Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, March 19, 2018

Supreme Grammar Splits

Last week, Marcia Coyle of the National Law Journal reported on a recent study by Prof. Jill Barton of the University of Miami School of Law that looks at grammar preferences among Supreme Court Justices.  Specifically, Prof. Barton looked at how the Justices use fragments, possessives, and conjunctions. For her study, she examined "every signed opinion, concurrence, and dissent from the 2014 and 2015 terms."  

On fragments, Prof. Barton found the Court split 5-4 in favor of using fragments to spice up their opinions.  While the Justices didn't use fragments frequently, they often used them memorably (think "Pure applesauce.").

On possessives, the Court split again.  Prof. Barton found that a "slim majority" of five Justices left off the apostrophe "s" when making a singular word that ends in "s" possessive (think Congress' v. Congress's).  I have to say, I am with the minority on this point.

Finally, regarding conjunctions, all but one Justice used "So" to start sentences.  The Justices are more split on whether to use "since" when they meant "because."  Three Justices only used "since" to when discussing a temporal relationship. The other Justices, however, used "since" when they really wanted to show a causal relationship.

Prof. Barton concluded with noting that, "[t]his review of the Court’s writing style shows that the Justices lean toward writing in a more liberal, modern fashion."  Interestingly, no one Justice took the "liberal" writing approach on all four points Prof. Barton reviewed.  Five Justices were "liberal" on three points, and the rest split evenly. 

March 19, 2018 | Permalink | Comments (0)

Saturday, March 17, 2018

Passive, Pinker, and Persuasion


No construction could have survived for millennia if it did not serve a purpose.

—Steven Pinker, “Passive Resistance”

I am once again pleased to welcome Professor Patrick Barry of the University of Michigan Law School to our blog for this guest post. 

Many lawyers shutter when writers use passive constructions. Some may even  hear, ringing in their ears, the voice of one of their former teachers telling them that passive constructions should be avoided at all costs.

If that is the case for you, I recommend you quiet that voice.

You don’t have to quiet it entirely. You don’t have to silence it.  More than likely, your teacher’s admonition came from a good place, a place that recognizes that active constructions are often preferable to passive constructions, that they can give your sentences a directness and vigor that passive constructions frequently don’t.

Passive constructions can be droopy. They can be sluggish. Worse, they can allow people to duck responsibility. “I’m sorry that your nose was broken” is a pretty lame apology from someone who just punched you in the face. “I’m sorry I broke your nose” is at once more active and more admirable.

 At the same time, however, a categorical ban against passive constructions is like a categorical ban against using your left hand. You may be able to get by without your left hand in many situations. You don’t normally need it, for example, to shake someone else’s hand, or to salute, or to perform the pledge of allegiance. But eventually, if you act as if you can never use your left hand, you’ll unnecessarily limit yourself and forgo a lot of creative versatility. 

The psychologist Steven Pinker describes this versatility in “Passive Resistance,” an essay that argues active constructions aren’t always the best choice. The author of several books on language and the chair of the Usage Panel of the American Heritage Dictionary, Pinker suggests that passive constructions are supremely useful when you want to put the spotlight, not on the doers of a particular action, but on the recipients. Think of the phrase “all men are created equal” from the Declaration of Independence. The spotlight is on “all men” and the equality each shares. It is not on the being who did the creating. The same is true of the very next clause, which begins “that they are endowed by . . . .“

Pinker doesn’t use the Declaration of Independence to support his point—but he could. He could also use skillful bits of legal writing. Here for, example, are two passages from briefs written by Jeff Fisher, one of the country’s top appellate advocates and the co-director of Stanford’s Supreme Court Litigation Clinic. The first passage comes from Crawford v. Washington, a case in which Fisher, using arguments developed by the University of Michigan’s Richard Friedman, persuaded the Supreme Court to radically transform the way hearsay evidence is treated in criminal trials. I have bolded the passive part.

Applying this traditional, testimonial understanding of the Confrontation Clause, the proper result here is clear: [Crawford’s] confrontation rights were violated because the State introduced a non-testifying accomplice’s custodial examination implicating him in the charged offense.

You could make that passive part active. You could write “The State violated Crawford’s confrontation rights . . . .“ But then the spotlight would be on the State. Fisher, with good reason, kept it on his client (Crawford). The passive part gave Fisher the flexibility to do that. The passive part was purposeful.

Fisher did something similar in United States v. O’Brien, another case he won in the Supreme Court. This time, however, he used a passive construction to put the spotlight, not on a person, but on the absence of an action. In fact, he used three of them right in a row.

When one of the guards fled, the men promptly abandoned the attempted robbery. O’Brien drove Burgess and Quirk away in the minivan. No shots were fired, no money was taken, and no one was injured.

A version of this passive trifecta was picked up and used in the Court’s majority opinion, which eight of the nine justices signed and Justice Anthony Kennedy penned. “[O’Brien, Burgess, and Quirk] abandoned the robbery and fled without taking any money,” Kennedy wrote in his description of the facts of the case. “No shots were fired, and no one was injured.


Does this mean that if you use passive constructions, the Supreme  Court and other key decision makers will be persuaded by your arguments?

No. It doesn’t mean that at all. In the Supreme Court and most every place else, sound strategy still favors active constructions. No style guide I know comes out against them. And particularly if you are just starting out at a new job, in a new class, or with a new boss, you should keep in mind that frolics into the passive may be judged harshly. So here’s some advice I give my students. It has three parts.

  • Part 1: Know the difference between passive constructions and active constructions. Writing in the Los Angeles Times, grammar columinist June Casangrande explains the difference this way:

The passive voice, sometimes called simply “the passive,” describes a very specific relationship between a [] verb and its object. For example, “coffee” is the object of the verb “made” in “Joe made coffee.” This is active voice because the doer of the action is also the subject of the sentence.

But what if we said instead, “Coffee was made by Joe”? Now the coffee, the thing receiving the action of the verb, is the grammatical subject of the sentence, upstaging the person who's actually performing that action.

