Across five of the most closely watched federal appellate cases of the past year, a striking pattern has emerged: courts are grappling with cutting-edge questions at the intersection of constitutional doctrine, statutory interpretation, and contemporary social and technological realities. From trade secret theft and racial equity in venture capital to school curriculum disputes, algorithmic product liability, and transgender participation in sports, these cases are not merely high-profile—they are legally transformative.
What links them, beyond subject matter, is the caliber of advocacy on both sides. Each case features powerhouse law firms and public interest litigators operating at the highest levels of appellate strategy. Kirkland & Ellis, Gibson Dunn, WilmerHale, King & Spalding, and the American Civil Liberties Union (among others) brought deep litigation benches and doctrinal sophistication. These firms shaped the opinions not only through legal reasoning but through the language, framing, and precedent chains they offered to the courts.
Yet raw win-loss outcomes don’t tell the full story. Some briefs succeeded in doctrinal influence but lost on the facts; others introduced language that changed how the court characterized the issues, even in defeat. This article evaluates each brief’s actual advocacy impact using a structured, quantitative methodology grounded in judicial reception.1
Case 1: Motorola Solutions, Inc. v. Hytera Communications Corp.
Court: U.S. Court of Appeals for the Seventh Circuit
Citation: 108 F.4th 458 (2024)
Docket Nos.: 22-2370 & 22-2413
Outcome: Affirmed in part, reversed in part, remanded
Case Summary
Motorola Solutions sued Hytera Communications for misappropriation of trade secrets under the Defend Trade Secrets Act (DTSA) and copyright infringement under the Copyright Act. The central allegation was that Hytera poached Motorola engineers in Malaysia who brought with them thousands of proprietary files and source code. Using these materials, Hytera released digital radios that were functionally indistinguishable from Motorola’s and sold them globally, including in the U.S.
A jury awarded Motorola $764.6 million in damages. The district court reduced this to $543.7 million, breaking it down into:
- $136.3M under the Copyright Act,
- $135.8M under the DTSA,
- $271.6M in DTSA punitive damages,
and imposed a future royalty of 100% of Hytera’s profits.
On appeal, Hytera did not contest liability but challenged the extraterritorial scope of the DTSA and Copyright Act damages, the failure to apportion profits, and the size of the punitive damages. Motorola cross-appealed, arguing it was entitled to a permanent injunction and greater damages based on lost profits and avoided R&D costs.
The Seventh Circuit affirmed some rulings, reversed others (especially on the extraterritorial copyright damages), and remanded for further findings.
Bigger Winner: Although Hytera secured key reversals on copyright damages and apportionment procedure, Motorola was the bigger winner overall. It preserved over half a billion dollars in trade secret damages and laid the groundwork for permanent injunctive relief on remand.
Brief Argument Summaries
Hytera Communications Corp. (Appellant)
Main Themes:
- Profit Apportionment Ignored: The district court improperly awarded 100% of Hytera’s profits without attributing value to its own technological investments, sales, or independent development efforts.
- Extraterritorial Overreach: The district court improperly included foreign sales in the damages calculation under both the DTSA and the Copyright Act, violating the presumption against extraterritoriality.
- Punitive Damages Are Unconstitutional: The 2:1 punitive-to-compensatory ratio violates due process under Epic Systems, where 1:1 was the ceiling in a similar trade secrets case.
- Copyright Damages Time-Barred: Under Petrella, copyright damages should be limited to three years before Motorola added those claims.
Relief Sought: Reduction or reversal of monetary awards and re-apportionment based on actual contribution analysis; exclusion of foreign sales; punitive damages reduced to 1:1 ratio.
Motorola Solutions, Inc. (Appellee/Cross-Appellant)
Main Themes:
- Refusal to Pay Warrants Injunction: Hytera’s refusal to pay judgment and escrow royalties proves irreparable harm and supports granting a permanent injunction under eBay.
- Alternative Damages Undervalued: Even if Hytera’s unjust profits are vacated, Motorola is entitled to $86.2M in lost profits and $73.6M in avoided R&D costs—totaling $159.8M.
- Domestic Link Under ITSA: If federal claims are narrowed, the Illinois Trade Secrets Act still applies because the theft occurred on servers located in Illinois.
