Appellate Advocacy Blog

Editor: Tessa L. Dysart
Regent University School of Law

Friday, September 30, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

Here are a handful of tidbits on appellate practice from around the web this past week.  As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). 

Upcoming SCOTUS Term 

SCOTUS kicks off its new term on the first Monday in October.  As a result, the week before usually results in quite a bit of chatter, speculation, and discussion about the coming term and what can be expected.  Here are a few tidbits in that regard: 

SCOTUS Order List: 

On Thursday, SCOTUS released an Order List adding eight cases to its new term, to start next week.  SCOTUSblog provided a good / quick writeup about the list and a little preview of each case. 

Order List: 

https://www.supremecourt.gov/orders/courtorders/092916zr_b97d.pdf 

SCOTUSblog Article:  http://www.scotusblog.com/2016/09/justices-add-eight-new-cases-to-docket-for-upcoming-term/ 

SCOTUS 2016 Term: By the Numbers 

Bloomberg broke down the upcoming term "by the numbers" -- including how many cases had been docketed at the beginning of the week (out of the 75 or so likely to make up the full docket for the year), the number being heard on direct appeal vs. discretionary grants of cert, original jurisdiction, etc. The article also breaks down civil vs. Criminal cases on the docket, the possibility of the 9th Circuit becoming the most reversed court for this term, etc. 

Article:  http://www.bna.com/scotus-2016-termby-n57982077532/ 

5 Facts about the Supreme Court 

Pew Research Center summarized five facts about how Americans view SCOTUS as this year's term looms on the horizon.  Americans' opinions of the Court hit a 30-year low last year, but have rebounded; there is a significant partisan gap in views of the Court; those partisan views include sharp divisions about how the Court should interpret the Constitution; voters closer to the conservative end of the Republican spectrum or the liberal end of the Democratic spectrum (as opposed to moderates) view court appointments as more important to their vote in the upcoming presidential election; and most Americans disagree with the current Senate's decision not to hold hearings on the nomination of Merrick Garland.  See the article for more in-depth explanation of these five points. 

Article:  http://www.pewresearch.org/fact-tank/2016/09/26/5-facts-about-the-supreme-court/ 

Hat Tip:  Robert Barnes (@scotusreporter

How Clinton's or Trump's Nominees Could Affect the Balance of the Supreme Court 

Adam Liptak and Alicia Parlapiano had an article in the NY Times that provided an interactive guide and links to a new study prepared by Lee Epstein of Washington University in St. Louis, Andrew D. Martin of the University of Michigan, and Kevin Quinn of the University of California-Berkeley, discussing predictions about each candidate's potential nominees. 

Article:  http://www.nytimes.com/interactive/2016/09/25/us/politics/how-clintons-or-trumps-nominees-could-affect-the-balance-of-the-supreme-court.html?_r=0 

Hat Tip:  Howard Bashman (@howappealing

#TwitterTuesdays Here 

This week's edition of #TwitterTuesdays here at the Appellate Advocacy Blog focused on Supreme Court related Twitter accounts to keep you informed about all thing SCOTUS. 

Link:  http://lawprofessors.typepad.com/appellate_advocacy/2016/09/twittertuesday-scotus-edition.html 

Judge Clears Path for PACER Overcharge Suit 

An article on Law.com this week highlighted that a U.S. Court of Federal Claims judge has denied the government's request to dismiss a class action suit alleging that a computer glitch caused the Public Access to Court Electronic Records (PACER) system to erroneously overcharge users for accessing and viewing federal court docket information.  The basis for the government's claim was an assertion that the plaintiffs in the suit were required to exhaust administrative remedies before pursuing the action in court; the judge disagreed. The underlying action is based on "claims for breach of contract, breach of an implied covenant of good faith and fair dealing, and illegal exaction." 

