Appellate Advocacy Blog

Editor: David R. Cleveland
Valparaiso University Law School

Tuesday, February 10, 2015

The Harms of Issuing Non-Precedential Opinions

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

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 But first, what's the harm in treating some circuit decisions as non-precedential?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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 3, 2015

NY Times on Unpublished Federal Court Decisions

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

The link for Liptak's article:

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

Nebraska Supreme Court Procedural Ruling on Pipeline Case

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

 Background of the Lawsuit:

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

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

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

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

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

Nebraska Supreme Court's Decision:

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

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

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

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

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

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


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



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

Thursday, January 29, 2015

Justice Thomas Scolds Circuit Over Unpublished Opinion

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

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

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

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

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

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

Monday, January 19, 2015

Transparency Concern Round-Up

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

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

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

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


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


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

Thursday, November 20, 2014

Maryland Appellate Blog Post on Federal Judicial Vacancies

In a new post on the Maryland Appellate BlogSteve 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." 

After a useful reminder about just how understaffed the federal bench is, he offers these three recommendations:  Empty Bench

  1. Create New Judgeships for the Next President to Fill 
  1. Encourage More Appellate Judges to Take Senior Status and to Maintain a Higher Workload.
  1. 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.

November 20, 2014 in Appellate Court Reform, Current Affairs, Federal Appeals Courts | Permalink | Comments (0)

Sunday, November 9, 2014

Nevada Votes for Intermediate Appellate Court

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.

November 9, 2014 in Appellate Court Reform, Appellate Procedure, Current Affairs, State Appeals Courts | Permalink | Comments (4)

Thursday, November 6, 2014

The Sixth Circuit Throws a Split on Same-Sex Marriage

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.”

November 6, 2014 in Appellate Advocacy, Appellate Justice, Current Affairs, Federal Appeals Courts | Permalink | Comments (1)

Monday, September 1, 2014

Colleen Barger Named Ben J. Altheimer Distinguished Professor of Law

Professor Coleen Barger was recently named as the Ben J. Altheimer Distinguished Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law.  Readers of this blog may know Colleen as a founding member of the peer-edited Journal of Appellate Practice and Process. Colleen has served continuously as the Journal’s Developments Editor since its inaugural volume in 1998.

Coleen-BargerColeen is also the author of the newly revised ALWD Guide to Legal Citation (5th ed. 2014).  She has served the legal writing community in many other capacities over the last two decades, providing hard work, leadership, and support. Colleagues at UALR report that she has repeatedly won school excellence awards for both her teaching and service.

Congratulations on the much deserved honor, Colleen!

September 1, 2014 in Current Affairs, Law School, Legal Writing | Permalink | Comments (0)

Sunday, August 24, 2014

Goldstein's Latest Amicus Brief

Last week, Tony Mauro had an article in the National Law Journal discussing the latest amicus brief filed by Goldstein & Russell's Thomas Goldstein.

As Mauro pointed out, what makes this particular amicus brief potentially noteworthy is not any particular argument it advances on behalf of either party in the case, nor is it the underlying issues of the case itself.  What makes this particular amicus brief potentially noteworthy is that it may be the first amicus brief ever submitted to the Supreme Court by a law firm on behalf of no client and in support of neither side. Instead, Goldstein authored and submitted the brief to test the waters concerning the utility of the bar providing assistance to the Court in unconventional ways, rather than simply as an advocate for a particular party or outcome in the case.

The case, M&G Polymers USA v. Tackett, involves health-care coverage for retirees and whether such coverage continues indefinitely when the underlying collective bargaining agreement governing the benefits is silent on the issue. In his amicus brief, Goldstein sought to provide the Court with data that he believed might not be presented by the parties or more traditional amici, including the results of a survey he conducted of collective bargaining agreements and different provisions reviewed by lower courts in similar cases.

