off-brief arguments for moot court are so much fun, especially when the off-brief side clearly has the worst of the issue. off-brief arguments rule because you get to turn all that peremptory rebuttal you did in your brief into a real argument, but you're not really all that wedded to something you spent hours and hours writing, like you are when you're arguing on-brief.
on my issue, there are some really strange arguments in favour of the respondent (my off-brief side) that some of the circuits adhere to. although i would never actually make them as a lawyer, i think i'm going to make them during my off-brief argument tonight. i have the precedent to do it, and it'll be really, really funny to see what the other team does with them in rebuttal.
i'm especially excited about the standard of review issue. most respondent teams are just conceding that the standard of review is de novo because it's statutory interpretation, and then moving on. but, two circuits argue that the standard of review is abuse of discretion, because the act being reviewed was the judge's use of discretion in deciding whether the sentence could run consecutively to a yet-to-be-imposed state sentence. this, of course, presupposes the existence of that discretion in the first place--which is the issue that needs to be decided. it's a terrible argument, and i'm shocked that the tenth circuit and the fifth circuit are stupid enough to fall for such circular reasoning. but, part of the fun of moot court is embracing the oddball arguments when i can and making the other teams react to them.
if they ignore it, i'll be sad, but at least i'll have had a lot of fun going toe-to-toe with the judges to back up this insanity.
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