That’s passive voice. It takes the object of a verb and makes it the grammatical subject of the sentence by using a form of the verb “be” paired with what’s called the passive participle, which is identical to the past participle.

The result often takes the form “Blank was blanked by blank.”

  • Part 2: Don’t slip into passive constructions accidentally. They are likely to bring with them a bunch of extra words, each of which may weigh down and de-energize your sentences. They also sometimes make it harder for readers to figure out what you are trying to say. Which is a reason why articles in various science journals—including two of the most prestigious ones—have at different points encouraged writers to use active constructions instead.

Nature journals prefer authors to write in the active voice (“we performed the experiment. . .”) as experience has shown that readers find concepts and results to be conveyed more clearly if written directly.

            —“Writing for a Nature journal” (Nature)

Choose the active voice more often than you choose the passive, for the passive voice usually requires more words and often obscures the agent of action.

            —Submission Guideliness (Science)

  • Part 3: Do use passive constructions purposefully, particularly when trying to keep a certain person, idea, object, or non-action “spotlight” in the spotlight, as Jeff Fisher did in those two Supreme Court briefs and as skilled writers do all the time.

If you are worried that your purposeful use of a passive construction will be interpreted as an accidental use of a passive construction, a further step would be to use a comment bubble, post-it note, or some other annotation to tell your teacher or supervisor that your choice was deliberate. Even if she ultimately changes the construction back to active, at least she’ll know you are someone who thinks carefully, even strategically, about the words you choose. That’s unlikely to hurt your career prospects.

Patrick Barry teaches at the University of Michigan Law School. He is the author of the forthcoming book Good with Words: Writing and Speaking and the curator of Good Sentences, a digital library premised on the idea that to write good sentences, you need to read good sentences.

March 17, 2018 | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.


It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, March 12, 2018

To footnote, or not?

In Making Your Case: The Art of Persuading Judges, Bryan Garner and the late Justice Scalia provided their opposing views on the use of footnotes in appellate briefs.  Garner advocated for "putting all bibliographic matter . . . in footnotes," but cautioned against putting "any substantive text" or anything "that anyone should have to read" in footnotes.  The late Justice Scalia disagreed, stating that the practice doesn't make briefs more readable, since "the careful lawyer wants to know, while reading long, what the authority is for what you say."  So the reader will constantly be looking down to the footnotes to find the authorities used by the brief writer.

For the most part, I have agreed with Justice Scalia on this topic, and many of the judges who contributed to the third edition of Winning on Appeal expressed their dislike for footnotes. I generally viewed the footnote approach to be for the convenience of the writer and not the reader.

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

Eugene's post sparked a little discussion on Twitter regarding footnotes in briefs.  I saw at least two judges who disagreed with his conclusion, preferring footnotes in briefs.  So what is the right answer? As in most questions involving appellate advocacy the right answer is to follow the conventions of your particular jurisdiction.  Has the court (or have judges on the court) said/written/tweeted anything on the issue?  If not, perhaps it is time to ask them!  I appreciated the judges who weighed into the Twitter discussion, and I think that more interactions like that can lead to better briefs overall.


March 12, 2018 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Saturday, March 10, 2018

Appellate Advocacy Blog Weekly Roundup March 9, 2018

The weekly roundup image

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at or a message on Twitter(@Daniel_L_Real).


Supreme Court Opinions and News:

The Court has already decided that some offenders are too young to execute. Will the Court now decide that some offenders are too old or too sick to execute? Last week, the Court decided to hear the case of an aging inmate with dementia who was sentenced to death for a crime he can no longer remember. Adam Liptak at The New York Times provides an overview of the case in this report


In a recent opinion, the Court resolved a split in the circuits regarding the proper standard of review for reviewing whether a creditor involved a bankruptcy reorganization plan is an insider to the deal who should not vote on the plan. The Court held that the Ninth Circuit correctly applied the "clear legal error" standard of review to the issue. An analysis of the Court's opinion can be found HERE


The Court has ruled that the federal government could intervene in a dispute between Texas and New Mexico over Rio Grande water rights. Click this link for the Court's opinion. Click HERE for an analysis of the case and opinion. 


Federal Appellate Court Opinions and News:

The U.S. Judicial Panel on Multidistrict litigation said it randomly selected the U.S. Ninth Circuit Court of Appeals to hear the consolidated challenges to the Federal Communications Commission’s repeal of net neutrality rules. Reuters has this report.


State Court Opinions and News:

After ruling on a criminal appeal that lingered in the system for ten years, the Georgia Supreme Court instructed the Council of Superior Court Judges of Georgia to work with  prosecutors, defense attorneys, court clerks and others to come up with a proposal to address the problem of extensive and unnecessary appeal delays. The Associated Press has this report


Practice Tip:

"Lawyers should be mindful of the duty of confidentiality when they engage in public commentary, including blogging and other online postings, according to an ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility." The ABA Journal has this report. The opinion from the Committee on Ethics and Professional Responsibility can be found HERE


Appellate Job Postings:

The Department of Justice has an opening for a Director of the Appellate Staff, Civil Division. The job announcement can be viewed HERE

March 10, 2018 | Permalink | Comments (0)

Thursday, March 8, 2018

RBG - in theaters May 4

Appellate advocacy and Hollywood meet! For those who toil away in stacks of research, piles of rewrites, and solo rehearsals of oral arguments, appellate law is about to blow up! Well, perhaps that is a bit f an exaggeration, but a quality production film about one of the most well-known members of the Supreme Court is about to hit theaters in just a few weeks. 

RBG is the film documenting the life and career of Justice Ruth Bader Ginsburg. She is a tiny, soft spoken lady, but she has made a big impression in shaping the legal landscape generally, but also specifically blazing a path for women in a profession long dominated by men. Her accomplishments are memorialized in this movie. Perhaps you will recognize some of the players: 

At the age of 84, U.S. Supreme Court Justice Ruth Bader Ginsburg has developed a breathtaking legal legacy while becoming an unexpected pop culture icon. But without a definitive Ginsburg biography, the unique personal journey of this diminutive, quiet warrior's rise to the nation's highest court has been largely unknown, even to some of her biggest fans – until now. RBG is a revelatory documentary exploring Ginsburg 's exceptional life and career from Betsy West and Julie Cohen, and co-produced by Storyville Films and CNN Films.