Article: http://www.law.com/sites/almstaff/2016/09/26/judge-clears-path-for-pacer-overcharge-suit/?cmp=share_twitter&slreturn=20160827104313 

Hat Tip:  Zoe Tillman (@ZoeTillman) and Jason P. Steed (@5thCircAppeals

September 30, 2016 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, September 23, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

 

Here are a handful of tidbits on appellate practice from around the web this past week.  As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). 

Will the Supreme Court's Vacancy Issues Ever Become an Election Issue?

Chris Geidner had an article on BuzzFeed News this week asking the question.  The article recounted how, for a brief moment last weekend, it appeared as if the topic of the vacancy on the Supreme Court and Congress's decision not to consider and vote on President Obama's nominee to fill the vacancy would became a real issue in this year's Presidential election.  Hillary Clinton was asked a question about it; a member of Donald Trump's campaign allegedly had been told that he would be a nominee in a Trump administration; Senator John Cornyn (chair of the Judiciary Committee's subcommittee on the Constitution) spoke about hopes of confirmation for a set of lower court nominees back by Republican senators. But the focus quickly shifted away, again. Nonetheless, as the article notes, there are still some key dates coming up that might shift focus back to this topic as a key in the race for the White House, including the Court's new term opening in October, as well as upcoming debates. 

Link:  https://www.buzzfeed.com/chrisgeidner/the-supreme-court-almost-became-an-issue?utm_term=.ng7AOelBk#.vm7vjmoN1 

 

Related, Jason P. Steed (@5thCircAppeals) tweeted a link to his April blog post about "Duty" and the Constitution, discussing the debate over whether the Constitution imposes a "duty" on Congress to consider and vote on a nominee to fill a vacant seat on the Court.  The post raises some great discussion points about the intersection between whether the Constitution specifically imposes such a duty and whether it's acceptable to conclude that it does not if that conclusion arguably threatens the very function of the Constitution itself. 

Blog Post:  https://formalegalis.org/2016/04/18/duty-and-the-constitution/ 

Twitter Post:   https://twitter.com/5thCircAppeals/status/778269922430365696 

  

Finally, Cornell Law Professor Michael Dorf had a post on Justia.com titled, "The Future of the Supreme Court, Regardless of Who Wins the Election." In the piece, he makes the case that although "it is tempting for those of us who follow the work of the high Court to play a waiting game" and acknowledges that "with respect to some important issues, uncertainty . . . warrants caution" he also argues that "Supreme Court watchers who are fearful about the outcome of the 2016 election can take comfort from the fact that it may not matter as much as we expect." He argues that there are "vast swaths of our public life about which the Court has almost nothing to say" and that "[s]ome areas of Supreme Court jurisprudence will likely be unaffected by the next appointment(s) because they rest on broad cross-ideological consensus." While acknowledging that "who appoints the next several justices to the Supreme Court is [not] an unimportant question" he argues that we should not think "that everything is up for grabs" because, at the end of the day, "the Court still decides many more cases unanimously than by a single vote" and also points out that history should tell us that "[e]ven when we know who will apoint justices . . . [and] even when we know who those justices are," their ultimate voting habits with the Court are often unexpected. 

Justia article:  https://verdict.justia.com/2016/09/21/future-supreme-court-regardless-wins-election 

Dorf on Twitter:  https://twitter.com/dorfonlaw 

 

Oral Argument Preparation Thoughts 

Bryan Gividen (@BryanGivi) started a good twitter discussion about oral argument preparation process and tips.  David Feder (@davidjfeder) had previously posted an image showing the Solicitor General's process for oral argument prep in cases before SCOTUS. The comments and responses to both provide some great practical thoughts from folks who regularly engage in oral argument preparation. 