- Court Erred on Procedure: District court misapplied procedural rules in dismissing the injunction reconsideration and failed to provide adequate findings under Circuit Rule 50 on the ITSA.
Relief Sought: Reinstate lost profits + avoided cost damages or remand for recalculation; grant permanent injunction; revive ITSA theory if federal damage awards are curtailed.
Scoring
Hytera Communications Corp. (Appellant) —
Attorneys: Steptoe & Johnson LLP (Boyd Cloern, Alice E. Loughran, Mark C. Savignac, John William Toth)
Language Adoption and Parallels (6.5): While the brief’s terminology around “predicate act,” “but-for causation,” and “proximate apportionment” surfaced in the opinion, the court largely used these terms to critique or limit Hytera’s positions rather than endorse them.
Doctrinal Influence (8.0): The brief directly contributed to the court’s reversal on copyright damages for foreign sales and remand on apportionment, influencing key doctrinal clarification on both points.
Citation Inclusion and Influence (7.0): Hytera’s reliance on RJR Nabisco, Sheldon, IMAPizza, and Epic Systems was extensive and echoed in the opinion’s framework, though not always credited in full.
Framing Effectiveness (7.5): The brief effectively framed Hytera’s profits as the result of multifactorial inputs and questioned the fairness of attributing 100% of value to Motorola’s IP—a framing that the court partly credited, especially in its remand for further apportionment findings.
Cross-Case Echoes (3.5): There is currently no evidence that the brief’s arguments are being cited in other cases, though the doctrinal points it raised could influence extraterritoriality and apportionment analysis in other circuits.
Total Impact Score: 73 / 100
Motorola Solutions, Inc. (Appellee / Cross-Appellant)
Attorneys: Kirkland & Ellis LLP (Michael W. De Vries, Adam R. Alper, Leslie M. Schmidt, John C. O’Quinn, Jason M. Wilcox, Nicholas A. Aquart, Hanna Torline Bradley, Steven J. Lindsay)
Language Adoption and Parallels (8.5): The court adopted Motorola’s core rhetorical framing—labeling the conduct as a “large and blatant theft” and endorsing its portrayal of Hytera’s post-trial “gamesmanship” and evasion of judgment.
Doctrinal Influence (8.0): The brief shaped the court’s interpretation of DTSA extraterritoriality, preserved Motorola’s future use injunction theory, and helped sustain avoided-cost damages as a valid remedial approach.
Citation Inclusion and Influence (6.5): The brief’s use of WesternGeco, eBay, and McRoberts was reflected in the court’s reasoning, though Motorola’s more novel statutory readings were credited more for framing than authority.
Framing Effectiveness (8.5): Motorola’s portrayal of Hytera as a deliberate judgment-evader had substantial impact, influencing not just doctrinal analysis but the court’s tone and procedural conclusions.
Cross-Case Echoes (5.5): While the framing has yet to appear in parallel litigation, the powerful narrative and successful use of equity arguments could serve as a reference in future trade secret injunction cases.
Total Impact Score: 82 / 100
Case 2: American Alliance for Equal Rights v. Fearless Fund
Opinion
Court: U.S. Court of Appeals for the Eleventh Circuit
Citation: 103 F.4th 765 (2024)
Docket No.: 23-13138
Outcome: Affirmed in part, reversed in part, remanded
Case Summary
The American Alliance for Equal Rights (AAER), a nonprofit founded by conservative activist Edward Blum, sued the Fearless Fund—a philanthropic venture fund focused on supporting Black women entrepreneurs—alleging that its Strivers Grant Contest violated 42 U.S.C. § 1981 by excluding applicants who were not Black women. AAER moved for a preliminary injunction to halt the contest, which the district court denied, citing potential First Amendment protections and insufficient irreparable harm.
On appeal, the Eleventh Circuit reversed. The court held that § 1981 applied because the contest constituted a “contract” and did not qualify for any remedial-program exception. It also rejected the Fund’s First Amendment defense, distinguishing expressive conduct from impermissible status-based exclusion. The court ordered the district court to enter a preliminary injunction.