Starring: Ruth Bader Ginsburg, Jane and James Ginsburg, Clara Spera, Gloria Steinem, Nina Totenberg, Lilly Ledbetter, Sharron Frontiero and Stephen Wiesenfeld, Irin Carmon and Shana Knizhnik, Bill Clinton, Ted Olson, Judge Harry Edwards, Senator Orrin Hatch, Eugene Scalia and Bryant Johnson.


Movies about the lives of justices are rarely, (have they ever been?), the subject of a feature film, but Justice Ginsburg has been a significant pioneer for the legal profession. It is good that a woman in a serious profession can command such attention in the mainstream culture. A sign of the times no doubt. 


March 8, 2018 in Appellate Advocacy | Permalink | Comments (0)

Monday, March 5, 2018

Winner--The Greatest Supreme Court Justice of All Time


The votes have been counted. Chief Justice John Marshall has emerged as the greatest Supreme Court Justice of all time with 45 % of the vote.  Justice Holmes came in second with 30% of the vote, and Justice Scalia third with 25 % of the vote.

Chief Justice Marshall's victory is not too surprising.  As Chief Justice, he was instrumental in establishing the Court's role in our political system.  Most notably, in the case of Marbury v. Madison, he explained that "It is emphatically the province and duty of the judicial department to say what the law is."  While the meaning of that phrase has been hotly debated, at a minimum Marshall established the power of the Court to invalidate a law that was contrary to the Constitution.

Chief Justice Marshall also instituted some reforms in how the Court as an institution worked.  For example, he convinced his fellow justices to abandon the practice of issuing opinions seriatim, where each justice issued his own thoughts on the matter.  Rather, the Court started issuing just one opinion that, at least theoretically, spoke for the Court.

According to profile of Chief Justice Marshall,  one of the "persistent myths" about him is that "the Liberty Bell cracked when [it] rung to mark the occasion of his death in Philadephia in 1835."  However, there is "no evidence" supporting this claim.

March 5, 2018 | Permalink | Comments (0)

Sunday, March 4, 2018

Playing well (as a legal writer) with others


On the big screen, we lawyers are lone gunslingers. We strut into the courtroom and engage our adversaries armed with nothing but our wits. But to steal a cliché: There is no “I” in lawyer. Most of legal practice is a team sport. And as legal matters become more complicated, the need for team-based lawyering is ever more pressing.

Despite that lawyering (and particularly legal writing) is done in teams, law schools don’t offer much training on this skill. This is unlike, say, business schools—another field that requires lots of teamwork.

So let’s give some thought to how we can build top-notch legal-writing teams. A large body of research can help us. First, we’ll look at some high-level ideas. Then we'll consider some more specific suggestions for how you can play well with others.

A couple of years ago, Google announced that it discovered how to build the perfect team. After years of analyzing data from more than 100 teams, it found that raw skill was not all that important. What matters most? Emotional intelligence and wide-open flows of communication. In other words, an environment where everyone feels emotionally comfortable and supported. That was the single best determiner of team success.

Google’s most recent team research concluded much the same: the critical predictor of team success was “psychological safety”—whether team members feel safe to let their guard down and speak their mind without fear of judgment or retribution.

That people work best when they feel emotionally and psychologically comfortable makes sense. Tons of research suggests that we are most productive when we feel supported by those around us. And research also shows that being open to disagreement is critical to producing high quality results. For example, studies on team deviants—where you designate someone on your team to play the devil's advocate—show that creating an environment of psychological safety can profoundly influence a team’s success.

Google’s research also suggests that good teams are ones where members are (1) dependable, (2) have clear roles, and (3) find their work meaningful and impactful. Loads of research backs these points up, too: teams work best with upfront expectations, clear individual roles, and assignments that resonate with each member.

What can we take from all this? First, creating an environment of psychological safety where communication flows freely—and even designating a team deviant who is tasked with disagreeing—may do wonders for your end product. This will combat the pervasive groupthink and bias that often runs rampant, and it will increase everyone’s motivation and buy-in to the team.

Another takeaway is clearly setting out at the beginning of a project, in writing, your expectations. Take a few minutes to brainstorm and write down the practical goals for your document and who is in charge of what. This will ensure everyone is on the same page, it will balance everyone’s expectations, and it will streamline workflow.

Regular feedback for team members is also crucial (and has been the subject of countless studies). If folks don’t tell each other what they are doing well and what they can improve, don’t expect the process to get any better—now or in the next project.

Post-mortems are great, where the team talks through a past project to learn how to do things better next time. But also consider a pre-mortem: getting the team together at the start to guess what will go wrong and working backwards from there.

Make sure to balance each member’s role. Uneven teams are just asking for trouble. Some members will start to feel less of a member. Some may feel overworked.

Give some thought also to ways you can encourage communication flow generally. For legal writing in particular, the flow of communication (like editing comments) can range from nonexistent to overwhelming.

How about things we can do an individual level?

  • First, be supportive of your teammates. This includes sharing credit with them, being reliable and finishing your projects on time, and honing your emotional intelligence (often, what we say does not reflect what we are feeling—watch out for when others may need some emotional support or a break). Multiple studies suggest that the most successful team members are those who spend the time to cultivate strong relationships with their teammates.
  • Listen well. And if you’re bad at listening, use tools to get better—like counting to three before you respond to someone else’s comment.
  • Give, and ask for, plenty of feedback. You can’t know what you’re doing right and wrong without feedback on your writing. And the same goes for others.
  • Be meticulously reliable. Not following through on a single task can disrupt the entire drafting process. And it will undermine your credibility from then on. For legal writing in particular: if you don’t get everyone your edits or drafts when you said you would, good luck getting anyone to work with you in the future.
  • Make sure you actively participate. Jump to take on new tasks and involve yourself in team activities. The less you participate in the team, the less you will feel like a member.
  • Be disruptive and self-motivated. Team members who focus on innovation, anticipate problems, and recognize when the team needs to change add tons of value.
  • Never, ever, gossip about other members. There is no surer way to destroy a team.

