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 The memorandum notes the outdated and rudimentary technical interface, fee and access barriers, and "the almost universal condemnation of PACER from the outside world."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 This seems consistent with what Circuit judges and federal court scholars have said for years about unpublished opinions.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)

Wednesday, November 27, 2013

44 Years Later, Train Ride Ends

Arbitral proceedings typically last less than a year.  A lawsuit is usually resolved within two years.  If an appeal is filed, a case can easily drag on for three to five years.  However, the fight of 32 railroad workers to receive the value of their lost seniority and job protection lasted 44 years.  The suit survived the deaths of 30 of the 32 plaintiffs as well as their lead counsel (his daughter took over the case after his death in 2000).  

Following the merger of the Pennsylvania Railroad and New York Central Railroad in 1968, some workers were laid off and, if brought back to work, were given temporary assignments at a lesser wage.  The 32 workers filed suit in 1969 in the United States District Court for the Northern District of Ohio, and the combined Penn Central Transportation Corp. filed for bankruptcy protection less than three years after the merger.  The case involved several arbitration hearings (initially sent to arbitration by the district court in 1976) and federal court appeals.  A 1979 attempt by the company to settle the case for $95,000 was rejected by the plaintiffs.  The defense took the position that they were not employees following the layoffs, and that the bankruptcy of Penn Central eviscerated the claims.  However, the plaintiffs argued that the Bankruptcy Act of 1898 provided carved-out protections for railroad workers, and that they were employees.  It also seems that the company is still in existence, albeit no longer in the railroad business, with Penn Central now a part of American Financial Group.  

After a federal appeals panel in September upheld the arbitration award and granted interest, the defense finally decided to cut its losses and move on from the dispute.  The workers were seeking $564,820 in damages.  After adding accumulated interest, the two remaining plaintiffs and the heirs of the 30 deceased ones will split with their counsel $14.7 million. 

Although this has been called the longest running U.S. civil dispute,  the claim is disputed by a case that allegedly lasted 57 years.  Guinness World Records lists the longest current suit by a single individual as one dating back to 1972.  

Hat tip to The Wall Street Journal.



November 27, 2013 in Current Affairs | Permalink | Comments (0)

Wednesday, November 20, 2013

United's Motion to Dismiss Sex Toy Gag on Gay Couple Doesn't Survive 5th Circuit Scrutiny

In 2012, a Virginia gay couple accused United Airlines and Continental (collectively United) of negligence, invading their privacy, and intentionally inflicting emotional distress when an airline worker allegedly went into their luggage, removed a private sex toy, covered it with a foul smelling substance, taped it to the top of their luggage, and sent the luggage to the baggage claim carousel to embarrass them and to prompt waiting travelers to laugh at and ridicule the couple.  United removed the case from state court to the district court in the Southern District of Houston.  They then promptly filed a 12(b)(6) motion to dismiss, asserting that the claims cannot survive because they are preempted by Article 17 of the Montreal Convention (for a nice article explaining the Article and exploring legal cases involving it, click here).  In a decision dated November 29, 2012, the district court granted the motion and dismissed the case.  

Not discouraged by this setback, the couple and their capable attorney Dax Faubus appealed the case.  Fast forward a year.  On November 4, 2013 the 5th Circuit reversed and remanded the case, holding that the claims are not preempted by the Montreal Convention.  Specifically, the Court noted that the Article deals with passengers embarking and disembarking an aircraft.  In this case, the events that took place are related to embarking and disembarking only tenuously at best.  Indeed, the injury took place away from the aircraft and at the baggage claim area.  The Court further stated that the claim by United - that the action is preempted because it dealt with baggage - is not persuasive given the fact that the couple alleged no claim for the possible damage or loss to the baggage itself, only claiming personal injuries based upon what was done to the baggage.  Thus, sections 17(1) and (2) do not preempt the state law claims.  

What struck me as interesting is that there appears to be little to no attention paid to another possible issue with the preemption argument.  The facts of the case state that the couple was flying from Costa Rica to Norfolk VA.  However, during their layover in Houston TX they actually switched planes and "re-checked" their baggage.  Because they re-checked the baggage in the U.S. and made a U.S.-only flight from Houston to Virginia, arguably the 'international flight-focused' Montreal Convention might not have been applicable.  

I also find it curious that United seems to have decided against substantial pre-litigation settlement talks and instead opted for the deny and defend strategy.  Regardless of the legal merits, this seems like a potential PR nightmare for one of the world's largest airlines that possibly could have been avoided had the airline offered something more than the "goodwill gesture" the spokesperson(s) for the company states was extended.  Of note, the company continues to stick to its strategic focus by recently stating that "there is no support for this allegation" and that they will "vigorously defend themselves and their employees."  

Hat tip to Texas Lawyer.

