Thursday, January 29, 2015
Tony Mauro has this article in the National Journal reporting on Justice Thomas' rebuke of the Fourth Circuit over the issuance of a lengthy unpublished opinion on an unsettled issue of law. Justice Scalia joined Thomas' dissent from denial of certiorari, finding the unpublished nature of the Fourth Circuit's decision a "disturbing aspect."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 Members of the Court occasionally take a swipe at the unpublished opinion practice or a single instance of it, usually through dissents from denial of cert or similar writings, or through off-the-bench comments.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 The number of unpublished opinions remains high, and the percentage of circuit cases resolved this way remains in the mid-eighty percent range.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.
Monday, January 19, 2015
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.
Thursday, January 8, 2015
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.
Tuesday, January 6, 2015
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
Tuesday, December 9, 2014
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.
Monday, November 24, 2014
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…
Thursday, November 20, 2014
In a new post on the Maryland Appellate Blog, Steve Keppler offers a useful reminder about federal judicial vacancy problem and offers some proposals for addressing it. As he suggests, "the next six months provide a window of time when Congress can reform judicial policy for the next president — before we have much of an idea who the next president will be."
- Create New Judgeships for the Next President to Fill
- Encourage More Appellate Judges to Take Senior Status and to Maintain a Higher Workload.
- Don’t Make Consensus Nominees Wait for Floor Votes.
The first has the support of the Judicial Conference, which issued a set of Judgeship Recommendations to that effect. The second is a reform of an already growing practice of employing senior judges in a more active role. The third recommends a change to Senate practice that would encourage the President to nominate consensus nominees. All interesting proposals with some opportunity to side-step political barriers and address the issue.
You can read details of these proposals at the Maryland Appellate Blog: Three Things Congress Should Do in 2015 About Judges.
Sunday, November 9, 2014
Following up on my earlier post regarding the Nevada ballot question regarding the addition of an intermediate appellate court in Nevada, voters in that state approved the measure by only a slight margin. Ballotpedia has this summary. This move leaves only nine states without an intermediate appellate court.
Seah Whaley of the The Las Vegas Review Journal reports that legislative appropriation is underway and seems uncontroversial. Applications for newly created judgeships are being taken by the Nevada Commission on Judicial Selection with interviews planned for early December and appointment by the Governor in early 2015. The court will sit in both Carson City and Las Vegas.
Appeals will apparently still be filed with the Nevada Supreme Court, which will then assign some cases to the intermediate appellate court. This strikes me as an unusual arrangement.
Thursday, November 6, 2014
Today the Sixth Circuit issued its decision in DeBoer v. Snyder and created the circuit split that the Supreme Court has presumably been waiting for. In a carefully reasoned opinion, the Sixth Circuit narrowly interpreted precedent and the most recent line of Supreme Court decisions on marriage and sexual relations. Early in its opinion the Court stated, “What we have authority to decide . . . is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?” On this question, the Court ruled in favor of the State.
In the opinion, the Sixth Circuit walks through the role of the intermediate appellate courts and the requirement to defer to U.S. Supreme Court precedent. Looking to Baker v. Nelson, 409 U.S. 810 (1972), the court reasoned that it had not been overruled either explicitly or implicitly by United States v. Windsor, 133 S. Ct. 2675 (2013). In fact, it determined that Windsor was not a case about the right to marry, but rather a case about the right to enjoy a privilege granted by a state. The court went as far as to reconcile the two cases stating that “Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it.” In support of its decision, the Court also relied on originalism and rational basis review.
Boiled down, the Sixth Circuit basically views the question as one that ought to be decided through the state democratic processes rather than through the courts. These three lines sum it up best: “History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed.”