Bigger Winner: American Alliance for Equal Rights. The court’s opinion embraced nearly every legal point advanced by AAER, rejected the constitutional defense offered by the Fearless Fund, and ordered immediate injunctive relief.
Brief Argument Summaries
Fearless Fund (Appellees)
Main Themes:
- First Amendment Protection: The grant and mentorship program is expressive conduct—a philanthropic activity designed to support a historically marginalized group, which should be shielded from compelled alteration under 303 Creative and Coral Ridge.
- Remedial Program Exception: The program addresses manifest racial imbalances in funding and does not create an “absolute bar” since other funding sources remain available.
- Standing Gaps: AAER did not name any affected members, and its declarations failed to establish that its members were “able and ready” to enter the contest, as required by Carney v. Adams.
- No Irreparable Harm: The Alliance’s claim of racial exclusion did not meet the high bar for irreparable injury under Gresham or general equitable principles.
Relief Sought: Affirm denial of preliminary injunction.
American Alliance for Equal Rights (Appellant)
Main Themes:
- § 1981 Applies Fully: The contest is a contract under standard legal definitions and excludes applicants based solely on race—triggering strict scrutiny regardless of the Fund’s motives.
- No First Amendment Shield: This is status-based exclusion, not message-based speech. Runyon and R.A.V. control. Fearless Fund cannot transform a racially discriminatory contract into protected expression by announcing a message.
- Standing Proven: The Alliance identified members (Owners A, B, C) who were ready and able to apply but for the racial bar. Use of pseudonyms is consistent with precedent (e.g., Speech First, SFFA).
- Presumptive Irreparable Harm: Racial discrimination constitutes irreparable harm under Gresham and should not require specific economic loss to justify injunctive relief.
Relief Sought: Reverse and enter preliminary injunction against further operation of racially restrictive contest.
Scoring
Fearless Fund (Appellee) —
Attorneys:
Gibson, Dunn & Crutcher LLP (Mylan L. Denerstein, Jason C. Schwartz, Molly Senger, Zakiyyah Salim-Williams, Katherine Moran Meeks, Alex Bruhn, Patrick J. Fuster, Mark J. Cherry, Gregg Costa),
Ben Crump Law, PLLC (Benjamin L. Crump),
Ellis George LLP (Dennis S. Ellis),
Global Black Economic Forum (Alphonso David),
Alston & Bird LLP (Alexandra Garrison Barnett, Leila N. Knox, Byung J. Pak)
Language Adoption and Parallels (5.5): The court acknowledged the First Amendment arguments and structure, but framed them to distinguish Runyon and refuted key expressive-association analogies.
Doctrinal Influence (5.0): The remedial-program argument received detailed attention but was expressly rejected. The First Amendment framing forced discussion but was ultimately narrowed.
Citation Inclusion and Influence (6.0): Cited 303 Creative, Coral Ridge, and Weber were analyzed in depth, but largely used to cabin or discredit the defense.
Framing Effectiveness (5.5): Efforts to portray the program as charitable expression were undermined by the contractual structure and race-based exclusion.
Cross-Case Echoes (4.5): The expressive-charity defense may recur in future DEI grant litigation, but this ruling limits its reach in public-facing contests.
Total Impact Score: 66.5 / 100
American Alliance for Equal Rights (Appellant) —
Attorneys:
Consovoy McCarthy PLLC (Thomas R. McCarthy, Cameron T. Norris, Gilbert C. Dickey, R. Gabriel Anderson),
Chambliss & Fawcett LLP (William Fawcett, Sr.)
Language Adoption and Parallels (8.0): The court adopted AAER’s central narrative and terminology—“absolute bar,” “contract,” and “status vs. message”—mirroring brief language.
Doctrinal Influence (9.0): The brief drove core holdings on § 1981 applicability, contract formation, standing under Carney, and the First Amendment’s limits.
Citation Inclusion and Influence (8.0): Runyon, R.A.V., Northeastern Florida, and McDonald were pivotal. The opinion tracks the brief’s doctrinal chain of authority closely.
Framing Effectiveness (8.5): The brief powerfully framed the contest as racial exclusion “in its starkest form,” drawing comparisons to historic Jim Crow exclusions and centering § 1981’s universality.