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

March 4, 2018 | Permalink | Comments (0)

Friday, March 2, 2018

Appellate Advocacy Blog Weekly Roundup March 2, 2018

The weekly roundup image

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at or a message on Twitter(@Daniel_L_Real).


Supreme Court Opinions and News:

On Monday, the Court heard oral arguments in Janus v. American Federation. The Court will decide whether non-union public employees have to pay fees to  cover the union’s costs to negotiate a contract that applies to all public employees, even the non-union public employees. The oral arguments can be heard HERE. The Los Angeles Times has this report


On Tuesday, the Court heard oral arguments in United States v. Microsoft Corporation. The Court will decide whether an email provider who has been served with a warrant is required to provide the federal government with emails when the email records are stored exclusively outside the United States. The oral arguments can be heard HERE. Politico has this report


On Wednesday, the Court heard oral arguments in Minnesota Voters Alliance v. Mansky, a case that challenges a Minnesota law that prohibits political apparel in polling places. The oral arguments can be heard HERE. The New York Times has this report

For now, the Court has declined to hear President Trump's appeal aimed at ending DACA. Bloomberg has this report


Justice Stephen Breyer gave a talk at the University of Virginia Law School on Thursday. Follow this link to view the video posted to Youtube. 


Federal Appellate Court Opinions and News:

The United States Court of Appeals for the Second Circuit has ruled that Title VII of the 1964 Civil Rights Act prevents discrimination based on sexual orientation, overturning its prior precedent. The Court's opinion can be found HERE. The Washington Post has this report


State Court Opinions and News:

The California Supreme Court found that long sentences that do not recognize a juvenile offender's youth and ability to be rehabilitated are unconstitutional.  Click HERE for the Court's opinion. The Associated Press has this report


Appellate Job Postings:

The Department of Justice has an opening for an appellate attorney. The job is located in Houston, Texas. You can follow this link to apply for the position. 

March 2, 2018 | Permalink | Comments (0)

Monday, February 26, 2018

Finals--The Greatest Justice of All Time

As I wrote about a few weeks ago, I have seen a lot of GOAT talk recently, which got me thinking about who is the greatest Supreme Court Justice of all time.  We have been running a poll here on the blog, and thank you to everyone who participated.  

Chief Justice John Marshall was the clear winner in the pre-1900 category, with 68% of the vote.  His nearest competitor, Justice Joseph Story, had only 36% of the vote. For the 1900-1950 Court, Justice Oliver Wendell Holmes won a resounding 60% of the vote, with Justice Robert Jackson coming in second with 28% of the vote.

It was the modern, post-1950 Court where things got interesting. The surprising winner was Justice Antonin Scalia, with 64% of the vote.  Chief Justice William Rehnquist came in second at 36% of the vote, with Justice Hugo Black coming in third at 32% of the vote.

Since we had such clear winners in each category, I decided to do a runoff between the top three.  The survey is below.  Please pick just one answer.


Create your own user feedback survey

February 26, 2018 | Permalink | Comments (0)

Saturday, February 24, 2018

Writer's Block and Productivity: The Lawyer's Edition


For most of us, the dreaded part of legal writing is, well, the writing. Staring at that empty white page. Fighting through the repressive voice in our head that whispers things like: “Better not make any mistakes! Better figure out something good to say! Better finish before the filing deadline!”

Quite a few problems can clog up your legal writing flow. You may suffer from decisional paralysis, where you can't decide what writing task to do next. You might contract the always-viral procrastination, where you can't get started in the first place. Maybe multi-tasking-itus sets in, and you feel so overwhelmed that you start switching back and forth between projects like a frightened squirrel. 

Worry not, because there are proven treatments for all that ails you. These will make it easier not only to start your writing projects, but to finish them, too. 

The first one is magic—a tool backed by tons of science, and one that I’ve used with struggling writers for years. Get a process. It turns out that Mark Twain was ahead of his time: “The secret of getting ahead is getting started. The secret of getting started is breaking your complex overwhelming tasks into small manageable tasks, and then starting on the first one.”

The simple act of following a step-by-step drafting process will smooth out many of your productivity problems. You’ll no longer waste time and energy deciding what to do next. You’ll stave off procrastination because the writing process will feel manageable. And you'll better focus—and produce better results—by tackling one component of your draft at a time. With a good process in place, writing becomes like walking: one step after another. 

Here’s a sample process many writers find helpful:

  1. Take a half a sheet of paper and write down the main questions that your document must answer and your precise goals for the piece. This will anchor you in the next steps.
  1. Summarize the main facts that you think matter to the document—in bullet points. This list will change as you research and get drafting, but starting with a simple set of important facts will narrow the field when you start researching, which is often the trickiest step.
  1. Get a high-level understanding of the law and write out some bullets points for these, too. Keep them organized around the questions you write down earlier. You may already have a sense of the legal principles you care about (say, you are drafting a response to the legal points raised by the other side). But before getting into the weeds of legal research it always helps to orient, or reorient, to the legal big picture. Otherwise, you're liable to scurry down rabbit holes with little payoff.
  1. With a better sense of what facts matters under the rules you've researched, return to your facts and see if there are any new ones to add to your list.
  1. With your updated list of key facts, exhaustively research the rules, one at a time. This step can be broken down into a few steps as well—like searching mandatory authority, then persuasive authority; writing down a list of key case citations that you will use on each point, etc.
  1. Then when you’ve got your research tackled, you probably want an outlining step of some sort, including steps to make sure that you consider all the counter-arguments to each of your points.
  1. Then you should add some actual drafting steps, like a rough first draft of each issue.
  1. Finally, you need several editing steps (see the article here for tips on those).

Maybe this is not the process for you. And I admit that 8 steps seems like a lot at first. But I dare you to come up with a step-by-step writing process and give it a try on your next document. If you are like many others, you will instantly feel relief. Who knows, you might even start looking forward to that blank page.

While a process is often the silver bullet for productivity problems, there are several other ideas to try.

