Monday, August 31, 2015

On Justice Thomas and Language Shared from Briefs and Lower Court Opinions

                Adam Liptak’s article in the New York Times last Thursday (August 27), Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own, has been making the rounds on legal blogs, social media, and email exchanges.

                In the article, Liptak notes that not only is Justice Thomas the least likely Supreme Court Justice to ask questions during oral argument, but that he is also the most likely to author opinions that “contain language from briefs submitted to the court.” Although the article noted that Justice Thomas’s reliance on the words of others in this manner did not suggest any wrongdoing, it did repeatedly indicate that Justice Thomas’s opinions contained the “highest rates of overlaps with language in parties’ briefs,” and referred to the “high rates of seemingly borrowed language in his opinions.”

                Last Friday (August 28), Orin Kerr at Volokh Conspiracy posted A misleading story about Justice Thomas, in which Kerr opined that Liptak’s article created an inaccurate impression of the actual data in the studies that precipitated the article.  As Kerr noted, although the data did indicate that Justice Thomas’s majority opinions contained language from merits briefs at a rate of 11.29%, Justice Sotomayor’s majority opinions contained such language at a rate of 11.04%, Justice Ginsburg’s majority opinions at a rate of 10.55%, and even Justice Kagan’s majority opinions (at the bottom end of the spectrum) at a rate of 7.13%.  As Kerr points out, that means that the spectrum on the Court is really a rate of 7 to 11 words out of 100 being taken from majority briefs, and the difference between Justice Thomas’s opinions and Justice Sotomayor’s is really less than 3 words out of every 1,000.  Kerr suggests that although the data may support the notion that Justice Thomas’s opinions contain more language from briefs and lower court opinions than the other Justices, the differences are not sufficient to label Justice Thomas as an outlier in this regard.

                From an appellate advocacy standpoint, I think the underlying notion of appellate courts (at any level) taking language from the briefs and including it in the opinion is an interesting one.  I teach my students that they should strive to craft briefs and arguments to the court in a way that the court could take the language and adopt it as the court’s decision.  Courts are busy, have large caseloads and many issues competing for the attention and focus of the judge, and are always under some timing crunch to get decisions out to the litigants.  If, as an advocate, you focus crafting your arguments in a way that you are helping to provide the court with a way to explain a favorable decision and analyze the legal issues that is so well done that the court could simply take your presentation and adopt large portions of it wholesale, then you are doing your job.  You are helping the court, advocating in an effective way for your client, and developing a reputation for presenting work product that the court will look forward to seeing in future cases.

                Liptak recognized as much in his article, when he quoted an email from Professor Ronald Mann, a law professor at Columbia, who specifically attributed the use of common language from briefs to successful advocacy.

                That’s not to say that the court will, or even should, just resort to cutting and pasting arguments and analysis presented in briefs, without the court’s personal revisions, as a matter of habit.  But if you consider the quality of advocates that typically appear before the United States Supreme Court, the number of nuances and revisions that the arguments being presented have undertaken from the beginning of a trial to briefing before the Court, and the highly technical nature of some of the cases presented, that one Justice averages an additional 2.5 words out of every 1,000 in a majority opinion being common with the briefs or lower court opinion does not seem like something that merits going viral.

____________________________________

See, also:

Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, (March 20, 2015), http://ssrn.com/abstract=2574451.

Pamela C. Corley, Paul M. Collins Jr., and Bryan Calvin, Lower Court Influence on U.S. Supreme Court Opinion Content, 73 The Journal of Politics 31 (2011).

August 31, 2015 | Permalink | Comments (0)

Sunday, July 26, 2015

Pop Culture in the Classroom [Survey Request]

A colleague is seeking input from law professors regarding the use of popular culture in the classroom...

Greetings Law Teacher Colleagues:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

 To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

 https://www.surveymonkey.com/s/QH3GBZK

Thanks in advance for your time and have a wonderful rest of summer!

Please direct questions to Cynthia Bond, The John Marshall Law School, Chicago, IL: 7bond@jmls.edu.

 

July 26, 2015 | Permalink | Comments (0)

Monday, June 22, 2015

Speaking With Some Authority

A reader kindly passed along this interesting link: The Art of Appellate Advocacy: A Conversation With the Supreme Court of Virginia.


The two-hour video, organized by Jeffrey A. Breit, adjunct professor at William & Mary Law School, offers members of the Virginia Supreme Court discussing brief writing, oral advocacy, structuring arguments, and the role of appellate courts. Inspired by the Bryan Garner series, interviewing U.S. Supreme Court Justices, this video may be similarly useful in legal writing and appellate advocacy classrooms. The video can be viewed in its entirety or in shorter, topic-specific segments.

 

June 22, 2015 in Appellate Advocacy, State Appeals Courts | Permalink | Comments (0)

Friday, May 29, 2015

How the Sausage Is Made

I'm a bit behind on this, so most readers of this blog have probably read this article by Gulati and Posner: The Management of Staff by Federal Court of Appeals Judges.  This look at the management of judges' staffs is an interesting one. I'd be interested in a similar examination of the circuits' central staff arrangements. If cases are rated, tracked, or otherwise "managed" in a manner that yields greater or lesser (or even just different) review of some cases, then substantively, the results of cases may turn more on those processes than on the ones in the judge's chambers. Or maybe not. I suppose some field research is necessary to resolve that question.

 

Also, my apologies for a lack of content lately. I suspect things will be slow for the next couple weeks.

