New Home For Merits Brief Posts

Since 2011, we have posted to this blog many of the merits briefs we have filed over the prior week. Beginning this week, you can find those posts—along with links to some of the petitions we’ve recently filed—at the Cockle Legal Briefs website.

We hope you will continue to visit the Cockle Bur for the same interesting and diverse items you have come to expect from our contributors. Then, visit us over at Cockle Legal Briefs to see some of the recent briefs we have filed, with samples, rules and other guides, along with information about our services, and the process of preparing a Supreme Court brief.

NFL Playoff Predictions

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Hey football fans, we’re entering the final quarter of the season and while the majority of the playoff seeds have already been spoken for despite Seattle being the only team to have clinched a berth, the sixth and final seed in both conferences are up for grabs between about dozen or so teams all desperate to get blown out during Wild Card Weekend.
   Actually, all joking aside, whoever ends up grabbing those sixth seeds will have a good chance to advance past the first round because of the lack of dominance amongst the three and four seeds in both conferences. Still, don’t let that get your hopes up if you’re a fan of any of those teams because it’ll be quite a task to get past any of the top seeds in the divisional and conference rounds of the playoffs this year. Did you see how easily Seattle was able to dismantle New Orleans last night? Good luck trying to win on the road against the 12th man and their world-record-breaking-ly loud crowd.

New Merits Brief Filed by Cockle Legal Briefs

Reply Brief, Michigan v. Bay Mills Indian Community, No. 12-515, filed on November 22, 2013

New Merits Briefs Filed by Cockle Legal Briefs

Respondent Amy’s Brief On The Merits, in Paroline v. Amy Unknown, No. 12-8561, filed on November 13, 2013

Brief of Petitioners, in Marvin M. Brandt Revocable Trust v. U.S., No. 12-1173, filed on November 15, 2013

Brief for Petitioner, in Petrella v. Metro-Goldwyn-Mayer, Inc., No. 12-1315, filed on November 15, 2013

“War on the Little Guy”–and his right to earn a living

Tune in to Fox News Channel Saturday at 9pm to see John Stossel’s special “War on The Little Guy,” which features my lawsuit on behalf of Kentucky entrepreneur Raleigh Bruner. He’s the guy who wants to run a moving company…only to discover that if you want to run a moving company in Kentucky, you first have to get permission from all of the state’s existing moving companies. I and my colleagues at the Pacific Legal Foundation filed a federal civil rights lawsuit on Bruner’s behalf, and we’re now waiting for a decision from the judge. You may think these Competitor’s Veto laws are silly, but they’re on the books of about half of the states–if you only count moving companies. But similar laws apply across the nation a wide variety of industries, including everything from taxicab and limousine businesses to hospitals. You can learn more about these laws here, and more about Raleigh Bruner’s fight for the right to earn a living here.

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New Merits Brief Filed by Cockle Legal Briefs

Reply Brief, in Lawson v. FMR LLC, No. 12-3, filed on October 30, 2013

Conversations About the Law Series: Roy T. Englert Jr.

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Over the next couple of months, the CockleBur will provide a series of conversations about the law with a number of prominent legal journalists, practitioners, scholars, policy makers, and social justice advocates. I chose these particular people because I think they can bring a unique perspective about topics such as advocacy, legal education, the legal profession, how the media covers the law, and how the law can work social justice change.

Our third conversation is with Roy T. Englert Jr., a partner at the Washington D.C. firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP. Prior to co-founding Robbins Russell, Mr. Englert was an Assistant to the Solicitor General and, after his graduation from Harvard Law, he served as a law clerk at the United States Court of Appeals for the District of Columbia Circuit. Mr. Englert has argued 20 cases before the U.S. Supreme Court and countless others in federal courts of appeals.

I have known Roy for around three years now. He is one of the smartest people I know. And he is a very kind man, who has always taken the time to answer my questions and give me sound advice.

Q. Thanks for taking the time for this discussion. Someone once told me that you try to read every decision handed down by the Supreme Court. Is that true? And why do you read all of them?

A. Yes, I do read every decision the Supreme Court issues, and almost always on the day of issuance. I feel that reading every decision helps me to understand how the Justices think. By reading everything, I sometimes notice discussions that are relevant in other contexts but wouldn’t be obvious to look for using standard research techniques. And staying on top of everything the Supreme Court says is helpful in litigation in lower courts as well as in Supreme Court litigation.

Q. When you start working on an appeal, do you start thinking about the oral argument even before you begin writing the principal brief?

