Making a Case

125 judges, 46 competitors, 23 teams, 12 months of planning, 3 rounds of argument, and 1 big realization: The Harlan Fiske Stone Moot Court competition is serious business.

By Alexander Zaitchik

Spring 2012

One afternoon this past September, dozens of second- and third-year students gathered in a large lecture hall on the first floor of Jerome Greene Hall to learn about one of Columbia Law School’s most hallowed traditions: the Harlan Fiske Stone Moot Court competition. Since 1925, the annual event has provided Law School students the opportunity to develop and present legal arguments, facing off against their peers in a simulated appellate court.

At the front of the room that afternoon were the director and coordinator for the 2011–2012 competition, Michael M. Rosenberg ’12 and Emily M. Lieberman ’12, respectively. Although these two students are thoroughly dedicated advocates for the competition and all that it offers participants in the way of experience, Rosenberg made sure to include a note of warning during the introductory remarks to prospective competitors. “This is not just a résumé builder,” he told the audience. “This won’t lead to celebrity. There’s no credit involved—potentially, it’s an all-year commitment, and a lot of work.”

A few people may have been scared away by Rosenberg’s words, but most left the meeting with their interest in the competition intact, if not strengthened. And during the days that followed, several dozen students signed up to participate in the competition, which is overseen each year by the Law School’s Moot Court Program director, Professor Philip M. Genty. When the metaphorical starting gun sounded on October 3, with the release of the record for this year’s hypothetical problem, 23 teams of two got their first look at what they would be up against in the qualifying round—a layered, complicated fact pattern for a faux obstruction of justice and fraud case titled United States v. McClain. Each team was given six weeks to write a 20-page brief and prepare a 20-minute oral argument. The 16 students judged to have produced the best briefs and arguments would continue to the semifinal round. From there, a quartet would appear in Columbia Law School’s version of the Final Four: the Stone Moot Court finals, where arguments would be made before a panel of three sitting circuit court judges.

 

The hypotheticals around which the Harlan Fiske Stone Moot Court competition has turned over the years often reflect the burning legal issues of those time periods. The 1970 competition, for example, involved a defendant charged with “the crime of Abortion in the Second Degree.” Three years after Columbia Law School students argued before guest judges over the constitutionality of abortion laws, the Supreme Court, in Roe v. Wade, held such laws to be unconstitutional in one of the most famous decisions of the century. Other Stone problems have proven more timeless in nature. In 1986, students crafted legal arguments regarding whether the search of a public school student’s locker by a school official violated the Fourth Amendment right to be free from unreasonable searches and seizures. The case involved issues that would be just as familiar to Stone Moot Court competitors in 1986 as in 2006.

This year’s hypothetical was especially contemporary. Indeed, it is tempting to imagine what participants in the inaugural competition of 1925 would have made of United States v. McClain. The key questions of the case concern phenomena that would have been beyond the wildest imaginings of even the most farsighted Coolidge-era legal futurist: cell phones, computer fraud, hacking, and public relations campaigns.

The task of conceiving and writing this year’s Stone Moot Court hypothetical fell, as it does every year, to the program’s director, for whom the upcoming competition starts shortly after the current year’s winners are announced. Stone directors are, by tradition, chosen from among the previous competition’s second-year semifinalists. For Michael Rosenberg, the choice to participate in the moot court process without taking his spot behind the podium was initially not an easy one to make. “Part of me really wanted to compete again, but I decided to take on a new challenge by running the competition and watching competitors work with my own problem,” he says. “It has been very gratifying to watch United States v. McClain take on a life of its own, and to see competitors make so many great arguments I wasn’t expecting.” 

Rosenberg struck upon the idea for the hypothetical last summer while working on obstruction of justice issues as a summer associate at a large law firm. He became fascinated by a legal question that he eventually placed at the heart of United States v. McClain: When you modify a document or mislead an investigator, at what point does it become federal obstruction, resulting in criminal liablity?

In the hypothetical case that Rosenberg conceived, Peter McClain, an IT professional at a cellular phone company and a part-time computer hacker, got into trouble on multiple levels. First, he stood accused of modifying a press release to state that the cell phones produced by his company carried “absolutely zero risk of causing cancer,” despite knowing otherwise. He also allegedly misled a local investigator with respect to his involvement with the global hacking collective known as Anonymous and engaged in hacking to facilitate free coffee perks from Starbucks. “Obstruction of justice is a broad statutory scheme, as is the computer fraud statute,” explains Rosenberg. “The charges included computer fraud, in the form of access in violation of employment contracts or terms of service.”

In an instance of reality mirroring fiction, the problem case involves issues remarkably similar to the real-life case of United States v. Nosal, which Rosenberg did not know would come up for review by the 9th Circuit during the course of the competition. “And in an amazing coincidence, one of the 9th Circuit judges reconsidering Nosal is Alex Kozinski,” says Rosenberg. “He’s also one of our judges in the finals. The Nosal case deals with many of the same open questions of law that the Stone competitors are working with.”

Rosenberg spent the summer crafting United States v. McClain, building a record, and writing the bench memorandum. Along with Moot Court Coordinator Emily Lieberman, it was his responsibility to locate and sign up 122 distinguished judges to score the initial rounds of competition and narrow the participants from nearly 50 to four. He chose the judges from a pool of respected local lawyers, including many Columbia Law School (and Stone Moot Court) alumni.