May 29, 2015 in Federal Appeals Courts | Permalink | Comments (0)

Thursday, May 7, 2015

Bits and Pieces on Writing

Of interest on the topic of writing...

First, Bryan Garner has a column on the ABA Online, "First impressions endure, even in brief writing." In it, Garner makes use of social science research and the work of Nobel laureate Daniel Kahneman to support three basic principles regarding good (legal) writing: "(1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader." While the advice isn't novel, the use of psychology and economic principles to support these ideas may be compelling to some readers.

Second, in a similar vein, "10 top writing tips and the psychology behind them," offers ten discrete pieces of writing advice and discusses why it matters, why we often fail to heed the advice, and how to fix our processes to follow that advice more consistency. The advice is mostly applicable to legal writing and the format, which tries to pull back the curtain on why we make the errors we do, is especially helpful.

Third, some amazing filings: dismissal of a complaint filed in D. Nebraska against "Homosexuals" and a filed in N.D. Georgia, a "Notice to F*ck this Court and Everything It Stands For."

 

May 7, 2015 in Appellate Advocacy, Legal Writing, Moot Court | Permalink | Comments (0)

Tuesday, April 14, 2015

Proposed Maryland Rule Heads Wrong Way on Unpublished Opinions

As Michael Wein of the Maryland Appellate Blog reports in some detail, the Maryland Rules Committee has responded to increased media publication of its "unreported decisions" by proposing to: 1) have the court publish the opinions itself and 2) deny the opinions not only precedential authority but also persuasive authority. Further, any attempt to cite an unreported decision may be met with a sanction of striking an entire brief or filing. The rule, as written, would apply also to other jurisdictions' decisions, leading Michael Wein to incisively ask, "So a case can be citable as full precedential or persuasive authority in another state or federal court, yet, when it hits the Maryland border, it suddenly ceases to exist?"

The rule would put Maryland rules at odds with the federal Fourth Circuit practice, which not only permits citation to its unpublished opinions but acknowledges that a such an opinion might have precedential value. The rule would also put Maryland at odds with the trend in state and federal courts toward greater publication, citation, and acceptance of the precedential value of unpublished opinions.

Enacting or maintaining a citation ban that attempts to deny even persuasive value of an appellate opinion ignores the shared experience and reasoning that led to Federal Rule of Appellate Procedure 32.1, which prospectively permits citation to all opinions, however designated, in the federal circuits. When attorneys in your state are telling you that they want to read these opinions to the extent that someone seeks them out and bears the costs of publication, it should be a signal that these opinions do have value for predicting the outcomes of future litigation and the reasoning that was once persuasive on the court will likely be so again. Unless it thinks members of the Maryland Bar are seeking out these opinions to supplement their leisure reading, the Maryland Rules Committee should recognize that no matter how the court labels them, appellate opinions have have a predictive and persuasive value.

April 14, 2015 in Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts | Permalink | Comments (0)

Thursday, April 2, 2015

CA3blog on the Third Circuit's Low Published Opinion Rate

Matthew Stiegler's CA3blog dug into the new AO Court Statistics and found that when it comes to issuing published opinions, the Third Circuit doesn't publish very many of them. It publishes the fewest published opinions of any circuit, and finds itself among the high-volume circuits in terms of the percentage of unpublished opinions. Matthew suggests that judicial vacancy is the the likely reason for the Third Circuit's recent spike in its unpublished opinion rate to 92.3%. That seems accurate, though the Third has been hovering in the high-80s for a while now. Judicial vacancy may have pushed them up to the low-90s where the high-volume circuits are.

I hope that Matthew and others watching their particular circuits of interest continue to report on those courts' publication practices. Seven circuits now publish fewer than ten percent of their opinions.

April 2, 2015 in Appellate Court Reform, Appellate Practice, Federal Appeals Courts | Permalink | Comments (0)

Wednesday, April 1, 2015

Federal Appellate Rulemaking on Brief Word Counts

The Federal Appellate Rules Advisory Committee held a public hearing today on the proposal to reduce the word limit of federal appellate briefs from 14,000 words to 12,500 words.

When drafting my March 19 post on the issue, I searched around a bit looking for a single post that covered How Appealing's coverage of the issue. There it is. Plus, it contains the promise of links to news coverage as it becomes available.

April 1, 2015 | Permalink | Comments (0)

Friday, March 20, 2015

Savannah Law School Professor Cited by SCOTUS

Congratulations to Savannah Law School Professor Caprice Roberts who was recently cited by Justice Thomas in his dissent in Kansas v. Nebraska, 135 S. Ct. 1042 (2015).  The case involved a dispute between the states of Nebraska and Kansas over the apportionment of river water.  In his dissent, Justice Thomas disagrees with the majority’s reliance on Restatement (Third) of Restitution §39 (2010).  This section “proposes awarding disgorgement when a party’s profits from its breach are greater than the loss to the other party.”  Kansas, 135 S. Ct. at 1068 (J. Thomas, dissenting).  Thomas asserts that the Court has never relied on Section 39 because the theory of disgorgement is not supported in law. His analysis relies on Professor Roberts’s description of Section 39 as a “’novel extension’ of restitution principles that ‘will alter the doctrinal landscape of contract law.’”  Id. at 1068-69(quoting Roberts, Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008)).  According to Justice Thomas, the majority’s decision has in fact altered the doctrinal landscape of contract law.