Thursday, October 30, 2014
Monday, October 20, 2014
For those of you working on developing an appellate brief problem for this academic year, take a look at City of Los Angeles v. Patel. The U.S. Supreme Court just granted the petition for writ of certiorari today, and it has the trappings of a good problem for two reasons. First, the two issues, one jurisdictional and the other substantive, are well-separated. Second, it involves an intriguing question about Fourth Amendment protection of hotel guest registries. I could see a fun and interesting pop-culture problem developing out of these issues.
When creating good appellate brief problems, it can sometimes be difficult to manage the ripeness factor. You want to choose a current issue, but not one that will necessarily be resolved before your students complete the assignment. You also want to be careful about creating a problem where your students will have easy access to professionally-written briefs. These potential pitfalls can easily be avoided, though, by creative fact development.
When creating a problem from a recent cert. grant, the first step is to outline the issue(s) you want to use. Next, you should identify how the split(s) have come down. Once you have broken apart the pending case, you have a good framework for rebuilding a problem that has sufficient legal similarities without too much factual similarity. The students can then find many relevant legal sources for solving the problem, but they won't be able to just pull legal arguments out of professionally-written briefs because the facts will be too nuanced for the legal analysis to hold up verbatim in the simulated setting. Additionally, when the facts are sufficiently distinct from the original problem, the issue you have created may still be ripe or resolvable even if the Supreme Court rules on the actual case before the end of the semester.
Though problem-creation can seem like an intimidating challenge, it is a highly rewarding aspect of our work as law professors. Have fun as you create a packet that will be enjoyable and interesting for both you and the students. Be inspired.
Sunday, October 12, 2014
Judge Richard Kopf has this post on his blog, Hercules and the Umpire, regarding the late Judge Richard S. Arnold's near appointment to the Supreme Court by President Clinton in 1994. Reproduced in that post is a draft speech prepared for President Clinton to announce the nomination. Consideration of Judge Arnold for the Supreme Court is not news; it was mentioned both in President Clinton's autobiography, "My Life," and Jeffrey Toobin's book on the Supreme Court, "The Nine." But this particular document is interesting reading, and some additional lauding of Judge Arnold is well-deserved.
Judge Arnold's opinion in U.S. v. Anastasoff, 223 F.3d 898 (8th Cir. 2000) and his law review article on the topic, Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 221 (1999) stand as an articulate and principled denunciation of the practice of issuing "unpublished" and "non-precedential" opinions. His work undoubtedly energized the movement toward permitting citation of such opinions in the federal appellate courts and opened an entire vein of scholarship examining the practice. Hopefully, it also planted the seed that will eventually bear fruit in the form of an end to the practice of issuing purportedly non-precedential opinions. His work on this issue was but a small sliver of his accomplished career, but it's one that, I think, exemplifies the fine qualities as jurist that are often ascribed to him.
Tuesday, September 30, 2014
The Washington Post has reported that yesterday five of the U.S. Supreme Court Justices agreed to enter an Order granting the State of Ohio’s Application for Stay and Request for Preliminary Injunction to stop enforcement of a court order preventing implementation of Ohio’s plan to reduce early voting. Earlier this year, the State of Ohio’s legislature enacted a plan to reduce the number of early voting days from 35 to 28. Opponents of the law argue that the reduced number of early voting days will discourage voter turn-out. This matter came before U.S. District Court Judge Peter C. Economous earlier this month. He ruled against the State reasoning that the poor and persons of color are disproportionately negatively impacted by the reduction in early voting days because these populations tend to vote early and in-person more often than white voters. Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for stay.
Sunday, September 28, 2014
Brown Bettman on Ohio v. Quarterman on Failure to Preserve Constitutional Issues for Appellate Review
The Ohio Supreme Court issued an opinion last week in State v. Quarterman regarding the failure to preserve constitutional issued for appellate review. Marianna Brown Bettman (University of Cinncinnati) has this post detailing the decision on Legally Speaking Ohio. She does an excellent explication of the case: describing the details of the case, the arguments at both levels of appellate review, and the Ohio Supreme Court's decision.
