By Emma S. Fowler
In October the College of Law held its annual internal moot court competition known as “Advocates’ Prize.” Earlier this year I took on the role of Vice-Chair for the competition, with the primary duty of creating the problem that competitors would use for their arguments. Much of my summer and early fall semester was consumed by this task, culminating in a record more than 10,000 words long. Though incredibly time-consuming, the competition turned into one of the most rewarding experiences I have had in law school.
There are two initial goals when creating a moot court problem. The first is to find issues that have a circuit split or a split among the state courts. The more even the split, the better the chance of creating a balanced problem. The second is to find issues that are relatively current, meaning something the Supreme Court of the United States might be interested in resolving. It’s also important not to be too current, because, for example, if the issue is slated to be before the Supreme Court that term, there’s always a chance it could get decided before you complete your problem.
With those goals in mind, I began my initial research for the problem. I was fairly certain I wanted issues that would involve criminal law, so I made note of circuit splits that had occurred in that area. Once I had a few ideas, I turned to Interim Director of the Center for Advocacy and Dispute Resolution, Professor Rodd Barckhoff to get his thoughts. We decided pretty quickly on the first issue—whether robbery of an ATM qualifies as federal bank robbery.[1] This issue met both goals. First, the circuit split: the Fifth Circuit had found that such a robbery was not federal bank robbery, while the Seventh and Tenth Circuits determined it was.[2] Second, it is current; the Tenth Circuit made its decision in 2022[3] and members of Congress recently introduced legislation that would clarify that the federal bank robbery statute is intended to cover ATM robberies.[4]
Landing on the second issue was not so simple. We tossed around a few ideas, with many either being too current, too complicated, or too difficult to mesh with the bank robbery issue. Ultimately, Professor Barckhoff came across the second issue—whether compelling a defendant to reveal his passcode to his locked cell phone is a violation of his right against self-incrimination under the Fifth Amendment.[5] This issue also met both goals—many state courts have decided the issue differently[6] and many people keep a great amount of information about their lives on their cellphones, information that could be gathered by law enforcement if they were required to disclose their phone passcode.
Armed with these two issues, with frequent input from Professor Barckhoff, I began to draft the problem. I started with an indictment that laid out the factual scenario—the FBI believed a man named John Patrick Murphy[7] could be tied to a string of ATM robberies in the town of River Heights but needed his cellphone passcode to connect the dots. Following the indictment, I drafted a motion to dismiss, a response to that motion and a motion to compel, a response to the motion to compel, a district court opinion, and an appellate opinion to form the skeleton of the problem. These documents were designed to give the competitors a rough outline of potential arguments on each issue, without giving away exactly what we expected. After the skeleton, I began to flesh out the problem through other documents, including witness statements, an FBI investigation report, and photos. These other documents were meant to elaborate on the factual scenario. After many, many revisions, we finally published the problem for students to review and decide if they wanted to compete.
Once we published the problem, the competitors had thirty days to complete their brief. After that thirty day period, they began to prepare for the oral argument portion of the competition. This portion consists of two preliminary rounds, where competitors argue both sides of the issues, as petitioner one day and respondent the next or vice versa. After these rounds, the oral argument scores are weighed against the brief scores to determine who qualifies for the final round. This point is when my role shifted from writing to logistics, with myself and the rest of the Moot Court Executive Board carefully entering scores into a spreadsheet and checking and double-checking to ensure we tabulated everything correctly. Finally, we had the final round, which was my first real opportunity to see the problem brought to life. The finalists were extremely impressive with their knowledge of the record, knowledge of relevant case law, and poise when asked tough questions by a panel of federal judges. It was a great pleasure to see all the time and effort the competitors put into the competition.
I am so grateful for the opportunity to chair Advocates’ Prize this year and for the lessons it taught me—how to stay dedicated, how to incorporate feedback, and how to remain flexible. Above all, it gave me an opportunity to give back my law school community in a meaningful way. In closing, I could not have done it without Professor Rodd Barckhoff, Melinda Gonzalez, Tedi Ocken, Kyle Mangrum, Jillian Polk, Nate Kelly, and Haden Blair. Their help and guidance was invaluable.
[1] The federal bank robbery statute is 18 U.S.C. § 2113(a).
[2] See United States v. Burton, 425 F.3d 1008 (5th Cir. 2005); United States v. McCarter, 406 F.3d 460 (7th Cir. 2005); United States v. Chavez, 29 F.4th 1223 (2022).
[3] Chavez, 29 F.4th at 1223.
[4] See Safe Access to Cash Act of 2022, H.R. 9248, 117th Cong. (2022).
[5] U.S. Const. amend. V.
[6] See, e.g., State v. Valdez, 482 P.3d 861, (Utah Ct. App. 2021), cert. granted 496 P.3d 715 (Utah 2021); Seo v. State, 148 N.E.3d 952 (Ind. 2020); Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014); Commonwealth v. Davis, 220 A.3d 534 (Pa. 2019); State v. Pittman, 479 P.3d 1028 (Or. 2021); State v. Garcia, 350 So.3d 322 (Fla. 2022); State v. Andrews, 234 A.3d 1254 (N.J. 2020); People v. Sneed, No. 127968, 2023 WL 4003913 at *13 (Ill. June 15, 2023).
[7] Named after my dog, Murphy.
tennesseelawreview.org 