March 20, 2015 in Appellate Advocacy, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Thursday, March 19, 2015

WSJ on Federal Word Count Proposal Debate

The federal appellate courts are currently considering a change to Federal Rule of Appellate Procedure 32(a)(7)(B) that would reduce the word-limit of principal appellate briefs from 14,000 to 12,500. Law blogs, especially those of an appellate bent, have reported on this as comments rolled in over the last several weeks. This blog is far behind on mentioning it, and even now, I don't have a strong opinion on the proposal. But it seemed worth mentioning that the issue has reached the general public in the form of a Wall Street Journal article.

Oddly, what stood out to me in this article was this bit:

Michael Gans, clerk of the Eighth U.S. Circuit Court of Appeals in St. Louis, who oversaw the word-count study, says the process couldn’t have been more painstaking. It was carried out by a high-school graduate who interned at his office and spent a recent summer in a cubicle counting every single word of 200 printed-out briefs that served as the sample. “I felt sorry for her, but that’s what she did all summer,” Mr. Gans said. “She still wants to go to law school.”

Perhaps optical character recognition software could have been used?

hat tip to reader: Professor Jennifer Romig

March 19, 2015 in Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Wednesday, March 11, 2015

Administrative Office of the US Courts Releases Annual Report

The Administrative Office of the U.S. Courts just issued its annual report, Judicial Business of the United States Courts: Annual Report of the Director 2014. It's a wealth of information on filings, dispositions, and similar details. Not surprisingly, I always skip ahead to the table on opinions filed in terminated appellate cases (Table B-12) to see what percentage of appeals are being resolved by unpublished opinions. It's up to 87.7% with the Fourth Circuit leading the way at 93.8%. Also, the decline of oral argument continues, dropping to 18.6%.

The report is an interesting snapshot of the federal courts and provides useful data for long-term court watchers. Enjoy.

March 11, 2015 in Appellate Court Reform, Federal Appeals Courts | Permalink | Comments (0)

Tuesday, February 10, 2015

The Harms of Issuing Non-Precedential Opinions

In a post last Monday on Prawfsblawg, entitled, On Not Creating Precedent in Plumley v. Austin, Richard M. Re asks, "what’s so wrong with deliberately declining to create precedent?" By his answer, an implied "nothing" because "[d]oing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent," he seems to be asking, "what's the harm?"

There are a couple other bases for finding the practice "wrong," such as whether the practice is legitimate, constitutional, or just. But first, what's the harm in treating some circuit decisions as non-precedential? This is something I discuss in my works on the topic, especially: Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. App. Prac. & Process 61 (2009) and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. 685 (2009).

First, deliberately declining to create precedent creates fewer precedents. Fewer precedents means a less definite law. At least since the time of Lord Coke, the law has been viewed as refined by renewed applications. With each new decision, the law is broadened, narrowed, or simply reaffirmed. The common law treats each case as binding but is also concerned about the accrual of such cases and the varying facts to which the rule is applied. This the understanding of precedent of Coke, Blackstone, Kent, Marshall, Story, and Llewellyn. It's how the common law, in principle, works. Never before in common law history has a court been able, at the time of decision, to remove its holding from the body of precedent. And no matter how the court phrases its opinion, it has ultimately been up to the later court to decide whether and how earlier opinions applied.

I am partial to Karl Llewellyn's explanation: "We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping of concrete instances, the present, vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all." Karl Llewellyn, The Bramble Bush, 66-69 (1930).

The problem is not that there are too many precedents but that there are too few. Judge Posner wrote as much in The Federal Courts: Challenge and Reform, and his experience is echoed  in the experiences of the federal judiciary. In a 1998 survey of federal district judges, about a third identified some area of circuit law as inconsistent or difficult to know on account of lack of binding circuit decisions on point. But even more telling than what judges say is what they do. The survey also revealed that nearly two-thirds of lawyers surveyed reviewed unpublishd opinions either generally within their practice area or in researching specific cases. During the citation ban era (1974-2006), courts and litigants frequently cited to unpublished and allegedly non-precedential opinions even in violation of the ban.  They were, as Lord Coke might have described it, looking for greater refinement in the law that only comes by seeing it applied. Or as Llewellyn might have said, they saw the published, precedential grains of sand, but they wanted to see the heaps. The citation ban finally ended because it ran counter to a basic understanding of precedent shared by American lawyers and judges alike: each case has value in determining the scope of the law.

More applications of the principles of law to facts, such that those principles are tested and refined, improves our understanding of those principles and gives greater certainty to those seeking to conform their conduct to them. "Mistaken or sloppy precedent" can be corrected by more judicial oversight to their drafting, or should that fail, by the normal processes of the court. While conserving limited resources is important, expediency should not be our highest value. The federal judiciary, a co-equal third branch of our government is allocated a mere two-tenths of one percent of the total federal expenditures. Instead of asking our courts to do with less, we should give them the funds to do more.

Second, issuing some decisions as non-precedential creates the potential for blatantly conflicting published and unpublished opinions. A court may decide in favor of a party today but next year, on the exact same issue, decide exactly the opposite. If the earlier decision is unpublished, the later panel need not acknowledge the earlier decision or give a reason for the change. This was the case in a pair of cases in which the Dallas Area Rapid Transit authority (“DART”) received diametrically opposed decisions from the Fifth Circuit without explanation in a span of just three years. In 1999, a federal district court in the Fifth Circuit held that, “DART  is a political subdivision of the state of Texas, and is therefore immune from suit under the Eleventh Amendment," which the Fifth Circuit affirmed without comment in an unpublished opinion. Anderson v. Dallas Area Rapid Transit, No. CA3:97-CV-1834-BC, 1998 U.S. App. LEXIS, 15493 (N.D. Tex. Sept. 29, 1998) aff’d Anderson v. Dallas Area Rapid Transit, 180 F.3d 265, (5th Cir. 1999) (per curiam) (unpublished), cert. denied 529 U.S. 1062 (1999).

