ICWA Tip: Southwest Voter Registration Educ. Project v. Shelly

Posted in Uncategorized on March 23rd, 2010 by bl1y

Time again to help out the tired, poor, huddled masses in the NYU Lawyering program.

If you’re having trouble with the substantial likelihood of success section of your memo, check out Southwest Voter Registration Educ. Project v. Shelly, 344 F.3d 914 (9th Cir. 2003).

In a nutshell, plaintiffs argue that the alleged disparate impact of punch-card ballots on minority voters violated Section 2 of the Act, 42 U.S.C. § 1973. Plaintiffs allege that minority voters disproportionately reside in punch-card counties and that, even within those counties, punch-card machines discard minority votes at a higher rate. To establish a Section 2 violation, plaintiffs need only demonstrate “a causal connection between the challenged voting practice and [a] prohibited discriminatory result.” Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir.1997) (internal quotation marks omitted). There is significant dispute in the record, however, as to the degree and significance of the disparity. Thus, although plaintiffs have shown a possibility of success on the merits, we cannot say that at this stage they have shown a strong likelihood.

Here we basically have a discussion where success on the merits would have been pretty easy.  Plaintiff only needed to show a casual connection between voting practice and a discriminatory result, which they seemed to have evidence of.  However, “significant dispute” in the record was enough to take the plaintiffs down to a mere possibility of success, not a strong likelihood.

This should be a sort of no-brainer for the State.  Just make a good faith showing that you have some reasonably chance of winning on the merits and this precedent will take you far.  As for the Tribe, I don’t know.  Just be prepared for another hurdle.

Go State! Beat Tribe!

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ICWA Tip: Winter v. Natural Resources Defense Counsel

Posted in Uncategorized on March 12th, 2010 by bl1y

Hopefully all the 1Ls at NYU have found Winter v. Natural Resources Defense Counsel already, but if you haven’t, go read it.  Winter makes a pretty important adjustment to the requirements for a preliminary injunction.

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,and that an injunction is in the public interest.

The moving party is no longer requires to show that they will suffer irreparable harm, but only that they are likely to.  This is obvious a lot of help to the Tribe, for which the harms they are arguing are largely hypothetical.

If you are arguing for the tribe, make sure you point out that this case changes the standards.  It is not enough to simply put the new standard in your brief.  There is a good chance your judge will gloss over it and not really notice that there has been a change.  Remember, your judge may be just an attorney, and that attorney may not have argued a preliminary injunction case since Winter came out two years ago.  Make sure it is clear not just what the new standard is, but that the standard has recently changed.

For the State, there’s not really a lot you can get from this.  Just continue to focus on making the burden of proof an uphill battle for the Tribe.  Argue that the harm won’t be irreparable, and make sure the Tribe is showing that the harm isn’t just a possibility, but is in fact likely.

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Posted in Uncategorized on March 10th, 2010 by bl1y

Since posting my offer to help NYU students with their ICWA assignments just 6 days ago, I’ve already had 4 students e-mail me asking for help.  Over 20 people have come across my site while specifically looking for help with the assignment.  (I can tell they didn’t stumble upon while doing regular research, because the searches contain terms like “NYU” and “memo.”)

I imagine in the next few weeks, I’ll be getting some more requests for help, so I’m going to go ahead and post some of the general advice here.  When you kids are further along in your writing, feel free to send me a draft of your brief and I’ll look over it and get back to you.  And, you can always just e-mail me questions if you have an issue that I didn’t address here.

If you’re wondering about my qualifications to give you advice, you’re on the wrong train of thought.  You can get my advice and then exercise your own judgment.  If you mindlessly follow whatever I say, you’re a moron.  But, having said that, I wrote a substantial section of one of the “model answers” for one of the larger lawyering projects (I won’t say which one, because that could jeopardize my anonymity).  And on top of that, I’ve been through the damn ICWA exercise, and won…as the mother-freaking Tribe.  Also, I’m collecting old briefs from some of my classmates, and stitching together a master brief, so you’re getting more than just my experience.

How to Structure The Damn Thing

Factual Background

First, give a really short introduction so the reader has some context.  Then, give a bit of the history leading up to ICWA.  Finally, give the specific facts for this case; explain who is moving for what and why.

Legal Standard

State the four parts of a preliminary injunction.


One by one, explain how the facts relate to each of the preliminary injunction requirements.  Even though this is a hearing before a judge, the question is largely a factual one, so think more in terms of the factual argument you would present to a jury.

Whenever possible, add in relevant precedent.  There are basically two types.  The first gives legal standards.  If a court has defined what “irreparable harm” means, state it.

The second type of precedent is factual.  Look for cases where the party on the opposite side from your should have won, but lost.  Then argue that if the party lost in that case, your opponent must lose in this one.

For example, if you’re the state and there is a case where a party moving for a preliminary injunction said that if the injunction isn’t granted a bomb will blow them up, and the court didn’t think that was irreparable, then there’s no way the harm the tribe is claiming is irreparable.


This is probably the least important part of the memo, it just makes things fit together.  If you’re the tribe, argue that you met all four requirements.  If you’re the state argue that the tribe failed all four requirements, and that they only need to fail one.

State Strategy

The state has two basic themes it wants to run with: burden of proof, and best interests of the child.

The tribe is the moving party, the burden of proof is on them, and if they fail on just one of the preliminary injunction requirements, the whole thing fails.  Play to those strict rules as much as possible.

Also, harp upon how the state is protecting the best interests of the child, while the tribe is fighting for the best interests of the tribe.  The better this argument is, the more likely the judge is to find the tribe failed to meet its burden of proof.

Tribe Strategy

The tribe’s strategy revolves around best interests of the child, and the status quo.

The tribe has to rely on the poor track record the state has in how it treats Indian children.  Use this to undercut the state’s claim that it is acting in the best interests of the child.  Paint them as bumbling government bureaucrats, wrecking lives just to follow a misguided law.

Then, argue the status quo.  Even though you are moving for a preliminary injunction, what you’re really arguing is that everything stay where it is until trial.  The state is the party trying to get its way before the hearing.  This argument is completely bogus legally, it does not at all change the legal burdens on the tribe.  But, it should soften the judge and make him more likely to find you’ve met your burden.

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Posted in Uncategorized on March 4th, 2010 by bl1y

[Update: Go here for my revised ICWA help.]

It’s ICWA time again at NYU School of Law.  ICWA is the Indian Child Welfare Act, which is the main statute involved in the NYU lawyering program’s largest project of the year, a brief on a pre-trial motion along with an oral argument before a judge or attorney playing a judge.

I was reminded that it’s that time of year again when I looked at the search engine queries that have brought people to this site.  A search for “icwa nyu” is almost certainly from someone trying to find a lawyering program alumnus who has posted their old memo or other useful information.

If that’s you and you’d like some help, simply e-mail me at nycbl1y@gmail.com and I’ll be more than happy to give some advice.  I promise not to turn you in, and you can create a gmail account with a fake name if you’re worried.  It’s been a while since I did the ICWA project, but there are some things I remember learning from my judge that were incredibly important, and which my lawyering professor never mentioned or even appeared aware of.

Think this is cheating?  Meh.  Lawyering is ungraded, so your doing better does not hurt anyone else.  I’m not going to write your memo for you, I’m just going to give you tips that will help you write a better memo.  Basically, all you’re doing is learning how to be a more effective advocate, which is exactly what lawyering is supposed to teach you.

[Earlier: Check out this hilarious e-mail exchange between a lawyering teaching assistant and two students about how the class wasn't giving ICWA or lawyering the kind of respect they deserve.]

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