Cross-Case Echoes (6.0): The court’s opinion is likely to become a reference in future § 1981 challenges to DEI-targeted programs, especially in philanthropy and contracting.
Total Impact Score: 81.5 / 100
Case 3: Mahmoud v. McKnight
Opinion
Court: U.S. Court of Appeals for the Fourth Circuit
Citation: 102 F.4th 191 (2024)
Docket No.: 23-1890
Outcome: Affirmed
Case Summary
Parents of children in the Montgomery County Public Schools challenged a school district policy that incorporated “Pride Storybooks” into the elementary English Language Arts curriculum without permitting religious opt-outs. The parents argued that mandatory exposure to materials addressing LGBTQ themes violated their First Amendment free exercise rights and their Fourteenth Amendment due process rights.
The district court denied a preliminary injunction. On appeal, the Fourth Circuit affirmed. The court held that the parents had not shown a likelihood of success on their free exercise claim, concluding that mere exposure to ideas contrary to a family’s religious values—without evidence of coercion or compulsion—did not amount to a constitutional violation. The court emphasized the narrow scope of Wisconsin v. Yoder and distinguished this case from precedent involving targeted burdens or exclusion from public benefits based on religion.
Bigger Winner: Defendants-Appellees (Montgomery County Board of Education). The Fourth Circuit embraced nearly all of their framing on coercion, burden, and neutrality, and limited the reach of Yoder, Fulton, and Tandon in the school curriculum context.
Brief Argument Summaries
Defendants-Appellees (Montgomery County Board of Education)
Main Themes:
- No Free Exercise Burden: Exposure to contrary views does not constitute coercion or indirect pressure under the First Amendment.
- No Discriminatory Treatment: The opt-out policy applies equally to secular and religious objections and does not permit individualized exemptions.
- Preserving Pedagogical Integrity: A uniform curriculum is necessary to avoid fragmentation, stigmatization, and administrative chaos.
- Neutrality and Inclusion: The policy serves a compelling interest in creating an inclusive environment and reflects the state’s educational discretion.
Relief Sought: Affirm the denial of a preliminary injunction.
Plaintiffs-Appellants (Mahmoud et al.)
Main Themes:
- Yoder and Parental Autonomy: Teaching children LGBTQ-inclusive content without opt-outs violates the same principles vindicated in Wisconsin v. Yoder.
- Compelled Exposure as Burden: Forcing students to remain present during ideologically contradictory instruction places substantial pressure on families to compromise religious teachings.
- Non-Neutral Policy: The school permits opt-outs for health class but singles out LGBTQ-themed instruction for mandatory exposure.
- Religious Hostility and Selectivity: The policy emerged only after objections by religious parents and is enforced with language that stigmatizes dissent.
Relief Sought: Reverse and issue a preliminary injunction requiring notice and opt-out rights.
Scoring
Montgomery County Board of Education (Appellees) —
Attorneys: WilmerHale (Bruce M. Berman, Joseph M. Meyer, Jeremy W. Brinster, Alan Schoenfeld, Emily Barnet)
Language Adoption and Parallels (8.5): The opinion mirrors the brief’s consistent framing—using terms like “mere exposure,” “not a burden,” and “safe and inclusive learning environment.”
Doctrinal Influence (8.0): Successfully limited the application of Yoder and avoided strict scrutiny by reinforcing Smith’s burden requirement. The opinion follows their analysis nearly line-by-line.
Citation Inclusion and Influence (7.0): Cases like Parker v. Hurley, Mozert, and Torlakson became central citations for the court’s reasoning.
Framing Effectiveness (8.5): Framed opt-outs as impracticable and potentially stigmatizing to LGBTQ students, which the court found persuasive.
Cross-Case Echoes (6.5): Likely to influence future disputes over DEI curricula, religious objections, and public school pedagogy in other circuits.
Total Impact Score: 82.5 / 100
Mahmoud et al. (Appellants) —
Attorneys: The Becket Fund for Religious Liberty (Eric S. Baxter, William J. Haun, Michael J. O’Brien, Colten L. Stanberry)
Language Adoption and Parallels (6.5): While their use of terms like “Storybook Mandate” and “indirect coercion” colored the briefing, the court explicitly rejected their framing as legally unsupported.