In Anderson, and two other unpublished opinions, the Fifth Circuit held that DART was a governmental unit or instrumentality of the State of Texas entitled to qualified immunity. The law on this point seemed so clear that in Williams v. DART, the district court felt this point was "firmly established." The Fifth Circuit disagreed and rejected DART's immunity claim dismissing the unpublished opinions as "neither binding nor persuasive," but failing to give any reason for the different treatment. Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 261 (5th Cir. (Tex.) 2001). This decision drew a strong dissent noting that this kind of unreasoned about-face exposed a flaw in the concept of non-precedential opinions.

A conflict like this between two precedential opinions would be resolved by the second panel distinguishing the present matter from the prior one, or if that proved impossible, by an open declaration of conflict followed by a resolution by the court en banc. Which leads to a third category of harm non-precedential opinions cause.

Third, issuing some decisions as non-precedential increases the likelihood of intra-circuit conflict. Such conflict was especially acute in the citation ban era, because a litigant perceiving a conflict in a circuit's unpublished opinions was prohibited by rule from raising it with the court. For example, in the wake of the U.S. Supreme Court's ruling in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), an ambiguity arose about how to treat a defendant convicted of illegal entry following deportation. Over a two-and-a-half-year period, twenty Ninth Circuit panels ruled on this issue and split three different ways (most remanding for resentencing, some remanding for amendment of the original judgment, and a few foisting the responsibility for determining the proper course of action on the district court). The split continued for over two years, with identically situated defendants receiving different answers from the Circuit. The ongoing intra-circuit conflict was revealed only when a panel in United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000) ordered a litigant to violate the Circuit's non-citation rule and provide a list of these unpublished opinions.

A circuit that does not view its unpublished opinions as binding can simply ignore those decisions for purposes of whether to hear an issue en banc. Yet, the unpublished opinion may be cited for persuasive effect (in all circuits since 2007), which merely increases the chance of creating the separate, conflicting lines of authority as in the Riveria-Sanchez scenario.

Fourth, inter-circuit conflict become more likely, too. In much the same way that intra-circuit conflict can arise undetected or unacknowledged within a circuit, such conflicts can arise between circuits. During the citation ban era, such conflicts were effectively hidden, because citation bans prevented their being raised. But even now, if the unpublished opinion is not treated as establishing the law of the circuit, it can be disregarded within its own circuit and by the other circuits. The Supreme Court takes only a tiny fraction of the cases seeking review each year.  Just as with en banc panels, a case that does not establish the law of the circuit is unlikely to be the basis of an apparent conflict even if the conflict it creates is real. In that way, a conflict can exist indefinitely in a manner much like that described in Rivera-Sanchez.

Fifth, declaring some opinions non-precedential allows them to evade Supreme Court Review. As noted above, one line of authority, if present only in unpublished opinions can obscure or deemphasize the nature of the conflict. Two Justices believed that was the case in Waller v. U.S., where Justices White and O'Connor dissented from denial of cert noting that a circuit split existed if one took into account unpublished opinions. 504 U.S. 962, 964-65, 112 S. Ct. 2321 (1992) (White J. and O’Connor J., dissenting) (Mem); see also Hyman v. Rickman, 446 U.S. 989, 990-92 (1980) (Blackmun, Brennan, and Marshall, J., dissenting) (Mem) (dissenting from denial of certiorari on the grounds that the unpublished circuit opinion was in conflict with other circuits on the issue of right to appointed counsel). While the conflict was sufficient to catch individual Justices' attention, it was not sufficient to prompt Supreme Court review, similar to the result in Plumley v. Austin.

Supreme Court review is also less likely due to the signal an unpublished opinion sends. A circuit’s decision not to publish a given decision signals that that decision is routine, even when it is not. For example in United States v. Edge Broad. Co., the Fourth Circuit declared a federal statute limiting lottery advertising unconstitutional in an unpublished opinion. 956 F.2d 263 (per curiam) (4th Cir. 1993). In its reversal of that decision, the Supreme Court expressed surprise and dismay that the Circuit Court could perceive such a ruling as unworthy of publication. 509 U.S. 418, 425 n.3 (1993) (“We deem it remarkable and unusual that although the Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion.”)

The hiding of cases from Supreme Court review also occurs because unpublished cases tend to create a less thorough record, which itself discourages Supreme Court review. For example, in County of Los Angeles v. Kling, the Supreme Court granted cert and issued a summary reversal on a case the Ninth Circuit had decided in a brief, unpublished, non-citeable opinion. 474 U.S. 936, 937-39 (1985). Justice Marshall dissented calling the Ninth Circuit’s practice “plainly wrong” and noting, "the Court of Appeals would have been well advised to discuss the record in greater depth. One reason it failed to do so is that the members of the panel decided that the issues presented by this case did not warrant discussion in a published opinion that could be 'cited to or by the courts of this circuit, save as provided by Rule 21(c).' That decision not to publish the opinion or permit it to be cited-like the decision to promulgate a rule spawning a body of secret law-was plainly wrong."

Justice Marshall continued by chastising the Court for engaging in the same type of shortcut decision making: "The brevity of analysis in the Court of Appeals' unpublished, noncitable opinion, however, does not justify the Court's summary reversal….For, like a court of appeals that issues an opinion that may not be printed or cited, this Court then engages in decision-making without the discipline and accountability that the preparation of opinions requires."

