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Legal Commentary

: The Volokh Conspiracy

Moot Court

By Eugene Volokh

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An interesting thought about moot court, from Prof. Ken Gallant (which was posted to a lawprofs? discussion list, and which I repost here with his permisison):

I sometimes coach moot court teams and participate as a judge in mooting teams. HOWEVER, I do believe that moot court is exceptionally unrealistic training for actual appellate advocacy in the common law system.

1. The records are grotesquely unrealistic. Effectively they are not records at all, in most cases. As a result[:]

2. Argumentation from facts as proven by evidence ? the heart of most appellate cases ? simply is not modeled by moot court.

3. For decades, the brief has been the most important part of the appellate advocacy process in the US. The moot court system vastly overvalues oral argument in its judging structure.

4. The moot court rules effectively make it impossible for the teaching function to occur at the brief writing stage. [There?s a good reason for this ? it?s called the epidemic of ?cheating? that occurred some decades ago. And I certainly can?t figure out a way to allow the teaching function to occur here without risking the likelihood that arguments will actually come from faculty rather than students.] All the teaching value effectively goes into the oral argument stage.

In my view, there is a better way to teach appellate advocacy as it exists in our system. It?s called the Appellate Clinic, where students actually write briefs and present oral arguments in appellate cases. Many state supreme courts and a number of US Circuits have programs to encourage law school participation in this type of thing.

I haven?t closely followed the debates about Moot Court (though I know that my former boss, Judge Kozinski, has strong views on the subject), so I?m not sure how sound these criticisms are. But they struck me as valuable, and as a good starting point for further discussion. So if you?ve thought about Moot Court programs, please do post your reactions in the comments.

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Full post as published by The Volokh Conspiracy on March 31, 2010 (boomark / email).