Gividen Twitter Discussion Link: https://twitter.com/BryanGivi/status/777896705161170944 

David Feder Twitter Post: https://twitter.com/davidjfeder/status/777650613114974208 

 

How Many Issues to Raise on Appeal 

Mike Skotnicki (@MSkotnicki) tweeted a link to a 2014 blog post he wrote about determining how many issues to raise on appeal.  In the post, he discusses striking the balance between raising every issue that you can possibly find and only raising one or two really good arguments, arguing in favor of raising "every argument deemed to have real potential to be found meritorious" and capable of passing the "'red face test' (would you blush raising the argument during questioning at oral argument?)" 

Blog Post:  https://brieflywriting.com/2014/04/03/so-how-many-issues-do-you-raise-on-appeal/ 

Twitter:  https://twitter.com/MSkotnicki/status/778284106920693760 

 

September 23, 2016 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, August 26, 2016

To Swear or Not to Swear, that is the Question....

Should judges and lawyers quote profanity in their opinions, briefs, and oral arguments?  Zoe Tillman tackled this touchy issue in a recent article on Law.com.  The article, aptly entitled "In Quoting Profanity, Some Judges Give a F#%&. Others Don't," Tillman includes several quotes from federal judges on the use of profanity in judicial opinions.  Well some try to avoid it at all costs, others don't mind including it, especially if it is relevant to the case.

Tillman notes:

Profanity has become increasingly prolific in court opinions. Since 2006, the word “fuck” was quoted in approximately 445 federal appeals court opinions, according to a search of court records. That’s nearly as many as the preceding four decades combined.

While judges may have the freedom to quote profanity in an opinion, what should an attorney do in writing a brief or in oral argument?  With respect to oral argument, one option is to call the court in advance and notify the court that you plan on using profanity.  According to First Circuit Judge Bruce Selya, who was interviewed for the article, his court always gives permission when attorneys ask.

With respect to briefs, I think that calling the court to ask how these issues have been handled in the past is always a good option.  It also doesn't hurt to do your homework and know the tenure of the court that you will appear before.  Finally, ask yourself if it is truly relevant to use the profanity in the brief.  

Apparently the Washington Redskins included a fair amount of profanity in their brief to the Fourth Circuit over the team's trademark.  According to a post on the Business Law Basics blog,

In support of the latter argument [that the Patent & Trademark Office arbitrarily enforces offensive trademarks], the team provides extensive lists of wildly offensive trademarks that the PTO has issued.  Certainly many of the issued trademarks mentioned in the brief are so salacious, crass, sexist and/or racist that we hesitate, on this family-friendly blog, to list them here.  Indeed, this opening brief is notable in being one of the most [not inappropriately] profanity-laden court filings we have ever seen, and is worth a look for that reason alone. 

 

 

August 26, 2016 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, Oral Argument | Permalink | Comments (0)

Monday, August 1, 2016

SEALS 2016

The Southeastern Association of Law Schools 2016 Conference kicks off on Wednesday, August 3, in Amelia Island, Florida.  As always, Prof. Russell Weaver from the University of Louisville Brandeis School of Law has put together an excellent program.  

There are several panels that may interest readers of this blog, including:

  • A discussion group on Equality & Identity in a Post-Scalia World (Wednesday, Aug. 3)
  • A discussion group on Justice Thomas after 25 years on the bench (Wednesday, Aug. 3)
  • Supreme Court Update:  Business, Administrative, Securities, Tax, and Employment Issues (Thursday, Aug. 4)
  • Supreme Court Update: Individual Rights (Thursday, Aug. 4)
  • The Scalia Legacy (Friday, Aug. 5)
  • Understanding the Effects of Judicial Selection on State Courts (Saturday, Aug. 6)
  • The First Amendment and the Changing Supreme Court (Sunday, Aug. 7)

I will be on a panel on Monday, August 8, called "The Road to Scholarship as Seen by Newer Professors," which was organized by Prof. Suzanne Rowe from University of Oregon School of Law.  This panel is designed to offer advice to newer law professors on what to do (and of course what not to do) to establish a good scholarly agenda.  SEALS typically offers great programming for new law professors and for those thinking about entering academia.

