The Journal of Appellate Practice and Process
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aap20-2_cv_aap20-2_cv 8/18/2020 4:54 PM Page 2 Vol. 20, No. 2 Fall 2019Vol. AND PROCESS PRACTICE APPELLATE OF JOURNAL THE JOURNAL OF APPELLATE PRACTICE AND PROCESS VOLUME 20/NUMBER 2 FALL 2019 ARTICLES Margaret D. McGaughey May It Please the Court—or Not: Appellate Judges’ Preferences and Pet Peeves about Oral Argument Stephen Louis A. Dillard The Robed Tweeter: Two Judges’ Views Bridget Mary McCormack on Public Engagement Jessie Wallace Burchfield The End of an Era? Abolishing the Abstract Requirement for Arkansas Appellate Briefs Linda L. Berger “Remarkable Influence”: The Eric C. Nystrom Unexpected Importance of Justice Scalia’s Deceptively Unanimous and Contested Majority Opinions UA Little Rock School of Law UA BOOK REVIEW Jamal Greene One of the Good Guys: The Making of a Justice —Reflections on My First 94 Years WILLIAM H. BOWEN SCHOOL OF LAW University of Arkansas at Little Rock 1201 McMath Avenue WILLIAM H. BOWEN SCHOOL OF LAW Little Rock, Arkansas 72202-5142 UNIVERSITY OF ARKANSAS AT LITTLE ROCK THE JOURNAL OF APPELLATE PRACTICE AND PROCESS VOLUME 20/NUMBER 2 FALL 2019 EDITORIAL BOARD Nancy Bellhouse May, A.B., J.D., Editor J. Thomas Sullivan, B.A., J.D., LL.M., Lindsey P. Gustafson, B.A., J.D., Founding Editor Technical Editor Jessie Wallace Burchfield, B.A., M.L.S., J.D., Melissa M. Serfass, B.A., M.A., J.D., Articles Editor Research Editor The Journal of Appellate Practice and Process is a professionally edited publication that provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law. Every state and federal appellate judge in the United States receives a complimentary copy of each issue, as do the judges of the Supreme Court of Canada. The Journal also goes by subscription to practitioners, academics, and libraries. Manuscripts: The editors of The Journal are interested in diverse viewpoints and different approaches to scholarship, and they invite the submission of essays, articles, practice notes, and reviews. Manuscripts should be double-spaced in Microsoft Word format, and should be emailed to [email protected]. Subscriptions: Published semi-annually, The Journal is available for $25.00 per year to subscribers in the United States and for $30.00 per year to subscribers in other countries. Orders for back issues of The Journal should be directed to William S. Hein & Co., Inc., 2350 North Forest Road, Getzville, New York 14068, or to [email protected]. Copyright: Copyright 2020 by the William H. Bowen School of Law, University of Arkansas at Little Rock. Except as otherwise provided, articles, essays, or other material in The Journal may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes, including distribution to students, provided that the copies are distributed at or below cost, and that they identify the author, The Journal, the volume of The Journal in which the work appears, the number of the first page of the work as published in The Journal, and the year of the work’s publication in The Journal. Disclaimer: Opinions expressed in any part of The Journal are those of the individual authors and are not necessarily those of The Journal’s editors, the William H. Bowen School of Law, or the University of Arkansas at Little Rock. Postmaster: Send address changes to Editor, The Journal of Appellate Practice and Process, William H. Bowen School of Law, University of Arkansas at Little Rock, 1201 McMath Avenue, Little Rock, Arkansas 72202-5142. Postage paid at Little Rock, Arkansas, and additional mailing offices. BOARD OF TRUSTEES, UNIVERSITY OF ARKANSAS SYSTEM John Goodson, Texarkana, Chairman Stephen Broughton, M.D., Pine Bluff, Vice-Chairman Kelly Eichler, Little Rock, Secretary Morril Harriman, Little Rock, Assistant Secretary C.C. “Cliff” Gibson III, Monticello Sheffield Nelson, Little Rock Tommy Boyer, Fayetteville Steve Cox, Jonesboro Ed Fryar, Ph.D., Rogers Ted Dickey, Little Rock ADMINISTRATION, UNIVERSITY OF ARKANSAS AT LITTLE ROCK Donald R. Bobbitt, B.S., Ph.D., President, University of Arkansas System Christina Drale, B.A., M.A., Ph.D., Chancellor, University of Arkansas at Little Rock Theresa M. Beiner, B.A., J.D., Dean and Nadine A. Baum Distinguished Professor of Law, Bowen School of Law Jessie Wallace Burchfield, B.A., M.L.S., J.D., Associate Dean for Information and Technology Services and Law Library Director, Bowen School of Law Annabelle Imber Tuck, B.A., J.D., Public Service Fellow and Jurist in Residence, Bowen School of Law FACULTY OF THE SCHOOL OF LAW Deborah L. Borman, B.S., M.A., J.D., Assistant Professor of Law Anastasia M. Boles, B.A., J.D., Associate Professor of Law Terrence Cain, B.S.B.A., J.D., Professor of