The case involved serious issues regarding Ohio's mandatory bind-over statutes for juveniles - statutes that allegedly conflict with growing state and U.S. practice regarding the treatment of juveniles. That the Ohio Supreme Court rejected the appeal on procedural grounds should warn trial and appellate advocates about the importance of preserving issues on appeal and raising issues (such as alleging plain error) early and clearly.
Brown Bettman's post provides a valuable and detailed discussion of the case with several useful citations and links. It's worth a read by appellate advocates.
Wednesday, September 24, 2014
My experience with Nevada courts is limited to involvement with some cert petitions from the Nevada Supreme Court to the U.S. Supreme Court, but my sense is that the Nevada Supreme Court is overworked and could use the relief and reflection that an intermediate appellate court could provide. I'd be interested in opinions of Nevada appellate attorneys.
Friday, September 19, 2014
This week my first year students are learning the basics of legal research, and I asked our librarians to present a session on free/economical electronic legal research tools as part of the training. I always love hearing from the librarians because they are familiar with the latest and greatest, and I always learn something new. This year was no different, I am happy to report. The librarians introduced us to Ravel, an online search engine that provides graphical histories of cases.
For appellate attorneys, this resource is particularly helpful in quickly identifying the key cases related to a given legal question. The graphical interface is much more user-friendly as compared to the linear lists provided through most other commercial database providers. Ravel also includes at least four filters so that practitioners can sort information in a way that is most pertinent and useful to a particular project.
Here are some of the pros:
- Demonstrates a case’s historical relevance at a glance
- Free for all federal cases
- User-friendly interface
- Hyperlinks to full-text of cases
- Places footnotes beside the relevant text for easy on-screen reference
This database is a good supplement to other research engines because it saves an attorney significant time when wading through precedent and subsequent history to find the most important cases. There are other packages of state case materials available for a subscription fee. As of now, Ravel does not include citators or statutory or secondary sources, so it is not currently comprehensive enough to replace other commercial databases. They are constantly adding new materials and indexing systems, though, so it is definitely a resource to keep your eye on.
Wednesday, September 17, 2014
This is the kind of basic advocacy blunder that is hard to believe, but it's being reported that BP's counsel fiddled with the formatting to file an over-length brief without permission.While this happened in federal district court, it's a fundamental advocacy issue worth reporting here. In a filing related to the Deepwater Horizon oil rig spill in 2010, BP's counsel tried to slip one past Eastern District of Louisiana Judge Carl Barbier. He was not fooled or amused.
After noting that it had already allowed BP to file a brief ten pages longer than the usual twenty-five-page limit, the Court explained:
"BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck."
Judge Barbier was far more generous than I would have been. Still, even without a harsh penalty, this will make good material for my appellate advcocacy class lesson on ethos in a few weeks. For a company that wants to be viewed as one that follows the rules and cares about details, this kind of angle-shooting by its counsel seems counter-productive.
A former clerk for Judge Barbier, Alabama Law Professor Montré Carodine, reads between the lines to suggest: "The subtext seems to be Judge Barbier saying, 'Look, every time I give you an inch you take a mile, and I'm tired of it,'" (as quoted in the NPR piece on the matter). I'm not sure what evidence exists to show repeated offenses, but fiddling with the formatting after being allowed to increase your brief by 40% does seem to be the kind of presumptious greed Carodine's idiom suggests.
I wonder how often this occurs. Does it slip past judges with any frequency? Is there any creditable explanation for changing the formating? Any one want to defend the practice?
Hat tip to reader Maryanne Heidemann
Friday, September 12, 2014
Professor Joel Schumm noted on The Indiana Law Blog that the Indiana Supreme Court recently rejected a proposal to permit citation of memorandum decisions for as "persuasive precedent." The Indiana high court rejected even this compromise position without a single dissenting vote, making this the official Indiana position for the foreseeable future.
