Traveling… But, Before I Go… Easements… 1

I will be traveling this week, and so our Thursday post may be moved to Friday depending upon travel conditions. Before I go, however, I wanted to point my readers back to Brandt Revocable Trust v. US. The transcripts for the oral arguments are now up on The Oyez Project here. The Oyez Project is a wonderful resource for anyone interested in U.S. Supreme Court cases. It contains summaries and transcripts.  If the case is old, of course, there’s no audio; but, for most important contemporary cases you can almost always count on an audio file. If you click the link to the audio, a player will come up and at the bottom of the pop-up is a link to a PDF of the full text. I highly recommend anyone interested in private property rights — or the nature of easements and rights of way — to take a look or a listen.

Those of you who are not familiar with Supreme Court oral arguments may not realize that the justices interrupt the attorneys with questions from the start. Sometimes it’s annoying…Other times it’s funny…Mostly, it’s just interesting. It can make it hard to follow what is happening, so you may want to read along in the PDF transcript while listening. (In fact, the player will scroll a transcript simultaneously with the audio, but I find it helpful to have the PDF open so that I can move back and forth more easily to look at things as I listen.) Oral arguments are an hour in length, with the time divided between the two parties. This recording is just under 62 minutes long including the reading of the case name and closing by the Chief Justice. They work through a lot of technical terminology, but if you just stick with it you’ll get the gist. You’ll also hear that sometimes the justices want lawyers to clarify what a term means, or what the lawyers think it means. Most of the terms can be found on-line if you do an on-line search — some of the best explanations will either show up on legal blogs or in legal dictionaries. Brandt’s attorney makes his argument first as the lawyer for the Petitioner, and has 30 minutes to answer questions and clarify points from his brief. Then comes the Government attorney as the Respondent, who also has 30 minutes.

Spoiler Alert: Neither side had it easy with the justices, but the Government’s attorney, Anthony Yang, really did seem to be facing an especially skeptical Court. For example, Justice Breyer asked the Government lawyer for statutory or case-law authority for the Government’s position concerning the nature of the rights-of-way/easements. Justice Breyer came back to this point several times… As a rule of thumb, if justices are asking for authorities over and over (either statutory or case-law) to support a position, there’s more than a little reason for a lawyer to be concerned about how persuasive his/her brief was. Here’s one of my favorite moments in the exchange between Justice Breyer and Mr. Yang:

Justice Stephen G. Breyer: –Can you imagine or explain to me why a property lawyer worth his salt since 70 years ago or more, 1942, wouldn’t have read that case and advised his client, who was buying the land, if the railroad abandons it, it’s yours.

Anthony A. Yang: –Yes.

There are–

Justice Stephen G. Breyer: Where is some evidence of that?

Anthony A. Yang: –There are at least four reasons.

Justice Stephen G. Breyer: No, not reasons. I want to know if there’s any authority, and then you can give me the reasons.

Justice Breyer did say he’d have his law clerks go and look for the cases since the Government’s lawyer assured him they do exist. Yang said the Government just hadn’t included them in their brief… I guess we’ll find out what Breyer’s law clerks turn up.

I’m taking the transcripts and audio with me on the plane tomorrow so that I can do some more analysis… In the meantime…  Have fun listening!

One comment

  1. I am glad that are doing this, and I am glad that you are on our side. I have not tried listening to this, but I intend to.

    Clay Shelby

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