Even when both parties agree that a Circuit decision makes new law, the status of a decision as unpublished can discourage Supreme Court review.  In Family Fare, Inc. v. NLRB, both parties agreed that the Sixth Circuit had departed from its previous law in an unpublished opinion. 2006 U.S. Briefs 1536 cert. denied Family Fare, Inc. v. NLRB, 127 S. Ct. 2991 (2007). NLRB liked the change and sought publication or a Supreme Court affirmance to solidify the new interpretation. Family Fare disliked the change and viewed it as exactly the kind of surreptitious change in the law of the circuit that Justice Thomas alludes to in Plumley. Ultimately, The Supreme Court denied cert, probably in significant part because as an unpublished opinion, it was not the formally law of the circuit and did not truly represent a shift in the law. Yet, Family Fare was treated differently than prior litigants, and NLRB likely relied on the decision in future cases to show that the law had changed.

Sixth, creating an opinion on which no one can rely (and which for years no one could even cite) is an invitation to poor reasoning or even strategic, result-based reasoning. Justice Stevens expressed "that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify." Jeffrey Cole & Elaine E. Bucko, A Life Well Lived: An Interview with Justice John Paul Stevens, 32 No. 3 Litigation 8, 67 (2006).

This concern was also expressed by the late-Judge Richard Arnold and quite directly by Judge Wald of the D.C. Circuit: "I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would be dissenters go along with a result they do not like so long as it is not elevated to a precedent." The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995).

A study of asylum cases in one circuit and found considerable strategic decision making surrounding the outcomes of cases and the publication of opinions: "voting and publication are, for some judges, strategically intertwined: for example, judges may be prepared to acquiesce in decisions that run contrary to their own preferences, and to vote with the majority, as long as the decision remains unpublished, but can be driven to dissent if the majority insists upon publication" David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. Cinn. L. Rev. 117 (2005).

Finally, the system of unpublished, non-precedential opinions is harmful to both the courts and the litigants before them. It's harmful to the courts, which have been drawn into this very unjudicial exercise of prospectively dividing "worthy" cases from "unworthy" ones. For hundreds of years, a court was expected to abide by, or explain the difference from, a prior case, and a court knew that its decision created a similar obligation on later courts. Now, unmoored from that, they are engaged in a very different process. As the recent article by Adam Liptak suggests, the public concern with unpublished opinions is that a court can issue one-off rulings that it need not every follow again.

It also harms litigants, who look at prior adjudications in the form of unpublished opinions but have no assurance that they will be treated the same or that any explanation will be given for the difference. And often they are not. Individual litigants like those in the cases mentioned above and all the many similar cases they represent, have not been treated equitably or according the system most people believe exists.

But as noted at the outset of this post, these harms are the middle ground problems with non-precedential opinions. One could accept the practice in principle and have serious concerns with the manner in which it is carried out. Or, more deeply, it's fair to question what authority the federal circuits have for ex ante precedent-stripping and whether that practice is constitutional or just. But those will have to wait for other excessively long posts.

February 10, 2015 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Tuesday, February 3, 2015

NY Times on Unpublished Federal Court Decisions

Just a real quick tip that in yesterday's NY Times online, Adam Liptak penned a piece about the practice of the federal courts issuing unpublished decisions and what their effect is. In the piece, Liptak quotes the Appellate Advocacy Blog's own David Cleveland on the subject, a subject David has written extensively about. The piece touches on the recent Supreme Court opinion that David wrote about last week.

The link for Liptak's article:  http://www.nytimes.com/2015/02/03/us/justice-clarence-thomas-court-decisions-that-set-no-precedent.html?_r=0

February 3, 2015 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts | Permalink | Comments (0)

Nebraska Supreme Court Procedural Ruling on Pipeline Case

    The Nebraska Supreme Court recently issued an opinion concerning the Keystone XL oil pipeline proposed in 2008 by TransCanada Keystone Pipeline, L.P., to carry crude oil products from Canada to the Texas coastline. The opinion is not interesting because of any actual resolution of the highly charged political questions surrounding the pipeline. Rather, the opinion, found at https://supremecourt.nebraska.gov/sites/supremecourt.ne.gov/files/sc/opinions/s14-158.pdf, is interesting because of the highly unusual interplay between jurisdictional standing requirements and constitutional limitations on the authority of the Court to declare legislative action unconstitutional.

 Background of the Lawsuit:

    TransCanada's original proposal called for the pipeline to pass through Nebraska's Sandhills, which raised concerns about potential environmental damage.  At least partly in response to those concerns, Nebraska's Governor in 2011 called a special session of the Nebraska Legislature to discuss enacting siting legislation to specify standards to govern eminent domain power for oil pipelines. The Nebraska Legislature responded in the special session by enacting legislative bills that amended existing Nebraska law regarding approval of proposed pipeline routes crossing Nebraska.

    Without detailing all of the legislative procedural history, it suffices to note that the Nebraska Legislature eventually passed a legislative bill that allowed a pipeline carrier to seek approval of a proposed pipeline route from the Governor or to comply with other legislative provisions requiring approval through the Nebraska Public Service Commission.  The legislation also included provisions appropriating funds from the state's general fund to the Nebraska Department of Environmental Quality to carry out various duties related to the approval process.

    TransCanada eventually submitted for approval a proposed route for the pipeline that would have avoided the Nebraska Sandhills. TransCanada submitted its request through the Nebraska Department of Environmental Quality and sought approval from the Nebraska Governor, rather than through the Nebraska Public Service Commission. In January 2013, the Nebraska Governor approved the proposed route.