Mauro quoted Goldstein as stating that "he didn't 'attempt to give the court any advice at all. It's just a bunch of data. I don't care who wins this case.'" Goldstein indicated that he felt the data he was providing might not be fully presented by the parties or more traditional amici with an interest in having the Court resolve the case one way or the other, but the data could be very useful to the Court in providing a workable rule.

Amicus Curiae is Latin for "friend of the court." The term has come to reflect briefs filed by a person or group who is not a party to the lawsuit, but has a strong interest in the resolution of the controversy presented by the case. As Goldstein noted in Mauro's article, however, sometimes amici are not truly acting as a friend of the court and, instead, "[t]hey have an ax to grind, a dog in the fight." Goldstein highlighted the uniqueness of his amicus brief in this case in the brief's opening paragraph, where he called it a "rare true 'amicus' brief" that was submitted "with no agenda or desire to direct the outcome of the case."

This caught my eye this weekend as I was preparing to teach a new batch of 2L students about appellate practice and advocacy at Creighton School of Law.   In my view, to be a successful appellate advocate it is crucial to always keep in mind that your primary goal is to help the court find a way to rule in favor of your client. That overarching focus underlies the importance of thorough research, of thoughtful organization, of painstaking editing, and, really, all aspects of presenting the appellate brief and argument.  If you can present the court with a well-thought "map" of exactly how the court could rule in your favor and explain its reasoning in a subsequent opinion, supported by authority and sound analysis, you are in a far better position than if you are simply urging an outcome that the court might find worthwhile but difficult or impossible to support in an opinion.

Amicus briefs can often serve those same purposes and assist the court.  As Goldstein noted, however, most amicus briefs may be submitted as "friends of the court" and provide assistance, but ultimately are assisting the court to rule a particular way. What makes this brief by Goldstein unusual is that it may truly provide meaningful assistance to the Court in a broader sense and without an eye to helping either side succeed.

It will be worth watching to see how the Court treats this kind of brief and, then, watching to see whether anyone else jumps on the bandwagon to author similar briefs in the future.  As Mauro's article noted, there may not be a clammoring of already busy attorneys to sit down and author briefs just to help the Court and not to further the interests of an actual client.


Goldstein's Amicus Brief in M&G Polymers USA, LLC v. Tackett. Hat Tip to Howard Bashman at How Appealing who reported the Mauro article last week. Tony Mauro's National Law Journal article, also available via Google News.

August 24, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Sunday, July 6, 2014

Guest Post: Daniel L. Real on Wheaton College v. Burwell

Today's post is a guest piece by Daniel L. Real, a career judicial staff attorney for the Nebraska Court of Appeals since 1995 and a legal research and writing professor at Creighton University since 1999. Dan's prior work is on the issues of appellate practice and judicial independence. He shares his thoughts with us on the U.S. Supreme Court's recent decision in Wheaton College v. Burwell:

There has been plenty of quick commentary on the U.S. Supreme Court's decision from last week in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014). You can form your own opinions on whether the decision was correct, where you stand on the subjects of the Affordable Care Act (ACA) and religious freedom.  I don't have an interest in discussing those specific topics here.  Something related, however, did catch my eye this weekend.

I suspect that there will be quite a bit of discussion in the next week or so about the Supreme Court's last-minute ruling on the application for injunction filed by Wheaton College in Wheaton College v. Burwell, but for now there has not been a particularly wide-ranging discussion of it.  Perhaps the lateness of the ruling on July 3, coupled with the July 4 holiday, caught some off guard.  Nonetheless, it was a noteworthy ruling that is worth looking at and considering.

In Hobby Lobby, the Court held that certain closely-held corporations could assert the same religious freedoms as individuals and addressed whether certain provisions of the ACA requiring employers to provide health-insurance coverage for specific methods of contraception that violated the sincerely held religious beliefs of the companies' owners were in violation of the Religious Freedom Restoration Act (RFRA). The Court held ACA provisions concerning four specific contraception methods imposed a substantial burden on the religious freedom of the closely-held corporations. Under the RFRA, such a substantial burden would be permissible only if the government could show a compelling state interest and if the government's action constitutes the least restrictive means of serving that compelling interest.