All the preliminary planning was in place by the time students returned to campus in the fall. It was time to watch United States v. McClain take on a life of its own.

 

Over the course of two evenings in mid-November, the 23 teams of two participated in the Harlan Fiske Stone Moot Court qualifying round. The teams gathered in ground-floor classrooms in Jerome Greene Hall and delivered their arguments before appellate panels consisting of three judges. Competitors were dressed in their best courtroom attire. Their briefs and oral arguments were scored according to a complex and comprehensive metric that spanned 20 criteria grouped into five categories: Analysis, Persuasiveness, Organization, Style, and Mechanics. The revamped scoring rubric was one of several changes instituted by Michael Rosenberg. “We also decided the judges’ scoring should be done in silence, with no judge collaboration or discussion about the individual scoring,” says Rosenberg. “This can be a very close competition.”

In every room, the exchanges between the judges and competitors were fast, if not ferocious. The questioning covered all manner of issues related to the facts of the case and the workings of appellate courts. Judges routinely put competitors on the spot: Why is the burden on the government here? What does the record say about FCC jurisdiction? How did this or that action equal obstruction of Congress? Why should federal investigators get involved?

Only after the round of arguments ended did the mood turn from competitive to cordial. The judges put away their adversarial masks and offered competitors helpful tips on their performance.

At the end of November, a Law School–wide email listed the names of 16 semifinalists. For those advancing to the next round, much work still lay ahead. They were tasked with writing a new brief (sometimes changing positions on the case) and preparing two additional oral arguments. Together with a new partner, each semifinalist had until late February to master yet more angles of United States v. McClain.

 

The 2011–2012 Harlan Fiske Stone Moot Court semifinals took place on two cold nights in late February. The judges on those evenings, knowing they would be forced to choose between 16 very talented competitors, were relentless in pressing the students to define, explain, connect, and justify. To the uninitiated, there was a refined brutality to the proceedings, just as one might encounter in a real appellate court, where the stakes are high.

Among the numerous top-caliber exchanges during the semifinals was that between Kareem Shibib ’12, representing the United States, and competition judge Alexandra Shapiro ’91. Shibib argued that violations of a company computer policy could potentially form the basis for federal fraud liability. He immediately found himself on the receiving end of some tough questions.

“Suppose a law firm has a policy barring associates from emailing work product to themselves for use at home,” she said. “Under your theory, isn’t it always a crime? After all, this would be a black-letter violation of a company policy.”

Shibib responded confidently that criminal liability can extend to those who knowingly violate a corporate policy with fraudulent intent, so long as that policy is consistent with modern-day business norms. Though it was not the easiest argument to make, Shibib, like his fellow competitors, did the best he could with the case he had. (His performance made Stone Moot Court history: He was named the “First Alternate Finalist,” an honor never before bestowed on a competitor.)

According to some veteran moot court judges, the competition has been getting stronger in recent years. “I’ve noticed that students are more confident and better writers than they were 10 years ago,” says Jane E. Booth ’76, a former appellate attorney who now serves as general counsel to Columbia University. Booth has judged these competitions on and off for 25 years. “You used to want to edit the briefs with a red pen, and now you just read them for content because they’re that good. All four briefs I read this year were clearer than I’ve ever remembered.”

When the dust settled following semifinal arguments, Robert M. Bernstein ’13, William M. Rollins ’12, Kelly N. Sampson ’12, and J. Matthew Schmitten ’13 received word, via another email, that they would advance to the finals. They would compete for the honor of best brief, highest overall score, and best oral argument, recognition of which takes the form of the Lawrence S. Greenbaum Prize, established in 1951 in memory of Lawrence S. Greenbaum, Class of 1912

For their part, the finalists agreed that the competition is well worth the time—even if Michael Rosenberg’s early warning was justified.

Rollins was a semifinalist last year but failed to advance to the finals. This year, he made amends, breaking through to the last round. He says the competition was not a strain on his other work, but rather an aid to it. “When you verbalize something in an argument, the issues become clearer,” says Rollins. “It helps you understand the legal issues in cases in a more concrete way than if you just read about them in textbooks.”

Schmitten, a second-year student who plans to pursue antitrust law, adds that moot court competitions present an opportunity to hone a valuable combination of advocacy skills in a real-world setting. “Externships give you clinical experience,” he says, “but not experience with appellate briefs or oral advocacy.”

Bernstein, meanwhile, says he was taken aback when he found out he had advanced. “I didn’t expect to make it to the finals,” he says. “It’s been a thrilling surprise.”
And, of course, the best was yet to come. With notice of their status as finalists, Bernstein and his fellow competitors also received confirmation that they would argue United States v. McClain once more, on a bigger stage. Final arguments, the congratulatory email reiterated, would be heard by Judge Alex Kozinski of the 9th Circuit, Judge Reena Raggi of the 2nd Circuit, and Judge Joseph A. Greenaway of the 3rd Circuit. And this time, the entire Law School community would be watching to see what happens next.

Read about how the final chapter of the competition unfolded by visiting law.columbia.edu/mag/stonefinals.
 

Alexander Zaitchik is a journalist who has written for The New York Times, Wired, and Details, among other publications.