    In March 2013, a group of Nebraska landowners filed an operative complaint seeking a declaratory judgment that the legislative bill allowing the Governor, rather than the Nebraska Public Service Commission, to approve a proposed pipeline route  was unconstitutional. The taxpayers alleged that the bill violated equal protection, due process, and separation of powers provisions of the Nebraska Constitution; unlawfully delegated to the Nebraska Governor powers exclusively belonging to the Nebraska Public Service Commission and/or to the Nebraska Legislature; and unlawfully allocated taxpayer money to implement unconstitutional laws.  In response, the State alleged in part that the taxpayers lacked standing to bring the action.

    The trial court concluded that the taxpayers bringing the action had failed to demonstrate that their property was located in the path of the proposed pipeline and that, accordingly, they had failed to establish traditional standing to bring the lawsuit. The court concluded, however, that they had established taxpayer standing  and that the challenged legislation was unconstitutional. The State appealed the ruling to the Nebraska Supreme Court.

Nebraska Supreme Court's Decision:

            The Nebraska Supreme Court's decision in this case did not ultimately resolve the question of whether the underlying legislative bill was constitutional. Rather, the Supreme Court's decision ended up turning on the result of an unusual interplay between state law requirements concerning the Supreme Court's ability to rule legislative action unconstitutional and determinations of standing. In essence, the Court was split on the matter of whether the taxpayers had standing to challenge the legislative bill's constitutionality and, although a majority of the court ruled that there was standing, the majority was not sufficient in number to rule on the constitutionality of the legislation. As a result, because a minority of the Court concluded that there was a lack of standing and refused to consider the constitutionality of the legislation, the Court was unable to issue a ruling one way or the other on the matter.

            The first issue that the Nebraska Supreme Court had to resolve was the specific challenge to the taxpayers' standing to bring the suit in the first place. On that issue, a majority of the court concluded that the taxpayers had standing; a minority of three justices disagreed.

            The second issue, then, to be addressed was the challenge to the constitutionality of the legislation. It is at that point that the Nebraska Supreme Court's opinion takes some unusual and interesting twists and turns.

            Nebraska Constitution article V, section 2, provides in relevant part that "[a] majority of the members [of the Nebraska Supreme Court] sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature" and that "[n]o legislative act shall be held unconstitutional except by the concurrence of five judges."

            The three justices who concluded that the taxpayers lacked standing concluded that their decision with respect to the standing issue prevented them from expressing an opinion, one way or the other, on the constitutionality claim.  Their reading of the Nebraska Constitutional provision noted above was that it required at least five members of the Court to (1) conclude that the Court had jurisdiction to hear the case (including that the parties had standing to bring the case) and (2) determine on the merits that the legislative action is unconstitutional.

            The four judges and justices who concluded that the taxpayers had standing concluded that the justices who disagreed were "out-voted" on the jurisdictional question of standing and could, as a result, express an opinion on the underlying substantive issue of the constitutionality of the legislation. The majority's reading of the Nebraska Constitutional provision noted above was that it required a supermajority only on the actual issue of constitutionality, not on the preceding issue of jurisdiction.

Result:

            The unusual result is that, in this case, four members of the Court believed that the Court had jurisdiction to act and expressed an opinion that the underlying legislation was unconstitutional. The remaining three members did not suggest that the legislation was constitutional, but, rather, refused to express an opinion at all, believing that a supermajority was required to even have jurisdiction to consider the merits of the constitutional challenge. So, at the end of the day, three members of the Court concluding that there was a want of jurisdiction were able to preclude any substantive ruling on the merits of the action.

 

 

February 3, 2015 in Appellate Advocacy, Appellate Practice, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Thursday, January 29, 2015

Justice Thomas Scolds Circuit Over Unpublished Opinion

Tony Mauro has this article in The National Law Journal reporting on Justice Thomas' rebuke of the Fourth Circuit over the issuance of a lengthy unpublished opinion on an unsettled issue of law. Justice Scalia joined Thomas' dissent from denial of certiorari, finding the unpublished nature of the Fourth Circuit's decision a "disturbing aspect." Thomas explains:

The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published....It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.

Thomas noted that the Fourth Circuit opinion met at least three of the five possible causes for publication, any of which should have sufficed. The Fourth Circuit’s Local Rule 36(a) provides for publication of any opinion that establishes a rule of law in the Circuit, creates a conflict with another circuit, or is of continuing public interest. Finding that it met all of these, the two Justices express concern that it wasn't published.

The Justices' concern is well-placed but ineffectively expressed. Members of the Court occasionally take a swipe at the unpublished opinion practice or a single instance of it, usually through dissents from denial of cert or similar writings, or through off-the-bench comments. They have done so for the last forty years, chiding individual circuits or questioning the system itself. This is clearly not having any effect on the circuit's practices, though. The number of unpublished opinions remains high, and the percentage of circuit cases resolved this way remains in the mid-eighty percent range. Many of these cases meet the circuits' standards for publication but are not published. Many involve dissents, lengthy explanations or novel applications of the law, or other indicia of being a useful addition to the body of law. And that doesn't even address the notion that every decision, however similar to prior cases, adds something valuable to the law by showing application to slight variations of fact, continued adherence to the doctrine, or simply the "weight of authority."

Individual Justices have expressed dissatisfaction with the system and individual instances of it. , and they should be commended for spotting the problem and speaking out against its harm to appellate justice. But rather than having Justices individually take sporadic shots at the practice, the Court should actually examine it directly, either through one of the cert petitions on the issue or through its rule-making authority. 

