Moot Court Marathon

Greetings from Nashville. The First Amendment Moot Court competition is in its final hours at Vanderbilt Law School. It's an exhausting two-day schedule (for the moot court teams, not for judges like me) and some of the finalists seem bleary-eyed. At one session earlier today, some of the student advocates, it seemed, had to remind themselves which side they were arguing. (Under the rules, the teams must be able to argue either side.)

This year's problem is a tough one. At issue is a flyer, distributed by a lawyer who specializes in the law of entitlement programs, that raises doubts about the solvency of Social Security and warns that illegal aliens may be draining benefits away from legitimate recipients. The final line invites the reader to "come see me," and notes that the author is an attorney at law -- though it does not offer specific services or remedies to the problems he raises. The hypothetical attorney is suspended for a year by a lawyer disciplinary board for misleading advertising, and for not printing the word "Advertisement" at the top as a disclaimer.

Teams arguing for the lawyer tried mightily to convince judges that the flyer is political, not commercial speech, that it therefore deserves full First Amendment protection, and that even if it is deemed commercial, it is not misleading. One of the semifinalist judges said the students arguing for the disciplinary board have "an inherent advantage," though some of the First Amendment arguments made on behalf of the lawyer have been very persuasive. It's a close call.

The arguments have underscored how unsettled commerical speech law is, and how difficult it is even to define what commercial speech is. And should there be a distinction at all anymore between commercial and political speech? As Justice Scalia has pointed out, newspapers in the time of the framers of the Constitution carried as many ads on their front pages as news stories.  What's more, in the current climate where the legal profession seems less and less professional day by day, some of the disciplinary rules that can restrict lawyer speech seem downright quaint and anachronistic. But a fascinating problem nonetheless.

As soon as the final winners are announced Friday evening, they''ll be posted at the First Amendment Center's website. The winning team will deserve accolades and a rest. Arguing about the First Amendment is not for the fainthearted.

Comments

[Maverick]

As a former competitor in the First Amendment tournament last year, I can speak to the issue of fairness in the tournament. I also competed for my school in 3 other tournaments throughout my career and actually won one of those and placed third in another, large national tournament.

The problem with the Vanderbilt Moot Court Board and their perception of fairness is that they do not understand the impact of using a 50 point maximum per speaker ballot sheet. A 50 point ballot keeps oral scores artificially tight, thereby allowing the brief to effectively count for even more.

As it is, the brief counts 50%, but the briefs are scored on a ballot with over 100 points. I believe the briefs are scored on ballots worth 170 maximum points, but I could be wrong on that. In any event, there is wide discrepancy between brief scores, yet virtually no discrepancy between oral scores, for all intents and purposes.

If the competition did nothing else except go to standardized 100 point ballots for both orals and brief judges, the tournament would be a lot more fair across the board. Why they have not implemented something like this, I do not know.

The tournament advances to only 8 teams instead of a more traditional 16 teams. Last year, the top 8 teams advancing had 7 of the top 10 brief scores. In other words only 1 of the top 8 teams did not have a top 8 brief score and I think that one team had tenth or eleventh best brief score. The point is that if your brief scores very high, in the top 8, you are going to advance to the top 8 break, it's just that simple. Everyone else might as well stay home because the way the tournament is structured, there is virtually no chance to advance even if your brief is 12th best. And that is all because of the imbalance in the judging ballots that I have mentioned here.

It's one thing to purport to be fair. It's a completely different thing to be able to understand why your own system is actually not fair.

[Ashley Alfonso]

The Vanderbilt University Law School Moot Court Board would like to address competitor concerns about the fairness of the recent National First Amendment competition. We take great care in creating and implementing a scoring process – incorporating both written and oral efforts – that affords all teams the same opportunity to advance beyond preliminary rounds. Given the quality of the Quarterfinals through Final Round this year, we believe the present scoring system has proven itself effective in adjudging competitors.

The scoring system and the advancement guidelines were provided in detail to all teams months prior to the competition at http://www.fac.org/mootcourt/2007%20Rules.pdf, making clear the expectations for moving beyond preliminary rounds. Under Rule 6(c), the brief score counts for 50% of the team’s score for each round until the Quarterfinals, where the brief only counts for 25% of the total score. In common with many moot court competitions, this score carried most weight in the early rounds, and less as the competition progressed; in accordance with the official rules, the Semifinal and Final Rounds were judged on oral arguments alone.

Judges scored their rounds without information as to which schools were represented, and no participating judge saw the same team more than once. That said, individual judges may vary on the types of styles and oral skills with which they are most impressed. However, the competition also sponsors a CLE course that includes a discussion on scoring for those judges who are unfamiliar with the process. It is in the specific attempt to normalize the natural variance that each team is given the opportunity to argue before four panels (12 individuals overall); this number is greater than that provided by many other competitions.

We believe in providing an efficient, fair, and enjoyable competition experience for all those who participate and have conducted this year’s competition in accordance with the official rules referenced above. It is inevitable that some teams will be disappointed with their placement at the close of the competition, but we hope that this does not discourage competitors or team coaches from applying to compete in years to come.

[etony@gmail.com]

I thought Loyola was one of the best teams I have seen in a long time. Yes, their style was different, but it was refreshing. They were conversational and their knowledge of the case law was above the rest. Maybe you should take a few lessons from them. Remember...debate is different from moot court and answering questions respectfully earns you points for deference. By the way, you are being a sore loser. Better luck next year.

[Tony Mauro]

I did see the final round, and I also was one of the judges who judged the Loyola (of New Orleans) team at an earlier round. I emphatically don't think it was the the worst team in the competition; it was among the best. They showed alot of persistence and persuasiveness in their arguments, and I was struck (as I always am) at how well they were able to argue both sides of the case in successive rounds.

As for the objectivity and scoring, I am quite sure there is a genuine effort to give all teams a fair shot to advance through the rounds. Any team making it to the finals has been evaluated by a lot of judges. Some may be tough, and some may be lenient, but over the rounds, they balance each other out. And I can also tell you that judges are kept completely in the dark as to which schools the teams represent. We are not even supposed to ask the teams whether it is warm or cold where they came from.

Now that I've learned the winning team is from George Mason, a 'local' team for Legal Times, I will be posting an item about the winners soon. I also invite other participants to chime in, and will invite someone from the competition to contribute as well.

[law_guy@sbcglobal.net]

Tony:

Did you witness the final round? Having been there, myself, it seemed like a big sham. Obviously the advocates for George Mason performed extremely well under intense fire from the panel, but their opponents from Loyola seemed to be about the worst team at the competition. Furthermore, I saw eliminated teams from Boston College and UC-Davis that were far more deserving of a final round berth.

My point is that the scoring could not possibly have been fair from one panel to the next, if such good teams could be kept out of the finals by a obviously inferior one. I also spoke with advocates from several teams, both winners and losers, who concurred.

I know that you are close to the competition's presenters, and probably have "inside information" as to the objectivity and scoring, so I'm interested in your reaction. Don't get me wrong, I'm not just being a sore loser, I just felt a little ripped off when I heard the runner-up team mis-stating threshold issues and points of law, making undergrad-debate 101 mistakes (such as leading off every single answer by saying "Respectfully Justice Daughtrey . . . "), and generally not having an understanding for what appellate advocacy is really about.

In the end justice was served, because the winners did not disappoint. But it would have been nice to see a better "showdown," and recognition for teams who were in all likelihood equally as good as those who advanced, but fell victim to a more conservative scoring scheme relative to those who advanced as a result of a more liberal scheme.