KU Law News
KU Law students impress Chief Justice with advocacy skills
Brian Nye presents oral arguments to Chief Justice John G. Roberts Jr. and other judges during the final round of the moot court competition.
Browse a gallery of moot court photos.
By Adam Davis, L'08
Traditionally, the advocates in a Moot Court round begin their arguments with the words, “Mr. (or Madame) Chief Justice, and may it please the court.”
At the University of Kansas’ Moot Court finals this past May, the words “Mr. Chief Justice” had more than their usual meaning. The Chief Justice was not somebody given that designation – it really was the Chief Justice.
The four finalists in KU’s annual competition had a special opportunity when they argued before the Hon. John G. Roberts Jr., Chief Justice of the United States.
Joining Chief Justice Roberts on an extremely distinguished panel were Judge Deanell Reece Tacha, former chief judge of the Tenth Circuit; her colleague on the Tenth Circuit, Judge Mary Beck Briscoe; Judge John Lungstrum, chief judge of the federal District of Kansas; and Justice Carol Beier of the Kansas Supreme Court.
Brian Nye, who would be chosen as the best oralist, concluded his rebuttal argument by saying, “On behalf of myself and everyone in this round, it has been an honor to appear before this court.”
Nye and Danny Morris formed the winning team, defeating Michael Crabb and Lindsey Heinz in the finals. Nye and Morris also won “best brief,” and Morris was named the second-best oral advocate. Christina Elmore and Luke Wohlford, who were semifinalists in the competition, won second-best brief.
Faced with this awesome – and somewhat scary – opportunity, the finalists did not disappoint. Chief Justice Roberts, distinguished not only as a judge but as a former oral advocate, was first to comment on their performance, and he showered the competitors with praise.
“I used to do this for a living, and I think you all did a fabulous job; you were really quite effective,” the Chief Justice said. “Those of you observing may not appreciate how much work goes into this. They did extremely well at handling questions, both friendly and adversarial, but what you have to remember is that for every question that we asked they had obviously prepared for 25 more. They don’t get a list of the questions that we’re going to ask, so it takes an extraordinary amount of work.”
The five-judge panel was extremely active during the round, and the Chief Justice said the advocates did a nice job of asserting themselves in the face of that questioning.
“You don’t want to simply be a punching bag,” he told the competitors. “You’ve got to really take control of your case and try to get your points out affirmatively, and I thought you really did a great job at that.”
Kansas’ Moot Court competition features second-year students, with the winners going on to national competitions as 3L’s. The problem for the KU competition was the same problem used for the National Moot Court Competition that was held in January. Judge Tacha sat on the panel for the final round of that competition, held in New York.
“I cannot step out of my former faculty role here at KU,” Tacha said after the round. “I am just bursting my buttons you were so good; all four of you were terrific. I told the panel earlier that I judged this question at the finals of the National Moot Court, and we won’t tell those winners, but you were at least as good and maybe better. As a KU Law person, I am so proud.”
The two issues raised by the problem were: Does the Second Amendment grant an individual right to bear arms for private use, and does the Federal Aviation Administration Authorization Act preempt a state from enacting a law to ban the delivery of handgun ammunition to minors? Both issues were based on real cases decided by the Supreme Court in 2008.
Morris argued first for the petitioners, the state of “Old York.” He argued that the Second Amendment does not contain an individual right to bear arms. His argument had a lighter moment when he was asked whether a particular case was binding.
“Not at all; this court remains the umpire of its own precedent,” Morris said, a reference to Chief Justice Roberts’ statement at his confirmation hearings that he planned to be an umpire. While the audience was laughing, Roberts chimed in with, “That was a ball, Counselor.”
Nye went second and argued that Old York’s ammunition delivery law was not preempted by the FAAAA. He also gave an effective rebuttal after the conclusion of the respondents’ case.
Crabb argued first for the respondents, representing Sun Longone. Longone was a resident of Old York who wanted to purchase a handgun for self-protection. There was another moment of levity during Crabb’s argument when Judge Tacha asked about the nine Courts of Appeals that have held the Second Amendment does not grant individual rights.
Chief Justice Roberts responded, “Have we ever felt remotely bound by what the Courts of Appeals decide?” The room, of course, erupted in laughter. The final advocate was Heinz, who argued on behalf of a major shipping company that the FAAAA does preempt Old York’s handgun delivery statute.
The panel was active throughout the arguments, with the Chief Justice throwing several hypothetical situations at the competitors.
Afterward, KU Law Dean Gail Agrawal gushed about how impressed she was by the KU students.
“I am in awe, not only of your advocacy skills, but as I said to each of you while the court was in recess, your courage,” Dean Agrawal said. “When we were able to persuade the Chief to judge this competition, Professor (Pamela) Keller and I thought, ‘I wonder if the students are going to all quit,’” she added, drawing laughter.
Judge Briscoe also praised the students’ courage, saying, “I would have been scared to death, facing five judges and no less than the Chief Justice of the United States presiding.”
Judge Lungstrum described himself as a “shameless homer,” because he is also a contracts professor at KU. Judge Lungstrum also serves annually on a practice panel for the KU team or teams headed to the National Moot Court Competition.
“It makes such an impression on me when I judge these Moot Court rounds – the practice rounds or the competition, whatever it is,” Judge Lungstrum said. “The level of advocacy is so often as high or higher than people who are doing it for handsome compensation.”