January 29, 2015 in Appellate Court Reform, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Monday, January 19, 2015

Transparency Concern Round-Up

Judicial transparency seems to be a popular issue of late, and I thought I'd pass along some recent news items on the issue.

Public.Resource.Org has a new memorandum regarding the PACER system. Drafted as a "Memorandum of Law" in "The United States Court of Appeals for Public Opinion," the document is a cheeky, well-written explanation of the access problems with the PACER system. The memorandum notes the outdated and rudimentary technical interface, fee and access barriers, and "the almost universal condemnation of PACER from the outside world." It suggests a "national strategy of litigation, supplication, and agitation." The last of these proposes a May 1 day of PACER protest, including various means to bring public dissatisfaction with PACER to the federal courts' attention.

Second, Eric Segall has a post on Dorf on Law examining the U.S. Supreme Court's the Court’s "complete lack of transparency across the range of its official duties." Leading with the example of the court's direct communication with the public timed for 6 p.m. New Year's Eve, the post also examines the courts lack of advance notice of when its decisions in cases will be published, the lack of televised coverage, and other limitations on the Court's transparency.

Third, William Baude has a new piece up on SSRN, Foreword: The Supreme Court's Shadow Docket, which examines "the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity." Ultimately, after review, Baude concludes, "if there is a problem at the Supreme Court, it may be the opposite of the usual narrative. It is on technical procedural and administrative questions when the spotlight is off that the Court’s decisions seem to deviate from its otherwise high standards of transparency and legal craft." This seems consistent with what Circuit judges and federal court scholars have said for years about unpublished opinions.

 

hat tip on that last item to the Legal Theory Blog.

 

January 19, 2015 in Appellate Court Reform, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Thursday, January 8, 2015

The Costs and Benefits of Oral Argument: Benefits

So I've appreciated some of the discussion on this blog about the importance of appellate oral argument and arguments for a more robust oral argument docket.  But as a full-time appellate public defender, I have wondered if this analysis is different depending on the type of appeal and litigant.  In that light, I thought I would break down the costs and benefits of oral argument and then see if they are different for different types of appeals and litigants. If they are, it may lead to more nuanced policy recommendations.  Let's start with benefits.

Judges.  As aptly noted elsewhere, there are a lot of tangible and intangible benefits for appellate judges stemming from oral argument. They (hopefully) are able to ask questions that allow them to craft their decisions better (even if not affecting the disposition). It allows them time to sort through potential ramifications of decisions that might be lost without discussion at oral argument. They may be able to hold parties accountable in different ways (i.e. verbally embarrassing a prosecutor for improper argument or causing a lawyer discomfort for procedural missteps).  Oral argument may be the only time some appellate judges sit together in a room, so it may foster collegiality.  And it is an opportunity for extremely isolated judges to interact with lawyers and an opportunity to act "judgey."  So from the point of view of judges, there are many benefits, regardless of the type of case or litigant.

Lawyers.  Do lawyers (not their clients) benefit from oral argument?  Retained counsel (or even appointed counsel who bill by the hour) would seem to benefit financially from oral argument.  These lawyers would get to bill for the preparation, travel, and argument itself, which would seem to be beneficial for most lawyers who value billable hours.  For public defenders like me, there is no financial benefit to oral argument.  I would get exactly the same pay if I had two oral arguments a year and if I had twenty.  There are intangible benefits for lawyers too.  Practice at oral argument can help lawyers get better at their craft (both brief-writing and subsequent oral arguments) and enhance their professional reputation (if they are competent anyway).  And for full-time appellate lawyers, it is also an opportunity to interact with judges and act like lawyers.  So from the point of view of lawyers, there are at least some intangible benefits for all appellate lawyers, but the direct financial benefits only attach to lawyers who are able to bill for the oral argument time.

Media/public.  The media and public benefit from oral argument because it is the only time that the "outside world" gets to see the appellate process at work.  Without oral argument, appellate litigation would be a largely faceless and mysterious process.  The intermediate appellate court in which I practice (the Kansas Court of Appeals) travels around the state, conducting oral argument in community colleges, high schools, and local courthouses.  Part of the benefit of these dockets is that they allow local students and the public the opportunity to attend an appellate case and see a little more of how appeals works.  Every opportunity to enhance confidence in the judiciary is beneficial, regardless of the case or litigant.  I don't know if oral argument actually benefits the media.  It sometimes gives them a story to report, which I guess is beneficial (although, except for Nina Totenburg, I rarely find reporters that do a good job of really reporting on the essence of oral arguments).  Certainly for high profile cases, being able to report on the oral argument would enhance the completeness of the reporting about the case.

Clients.  Do clients benefit from oral argument?  Systemically, this is probably the most important question and it, in some part, turns on the related perennial question, does oral argument matter?  I love hearing different judges answer this question, ranging from an unequivocal "no" to an ambiguous "often."  I think it is important to be precise in this question, though.  The question shouldn't be "does oral argument matter?" or "does oral argument ever change the opinion?"  It should be "does oral argument ever change the disposition of a case?"  That is the most pressing issue for most clients: "Do I win or not?"