The Court assumed, without specifically deciding, that the government had a compelling interest in guaranteeing cost-free access to the particular contraceptive methods.  The Court held, however, in a 5-4 decision, that the challenged ACA provisions did not constitute the least restrictive means of serving that interest and held that the ACA provisions violated the RFRA with respect to the closely-held corporations.

In explaining why the ACA provisions did not constitute the least restrictive means, the Court had to make a decision that often faces appellate courts and had to discern how much explanation to provide to support the Court's conclusion.  In writing for the majority, Justice Alito noted at least two "less restrictive" ways for the government to achieve its compelling ends.  First, the Court noted that "[t]he most straightforward way . . . would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections." Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____, *41 (2014).

After analyzing potential objections to the theoretically viable creation of a new government-funded program to provide the contraceptives, however, the Court concluded that it "need not rely on the option" to conclude that the ACA provisions were not the least restrictive alternative. The Court noted that "[Health and Human Services (HHS)] itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs." Id. at *43. The Court noted that "HHS has already established an accommodation for nonprofit organizations with religious objections," wherein the organization can self-certify that it opposes providing insurance coverage for the particular contraceptive services and require the organization’s insurance issuer or third-party administrator to provide coverage for the contraceptive services without any cost-sharing by the objecting organization. Id.

The Court specifically cautioned that it was not deciding whether this option "complies with RFRA for purposes of all religious claims," but very specifically held that "[a]t a minimum . . . it does not impinge on the plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion." Id. at *44. In footnote 40, the Court even responded to the dissenting opinion's characterization of the Court as being noncommittal about the viability of this alternative and the Court commented that "[T]he less restrictive approach we describe accommodates the religious beliefs asserted in these cases." Id.

There has been much discussion about the Hobby Lobby decision, its implications, whether it is the start to a "slippery slope," how it might impact the ACA as a whole.  But what has potentially gone largely unnoticed to this point is what happened just three days later, when the Court issued its ruling on Wheaton College's application for injunction in Wheaton College v. Burwell, 573 U.S. ___ (2014).

The "less-restrictive" alternative described by the Court in Hobby Lobby allows groups with a religious objection to the ACA mandates to self-certify a religious objection and pass the obligation to pay for coverage for the contraceptives to the insurer or third-party administrator. To obtain this accommodation, however, groups are required to fill out a federal form to register their objections. As the Washington Post noted in a July 3 article (, a number of colleges, including Wheaton, objected to the requirement to complete the form. The colleges alleged that the act of signing the form and authorizing third parties to provide the contraceptive coverage made the colleges complicit in the action of providing the contraceptives and that even that offended the college's religious beliefs.

In its ruling on Wheaton's application for injunction, the Court held that Wheaton need not fill out the previously required form and, instead, need only notify the government "that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds." Wheaton v. Burwell, 573 U.S. ___, *2 (2014). The Court noted that "[n]othing . . . precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act." Id.

Justice Sotomayor authored a dissent to this ruling, in which Justices Ginsburg and Kagan joined.  The dissent noted that earlier in the week the Court had described the very accommodation that Wheaton was challenging as being an alternative that was less-restrictive than the ACA provisions in achieving the government's compelling interests.  The dissent characterized the ruling in Wheaton as "evinc[ing] disregard for even the newest of [the] Court's precedents and undermin[ing] confidence in the institution." Id. at *4.

The apparent conflict between what the Court suggested in Hobby Lobby—that the accommodation was a legitimate and permissible means for the government to achieve its compelling interests that demonstrated that the ACA provisions were not the least-restrictive alternative—and what the Court suggested three days later in Wheaton—that the accommodation itself imposes a sufficient burden on religious freedom to merit injunctive relief—has been discussed briefly in a few articles, and they are a good starting point if you're interested in a more thorough look at the Wheaton dissent.