The proposal, which had the support of three sections of the Indiana Bar, is consistent with the modern trend of allowing citations of all court opinions. For example, Federal Rule of Appellate Procedure 32.1 permits citation of all opinions issued after its passage. By rejecting the proposal, the Indiana Supreme Court continues to support "a rule that defies the modern reality of 'memorandum decisions' being easily accessible." I would add that it defies the historical reality: denying precedential value to some of a court's decisions flies in the face of the common law system. It also denies the practical reality that both judges and lawyers recognize the value of all decisions and will find ways to cite them regardless of the written rules. The federal appellate system's experience with a citation bar should be Exhibit A.
Joel Schumm's blog post offers Indiana lawyers some creative ideas for how to deal with the restriction. I find all of them to be fair game, but then, I question whether any U.S. court has the authority to: 1) bar citation of its own opinions or 2) strip a decision of precedential value at the time of its issuance. Such actions seem to run afoul of various constitutional provisions and the fundamental nature of judicial power.
The late Judge Richard S. Arnold predicted that the federal rule against citation was doomed to fail. He recognized, long before others did, that judicial decisions were the very stuff of our system of justice. There is no substitute for them, and they are the kind of information that even a gag rule cannot fully suppress. He was right. In the federal system, unpublished opinions were routinely cited by both advocates and courts, and ultimately, the citation ban was abolished as untenable and undesirable.
One can hope that Indiana's Supreme Court will come to a similar conclusion the next time it confronts the issue. For now, however, Indiana appellate advocates will have to contend with Appellate Rule 65. I predict that Indiana appellate decisions marked "not for publication" will continue to be cited by advocates and judges alike, and the more that courts decide to sanction lawyers for violation of Appellate Rule 65, the louder opposition to the rule will grow.
Saturday, September 6, 2014
Appellate practitioners know the more common exhaustion and abstention doctrines, such as exhaustion of administrative remedies. Few are aware, however, that similar concepts operate between federal and tribal courts and even between state and tribal courts, and that they can arise out of comity, court rule, or other sources, depending on the jurisdiction. Ignorance of those concepts can sometimes lead to inadvertent or even open disregard for tribal judicial systems.
Turtle talk reports this week on a current example from the Tenth Circuit, which deferred to the Muskogee Tribal Court when litigants in an election dispute tried to jump ship to federal court. See the post regarding Thlopthlocco Tribal Town v. Stidham on Turtle Talk.
Thursday, September 4, 2014
Just nine days after hearing argument, the Seventh Circuit has issued its opinion in Baskin v. Bogan. Unsurprisingly, the court affirmed the district court judgments “invalidating and enjoining . . . prohibitions of same-sex marriage.” In the 40-page opinion, Judge Posner took time to address the ineffectiveness of the arguments advanced by the petitioners. He wrote, “the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.” (emphasis in original). Even though the states had significant legal precedent on their side, at the time of the oral arguments it did not seem like the Seventh Circuit was likely to be persuaded by any of those arguments. This opinion is final confirmation.
The opinion is lengthy but well-written and soundly reasoned. I’d like to highlight just a few characteristics. First, it is an excellent example of issue-framing to achieve a desired result. Rather than getting too bogged down in the minutiae of rational basis, Judge Posner effortlessly frames the question in such a way as to mandate a higher level of scrutiny. Specifically, he reasons that “more than a reasonable basis is required because this is a case in which the challenged discrimination is . . . ‘along suspect lines.’” Second, Judge Posner ably relies on scientific (non-law) data to support his conclusions. He even relates that data, through the “kin selection hypothesis” (or “helper in the nest theory”), to evolution by arguing that “[a]lthough it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives.” Finally, Judge Posner makes effective use of tabulation to smoothly advance the argument and signpost the logical connections of his reasoning. It’s a fantastic exemplar of writing that simplifies complex legal arguments in a sophisticated and accessible way. Definitely a fascinating and worthwhile read.