November 20, 2013 in Current Affairs | Permalink | Comments (0)

Tuesday, November 19, 2013

Framing the Issues: Contraceptive Coverage and Religious Freedom in the Seventh Circuit

Birth control pills
While many factors go into writing a truly persuasive brief, the best and earlie
st opportunity to convey the client’s case theory is the issue statement.  In a recent Seventh Circuit appeal involving religion and the new federal health insurance laws, the briefs provide instructive examples of how to take fuller advantage of that opportunity—or not. 

In Grote Industries v. Sebelius, the trial court denied a preliminary injunction to Catholic business owners who did not want to provide contraceptive health coverage to employees. Grote Industries and the United States framed the issues as follows. (The bold typeface is added here to emphasize the stronger thematic words.) 

  • Grote Industries: The Grote Family members are Catholic and operate their business, Grote Industries, in accordance with their faith, including the Catholic Church's teachings regarding the moral wrongfulness of abortifacient drugs, contraception, and sterilization. *** Can the government establish the high standard of strict scrutiny in support of implementing the Mandate against Grote, especially when the government exempts millions of other Americans and has a variety of alternative measures available? 
  • United States: Whether the Religious Freedom Restoration Act (“RFRA”) claim fails because RFRA does not allow a for-profit, secular corporation to deny federally required employee benefits on the basis of religion. 

In an opinion released last week, the Seventh Circuit used its merits analysis to fire a warning shot past the Justice Department, and required the trial court to provide temporary relief. The Court predicted that based on the record so far, the United States will fail to articulate a compelling state interest for requiring religious business owners to provide contraceptive coverage in employee health plans. While the decision remains controversial, as evidenced by a vigorous dissent, the issue statements in the briefs seem to presage the government’s need for a clearer theory—and a more compelling story. 

Next time: a deeper look into these issue statements for choices in structure, content, theme, and style. The Appellate Advocacy Blog will regularly examine briefs in high-profile cases for persuasive strategies. If you run across a striking example you’d like to share, contact us.

Hat tip to Lyle Denniston at SCOTUSBlog for the case.

Photo: Wikimedia

Briefs and opinion: 2013 WL 5960692 (opinion), 2013 WL 816519 (Grote Ind. opening brief), 2013 WL 1208759 (U.S. response).

November 19, 2013 in Current Affairs | Permalink | Comments (0)

Diversity and judicial nominations in the Eleventh Circuit

Judicial nominations have been a hot topic recently, with most stories focusing on the Senate fight over the D.C. Circuit Court of Appeals.  For a different angle on the nomination process, take a look at this article that The Atlantic ran last week questioning why the White House isn’t making a greater effort to appoint more black judges to the Eleventh Circuit Court of Appeals and to the federal district courts in Alabama, Georgia, and Florida.  

While recognizing that the President “has nominated more women and candidates of color than any of his predecessors,” the article argues that the President has a “dismal record” in successfully appointing black men and women to the federal bench in these three particular states.  For example, in discussing appointments to the Eleventh Circuit Court of Appeals, the article points out:

  • that the Eleventh Circuit’s territory has “the highest percentage of blacks” of any federal circuit territory in the country (approximately 25%);
  • that only one of the Eleventh Circuit’s sixteen judges is black;
  • that the Eleventh Circuit has had only two black judges since being created in 1981;
  • that the Eleventh Circuit has never had a black female judge;
  • that there have been six vacancies on the Eleventh Circuit since the President took office in 2009;
  • that the President has not appointed a single black man or woman to fill those vacancies.

That made me wonder: Is it fair, when assessing a president’s track record on appointing minorities to the bench, to consider the appointments region by region, or should we look at the president’s overall national numbers?  And, if we go region by region, should a region share some of the blame if it has low minority representation on the federal bench?  The Atlantic’s article recognizes that the three states’ Senate delegations have “something to do with” the lack of diversity in the federal courts in the Eleventh Circuit.  But it also says that “there is a lack of steel behind the White House’s push for judicial diversity” in those states.  Then it ends on this note:

The president’s failure to nominate more black candidates in those three states, and his refusal to fight more strenuously for those black candidates he has nominated there, is not the typical give-and-take of politics. In context, it’s a capitulation to southern Republican officials, including some of the very ones who helped doom the Voting Rights Act. Indeed, at a time when minorities are being disenfranchised by Republican officials in Florida and Alabama and other Southern states, the continuing lack of black representation on our federal benches sends another strong message of a tolerance for unequal justice.


It’s fair to ask why the presence of judges of a particular race ought to matter. In a perfect world, it wouldn’t. But the American legal system, and especially its criminal justice systems, still are riven by vast racial divides. Nowhere is this more true than in the Deep South, where racial disparity in sentencing still is profound and where black murder suspects are far more likely to be charged with a capital crime, and far more likely to be sentenced to death, than their white counterparts. President Obama, the noted constitutional scholar, knows all this. And yet he still fails to move decisively to remedy it.

Too harsh?  Not harsh enough?  For a comparison of the last three presidents’ nomination statistics, click here.  Let me hear your thoughts on the topic in the comments.

November 19, 2013 in Current Affairs | Permalink | Comments (0)