Over 25 years ago, I arrived at the chambers of a judge serving on the U.S. Court of Appeals for the Third Circuit as a new graduate of one of this nation’s many fine law schools. While in law school, I had tried my best to remain current with the new rulings of the U.S. Supreme Court and the 13 intermediate federal appellate courts. And I had already developed an affinity for good legal writing, which among other things meant that I was already an admirer of opinions written by Seventh Circuit Judges Richard A. Posner and Frank H. Easterbrook.
One thing that even a casual follower of the Seventh Circuit’s rulings was likely to observe was that court’s strict insistence, on pain of waiver, of adherence to the rules governing the preservation of arguments on appeal. One day during my Third Circuit clerkship, I remember recommending to the judge for whom I was clerking a disposition that would hold as waived due to a technical violation of the appellate rules an argument that a party was advancing on appeal.
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