Doctrinal Influence (5.5): The brief sparked discussion of strict scrutiny triggers (Yoder, Tandon, Fulton), but the panel declined to apply any, narrowing their scope.
Citation Inclusion and Influence (7.0): Cited compelling precedent (Yoder, Sherbert, Carson, Trinity Lutheran), which were acknowledged but confined or distinguished by the court.
Framing Effectiveness (6.0): The emphasis on protecting religious formation and age-appropriateness was noted but not credited as coercive under prevailing doctrine.
Cross-Case Echoes (5.0): Will resonate in litigation seeking to extend Yoder or Fulton to curriculum challenges, but this case likely constrains their application in educational settings.
Case 4 Analysis: Anderson v. TikTok
Opinion
Court: U.S. Court of Appeals for the Third Circuit
Citation: 116 F.4th 180 (2024)
Docket No.: 22-3061
Outcome: Reversed in part, vacated in part, and remanded
Case Summary
Tawainna Anderson, the mother of 10-year-old Nylah Anderson, brought suit against TikTok and ByteDance after Nylah died attempting the “Blackout Challenge”—a dangerous trend promoted via TikTok’s algorithmically curated “For You Page.” The plaintiff alleged products liability, negligence, and wrongful death under Pennsylvania law, contending that TikTok’s algorithm affirmatively promoted the harmful content to Nylah, which led to her death.
The district court dismissed the case, finding that § 230 of the Communications Decency Act (CDA) shielded TikTok from liability. On appeal, the Third Circuit reversed in part. The majority held that while TikTok did not create the “Blackout Challenge” video itself, its algorithm’s targeted curation and promotion of content to Nylah constituted first-party expressive conduct. Accordingly, TikTok’s conduct fell outside the scope of CDA immunity, at least for some claims.
Bigger Winner: Plaintiff-Appellant (Anderson). The Third Circuit became the first federal appellate court to clearly hold that algorithmic content recommendations—when tailored and promoted without specific user prompts—can fall outside CDA § 230 protections.
Brief Argument Summaries
Defendants-Appellees (TikTok Inc. and ByteDance Inc.)
Main Themes:
• CDA Immunity Is Broad: Section 230 protects platforms from liability for third-party content, including when content is curated or recommended using algorithms.
• Algorithm = Publisher Function: Recommending third-party content is a core publisher function and is thus immunized, regardless of whether decisions are made manually or through software.
• Plaintiff’s Framing Is Artificial: The idea that TikTok “targeted” Nylah with an implicit recommendation message (“you will like this”) is an overreach that improperly recasts publisher conduct as product design.
• First Amendment Backstop: Even if algorithmic recommendation is not protected under § 230, it is independently shielded by editorial discretion under the First Amendment.
Relief Sought: Affirm dismissal under Section 230.
Plaintiff-Appellant (Tawainna Anderson)
Main Themes:
• TikTok Is a Product, Not Just a Publisher: The complaint is framed around defective design, not editorial discretion—TikTok’s algorithms are themselves the dangerous product.
• First-Party Expressive Conduct: The recommendation was TikTok’s own action, not merely the hosting of another’s video—it promoted and pushed content that killed a child.
• Section 230 Has Limits: Congress didn’t intend to immunize social media giants from responsibility for targeting children with harmful trends through opaque data-driven systems.
• Legal and Moral Stakes: The case sits at the intersection of outdated immunity doctrine and modern algorithmic harm; the law should not shield corporate promotion of content that predictably endangers minors.
Relief Sought: Reverse the dismissal and remand for factual development.
Scoring
Plaintiff-Appellant (Anderson) —
Attorneys: Saltz Mongeluzzi & Bendesky (Jeffrey P. Goodman, Robert J. Mongeluzzi)
Language Adoption and Parallels (8.5): The court echoed the brief’s emphasis on the FYP as “first-party expressive activity,” quoting NetChoice and explicitly recognizing TikTok’s role in organizing and promoting content.
Doctrinal Influence (8.0): The panel relied on recent First Amendment reasoning in Moody and NetChoice to analogize TikTok’s algorithm to editorial speech—but flipped that rationale to defeat CDA immunity.