Dahlia Lithwick and Sonja West addressed it for Slate in an article titled, "Quick Change Justice." (  Robert Barnes addressed it for the Washington Post in an article titled, "Supreme Court Sides with Christian College in Birth Control Case." ( Adam Liptik addressed it for the New York Times in an article titled, "Birth Control Order Deepens Divide Among Justices." ( And Daniel Fisher addressed it for Forbes in an article titled, “Hobby Lobby Decision Begins to Contort Under its Own Logic.”

While the Hobby Lobby decision will be the subject of much commentary, the very quick development of a potentially contrary ruling of the Court later the same week is somewhat remarkable.  As is the lengthy dissent signed by the Court's three female justices on an unsigned order in Wheaton. It's a safe bet that the discussion and debate is only beginning.


July 6, 2014 in Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (1)

Tuesday, April 29, 2014

5th Circuit Again Considers Abortion Laws

At the beginning of this month, I blogged about the 5th Circuit's Texas decision - applauded by some as responsibly upholding legislation that supports women's health and criticized by others concerned that it will cause an undue burden on access to abortions and possibly hinder health by causing some women to dangerously take matters into their own hands.  Here we are at the end of the month and the 5th Circuit is once again facing the same issue.  However, this time it may answer some questions left unanswered in the prior case.

While the prior case upheld the legislation requiring abortion clinics to have admitting privileges at a hospital, it also held that the issue of undue burden was not ripe for consideration; after all, there still exists multiple options for abortions throughout the state.  However, the state of Mississippi is down to only one abortion clinic.  Surely this fact was discussed during oral arguments yesterday. When you couple the lack of access to clinics, especially if this last clinic is forced to close, with the concern raised in the Texas case that allowing hospitals to have control over providing admitting privileges to abortion clinic practitioners might effectively kill off all abortion clinics, it is clear to see the dilemma.  Jackson Women's Health Organization, the clinic in question, has stated that it has requested, and been denied, admitting privileges by thirteen different medical facilities.  Similar laws are being pushied in Louisiana, Oklahoma and Alabama, causing at least one media outlet to question if this is the beginning of end of abortion access in the South.

Of note, this is a different three judge panel than the one presiding over the Texas case.  I suspect SCOTUS will eventually be weighing in on this debate.

April 29, 2014 in Current Affairs, Federal Appeals Courts | Permalink | Comments (0)

Tuesday, April 1, 2014

5th Circuit Upholds Texas Law Potentially Limiting Access To Abortions

The Famous Wendy Davis' Filibuster Shoes

Last year Roe v. Wade celebrated her 40th Birthday.  However, it seems the party is far from over.  The big news last year involved Texas state senator and gubernatorial candidate Wendy Davis making national news during her 12 hour filibuster of HB2, a Texas law that many feared would limit access to abortions in the state.  While her filibuster was ultimately unsuccessful in stopping passage of the bill, their was a brief moment of success when the district court held that parts of the bill were unconstitutional.  However, on March 27, 2014, the 5th Circuit in Planned Parenthood et. al. v. Attorney General Abbott reversed and rendered judgment in favor of the State.

The debate is an interesting and important one.  

One one side of the debate, the State is arguing that abortion doctors should have admitting privileges to a hospital in order to perform abortions.  Their concern seems rooted in the health of the woman to ensure that she receives proper care in the instance where the procedure necessitates emergency medical attention.  They argue that simply handing the patient off to the emergency room might lead to misdiagnosis, lack of knowledge on critical specifics about the patient, and the increased risk of problems surfacing.

On the other side of the debate, Planned Parenthood argues that requiring these doctors to have admitting privileges will create an undue burden on a woman's access to an abortion.  This requirement essentially puts the fate of abortionists and their patients in the hands of hospitals, which will then have the power to control the industry and shrink it merely by denying admitting privileges to these abortionists.  It seems that there might be some merit to the argument due to the fact that over one-third of the abortion clinics in the state have shut down since the implementation of the law.   