Law and Associate Dean for Faculty Development andre ´ douglas pond cummings, B.S., J.D., Professor of Law John M.A. DiPippa, B.A., J.D., Distinguished Professor of Law and Public Policy and Dean Emeritus J. Lyn Entrikin, B.G.S., M.P.A., J.D., Professor of Law Michael Flannery, B.A., J.D., Judge George Howard, Jr., Distinguished Professor of Law and Associate Dean for Academic Affairs Lindsey P. Gustafson, B.A., J.D., Arkansas Bar Foundation Professor of Law Nicholas Kahn-Fogel, B.A., J.D., Professor of Law Beth D. Levi, A.B., J.D., Instructor of Clinical Education and Supervising Attorney, Litigation Clinic George Mader, B.A., M.A., J.D., Associate Professor of Law Robert Minarcin, B.A., J.D, Assistant Professor of Law Alicia D. Mitchell, B.B.A., M.B.A., J.D., Assistant Professor of Clinical Education and Tax Clinic Director Philip D. Oliver, B.A., J.D., Byron M. Eiseman Distinguished Professor of Tax Law Ranko Shiraki Oliver, B.A., J.D., Professor of Law Kelly Browe Olson, B.A., J.D., LL.M., Mediation Clinic Director and Associate Professor of Law L. Suzanne Penn, B.A., J.D., Assistant Professor of Clinical Education, Litigation Clinic Director, and Delta Clinic Director Amy M. Pritchard, B.A., J.D., Assistant Professor of Clinical Education, Consumer Protection Clinic Director, and Rural Practice Incubator Project Director Joshua M. Silverstein, B.A., J.D., Professor of Law Glenys P. Spence, B.A., J.D., LL.M., Visiting Assistant Professor of Law Robert Steinbuch, B.A., M.A., J.D., Professor of Law J. Thomas Sullivan, B.A., J.D., LL.M., Distinguished Professor of Law Kelly S. Terry, B.A., J.D., Ben J. Altheimer Professor of Law, Associate Dean for Experiential Learning and Clinical Programs, and Director of Public Service Externship Programs and Pro Bono Opportunities Christopher Trudeau, B.A., J.D., Associate Professor of Law Kim Vu-Dinh, B.A., J.D., Assistant Professor of Clinical Education and Business Innovations Clinic Director LAW LIBRARY FACULTY Jada A. Aitchison, B.A., M.L.S., Acquisitions and Serials Librarian and Professor of Law Librarianship Sherrie C. Norwood, B.A., M.Ed., J.D., M.L.S., Systems and Metadata Librarian and Assistant Professor of Law Librarianship Melissa M. Serfass, B.A., M.A., J.D., Electronic Resources and Reference Librarian and Professor of Law Librarianship Jeff B. Woodmansee, B.S.E., M.L.S., J.D., Research Support and Reference Librarian and Associate Professor of Law Librarianship EMERITUS FACULTY Lawrence H. Averill, Jr., B.A., J.D., LL.M., Charles C. Baum Distinguished Professor of Law Coleen Miller Barger, B.A., J.D., Ben J. Altheimer Distinguished Professor of Law A. Michael Beaird, B.A., M.L.L., J.D., Director of Law Library and Associate Professor of Law Frances S. Fendler, B.A., J.D., Professor of Law Kathryn C. Fitzhugh, B.A., M.S.L.S., J.D., Professor of Law Librarianship Lynn C. Foster, A.B., M.S., J.D., Arkansas Bar Foundation Professor of Law Kenneth S. Gallant, A.B., J.D., Ben J. Altheimer Professor of Law W. Dent Gitchel, B.A., J.D., Arkansas Bar Foundation Professor of Law Charles W. Goldner, Jr., B.A., J.D., LL.M., Dean and Professor of Law Susan W. Goldner, B.A., M.S., Professor of Law Librarianship Kenneth S. Gould, B.A., J.D., Professor of Law Sarah Howard Jenkins, B.A., M.A., J.D., Charles C. Baum Distinguished Professor of Law Morrell E. Mullins, B.A., M.A., J.D., Professor of Law Arthur G. Murphey, Jr., A.B., J.D., LL.M., Arkansas Bar Foundation Professor of Law John R. Pagan, A.B., M. Litt., J.D., D. Phil., Professor of Law L. Scott Stafford, B.S., B.A., J.D., Professor of Law THE JOURNAL OF APPELLATE PRACTICE AND PROCESS VOLUME 20/NUMBER 2 FALL 2019 ARTICLES Margaret D. McGaughey May It Please the Court—or Not: Appellate Judges’ Preferences and Pet Peeves about Oral Argument 141 Stephen Louis A. Dillard The Robed Tweeter: Two Judges’ Bridget Mary McCormack Views on Public Engagement 179 Jessie Wallace Burchfield The End of an Era? Abolishing the Abstract Requirement for Arkansas Appellate Briefs 199 Linda L. Berger “Remarkable Influence”: The Eric C. Nystrom Unexpected Importance of Justice Scalia’s Deceptively Unanimous and Contested Majority Opinions 233 BOOK REVIEW Jamal Greene One of the Good Guys: The Making of a Justice—Reflections on My First 94 Years 327 WILLIAM H. BOWEN SCHOOL OF LAW UNIVERSITY OF ARKANSAS AT LITTLE ROCK THE JOURNAL OF APPELLATE PRACTICE AND PROCESS FOREWORD AVE ATQUE VALE I have always been a planner. That means, of course, that I have been thinking about this foreword for years. It is my last. I notice as I pack up my things and begin to take stock that I have used this space to catalogue my professional life (and on more than a few occasions, my personal life as well).