Michael Toner Talks Elections

lennonby Kate Lennon, Class of 2017

On March 2nd, law students interested in Election Law were able to enjoy a lunchtime talk with Michael Toner. Mr. Toner is a current partner at Wiley Rein and the former FEC Chairman. He was also the Chief Counsel to the Republican National Committee and General Counsel to the Bush-Cheney 2000 Presidential Campaign. The discussion began with Mr. Toner speaking about the changes in election law and finance in regards to recent Supreme Court cases, as well as what changes to Court’s make-up could mean for the future in Election Law. Mr. Toner discussed that this is a time of deregulation, but if some of the more conservative justices retire, we could see more increased regulation again in the next ten years.

Michael Toner

Michael Toner, former Chairman of the Federal Election Commission (FEC)

As the discussion moved into a question format, the topic turned more towards the future of campaigns. Mr. Toner explained that we no longer live in a world where a successful presidential candidate can get by on a few million dollars in donations. With President Obama breaking records with donations in the $750 million range, Mr. Toner predicted a 2016 election campaign potentially breaking the billion-dollar mark. He found this to be particularly likely with candidates like Hillary Clinton and Jeb Bush potentially taking significant roles in the 2016 election.

It was clear from the start that Mr. Toner was personally fascinated with Election Law. He stated at one point that he chose his career path because he was able to combine his two interests in law and politics into one job. His enthusiasm about the topic spread through the room and really drew the attention of the professors and students. As a first year student, the novelty of having such interesting and accomplished speakers here at our school has not yet worn off. I am not sure that it even will at all. Every day at the law school is a new experience, and lunchtime speakers like this one are just one of the many avenues for these experiences.

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Moot Court: Bushrod Tournament Results and Wise Words from Tom Goldstein, Silver Tongue Award Recipient

wentworthby Christie Wentworth, Class of 2017

The William & Mary Law Moot Court team just added nineteen new members following this year’s Bushrod T. Washington Moot Court Tournament. The Moot Court program, whose participants compete in tournaments around the nation, gives students an opportunity to develop and refine oral advocacy and brief writing skills. Bushrod tournament participants receive a cumulative score for the tryout period, and the eight competitors with the highest scores compete in a single-elimination tournament. The final round is open to students, staff, faculty and the general public and includes the presentation of the Edmund Randolph Silver Tongue Award. This year’s award recipient was Tom Goldstein, one of the nation’s most experienced Supreme Court practitioners and founder of the SCOTUSblog. Before the start of the final round, Goldstein spoke about oral advocacy in general and then outlined three main differences between Moot Court and Supreme Court arguments.

Tom Goldstein, Partner at Goldstein & Russell, P.C. and co-founder and publisher of SCOTUSblog

Tom Goldstein, Partner at Goldstein & Russell, P.C. and co-founder and publisher of SCOTUSblog

Goldstein, a graduate of the University of North Carolina at Chapel Hill and American University’s Washington College of Law, began his speech by advising students to be prepared, to realize that judges’ questions are not meant to attack, and to be cognizant of who the audience is. Depending on the context of the case, the court, and who these judges are, attorneys must bring a unique set of skills and focus on different aspects of the case.

In comparing oral arguments made before the Supreme Court and those prepared for Moot Court, Goldstein emphasized three points: style, the art of the possible, and the principle of relative advantage. First, he noted that form and style tend to matter more for Moot Court than they do for the Supreme Court. While this may seem counterintuitive, he pointed out that the Supreme Court justices are seeking concise answers to questions; content matters more than presentation.

With regard to his second point, “the art of the possible,” Goldstein advised oral advocates to think about the audience and to appreciate what the judges or justices are capable of deciding. He pointed out that the Supreme Court justices will be very familiar with the case and will already have an idea of which party will win or lose. Because it is unlikely that any of the justices will completely change his or her mind, it is important to maintain modest ambitions. For example, he stated that a realistic goal might be to convince 1-2 judges to shift their viewpoints by 20-30% on 1-2 points. While this may seem discouraging, an attorney that argues before the Supreme Court has the opportunity to influence how a client wins or loses and has the chance to shape the rule that results from the case. On the contrary, Moot Court judges tend to be more open to persuasion, will not be as familiar with the case, and may still be trying to decide who will win or lose. Moot Courters, use this to your advantage!

Lastly, Goldstein explained what he calls the “principle of relative advantage.” Think about what you know and what the judges or justices know and tailor your argument so that you can add something new to their perspective. As he mentioned in his second point, Supreme Court justices will already be familiar with the facts of the case and the arguments in the briefs. During oral argument, link points in a different way that will allow the justices to change their opinion about the case. In Moot Court, judges will read the problem and think about it, but likely will not have prepared to the same extent. This gives the oral advocate the advantage of knowing the case better than the judge and the ability to demonstrate control of the material by making connections and by weaving relevant cases and facts into the argument.

After Goldstein’s speech, the two Bushrod finalists—Gordon Dobbs and Victoria Jensen—employed some of this advice in their own oral arguments in a case regarding First Amendment rights in schools. The competitors each demonstrated mastery of the material and made convincing arguments before a panel of esteemed judges including Professor Grove, Professor Hamilton, Professor Larsen, Tom Goldstein, and Moot Court Chief Justice Chris Kaltsas. These judges determined 1L Gordon Dobbs to be the champion of this year’s Bushrod Tournament. Perhaps you will be one of next year’s competitors!

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