Is this causing an undue burden?

The court saw this argument as premature, and not ripe for consideration at least until there is additional evidence that more abortionists are being denied admitting privileges, more clinics are closing doors, and as a result there is clear evidence that abortions are not easily attainable by women.   Does this truly rise to the level of an unlawful undue burden?  Given the split in the circuits that have looked at this issue in the last couple of years, it is likely that the case will be headed to the Supreme Court.  

April 1, 2014 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts | Permalink | Comments (0)

Sunday, February 16, 2014

Virginia Is For Lovers

I have always found the slogan "Virginia is for Lovers" somewhat ironic ever since reading, in law school, the infamous Loving v. Virginia case that dealt with Virginia opposing the loving (interracial marriage) of a black woman and a white man.  Even after that 1967 Supreme Court case, the slogan continued to hold curious meaning with Virginia's opposition of gay marriage.  This makes the 2014 Bostic v. Rainey decision impactful to the Virginian loving lore.  

District Court Judge Arenda L. Wright Allen, nominated to the Virginia federal court in 2011, has brought national attention to her opinion, issued on the eve of Valentine's Day, when she closed by stating that:

"We have arrived upon another moment in history when "We the People" becomes more inclusive, and our freedom more perfect."

I wonder if we have arrived at a more perfect appreciation for love in this Commonwealth where I reside.  I suppose the answer to this question will come by the time the deadline for appealing this decision has passed.

February 16, 2014 in Current Affairs | Permalink | Comments (0)

Wednesday, February 5, 2014

Snow Day Inspiration: Beatrice Mtetwa and the Rule of Law

Ibrahim-index-of-african-governance-rule-of-law.svg (2)Sometimes a good snow day gives us a rare chance to slow down and reflect on life, or just to recharge our batteries (after digging out, of course). If you'd like a little professional inspiration for your teaching or that tough appeal you're working on, take a few minutes to learn about Beatrice Mtetwa, a human rights lawyer in Zimbabwe and the subject of a  new documentary by Lorie Conway, Beatrice Mtetwa and the Rule of Law.

To get acquainted with her work and story, get inspired by the short, three-minute film trailer or a longer, nine-minute trailer; visit the documentary homepage; or absorb an in-depth Q&A session hosted by the International Bar Association

Hat tip: The Guardian, Courage of Zimbabwe Human Rights Lawyer Captured in Film

Image: Stephen Morley (Based on File:BlankMap-Africa.svg) [CC0], via Wikimedia Commons ("A map of Africa showing countries' scores on the Safety and Rule of Law category of the Ibrahim Index of African Governance") 

February 5, 2014 in Appellate Justice, Current Affairs, Film, Legal Profession | Permalink | Comments (0)

Tuesday, December 24, 2013

Law Professor Wins Case For Release Of Bar Exam Data

A battle that seems to have lasted the past decade will continue well into the next one.  in 2004, UCLA Law Professor Richard Sander published a controversial article in the Stanford Law Review surmising that affirmative action was harmful to minority law school applicants.  Based upon the data he reviewed at the time, he concluded that minority students would be best served by eliminating preferential admission standards.  His findings were criticized as being both not substantiated by adequate data collection and problematic to the growth of minority lawyers in a post-civil rights era.  

In order to get the vast data necessary to support his hypothesis, in 2008 Professor Sander requested data from the California State Bar, which has data on race, passing statistics, and law school grade averages of the approximate 15,000 annual exam takers.  When the bar association refused to release the records, a lawsuit followed.

On December 19, 2013, the California Supreme Court ruled that the records must be released as long as the identity of the examinees remains confidential.  It seems that Professor Sander has agreed to cover the costs associated with redacting names.