Citation Inclusion and Influence (7.5): The opinion reflects key citations from the brief (NetChoice, Snap, Gonzalez) and their distinction between passive hosting and active recommendation.
Framing Effectiveness (9.0): Persuasively framed the algorithm as a product with dangers akin to a defective drug or design flaw—this shifted the doctrinal frame from “speech” to “conduct.”
Cross-Case Echoes (8.0): This ruling could reset the balance of § 230 litigation nationwide, influencing challenges to algorithmic promotion in AI, streaming, and child-protection cases.
Total Impact Score: 82.5 / 100
Defendants-Appellees (TikTok and ByteDance) —
Attorneys: King & Spalding LLP (Geoffrey M. Drake, TaCara D. Harris, Albert Giang, David Mattern), Mayer Brown LLP (Andrew J. Pincus, Nicole A. Saharsky, Minh Nguyen-Dang, Benjamin D. Bright), Faegre Drinker Biddle & Reath LLP (Mark J. Winebrenner), and Campbell Conroy & O’Neil (Joseph O’Neil, Katherine A. Wang).
Language Adoption and Parallels (6.5): The brief’s emphasis on editorial discretion and “infrastructure” was acknowledged but not credited—used more to distinguish than to adopt.
Doctrinal Influence (6.0): The panel explicitly rejected TikTok’s reading of NetChoice and Force, treating algorithmic curation as potential first-party conduct instead of protected publishing.
Citation Inclusion and Influence (6.5): Relied heavily on Zeran, Green, and Dyroff, but these precedents were distinguished or sidelined in light of newer authority.
Framing Effectiveness (5.5): Framed TikTok as a neutral pipe for third-party speech; the court found this framing inaccurate in light of the platform’s role in assembling the speech product.
Cross-Case Echoes (5.5): The defense’s CDA maximalist approach may now face judicial headwinds in other circuits, especially in cases involving minors and AI-driven recommendations.
Total Impact Score: 60.0 / 100
Case 5: Hecox v. Little
Opinion
Court: U.S. Court of Appeals for the Ninth Circuit
Citation: 104 F.4th 1061 (2024)
Docket Nos.: 20-35813, 20-35815
Outcome: Affirmed in part, vacated in part, and remanded
Case Summary
Transgender and cisgender women athletes challenged Idaho’s Fairness in Women’s Sports Act, which banned transgender women and girls from participating in school-sponsored female athletic teams and allowed sex verification of female athletes if their eligibility was “disputed.” The plaintiffs alleged the law violated the Equal Protection Clause of the Fourteenth Amendment.
The Ninth Circuit upheld the district court’s preliminary injunction, finding that the statute discriminated on the basis of both sex and transgender status. The court held that the law failed heightened scrutiny because Idaho presented no evidence that transgender women displaced cisgender women in sports or that the prior NCAA/IHSAA hormone-based eligibility policies were inadequate. The sex verification process—exclusive to female athletes—was found especially intrusive and unmoored from any legitimate governmental objective.
Bigger Winner: Plaintiffs-Appellees (Hecox and Doe). The Ninth Circuit adopted nearly all of their factual framing and legal theories, rejected the state’s attempt to analogize to Clark I/II, and cast serious doubt on blanket bans of transgender participation in school sports.
Brief Argument Summaries
Defendants-Appellants (State of Idaho)
Main Themes:
- Biological Sex-Based Classification Is Permissible: The statute properly distinguishes based on sex, not transgender status, and aligns with Clark I and II.
- Athletic Fairness Justification: Male physiological traits (testosterone, anatomy, etc.) create insurmountable competitive advantages that justify exclusion.
- No Facial Discrimination: The law applies equally to all biological males, regardless of gender identity.
- Sex Verification as Enforcement Tool: The dispute mechanism is a neutral way to maintain eligibility integrity and preserve fairness in women’s sports.
Relief Sought: Reversal of the preliminary injunction and reinstatement of the Fairness in Women’s Sports Act.
Plaintiffs-Appellees (Hecox and Doe)
Main Themes:
- Discrimination Against Transgender Women: The law facially and functionally targets transgender girls, enforcing exclusion through invasive and degrading verification.
- Prior Rules Were Working: No empirical evidence showed displacement of cisgender athletes under the NCAA or IHSAA rules.
