2023 Corporate Counsel Conference & Moot Court Competition

IMPORTANT DATES

CLARIFICATIONS

Question: We’re in the source-checking stage for each others’ brief sections. One teammate saw that at least one of our sources appears to directly address a Students for Fair Admissions v. Harvard case, and another source might indirectly address it. Not all of us are sure if our moot problem is based on it. Rules D8 and D9 ban us from accessing some details related to the problem, presenting some obstacles to verification. D11 says we can refer to the trial and appeals court opinions on which the moot court problem is based, but the rules don’t name those cases nor their dates. Can you confirm these details, which will help clarify what not to access or use in our brief or oral argument?  If the Harvard case is it, what would you suggest we do next? We can start by reviewing our sources to take out any references to it, working to rely on other sources instead.

Response: The problem is based on Students for Fair Admissions Inc., v. Harvard, 980 F.3d 157 (1^st Cir. 2020). According to Rule D.8, you may not, “in your briefs or oral argument, use, access, read, or in any way rely, on any briefs and/or pleadings filed with any trial or appellate court by the actual parties or amici on which the moot court problem is based. According to Rule D.9, you “may not use, access, read, listen to, or in any way rely on, any verbatim report, transcript, recordings or other document containing the oral argument of the actual parties or amici on which the moot court problem is based. The HNBA Moot Court Competition Rules do not prevent you from citing the circuit court opinion upon which the case is based (Harvard).  In fact, Rule D.11, in prohibiting participants and judges from referring to or citing the Supreme Court decision (assuming the decision comes out before or during the competition), specifically allows the citing and referencing of the trial court and appellate decisions leading up to the Supreme Court’s decision.

Question: Regarding Rule D.5 of the HNBA Rules and Procedures. The Rule states that the cover page, questions presented, table of contents, table of authorities and appendices are excluded from the page count. Would this also include the statement of jurisdiction, the parties to the proceeding, and the constitutional and statutory provisions involved? Or should we not include those sections in our brief?

Response: Rule D.3 provides that “[b]riefs must comply with the Rules of the Supreme Court of the United States, except as modified by these rules.”  The Rules do not prevent you from including a statement of jurisdiction, the parties to the proceeding, or the constitutional and statutory provisions.  If you decide to include any of these, they will not be included in the 25-page brief count.

Question:  In the Problem, the petitioners never raised the issue of Grutter v. Bollinger’s unconstitutionality; this issue was first raised in a dissent from the lower court.  Technically, this issue could thus not be appealed because it was not raised in the District or Circuit courts, which would render the entire first issue moot and inarguable.  Have/will judges be prepped on this issue to avoid the problem? Or must we be ready to have a response to this fatal issue?

Answer: In granting the writ of certiorari, the United States Supreme Court ordered the parties to address the following question: Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?  The reasons for overruling Grutter v. Bollinger may well include its unconstitutionality.  Competition participants are allowed to argue the constitutionality of Grutter v. Bollinger in their briefs and oral arguments.  Competition participants must also be prepared to address the issue (expressed as mootness in the question above) if raised by opposing counsel or a judge.

Question: On the record Petitioner does not bring up compelling interest. When we have to argue to overturn and uphold Grutter, are we prohibited from making a compelling interest argument?

Answer: You are not prohibited from making a “compelling interest” argument.  In Grutter, the court held that a school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or § 1981.  Therefore, arguing that educational benefits that flow from a diverse student body are, or are not, a compelling interest seems an appropriate argument, notwithstanding that on this record the Petitioner may not have addressed the issue.

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