Affirmative action continues to be a hotly contested issue.  It is hard to say whether the release of this data will be a good or bad thing for the future growth and development of minority lawyers.  What it will do is provide Professor Sander, and I assume others with this topic on their scholarly agenda, with much greater data to analyze.  I am certain we will see an updated article from him on the topic in the coming years.  The interesting thing about affirmative action is that we will never know whether it is still needed until it no longer exists.  The problem:  if affirmative action is ended and we later find that it was essential and is still necessary, what is the probability of affirmative action being reinstated?  Highly unlikely.

Hat tip to ABA Journal.

December 24, 2013 in Current Affairs | Permalink | Comments (0)

Saturday, December 14, 2013

Lawyers Cannot Hide Behind Concepcion Ruling

Last week, I posted about the ongoing impact of the SCOTUS Concepcion decision.  In an interesting twist, the 9th Circuit (the same circuit that was overturned in Concepcion) carved out an exception to that case and its negative impact on class arbitration .   In a December 12, 2013 Smith v. JEM Group Inc. decision, the court held, in finding the arbitration contract procedurally unconscionable, that law firms cannot hide behind arbitration provisions that prohibit class arbitration in instances where the clients are not properly advised on the ramifications of the provision.  

Alison Frankel provides a very good case analysis in her Reuters opinion post here.

December 14, 2013 in Current Affairs | Permalink | Comments (0)

Thursday, December 12, 2013

Guns And Roses

As we approach the one-year anniversary of the horrific Sandy Hook Elementary School shooting this weekend (it seems that so far the news media outlets are honoring the community request to stay away), we are no closer to gun reform.  Of course, some would applaud this, arguing that there should be no encroachment on our 2nd Amendment right to bear arms. 

Gun rights advocates are certainly applauding the December 10, 2013 decision from Florida's 1st District Court of Appeal.  The case involved the University of North Florida's (UNF) gun ban on campus.  A student challenged the university policy that guns could not be stored in vehicles that are parked on campus.  The majority 12-3 opinion held that the policy was unlawful, especially considering UNF is a state institution.  Florida law allows guns to be stored in vehicles, and the court indicated that this law trumps the policies and regulations of local governments and universities.  The court also differentiated guns on college campuses from those on public school district grounds, where they are disallowed by law.

This story resonates with me because I have mixed feelings on the issue.  After all, my law school was the site of a tragic and fatal shooting in 2002.  While I was not teaching here at the time, the story that I have heard entails the shooter being subdued by a fellow student who retrieved a gun from his car.  Advocates for guns would say that allowing guns on campuses likely saved lives due to the actions of this heroic student.  On the other hand, opponents would argue that greater gun control measures might have prevented the shooter from getting access to the gun in the first instance. 

As more shootings like Newtown occur, gun control will certainly become a heavily litigated issue.  But for now, if you are not in the vicinity of Newtown CT this weekend to place a rose at the shooting site or on the grave of one of the 26 victims, perhaps planting a rose in remembrance is apropos. 

December 12, 2013 in Current Affairs | Permalink | Comments (0)

Thursday, December 5, 2013

Still Feeling the Effects of Concepcion

Arbitration began as a simple dispute resolution mechanism to help businesses resolve contractual issues.  At some point, someone had the brilliant idea to force arbitration provisions into consumer contracts.  When that worked to perfection, the next obvious step was to infuse arbitration into the adjudication of statutory rights.  A logical outgrowth of this rapid developing forum was to quell class actions, a la Concepcion, by using arbitration provision language, or lack thereof, to allow for a waiver of class actions.  

In June, the Italian Colors case taught us that a waiver of class action is perfectly fine, even if the end result meant that the plaintiffs had not true remedy available (see analysis by our friends at ADR Prof Blog).  Now, following the lead of SCOTUS in Concepcion and Italian Colors, the 5th Circuit yesterday dealt another blow to plaintiffs by asserting in Horton that the super-statute Federal Arbitration Act (FAA) trumps the National Labor Relations Act (NLRA).  Specifically, the court rejected the National Labor Relation Board's (NLRB) argument that to disallow class arbitration was tantamount to taking away employees' Section 7 & 8 rights to concerted activity (see a full analysis by our friends at Workplace Prof Blog).  