I encourage all those attending to check out the full program here.

Special recognition to Prof. Tim Zinnecker at Campbell for the most creatively named panel:  "God created the world out of nothing in six days; I'm only the academic dean."

 

August 1, 2016 in Appellate Advocacy, Federal Appeals Courts, Law School, Legal Profession | Permalink | Comments (0)

Tuesday, September 15, 2015

Fifth Circuit Appellate Advocacy Seminar

Readers may find this of interest:

On October 5 and 6, 2015, the Bar Association of the Fifth Federal Circuit will host our Annual Appellate Advocacy Seminar in New Orleans. The cost is $100 for 9.75 hours of Continuing Legal Education, including both an hour of Professionalism and an hour of Ethics. Attend a two-hour writing workshop to hone your brief-writing skills, observe oral arguments and get practice tips from seasoned attorneys and sitting judges. This seminar is an ideal introduction to federal appellate practice, with specifics about Fifth Circuit procedures.  http://www.baffc.org
 

September 15, 2015 in Appellate Advocacy, Federal Appeals Courts, Legal Ethics | Permalink | Comments (0)

Friday, May 29, 2015

How the Sausage Is Made

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

 

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

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

Tuesday, April 14, 2015

Proposed Maryland Rule Heads Wrong Way on Unpublished Opinions

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

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

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

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

Thursday, April 2, 2015

CA3blog on the Third Circuit's Low Published Opinion Rate

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

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

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

Thursday, March 19, 2015

WSJ on Federal Word Count Proposal Debate

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

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

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

Perhaps optical character recognition software could have been used?

hat tip to reader: Professor Jennifer Romig

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

Wednesday, March 11, 2015

Administrative Office of the US Courts Releases Annual Report

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

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

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

Tuesday, February 10, 2015

The Harms of Issuing Non-Precedential Opinions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 3, 2015

NY Times on Unpublished Federal Court Decisions

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

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

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

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)

Tuesday, January 6, 2015

Rantanen Post on Transparency Issues in the Federal Circuit

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

 

hat tip: Howard Bashman

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

Tuesday, December 9, 2014

Random Assignment of Federal Appellate Cases and Panels

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

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

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

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

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

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

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

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

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)

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)

Thursday, October 30, 2014

Sixth Circuit Judicial Conference - Save the Date

Wednesday, September 17, 2014

BP Counsel Fiddles With Line Spacing in Federal Filing

This is the kind of basic advocacy blunder that is hard to believe, but it's being reported that BP's counsel fiddled with the formatting to file an over-length brief without permission.While this happened in federal district court, it's a fundamental advocacy issue worth reporting here. In a filing related to the Deepwater Horizon oil rig spill in 2010, BP's counsel tried to slip one past Eastern District of Louisiana Judge Carl Barbier. He was not fooled or amused.

After noting that it had already allowed BP to file a brief ten pages longer than the usual twenty-five-page limit, the Court explained:

"BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck."

Judge Barbier was far more generous than I would have been. Still, even without a harsh penalty, this will make good material for my appellate advcocacy class lesson on ethos in a few weeks. For a company that wants to be viewed as one that follows the rules and cares about details, this kind of angle-shooting by its counsel seems counter-productive.

A former clerk for Judge Barbier, Alabama Law Professor Montré Carodine, reads between the lines to suggest: "The subtext seems to be Judge Barbier saying, 'Look, every time I give you an inch you take a mile, and I'm tired of it,'" (as quoted in the NPR piece on the matter). I'm not sure what evidence exists to show repeated offenses, but fiddling with the formatting after being allowed to increase your brief by 40% does seem to be the kind of presumptious greed Carodine's idiom suggests. 

I wonder how often this occurs. Does it slip past judges with any frequency? Is there any creditable explanation for changing the formating? Any one want to defend the practice?

 

Hat tip to reader Maryanne Heidemann

September 17, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (5)