Focusing tricks can do wonders. For example, once you have an idea of your document’s theme, try writing it on a post-it and sticking it next to your computer screen as you edit. Same for the main goals of your document. This will help keep you focused on what matters. 

Research also shows that self-talk impacts our productivity. For example, procrastination self-talk can reinforce that a task is unpleasant and that we don’t have control—for example, telling yourself “I must finish this or else…” Changing that self-talk to: “I choose to write” or “I want to write” can flip your writing switch.

One recent study backs this up. Participants were put into two groups: one was encouraged by the researchers to exercise, the other was told to write down for themselves that they would exercise. Only 35% of the encouraged-group exercised at least once per a week during the study. But, incredibly, 91% of participants exercised at least once per week when they wrote down their own motivational self-talk.

Finally, consider trying a few offbeat productivity hacks:

  • The Pomodoro technique: the much-acclaimed productivity hack. You work for 25-minute increments, broken up by short breaks. You don’t allow yourself to vary from your task during each 25-minute stint. You keep track of your breaks on paper. Tons of people—lawyers included—swear by Pomodoro.
  • Public-accountability: also known as public-shaming. By telling someone else when you plan to finish a writing project, perhaps a friend or, better yet, a boss—you can keep yourself to deadlines or risk shame. Even a Facebook post asking your friends to keep you accountable can help.
  • First Things First: prioritize your most important tasks first. Pareto's principle supports this productivity hack, which posits that 20% of our effort produces 80% of the results. This means that prioritizing tasks—perhaps for us writers, outlining let’s say—is more likely to produce results than wasting hours on less important tasks, like reading through stacks of similar cases.
  • Minimizing distractions is a popular one. These range from the simple, like putting away your smart phone while working, to the sophisticated—like installing site blockers that will keep your screens tuned to your work. StayFocused is a great one. 
  • Productive Procrastination: have two or three projects going at one time, so if you get sick of one, you can jump over to the other.
  • The Eisenhower matrix: this classic approach has you create a matrix. In one box are the tasks that are urgent and important (tasks you will do immediately); then there is a box of important, but not urgent (tasks you will schedule to do later); then urgent, but not important (tasks you will delegate to someone else); and finally, neither urgent nor important (tasks that you will eliminate).
  • Use technology: like templates with pre-filled procedural standards. I discussed loads of tech tricks here.
  • A less mainstream idea to try: rituals. Wade Boggs, former baseball player for the Boston Red Sox, woke up at the same time each day, ate chicken before each game, took exactly 117 ground balls in practice, took batting practice at 5:17, and ran sprints at 7:17. As weird as it sounds, rituals are powerful cognitive tools. In multiple experiments, people following rituals performed better at cognitive tasks. So why not create your own writing rituals? Perhaps by writing in the same place each day. Or always outlining with a lucky pen! 
  • Finally, you can try writing with a cocktail. In new studies, a drink or two was shown to significantly spur your creativity and ease the stress of tackling tough tasks. In word association games, for example, participants were more able to go outside of the predictable answers, drawing connections where they might not otherwise.

Really, the act of trying something new often makes writing more palatable. And fun! 

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

February 24, 2018 | Permalink | Comments (0)

Thursday, February 22, 2018

In Your Brief, Be Brief

In your brief, be brief. Very quippy that advice, isn't it? Yes, and it's easier said than done. In order to write persuasive briefs, remember an important rule from oral argument. Get your point out right away, and never assume your reader will spend as much time on your brief that you will.

As a writer, your job is to bring added value to the product. Make it easy to read, coherent, and comprehensive. In order to accomplish these goals, you'll do your research, make your outlines, revise your drafts, and edit with a red pen. If you've done your job well, your reader will breeze through without a hitch.

This principle applies across the board in litigation: assume you will get very little time at that status conference, at that argument, on that call, at that hearing, or at that trial. But the best trial lawyers realize that such principle does not only apply to oral advocacy.  In your writing, assume that your reader is distracted, busy, and simply will not spend much time on what you write.

All legal readers are busy. Mostly we think of readers we want to impress as including judges, their clerks, managing attorneys, and of course law professors. (In contrast, we want opposing counsel to go weak in the knees). These people generally have much more to do than there is time to do it. They have the experience to know right away if a brief is well written just from an initial glance at a few key places: usually the Table of Contents that provides a wonderful place to outline your case, and then most frequently to a summary section - an Introduction, or Summary of the Argument. These readers have incorporated a first review of these sections because they have become very accustomed to approaching new information by gaining an understanding of the big picture. If your presentation doesn't follow the expected order of information, it will frustrate your reader. No need to make their job any harder.

How do we address this in our writing? We should write our advocacy writings in layers, summarizing the main points as quickly as we can in early layers and building on the layers in the document.This means in a typical trial court brief, we should exploit thoroughly the first advocacy layer of a table of contents. A frightening number of lawyers think tables of contents matter little. They are wrong. I have spoken to far too many judges and clerks who admit that before an argument all they had time to review were the tables of contents of the briefs, or, sometimes, just the table of contents of the reply brief. Your table of contents should be a true, focused summary of argument. If done well, all the reader has to know is your table of contents in order to know your entire argument (if not the nuances of it or the entire story of the case).

Then build from there next approaching an introduction or summary. One irony of producing good legal writing is that you cannot write a good summary until you've written a good discussion or argument, so these tasks must come last in the final draft stage. However, your reader will view the last thing you wrote first. If you've made your process systematic, it will be reflected in your writing, and ultimately produce a solid product that is easy to read.

Even if it were true that your reader isn't already very pressed for time, there is every reason to work hard on your brief so your reader doesn't have to. It goes to the subliminal persuasive value of the case. Alleviating obstacles to understanding the case, and removing frustration from the reader's efforts, will put you on the reader's good side, if not also give your reader another reason to praise your reasoning. 

February 22, 2018 in Appellate Advocacy | Permalink | Comments (0)

Friday, February 16, 2018

Appellate Advocacy Blog Weekly Roundup February 16, 2018

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at or a message on Twitter(@Daniel_L_Real).