Notwithdstanding many judges' response to the question, I am pretty skeptical that oral argument changes the disposition in any significant number of cases.  Why do I think that?  How many legal malpractice or ineffective assistance of appellate counsel cases do you know of that turn on poor oral argument or even missing oral argument? About nine months ago, Kendall blogged about a Seventh Circuit case where a lawyer missed oral argument, apparently lied about it,  and was  chastised by the court.  But if there was a reasonable probablity that oral argument mattered to the outcome of the case, why did the appellate court proceed to decide the case (as opposed to appointing new counsel and resetting the oral argument after enough time to prepare)?  And would that client have been able to sustain an ineffective assistance of appellate counsel claim?  He would have been able to show deficient performance; but I can't imagine how any similarly situated client would be able to show a reasonable probablity that the outcome would be different.  I did a cursory review and could not find any cases finding ineffective asssistance of appellate counsel or legal malpractice (leading to damages) based on poor or missing appellate oral argument.  Maybe some readers can comment if they are aware of any such cases.

Admittedly, this is an nuance that can vary depending on the client. Some institutional clients are not just worried about winning a particular case.  Actually, the particular case may be of very little interest. But the law that evolves from the case may be very important.  For those litigants, oral argument that leads to a refined legal decision may be quite beneficial.  But most of my indigent clients don't really care about the evolving state of the law--they only care about whether or not their appeal will be successful.  I'm not an issue advocate--I'm a client advocate. 

Finally, there may be some intangible benefits for clients from oral argument.  Even if it doesn't matter, it can make a client feel like he or she has had a "day in court" in a way that summary disposition probably does not.  So, from the point of view of clients, aside from the intangible, whether clients particularly benefit from oral argument can depend on the type of litigant.  Institutional litigants are probably more likely to receive a benefit than a case-specific litigant, for whom there is no reasonable possibility of a different outcome.

There may be other actors/institutions that stand to benefit from oral argument.  But when considering the benefits, it seems that institutional litigants (and the lawyers that represent them billing by the hour), likely benefit much more than case-specific litigants and litigants that are primarily interested in the disposition of the case (rather than the development of the law).  The judiciary and the public benefit from oral argument in both types of cases about equally.

Next month.  Costs.

January 8, 2015 in Appellate Practice, Oral Argument | Permalink | Comments (0)

Tuesday, January 6, 2015

Rantanen Post on Transparency Issues in the Federal Circuit

Jason Rantanen has a new post entitled, "The Federal Circuit and Judicial Transparency," on PatentlyO raising specific concerns regarding the availability of opinions and the state of transparency in the Federal Circuit. The post provides examples of transparency problems as well as some possible work-arounds. It's an informative, if sigh-inducing, read.

 

hat tip: Howard Bashman

January 6, 2015 in Appellate Practice, Appellate Procedure, Federal Appeals Courts | Permalink | Comments (0)

Tuesday, December 9, 2014

Random Assignment of Federal Appellate Cases and Panels

Allegations of non-random assignment of gay marriage cases by the Ninth Circuit were offered recently by gay marriage opponent, Coalition for the Protection of Marriage. This allegation is not new, dating back to California Prop 8 litigation in 2010.

Ninth Circuit Chief Judge Kozinski responded on the record regarding the recent allegation, though what, if anything, that adds is left as an exercise for the reader. For more detailed reading on the issue of judicial panel assignments, one might examine a pair of recent articles available on SSRN.

First, a new working paper on SSRN by Adam S. Chilton (Chicago) and Marin K. Levy (Duke) Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals. addresses the issue of circuit assignment practices across all circuits. The abstract ably summarizes the work:

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.

Second, Margaret V. Sachs (Georgia) has a forthcoming article in the UC Davis Law Review, Superstar Judges as Entrepreneurs: The Untold Story of Fraud-On-The-Market, that discusses Judge Posner and Easterbrook's opinions on class certification in securities class actions. Sachs notes that the two judges dominated the development of the law on this issue in the circuit by retaining merits appeals of cases they agreed to hear as motions judges. Sachs examines how these two "superstar" judges were able to select these cases through a pecularity of the Seventh Circuit assignment process.

The Administrative Office of the U.S. Courts suggests that assigment is typically random but that assignment might be made based on substance or geographic considerations:

Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseloads and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court's rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case.

December 9, 2014 in Appellate Justice, Appellate Procedure, Federal Appeals Courts, Legal Ethics | Permalink | Comments (1)

Monday, November 24, 2014

A Strategy to Withholding Dissent?

Check out this post on Strategically Withholding Dissent which examines Justice Sotomayor’s decision to forcefully dissent in Fisher v. Texas. Some say timing is everything, and in the law that statement is more often true than not. Historically, we can see how attorneys have strategically filed appeals throughout history, particularly in the context of the civil rights movement. Consider, for example, Plessy v. Ferguson, Brown v. Board, Gideon v. Wainwright, and Loving v. Virginia, to name just a few. We can also see how the justices use the dissent and concurring opinions strategically to advance certain agendas, sway votes, or undermine the legal arguments of the majority. But the notion of strategically withholding dissent entirely is a curious one that requires analysis of the real impact of a dissent. In this blog post, the author concludes that Sotomayor’s dissent influenced the Court in such a way that it necessarily avoided ruling on the merits of Fisher back in 2013. The question now becomes what difference, if any, does a couple of years make? Maybe the Court will rule in exactly the same way it would have back in 2013 had it not been for Sotomayor’s dissent. Perhaps Sotomayor just bought some time since, without her dissent, the Court would likely have rendered a merits decision back in 2013. In which case, it may be that Justice Sotomayor accomplished the very purpose intended, and the only purpose that could have been—to delay an inevitable merits decision in Fisher. I guess only time will tell…

November 24, 2014 in Appellate Advocacy, United States Supreme Court | Permalink | Comments (0)