer the European inquisitorial model of resolving disputes but I had a long career as an advocate and I guess I have a soft spot in my heart for a system that has stood a 750 year test of time.

Second, a well crafted oral argument sometimes makes all the difference in the outcome of the appeal. Even when they are well written, briefs often raise questions in the minds of the judges that can be answered at oral argument and when the briefs are poorly written, the issue(s) may not be clear to the court until clarified at oral argument. In my experience, oral argument changes my vote in conference about 10% of the time and while I know that doesn't sound like great odds, another way to put it is that one appeal in ten turns entirely on dialog I am able to have with the lawyers in the case. Moreover, I suspect that any client would expect his or her advocate to take every possible shot at convincing the court. Contrary to Ken's assertion that "they convey prestige." The briefs and oral argument make the complete package that is designed to maximize the persuasion opportunity for professional advocates.

Finally, my selfish reason for not wanting to completely abandon oral arguments - it's nice to get out of the office and onto the bench occasionally to interact with fellow professionals and discuss fine points of law in a meaningful way.

My court often dispenses with oral arguments when the panel sees no need for them and quite a few lawyers waive oral argument even if we might like to hear from them about the issues but I would find my job a lot less satisfying if we abandoned them completely.

Grading Oral Arguments

Both SCOTUS Blog and How Appealing have posts up here and here about the oral argument grades that Justice Harry Blackmun gave various lawyers who appeared before him during his time on the Supreme Court, including the mediocre grades he gave three lawyers who now sit on the court - Chief Justice John Roberts, Justice Ruth Bader Ginsburg and Justice Samuel Alito.

Blackmun's report card has further roiled the always-simmering discussion of the impact of oral argument on the outcome of any given appeal. Howard Bashman, of How Appealing fame, weighs in with a very thoughtful column on Law.com. I agree with what Howard has to say but I want to expand a little on the points he makes.

First, let's put any appellate result in perspective. The variables involved in the outcome of any case are essentially as follows:

a) The quality of the record, i.e. the facts;

b) The current state of the law based upon binding precedent if you are not in the highest court around or stare decisis if you are;

c) Who the judges/justices are and how they individually apply factors a and b; and finally,

d) The persuasive quality of the written and oral advocacy that the judges/justices get through the briefs and oral argument of the advocates that help them reason though the application of b to a.

Now, these variables cannot be computed in some sort of algebraic formula and as Howard Bashman notes, the best lawyer won't always win. Nevertheless, the outcome of every appeal will turn on how these variables play out against each other and since arguing an appeal is an exercise in persuasion just as the trial was, it follows that the lawyer who does the best job of working these variables through a well written brief and a cogent oral argument, will have an edge over the lawyer who writes a poor brief and/or who was not prepared for oral argument. That edge may well be the difference for your client.

One final thought on Justice Blackmun's "report card." Although his grades were mediocre, Roberts, Ginsburg and Alito had an outstanding success rate in the Supreme Court for their clients. I guess that's the beauty of having appeals decided by more than one judge.

Handicapping SCOTUS

I have been meaning to post this link for over a week now but better late than never.

Joel over at Judging Crimes has provided us with the rules for playing the SCOTUS prediction game. Cynical or eerily accurate? You be the judge.

No ZWI in NJ.

It seems that New Jersey's DWI law doesn't stretch quite far enough to cover someone with a blood alcohol level of .12 who drives a Zamboni on a municipal ice rink.

Thanks to Concurring Opinions for the tip.