Why would the 5th Court issue such a ruling?  Perhaps it is because the Supreme Court has repeatedly ruled in fashion that makes the FAA appear to be the mightiest statute in the land.  The 2nd Circuit came to a similar conclusion when it recently held in Duran that its "unusual" pro-arbitration conclusion is premised upon Supreme Court precedent. 

This is not to say that arbitration is bad.  It has many wonderful attributes.  But allowing businesses to prevent class action arbitration under the convenient - but power-balance impaired - 'freedom of contract' principle has resulted in inexplicable outcomes.    

December 5, 2013 in Current Affairs | Permalink | Comments (0)

Monday, December 2, 2013

HBO Puts a Spin on Clay v. United States

If you subscribe to HBO, you might find Muhammad Ali's Greatest Fight a very interesting movie to watch.  Besides the fact that it chronicles, in part, the sometimes politically-controversial boxing career of Cassius Clay Muhammad Ali,  it takes a look inside the deliberations behind Ali's court fight against being drafted into to U.S. Military.  

The case Clay v. United States begins with Clay losing an administrative appeal.  While Clay argued that he met one or more elements of the 3-part test (1. that he is conscientiously opposed to war in any form, 2. that this opposition is based upon religious training and belief, and 3. that this objection is sincere) used to determine whether an individual's objection to being drafted is afforded religious freedom protection, the Justice Department, then headed by Solicitor General Thurgood Marshall, believed that his objection was rooted in political rather than religious ideology.   As such, he was tried and convicted of willfully refusing to be drafted.  After losing on appeal, the case finds its way to the Supreme Court.

By the time the case arrives on the Court's doorsteps, Thurgood Marshall is now a Justice and, due to his involvement at the beginning of the case, recuses himself.  The movie uses this as an opportunity to showcase Justice Marshall as a proponent of integration and a believer that Muhammad Ali is promoting a segregationist agenda as a member of the Nation of Islam (black Muslims).  

The movie also dramatizes the inner workings of the Supreme Court.  The movie follows a seemingly fictional and liberal-minded law clerk championing the Court's consideration of hearing the Clay case.  The law clerk, from Missouri Law, is met with opposition from not just John Harlan, the Justice supervising him, but also from elitist and more conservative fellow law clerks with higher pedigrees from Harvard, Yale and Columbia Law.  

Initially there is great opposition to hearing the case, but eventually the Court agrees.  After oral argument, the Justices seem to be headed towards a 5-3 decision affirming the conviction.  However, the protagonist law clerk does some exhaustive research, finds a case that seems to mirror the premise in the Clay case but involves the Jewish faith, and then approaches Justice Harlan with a draft of an opinion in favor of Clay - regardless of the 5-3 decision and the fact that John Harlan had charged the law clerk with drafting an opinion against Clay.  After looking at the possible racial impact of a decision against Clay and the Muslim religion when the facts seem to suggest that his conscientious objector argument should be successful, the Justices eventually reverse course and come to terms on how to carry out issuing an 8-0 decision.  The last twist to the movie chronicles how they crafted the decision so that it would not create precedent, but would be narrowly construed to the facts presented.  Specifically, since the Appeals Board issued its decision without clearly articulating the grounds for the decision (which elements of the conscientious objector test Clay failed to meet), the Court ruled that such an ambiguous conviction could not stand.  

The movie is interesting in how it shows the "case behind the case."  Watching the deliberations of the Justices, the jockeying of the law clerks and their role in influencing the minds on the Court, and the politics that came into play in what should be a non-political judicial branch was fascinating.  It really makes one think about the fact that advocates need to focus on not just persuading the panel of neutrals, but also must keep an eye towards how to influence the law clerks and the other people with political, social, or other interests in the case outcome.  

If you get the opportunity, do take time to watch this movie.  It will be time well spent.

December 2, 2013 in Current Affairs, Film | Permalink | Comments (0)