Raffi Melkonian
@rmfifthcircuit.bsky.social
Appellate lawyer at Wright, Close & Barger in Houston, with a Fifth Circuit and TX appellate practice. So-called Dean, #appellatetwitter. Host of The Appellate Wanderer podcast
Lamest opposition party ever
November 10, 2025 at 3:29 AM
Lamest opposition party ever
On a whim I picked up a role playing magazine from the early 80s, and enjoyed this letter to the editor complaining about an oped saying that computer games would never really be art. At the end, the author says “I know what computers can do, and you’ll find out soon.” Prescient!
November 8, 2025 at 10:07 PM
On a whim I picked up a role playing magazine from the early 80s, and enjoyed this letter to the editor complaining about an oped saying that computer games would never really be art. At the end, the author says “I know what computers can do, and you’ll find out soon.” Prescient!
Nice to see a per curiam win from SCOTX this morning for our firm on a Rule 702 issue. Could be useful for anyone fighting about expert admissibility.
www.txcourts.gov/media/146151...
www.txcourts.gov/media/146151...
![[T]he expert witness paints a powerful image on the litigation
canvas,” possessing a “vast potential for influence.” In re Christus
Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007). The expert in
this case is a former family court judge who opined on the central
disputed issue in the case, testifying before the jury that, in her view,
the parties were informally married. She expressed that opinion
repeatedly and emphatically, though none of the relevant evidence was
technical, specialized, or otherwise beyond an ordinary person’s
understanding. Compounding the problem, she lent her opinion
credibility by explaining that she formed it using the same methodology
she employed when she presided over informal-marriage cases as a
judge. Unsurprisingly, the jury was persuaded and found an informal
marriage existed.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:b2zlnxrfackjw5h3lbemyqg5/bafkreia4bjp72kxytiyplyfvuhksrs5b6hmv4ssdikggranflm2k3zcxxi@jpeg)
November 7, 2025 at 3:25 PM
Nice to see a per curiam win from SCOTX this morning for our firm on a Rule 702 issue. Could be useful for anyone fighting about expert admissibility.
www.txcourts.gov/media/146151...
www.txcourts.gov/media/146151...
November 6, 2025 at 7:35 PM
A fair question about reimbursement from Justice Barrett. But as Katyal previously said, this is entirely a problem of the Government's making, because they forestalled a stay of the tariffs by saying they can just reimburse. /32
November 6, 2025 at 4:59 PM
A fair question about reimbursement from Justice Barrett. But as Katyal previously said, this is entirely a problem of the Government's making, because they forestalled a stay of the tariffs by saying they can just reimburse. /32
ACB comes back to her license theory. If the President can do a license, and if a license is the same thing as a tariff as a matter of economics, why can't he just do the tariffs? /31
November 6, 2025 at 4:57 PM
ACB comes back to her license theory. If the President can do a license, and if a license is the same thing as a tariff as a matter of economics, why can't he just do the tariffs? /31
The best part about Justice Kavanaugh as a judge is that he just tells you what his problem is. Here, he talks for a couple of pages about the Supreme Court's decision in Algonquin. Most judges hide what their real hang-up is. Kavanaugh always just says it, for better or worse. /30
November 6, 2025 at 4:55 PM
The best part about Justice Kavanaugh as a judge is that he just tells you what his problem is. Here, he talks for a couple of pages about the Supreme Court's decision in Algonquin. Most judges hide what their real hang-up is. Kavanaugh always just says it, for better or worse. /30
I can't resist noting that NMG can't resist noting that he's an expert on Indian law. /29
November 6, 2025 at 4:51 PM
I can't resist noting that NMG can't resist noting that he's an expert on Indian law. /29
Gorsuch asking a tough but fair question here. Since the word "regulate" is usually very broad, do you need us to import the major questions doctrine (i.e., Congress wouldn't implicitly approve the power to destroy the economy on a whim) to win? /28
November 6, 2025 at 4:48 PM
Gorsuch asking a tough but fair question here. Since the word "regulate" is usually very broad, do you need us to import the major questions doctrine (i.e., Congress wouldn't implicitly approve the power to destroy the economy on a whim) to win? /28
Sotomayor being very very chummy with Kavanaugh here, which I interpret as a good thing. /27
November 6, 2025 at 4:45 PM
Sotomayor being very very chummy with Kavanaugh here, which I interpret as a good thing. /27
Katyal has a bunch of good answers, but to me "the Government literally has never made that argument because it knows it is DUMB" is pretty good. /26
November 6, 2025 at 4:43 PM
Katyal has a bunch of good answers, but to me "the Government literally has never made that argument because it knows it is DUMB" is pretty good. /26
Alito checking another off-ramp, a different statute.
Total tea-leaf reading here, but this is the kind of thing a judge does when he knows there are problems but would in some sense like to vote in favor of the respondent. "Oh, here's this other power, so no harm no foul."
/25
Total tea-leaf reading here, but this is the kind of thing a judge does when he knows there are problems but would in some sense like to vote in favor of the respondent. "Oh, here's this other power, so no harm no foul."
