Cali-Watch…

January 11, 2010 at 9:12 pm (14th Amendment, appellate fun, Due Process, Equal Protection, Marriage Rights, Politics, SCOTUS, The Lawyerin')
Tags: california, constitutional, federal question, freedom to marry, prop 8, right to marry

Professor DAVID LEVINE (U.C. Hastings College of Law): “This is like going to Disneyland for legal scholars.”  NPR

Oral arguments opened today in the federal court challenge to California’s gay marriage ban. This is the first federal question challenge to the validity of gay marriage bans. So yeah, this is pretty big, as this one is expected to wend its way to SCOTUS. Last week, I was pretty excited to read that US District Judge Vaughn Walker was going to allow the arguments to be streamed. But alas, SCOTUS has since decided that whether or not the arguments can be streamed is its decision. Which it hasn’t given us yet, but promises to have by Wednesday. So, until then, we have just the retelling by various news sources.

How nerdy is it that I thought of those links as spoilers?

[EDIT: UPDATE – SCOTUS has weighed in on the YouTube issue; new post up here]

Now granted, not everyone is a con law nerd. But this case really REALLY has a lot of interesting issues. And I would have expected that the opening arguments would have been exceptionally stellar. AND would have given us a roadmap on how the two sides to this issue intend to lay their respective Constitutional groundwork.

And people – oral arguments are so cool. No really. In my opinion, it is the most exciting part of the process. I think that most people think that the only “exciting” lawyering is trial level work, and that, generally speaking, “trial work” means harassing witnesses, ‘gotcha’ moments, strange rhyme schemes, etc. But this, in my opinion, isn’t the best part. Generally speaking, at a trial court level, people will try to win over the judge on questions of law and the finder of fact (whether it is a jury or the judge sitting as fact-finder) on questions of fact. I have notice that most tv shows portray trials as mostly questions of fact, where the law questions are resolved via tense motions and in camera arguments. I don’t know – maybe it actually is that way in criminal work, which would seem to involve more questions of admissibility, but in civil cases it doesn’t really work that way. I think a lot of how civil cases are handled depends on your jurisdiction’s approach to summary judgment proceedings – but that is a discussion for another day.

My point, which I lost somewhere, was that oral arguments are really where you can see a lawyer work. And while they certainly are “exciting” at a trial level, I am going to try to take this opportunity to sell you on the joy and sexiness of appellate work. Trial work can be very interesting, but nowhere near the jurisprudential ironman challenge that is appellate work. Imagine a trial – just like what you see on your average lawyer show. Now take away the jury, the parties, the police officers, the witnesses, the evidence, and the criminals and you’ve got appellate lawyering! What, I ask you, is more exciting that a room empty of everything but lawyers, judges, and clerks?

NOTHING. NOTHING is more exciting. Appellate arguments are legal discourse in its pure, distilled form. Like that blue stuff that the Bene Gesserits drink in Dune.

If you would like to hear some SCOTUS orals, you can peruse some of the “classics” at www.oyez.org.

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