Supreme Court Opinions and News:

CNN has reported that the Court will be meeting today, February 16, 2018, to decide whether to review a lower court’s decision that blocked President Trump's effort to end DACA. Click HERE for the report.


Known to her fans as the Notorious RBG, Justice Ruth Bader Ginsburg is, arguably, the most popular and, probably, the most outspoken of the current justices. Recently, Justice Ginsburg caused a stir on Twitter when she hinted at not liking some of her colleagues during a CNN interview. Justice Ginsburg’s comment, however, was only a small part of an, otherwise, interesting and thought-provoking interview that included a discussion of the #MeToo movement, sexism, politics, the attacks on the judiciary, and other topics.  You can listen to the interview HERE. Additionally, a conversation Justice Ginsburg had with National Constitution Center President and CEO Jeffrey Rosen can be viewed at this LINK.  


On February 28, 2018, the Supreme Court will hear oral arguments in Minnesota Voters Alliance v. Mansky, a case that challenges a Minnesota law that prohibits political apparel in polling places. Many states have laws restricting electioneering near polling places, and the United States Supreme Court upheld those restrictions in Burson v. Freeman. Minnesota, along with nine other states, not only restrict written campaign materials at polling places, but also place restrictions on the type of political apparel a person can wear to the polls. The plaintiffs in Minnesota Voters Alliance v. Mansky argue that Minnesota’s law violates the First Amendment because it is facially over broad. The briefs for the case and various articles about it can be found HERE. The Economist has this report.


The usually quiet Justice Clarence Thomas shared his thoughts on the current state of judicial confirmations. According, to Justice Thomas, the confirmation process has become a spectacle that may deter “good people” from government service. Bloomberg has this report. Additionally, the Law Library of Congress and the Supreme Court Fellows Program presented a conversation with  Justice  Thomas that can be viewed HERE


Federal Appellate Court Opinions and News:

The United States Court of Appeals for the Fourth Circuit ruled that President Trump's latest travel ban most likely violates the Constitution’s Establishment Clause. The Court's decision can be found HERE. The New York Times has this report


President Trump has nominated  Joel Carson  to the U.S. Court of Appeals for the Tenth Circuit and former Hawaii Attorney General Mark Bennett to the the Ninth Circuit Court of Appeals. A list of current judicial nominations can be found  HERE


There is a noticeable lack of diversity among President Trump's 87 judicial nominees. According to this report in USA Today, "[a]mong [President] Trump's first 87 judicial nominees, only one is African American and one is Hispanic. Five are Asian Americans. Eighty are white." 


In Perez v. City of Roseville, the U.S. Court of Appeals for the Ninth Circuit held that adultery is constitutionally protected conduct. The Court stated that Lawrence v. Texas, "makes clear that the State may not stigmatize private sexual conduct simply because the majority has 'traditionally viewed a particular practice,' such as extramarital sex, 'as immoral.'" The Court's full opinion can be found HERE.  


Appellate Job Postings:

The State of Oregon is looking for an Assistant Attorney General to work in its Appellate Division. Click HERE to apply. 

February 16, 2018 | Permalink | Comments (0)

Thursday, February 15, 2018

Thinking Thursday: Lincoln would have owned Twitter

Presidents’ Weekend is upon us. Ten score and nine years ago, one of our most eloquent American writers was born. Per Professor Julie Oseid, it’s hard to pin down President Lincoln’s prowess to just one attribute. He was adept at many skills, “including alliteration, rhyme, contrast, balance, and metaphor.” (From her new book, Communicators-in-Chief) In her chapter on Lincoln, however, Oseid focuses on his ability to express a great deal in an economy of words. He developed that style during his 25 years as a trial attorney riding circuit. Collecting his legal writing became a quest for historians, and as a result Lincoln is now the most documented lawyer that we may ever have. You can see some of the work of The Lincoln Legal Papers project online. Oseid summarizes Lincoln’s strategy as not to waste arguments or words, but to use “just the necessary number of those words for essential matters.”

So many of our presidents are known for their rhetorical style that Oseid is able to build a body of work about the takeaways that we, as legal writers, can learn from our bygone leaders. Essays have appeared in Volumes 6, 7, 8, 9, and 10 of Legal Communication & Rhetoric: JALWD. Her new book brings together the rhetorical lessons from these five presidents and does so in a way that is very readable in the gestalt.

Lincoln with pen and paper

Lincoln worked hard for his brevity, pondering and editing mercilessly. He was driven by a need for universal comprehension—something every trial lawyer learns to do. His famous second inaugural address was delivered in six minutes. In 701 words he developed a timeless message of reconciliation—and 505 of the words he used were only one syllable long. His notes of his speech showed emphasis on five words, all verbs.

I asked Professor Oseid, and she agreed that Lincoln would have used Twitter masterfully and eloquently. It is interesting to pause for a few minutes and wonder how he would have used the medium. From what we know of his other writings, I strongly believe that he would have lifted it up, and us up in the process. Lincoln keenly understood that intelligent and powerful communications do not depend on vocabulary, but on conveying a theme with precision and organization.

As I celebrate my favorite presidents this weekend, I will be thinking about those legal writing lessons I can learn from them.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

February 15, 2018 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Tuesday, February 13, 2018

2018 Justice Donald L. Corbin Appellate Symposium

In March, the Pulaski County Bar Foundation will be hosting the First Annual Justice Donald L. Corbin Appellate Symposium.  Justice Donald L. Corbin, a Marine Corps veteran, was a long-standing member of the Arkansas judiciary and served both on the state's intermediate appellate court and supreme court.  He passed away in late 2016.

The symposium will feature feature several noted speakers, including Roberta Kaplan, Dean Erwin Chemerinsky, and Judge Morris Sheppard Arnold.  I will also be presenting.

The event will be held at the University of Arkansas Little Rock Bowen School of Law.  You can see all of the details and register here.