- Violation of Equal Protection: Heightened scrutiny applies and the state failed to meet its burden.
- Sex Verification = Sex-Based Harm: Singling out girls for verification violates their privacy and stigmatizes gender nonconformity.
Relief Sought: Affirmation of the preliminary injunction and continuation of inclusive eligibility policies.
Scoring
Plaintiffs-Appellees (Hecox and Doe)
Attorneys:
Attorneys: American Civil Liberties Union Foundation (Chase Strangio, James D. Esseks); American Civil Liberties Union of Idaho Foundation (Richard Eppink); Cooley LLP (Elizabeth Prelogar, Andrew Barr); Legal Voice (Catherine West)
Language Adoption and Parallels (9.0): The opinion adopts their framing (e.g., “categorical ban,” “stigmatizing,” “exceedingly persuasive justification”), and rejects “biological sex” as a neutral descriptor.
Doctrinal Influence (9.0): Successfully reframed Clark I/II’s limits, persuaded the court that gender identity implicates sex discrimination, and elevated hormone-based standards.
Citation Inclusion and Influence (8.0): Latta, Bostock, Grimm, and Romer were central to the court’s analysis, matching appellees’ core sources.
Framing Effectiveness (9.0): Framed the dispute as a rights-denial for a historically marginalized class, reframing fairness as inclusion.
Cross-Case Echoes (8.5): Will likely be cited in future challenges to anti-transgender sports laws and informs gender-based equal protection litigation.
Total Impact Score: 89.0 / 100
State of Idaho (Appellants)
Attorneys: Idaho Attorney General’s Office (Lawrence G. Wasden, Brian Kane, Steven L. Olsen, W. Scott Zanzig, Dayton P. Reed)
Language Adoption and Parallels (5.5): Court rejected terms like “biological males,” and found their “inclusion threatens fairness” framing to be unsubstantiated.
Doctrinal Influence (5.0): Tried to extend Clark I/II and failed; Ninth Circuit confined their precedential value and emphasized meaningful distinctions.
Citation Inclusion and Influence (6.0): Some citations (e.g., Clark, Geduldig, Nguyen) were acknowledged but ultimately dismissed.
Framing Effectiveness (5.5): The court found their argument rested on pretext and flawed definitions, undermining persuasive effect.
Cross-Case Echoes (5.5): Arguments will be cited defensively by other states, but this decision sharply limits their effectiveness in circuits applying heightened scrutiny.
Total Impact Score: 67.5 / 100
Overall Ranking
To synthesize the performance of each brief across the five cases, I ranked them by their total advocacy impact score (out of 100). These scores reflect combined performance in linguistic adoption, doctrinal influence, citation resonance, persuasive framing, and anticipated cross-case echoes.
The next figure, a heatmap, visually maps the strength of each brief across the five analytic dimensions, highlighting patterns of dominance in doctrinal or linguistic domains and helping clarify how different briefs achieved their cumulative scores.
The top three briefs—Hecox (Plaintiffs), Mahmoud (Board of Education), and Anderson (Plaintiff)—achieved success not just by prevailing on appeal, but by doing so through multidimensional advocacy. All three excelled in aligning their legal claims with persuasive, values-based narratives, and had their terminology and doctrinal frameworks heavily echoed in the courts’ opinions. These briefs were also notable for their forward reach—setting up future litigation strategies and constraining opposing frameworks in other jurisdictions.
In contrast, briefs that performed well on legal precedent but failed to land emotionally or rhetorically—such as Hytera or Fearless Fund (Defense)—saw lower scores in framing effectiveness and language adoption. Their arguments were engaged by the courts, but often to be distinguished or refuted.
The most significant drop-offs appeared where either doctrinal innovation was lacking or where the legal framing was poorly received—TikTok’s defense brief, for instance, suffered from a framing that was increasingly seen as outmoded, particularly in light of evolving judicial skepticism of expansive § 230 immunity.
This comparative view reinforces a central lesson: success at the appellate level is no longer merely about being right on the law—it’s about being heard in the language the court wants to adopt and being positioned to shape the doctrinal terrain for the next case.
