Various panties are currently in a twist about language in the moot court problem that was released a few weeks ago. Dean Schill's email on Monday night suggested that I "take a moment to reflect on this incident and learn something". So in that spirit:

Here is a copy of the controversial problem. One observes:

a) the defendant is a Mexican citizen named El Guapo,
b) all the judges and officials in the brief are named after liquors (eg. Beam, Walker, Perignon, Martini, Courvoisier), and
c) El Guapo enjoys anal sodomy with children.

I imagine if I had been a moot court competitor getting this on October 1, I would've taken no note of (a) or (c) and considered (b) a feeble attempt at humor.

The facts of the problem combine two current cases scheduled to be argued in the Supreme Court this term. Cunningham v. California concerns a non-Mexican child molester, and United States v. Resendiz-Ponce concerns a Mexican citizen who attempts to re-enter the US after being deported.

Moot court problems usually simulate real Supreme Court cases as closely as possible for two reasons. One is to give the participants a sense of verisimilitude. The other, I assume, is that because the cases have been briefed by excellent lawyers, there is a standard to measure student briefs by.

To that end, we can't fault moot court for using facts from the actual cases. Part of what makes criminal cases challenging on appeal is the facts are often not very savory. A skillful brief writer needs to overcome the shock of the facts and get a judge to focus on the law. If the Cunningham facts had been sanitized – instead of anal rape, maybe he was convicted of vandalizing a puppy store – it wouldn't be the same problem. Cunningham is guilty of a foul crime, but he still deserves his constitutional rights.

Similarly, illegal immigration from Mexico is a hot political and social issue. How would you do it without making the defendant Mexican? It would be like trying to simulate Hamdan with an Irish defendant. Should we make the defendant Canadian? Or maybe invent a fictitious country, Freedonia, that shares a border with the U.S.?

It wouldn't be the same. Removing the racial element might improve the cosmetics but it would dilute the substance. Race is a real issue in this case. To take away race is to deny that the arguments unfold within a larger social and political context. The attorneys and the justices have to reconcile the law with that context.

So I don't think we should bust the moot court board for using the facts as they found them. OK, maybe they could've foreseen that the natural result of combining these cases would be a defendant who's a Mexican sodomist. Maybe there were two other cases that might've joined more harmoniously. But it's not like they went out of their way to apply certain characteristics to a person of a certain ethnicity. Given the cases they chose to simulate, to change either the Mexican-ness or the sodomizer-ness of the defendant would've compromised the problem.

However. While it's true that there is some history of humorous names in fact patterns (anyone who's used Bergman's Evidence casebook knows what I mean) there are two conditions on their use: 1) the more serious the issue is, the less appropriate the humor is, and 2) the names actually have to be funny.

Moot court came up short on both counts. A fact pattern about child rape doesn't really benefit from the light-hearted touch. And liquor names are just not especially clever. Does it make the authors evil? No. It just makes them moot court dorks. Someone probably came up with it at 1am during the rush to finish and it stuck. (Judging from the number of spelling errors in the problem, there seems to have been a broader failure of the editing / proofreading process.) Not really something worth getting bent out of shape about.

Next: The Response.

18 Oct 06