February 13, 2018 in Appellate Advocacy, Appellate Practice | Permalink | Comments (0)

Monday, February 12, 2018

Greatest Justice of All Time

As I posted about last week, recent national and international sporting events have sparked talk on the greatest athletes of all time.  This talk got me thinking--who is the greatest Supreme Court Justice of all time?  Because there are so many greats to choose from, I developed a little poll, divided by time period.  Before we narrow it down to the top 6, I thought it might be nice to get one more week of preliminary voting.

Please vote for 2 justices in each time period.  The survey is below.


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February 12, 2018 | Permalink | Comments (0)

Saturday, February 10, 2018

Evidence-based legal writing: Is it possible?

Feel a sore throat coming on? Better go to the doctor. But will it help? If you haven't yet read the many articles explaining how medical practices are often backed by zero evidence that they work, spoiler warning.

A 2013 study published in the Mayo Clinic Proceedings reviewed 100's of journal articles testing clinical practices across the nation. The result? "146 studies []proved or strongly suggested that a current standard practice either had no benefit at all or was inferior to the practice it replaced." An example included telling breast-cancer survivors to stop lifting weights, when in reality, this exercise alleviates symptoms. Dive down this rabbit hole and you might start wondering why we even bother going to the hospital when we're sick. 

How can a doctor treat patients based on nothing more than gut intuition and that "it's always been done that way"? For one, tradition: we have always treated a sickness with that practice. For another, researchers theorize that physicians may prescribe treatments because they are "bio-plausible,” in other words, they intuitively seem like they should work. For example, a cardiologist might insert a stint in a narrowed artery—even if studies show that the type of narrowing can’t be helped with a stint—because inserting a stint into a clog is common sense. 

These problems of practicing from the gut and tradition are even worse for us lawyers. The practice of law, particularly legal writing, is rife with formalisms and conventions—many lacking not only evidentiary support, but any logical basis whatsoever. Why do we include in our motions paragraphs of useless drivel about every procedural event that has ever occurred in the life-cycle of the case? Why do we write a treatise about the summary judgment standard in our motions, knowing not even the law clerk will read it? Why do we call out the other side for petty mistakes when all evidence suggests that this just makes us less sympathetic to the judge?

One reason is probably the same as it is for doctors: intuition. And like doctors, sometimes there is good reason to ignore our intuition as lawyers. Like when the other side makes a silly argument and our intuition says: "that is so wrong, I must respond to it." If an argument is so wrong, you probably should not be wasting the judge’s time with it. Cognitive science tells us that you are usually better off sticking to what matters. 

Also like doctors, we lawyers are creatures of tradition. But unlike medicine, there are few mechanisms in the legal system to tell us when we are doing things wrong. You can draft a bad brief and still get paid by your client. Heck, you can draft a bad brief and still win your case. Neither the judge nor your client is likely to call you out for writing problems. Indeed, we aren’t a great profession at giving feedback in the first place. Lawyers usually comment on others' writing only if it's really bad or really good. And as far recognizing problems that need to change on our own, that is always tough. As Warren Buffet said, "What the human being is best at doing is interpreting all new information so that their prior conclusions remain intact.” 

Granted, it's harder to empirically test which legal arguments work better than others, or whether the oxford comma is all that important in a brief. But consider that persuading through legal writing can be at least some part science. Thanks to phenomenal research within the legal writing community (and otherwise), we are learning more about how humans process complex information. We are learning more about what writing works. 

Joe Kimble, one of the leading legal-writing minds out there, has a great article collecting some of the best studies on point—backing up plain language writing practices like using simpler sentences and active voice.

Similar evidence-based work has been around for decades, and the science is only improving. A great example is a phenomenal book (by two fantastic legal writing professors) applying cognitive science to legal writing, backing up a number of writing practices like chunking information. Another, by Jean Sternlight and Jennifer K. Robbennolt, applies psychology to various aspects of legal practice, including legal writing. And this does not begin to touch on all of the exciting work being done to identify writing and persuasion practices that work. 

Even without the empirical evidence, you can be better about teasing out what works rather than blindly following intuition and tradition. For one, pay careful attention to feedback from others. 

Two types of feedback may be particularly helpful. First, ask your editor to pick only one or two big problems in your document—things you do repeatedly. By focusing your editor on just a couple things, they will pay closer attention (and give you something manageable to work on fixing). Second, ask for feedback on readability, not just suggestions for how to change your writing. This will prevent you from rotely accepting changes, and instead, forces you to learn to fix the problems yourself. Finally, be thoughtful about when and where you ask for feedback. Save it for writing that you put some real work into—and make sure you ask at a time when your editor isn’t too busy.

You can also gather evidence about which practices work by writing more, and in different venues. Say, a blog post. You might find it easier to get feedback and speaking to non-legal audiences will improve your ability to connect with others. Another sign that a practice works is if fantastic writers use it. So steal practices from the good writers in your life. 

Take the time to get more eyes on your work, ask for more feedback, and pay attention to what works—you will start to parse the practices that work from those that don’t. Above all, at least question why you use the writing practices that you do.  

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

February 10, 2018 in Law School, Legal Profession, Legal Writing | Permalink | Comments (3)

Friday, February 9, 2018

Appellate Advocacy Blog Weekly Roundup February 9, 2018


Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).

Supreme Court Opinions and News:

The topic of gerrymandering considers to be on the radar of the Supreme Court.  As the Washington Post reports, opponents of gerrymandering keep winning in the lower courts, but aren't seeing any immediate impact.  While challenges to gerrymandering have been successful in federal courts in Texas, North Carolina, and Wisconsin, and while those lower courts have ordered new voting districts be drawn and in place for the 2018 elections, the Supreme Court has "stopped them all."  The Supreme Court has taken gerrymandering cases on its docket, and has stayed several lower court orders, and it is likely that districts won't be redrawn before the 2018 elections.  For more, see this Wall Street Journal article about the challenge to Pennsylvania's districts.

In United States v. Microsoft Corp., the Supreme Court will address whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. 2703 by making disclosure in the United States of electronic communications within that provider's control, even if those materials are stored abroad.  The case presents an interesting intersection of "[o]ld laws, new technology, and national borders."  At SCOTUSBlog, Amy Howe wrote about the case this week and how the Stored Communications Act, passed in 1986, was likely passed without Congress ever considering the core issue of the case.  As technology continues to evolve, application of older communications laws becomes increasingly challenging.