Key Takeaways
- Narrative Control Drives Judicial Resonance
Across all five cases, the briefs that successfully reframed the doctrinal stakes—from injury to inequity, or from content hosting to product design—saw the highest alignment with court language. Hecox, Mahmoud, and Motorola exemplify this power of framing: all three appellees shifted judicial focus away from traditional legal categories and toward specific factual or constitutional narratives. - Algorithmic and Data-Centric Framing Is Gaining Ground
In Anderson v. TikTok, the plaintiff’s brief marked a turning point by treating algorithms as actionable design elements rather than mere speech filters. The Third Circuit’s adoption of this framing shows a judiciary increasingly open to reconceptualizing Section 230 immunity in light of AI-driven recommendation engines—a signal likely to reverberate in future tech-related liability cases. - Doctrinal Influence Still Favors Structural Precision
While language adoption correlates with rhetorical success, doctrinal influence tends to follow precise doctrinal lineage. The winning briefs in AAER v. Fearless Fund and Hecox v. Little succeeded not only because of compelling framing but also because they exoertky curated precedent chains (e.g., Runyon, Latta, NetChoice) that the courts directly mirrored. - Judicial Skepticism of Overreach and Pretext
The courts demonstrated wariness of overbroad legislative or remedial defenses lacking empirical grounding. In both Mahmoud and Hecox, attempts to justify exclusion or compulsion based on speculative harm or administrative burden were sharply curtailed. This trend suggests that assertions of fairness or efficiency must now clear a higher evidentiary bar in equal protection and religious liberty contexts. - Impact ≠ Victory
In several cases (e.g., Motorola, TikTok), losing parties on the merits still succeeded in reshaping future litigation landscapes. Briefs that triggered remands, narrowed immunity doctrines, or prompted new judicial tests demonstrated that litigation influence is not binary, but accumulative—especially in contested or evolving areas of law. - It is also worth noting that the endgame for some of these advocates may not be the resolution in the courts of appeals. Some advocates situate their cases for potential Supreme Court review and so presenting certain arguments with this in mind may be preferred to arguing in a fashion that is solely predicated on the outcome in the appeals court.
For a similarly stylized analysis of Supreme Court advocacy (article)
Methodology: Coding Process and Automation Tools
The evaluation of advocacy impact across appellate briefs was conducted using a hybrid human-AI coding workflow. The aim was to measure the practical influence of each party’s brief on the appellate court’s final opinion using replicable and minimally subjective techniques.
1. Document Alignment
All briefs and opinions were imported into a parallel document comparison interface using sentence-level text alignment via natural language processing (NLP). This allowed precise tracking of where, and how, the language or logic of a brief appeared in the court’s opinion.
Tooling:
- Sentence segmentation via spaCy.
- Document alignment using semantic vector matching with SBERT (Sentence-BERT) embeddings.
2. Language Parallels Detection
I ran semantic similarity scoring (cosine similarity on SBERT embeddings) between each sentence in the court’s opinion and all sentences in each party’s brief. Passages with scores above a set threshold were flagged for secondary verification to determine whether the opinion was adopting, modifying, or distinguishing the language used in the brief.
3. Doctrinal & Citation Mapping
Citations in briefs were extracted using regex parsing and matched to citations in the opinion using:
- Boolean filters for proximity to doctrinal statements in the opinion (within ±3 sentences)
I tracked whether the citation was merely referenced or used in a key doctrinal holding using dependency parsing to determine its grammatical role (e.g., subject of a legal standard).
4. Framing Clustering
To analyze argumentative framing, I used LDA topic modeling and TF-IDF vector clustering on each brief to extract dominant framing concepts (e.g., “coercion,” “editorial discretion,” “equal opportunity”). I then assessed which of those clusters appeared—semantically or explicitly—in the court’s opinion, using k-means vector comparison between framing clusters and opinion sections.
5. Cross-Case Echoes
Each brief’s doctrinal phrases, citations, and framing tokens were logged into a vectorized database. Using Jaccard similarity and string kernel comparisons, I checked whether those items appeared in unrelated appellate decisions after the ruling date, signaling whether the advocacy had broader influence.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. Check out more of his writing at Legalytics and Empirical SCOTUS. For more information, write Adam at adam@feldmannet.com. Find him on Twitter: @AdamSFeldman.
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