/25
November 6, 2025 at 4:41 PM
Alito checking another off-ramp, a different statute.
Total tea-leaf reading here, but this is the kind of thing a judge does when he knows there are problems but would in some sense like to vote in favor of the respondent. "Oh, here's this other power, so no harm no foul."
/25
Total tea-leaf reading here, but this is the kind of thing a judge does when he knows there are problems but would in some sense like to vote in favor of the respondent. "Oh, here's this other power, so no harm no foul."
/25
Katyal doing excellent work here refusing to back off. The hypo is silly. That would never happen. If it did, and an incredibly slow moving tariff was the only thing that would work, again, Congress does exist. /24
November 6, 2025 at 4:38 PM
Katyal doing excellent work here refusing to back off. The hypo is silly. That would never happen. If it did, and an incredibly slow moving tariff was the only thing that would work, again, Congress does exist. /24
I said earlier in this thread that Sotomayor is trying to squash the "can we just do licenses" off-ramp that ACB seemed to be interested in, and he is Gorsuch doing the same. At least in my view - I don't think he's genuinely interested in saying these tariffs are licenses. /23
November 6, 2025 at 4:35 PM
I said earlier in this thread that Sotomayor is trying to squash the "can we just do licenses" off-ramp that ACB seemed to be interested in, and he is Gorsuch doing the same. At least in my view - I don't think he's genuinely interested in saying these tariffs are licenses. /23
Katyal does say it, without the culinary analogy. It's a bad hypo. /22
November 6, 2025 at 4:33 PM
Katyal does say it, without the culinary analogy. It's a bad hypo. /22
Justice Alito thinks this is a killer hypo (REALLY? The President can't impose a tariff for WAR?) but my instant reaction is: if the United States if faced with the imminent threat of war with a powerful enemy, Congress can sure as pommes dauphinoise is creamy impose the tariff. /21
November 6, 2025 at 4:32 PM
Justice Alito thinks this is a killer hypo (REALLY? The President can't impose a tariff for WAR?) but my instant reaction is: if the United States if faced with the imminent threat of war with a powerful enemy, Congress can sure as pommes dauphinoise is creamy impose the tariff. /21
I don't think this hypo works because the background is that Congress has apparently *never* authorized tariffs by using the word "regulate." /20
November 6, 2025 at 4:28 PM
I don't think this hypo works because the background is that Congress has apparently *never* authorized tariffs by using the word "regulate." /20
Good work from Katyal dropping in facts like this one that just really highlight the fundamental irrationality of the Trump Tariffs. Even wise (if they exist) and carefully engineered tariffs fail under this statute, but these are so stupid. /19
November 6, 2025 at 4:26 PM
Good work from Katyal dropping in facts like this one that just really highlight the fundamental irrationality of the Trump Tariffs. Even wise (if they exist) and carefully engineered tariffs fail under this statute, but these are so stupid. /19
I laughed out loud here. "I have five answers" is appellate lawyer code for "I'm about to godzilla the argument you have just made, so please wait for me to say all this stuff." /18
November 6, 2025 at 4:24 PM
I laughed out loud here. "I have five answers" is appellate lawyer code for "I'm about to godzilla the argument you have just made, so please wait for me to say all this stuff." /18
I really like this part of Katyal's answer to the question. Emergency powers tend to kindle emergencies. Yes. Especially - sotto voce - when the person with the emergency powers is quite nuts. /17
November 6, 2025 at 4:21 PM
I really like this part of Katyal's answer to the question. Emergency powers tend to kindle emergencies. Yes. Especially - sotto voce - when the person with the emergency powers is quite nuts. /17
This is a fine question from CJR to Kayal. Isn't this really a foreign relations power? No matter what, the opinion that issues has to address that, including if it goes in the favor of the challengers. /16
November 6, 2025 at 4:19 PM
This is a fine question from CJR to Kayal. Isn't this really a foreign relations power? No matter what, the opinion that issues has to address that, including if it goes in the favor of the challengers. /16
So if the President says the tariffs are to raise revenue, that's different, but if he says they're to regulate trade, that's ok, but in fact he says both at the same time because he is not disciplined and doesn't know why he's doing them. /14
November 5, 2025 at 9:11 PM
So if the President says the tariffs are to raise revenue, that's different, but if he says they're to regulate trade, that's ok, but in fact he says both at the same time because he is not disciplined and doesn't know why he's doing them. /14
Yeah Gorsuch is on fire a bit. /13
November 5, 2025 at 9:10 PM
Yeah Gorsuch is on fire a bit. /13
Interesting that Sauer bit the bullet on the climate change tariff idea. No way not to, I guess. But it's a terrible terrible answer because it just shows his theory has no "metes and bounds" as he calls them. /12
November 5, 2025 at 9:08 PM
Interesting that Sauer bit the bullet on the climate change tariff idea. No way not to, I guess. But it's a terrible terrible answer because it just shows his theory has no "metes and bounds" as he calls them. /12