A. Only in an attenuated sense. The brief is the main event, so it requires plenty of focus in its own right. It does help to think of questions that may ultimately be raised in oral argument, and to think about whether and how to anticipate them in the brief, but the brief is so important in its own right that I’m thinking overwhelmingly about the written advocacy and only a little about the eventual oral advocacy. Read More »

New Merits Brief Filed by Cockle Legal Briefs

Brief for Respondent, in U.S. v. Apel, No. 12-1038, filed on October 21, 2013

Fourth Circuit: don’t bother us with the facts

This morning the Fourth Circuit Court of Appeals decided the case of Colon Health Centers v. Hazel, a case challenging the constitutionality of Virginia’s “Certificate of Need” or CON law for clinics that want to buy medical equipment to help screen people for cancer. The trial court had thrown that case out before hearing any evidence, on the grounds that evidence isn’t relevant in such cases anyway. Thus all the government has to do is to claim, without any facts, that the law being challenged is constitutional, and that’s enough to have a lawsuit dismissed. We filed a brief in March urging the court to reinstate the case.

This is the latest in what appears to be a disturbing new trend of federal courts dismissing lawsuits under the so-called “rational basis” test. That’s the test courts use when deciding whether government restrictions on economic freedom or property rights are constitutional. It requires you to prove that the law is totally unreasonable, and that’s a tall hill to climb. But it can be done, and it has been done, in many cases—if the plaintiff can bring together the evidence showing that the law is patently irrational.

Sadly, courts seem increasingly to be dismissing cases before allowing the plaintiff to gather any evidence at all, on the theory that under the “rational basis” test, government doesn’t even have to provide evidence—it can just claim that the law is okay. That’s what happened last year in the case of the Hettinga dairy family that we asked the Supreme Court to review. We pointed out that “rational basis” isn’t supposed to be a set of magic words that the government can use to get a lawsuit thrown out. But the Court decided not to review that case, and in the Virginia lawsuit, the trial court held that even if the plaintiff could prove that the law didn’t do what it’s supposed to do, and actually hurt medical patients in Virginia, that would be “entirely beside the point,” since real facts don’t matter at all in such cases.

On appeal, we pointed out to the Fourth Circuit that that notion not only makes it impossible to win any rational basis case—and that test applies to most constitutional claims—but it also contradicts the established precedent in the Fourth Circuit, which has held that plaintiffs should at least have the chance to prove their cases.

Sadly, today, that court rejected those arguments and—in an opinion that ignores the court’s prior precedents—affirmed the dismissal of the clinics’ rational basis arguments. The court did allow the plaintiffs to go forward with some other arguments, but on the matter of rational basis, it held that so long as the government “articulates”—that is, merely says, without any facts—that a law is rational, that’s all the Constitution requires. That can’t be right; the Supreme Court itself has said that the rational basis test “is not a conclusive presumption, or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such an immunity achieved by treating any fanciful conjecture as enough to repel attack. When the [law]…is called in question…one who assails [it] must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. The principle that the State has a broad discretion in classification, in the exercise of its power of regulation, is constantly recognized by this Court. Still, the statute may show on its face that the classification is arbitrary or that may appear by facts admitted or proved.” Sadly, the Fourth Circuit has shown that it isn’t interested in proof. This runs a dangerous risk of changing the rational basis test into a “Get out of the Constitution free” card. It’s time the Supreme Court stepped in and made clear that evidence matters–even in rational basis lawsuits.

(Cross-posted at PLF Liberty Blog)

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Conversations About the Law Series: Josh Blackman

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Over the next couple of months, the CockleBur will provide a series of conversations about the law with a number of prominent legal journalists, practitioners, scholars, policy makers, and social justice advocates. I chose these particular people because I think they can bring a unique perspective about topics such as advocacy, legal education, the legal profession, how the media covers the law, and how the law can work social justice change.

Josh Blackman is an Assistant Professor of Law at the South Texas College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of Unprecedented: The Constitutional Challenge to Obamacare. He also is the founder and President of the Harlan Institute, the founder of, the Internet’s Premier Supreme Court Fantasy League, and blogs at

Q: Josh great to have you to discuss the law and your new book Unprecedented. First up, what makes teaching the law enjoyable?

A: Hi Shon. First, kudos to you on all of your successes as an author, law student, and soon-to-be clerk. It’s been a pleasure knowing you, and watching you thrive these past few years.

I’ve always had a passion for education. Both of my parents, among various professions, have been teachers. When I was a teen, I was a computer tutor for senior citizens in my neighborhood. Shortly after graduating law school, I founded the Harlan Institute, a non-profit dedicated to teaching high school students about the Supreme Court and the Constitution. While clerking for Judge Gibson in the Western District of Pennsylvania, I had the wonderful experience of teaching two classes alongside him. I quickly realized that I found my calling, and feel so honored that I can do this for a living.

I am now in my second year of teaching, and I absolutely love it. It is hard to describe the joy I get from helping students understand things. That exact moment where a student’s look goes from confused to in control—when the proverbial light bulb goes on—is the best part of the job. Also, it is so much fun to be up in front of students. They bring so much verve and passion to the classroom, which energizes me daily. Read More »