Federal Appellate Court Opinions and News:

Late last year, allegations of inappropriate sexual comments or behavior were raised against former 9th Circuit Court of Appeals Judge Alex Kozinski.  Kozinski retired soon thereafter, but the chief judge of the 9th Circuit initiated a complaint against Kozinski under the Judicial Conduct and Disability Act and asked the Judicial Council to investigate. This week, it was reported that the Judicial Council has determined that it lacks authority to conduct such an investigation because of Kozinski's retirement.  The Council indicated that it was requesting that it was "requesting that its order be forwarded 'to any relevant congressional committee for their information' and to all other judicial councils."

Practice Tips and Pointers:

Bryan Garner recently published an article in the ABAJournal titled, "Writing vs. Good Writing: Make the languorous doldrums of reading disappear." In the article, he explores the importance of making a conscious effort to write so that the product does not bore the reader.


Appellate Job Postings:

In case you missed it, #AppellateTwitter's Chief Judge Stephen Dillard of the Court of Appeals of Georgia noted on Twitter earlier this week that "there is still time to apply for a summer internship in [his] chambers."

February 9, 2018 | Permalink | Comments (0)

Thursday, February 8, 2018

Justice Ginsburg Reminds Us To Be Bold, But Not To Take Ourselves Too Seriously

The Notorious RGB is on tour. In person, she's a tiny little lady, with a tiny little voice, but out on the road she draws crowds like any other rock star. And at eighty-four, she is going strong. She says she will keep going as long as she can "do the job full steam." She even has a movie coming out documenting her life. It's entitled "RBG." She's a big deal. Not many others get to go by just their initials and everyone still knows who they're talking about.


(Justice Ginsburg at NYU recently. This picture was too good not to share.)

Justice Ginsburg was recently profiled in the New York Times with tales of her latest adventures, but what she said about her criticism of Roe v. Wade many years ago, prompted me to think about my own day job - teaching law students how to advocate. In a lecture she delivered at NYU shortly before she joined the Supreme Court, Ginsburg

criticized Roe v. Wade, the 1973 decision establishing a constitutional right to abortion.

The Supreme Court had moved too fast, Justice Ginsburg wrote at the time. It would have sufficed, she wrote, to strike down the extreme Texas law at issue in the case and then proceeded in measured steps in later cases to consider other abortion restrictions.

The trend in state legislatures in the early 1970s, she wrote, was toward more liberal abortion laws. The categorical Roe decision, she wrote, gave rise to “a well-organized and vocal right-to-life movement” that “succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

Her analysis is contested, as Justice Ginsburg acknowledged on Monday. “I know that there are many people who disagree with me on this subject,” she said.

This statement is so insightful for how I want my students to think about advocacy. Law schools are smack in the middle of moot court season right now, and many of us are running to practices after class or during our lunch breaks. Inevitably, always one critique for the student mooters is, "We are the Supreme Court. We can do anything we want. What should we do? Make that argument." Students are frequently stuck on precedent and making analogous arguments to lower court opinions. It takes some nudging to get them into the mindset to make them contemplate what really is the right decision for the court to make. Have the lower courts found the right reasoning, or have they gotten it wrong? Now is the time to tell the Supreme Court how to rule and why.

The point Justice Ginsburg makes is also prescient considering our current political discourse. How do we move good policies forward? Is having a court declare the rule a good path, despite a lag in public opinion? Or do we forge ahead having faith that public opinion will fall in line? We can see through history that unpopular decisions have eventually become the norm, but acceptance of many of these opinions has rarely been immediate. RBG may be right, perhaps sometimes the Court should move slower. But the value is in thinking through the ramifications of both action and patience.

These are the kinds of questions I want my students to wrestle with, so that they can become good advocates, but also good stewards of the profession. Lawyers hold the future of the law in their hands, and nurturing it is a task not to be taken lightly. I am glad Justice Ginsburg reminds us to think outside the judicial box.

February 8, 2018 in United States Supreme Court | Permalink | Comments (0)

Monday, February 5, 2018

Greatest Supreme Court Justice of All Time

With the Super Bowl just behind us (and the Olympics just before us), we are likely to hear on the news about how certain athletes are the GOAT--Greatest of All Time.  The greatest quarterback, the greatest downhill skier (note, we rarely hear about the greatest curler or the greatest long snapper).  We Americans love to rank!  Just recently, CBS News posted the 2017 ranking of presidents, from worst to best.

All this talk of GOAT got me thinking--who is the greatest Supreme Court Justice of all time? And what criteria do you use to decide?  If, for example, we were going to pick the greatest judge of all time based on name alone it would be an easy endeavor.  We have great choices, like Judge Learned Hand, Judge Henry Friendly, or Judge John Wisdom.  But, if we are going to look at other criteria, how do we decide?

There are a few existing lists out there.  Prof. Jonathan Turley has a 2009 list posted on Historynet that identifies the 9 greatest Supreme Court Justices based on their ability "to rise above conventional thinking and prejudices and epitomize what constitutes the right stuff on the Supreme Court." Prof. Bernard Schwartz's 1995 article identifies the 10 greatest justices, with 4 honorable mentions.  In his article, Prof. Schwartz recognizes and embraces the obvious subjectivity in creating such a list.  Finally, Prof. Cass Sunstein has a list of the greatest justices of all time, focusing on historical significance and legal ability, and Prof. Will Baude has critiqued that list.

Adopting the approach of Prof. Schwartz and recognizing the subjectivity inherent in any "greatest" list, I would like to have a blog vote on the greatest Supreme Court Justice of all time.  I have divided the top contenders by time period.  There are three time periods and the survey should let you pick two in each time period.  I have included some justices who have also written terrible opinions, but I saw them on some of the lists mentioned above.  Feel free to comment on any justices that you think should be included in a future vote. Next week we will try for a runoff between the top 6 and any other top contenders from the comments.


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February 5, 2018 | Permalink | Comments (0)