Thursday, November 16, 2017
This week the Senate held confirmation hearings on two nominees to the U.S. Court of Appeals for the Fifth Circuit, Justice Don Willett, a judge on the Texas Supreme Court, and James Ho, a private attorney. Ho fielded few questions compared to Willett's questioning, most likely due to Willett's more high profile media presence - he is known as the Tweeter Laureate of Texas. While Willett exhibits a lighthearted style and does not specifically make political tweets in his twitter feed, his social media presence does raise questions of how the public should view the judiciary. There are several pros and cons to the issue of judges having a social media presence, likely with the general public and the lawyer community having some different ideas.
The benefits to judges having a social media presence is certainly to make the judicial system less mysterious and to promote civic awareness of how government works. It would make the system less intimidating, since people would be able to see that judges are human. It would allow lawyers to get a feel for the personality of a judge before whom they may appear or to whom they may submit a brief. Understanding your audience as a lawyer is an important skill to persuading your listener.
On the other hand, judges having a social media presence may undermine the respect we want people to have for the judicial system. Judges inhabit power positions, and if they are seen as mixing it up on Twitter or other social platforms, it could bring disrespect to the judiciary and reflect on all judges. Perhaps some of the mystery of the courts is necessary to maintain the dignity of the courts. If judges stray from nonpolitical discourse, this could also be quite damaging to the fair and impartial image we expect from the judiciary.
It's not just Justice Willett, many judges are on social media (and now even courts!), so reversing this trend is unlikely. (Tessa wrote here about getting Justice Willett back on Twitter since he went on hiatus once his nomination was released - he got his own hashtag #FreeWillet). But Justice Willett does provide some guidelines for how to approach social media as a judge. In an interview last year with Texas Lawyer he said this:
Texas Lawyer: As the unofficial “Tweeter Laureate of Texas,” you’ve become one of the most public members of the state judiciary. At 22,500 tweets and counting, the world knows a lot about your sense of humor, family life, sports team allegiances and political leanings. You’ve provided a rare look into the life of a judge. But by revealing so much about yourself, do you think you’ve compromised a judge’s mandate to appear neutral in all matters that may come before the court?
Justice Don Willett: A 2013 ethics opinion from the American Bar Association gives judges a thumbs-up to engage voters via social media, calling it “a valuable tool for public outreach,” but urging caution, as with anything, judges must always be judicious, whether crafting a 140-footnote opinion or a 140-character tweet. I diligently self-censor and aim for carefulness. A few cardinal rules: No discussing cases that could appear before me, and no partisan bomb-throwing. I try to keep things witty and light, regaling people with my random musings on sports, culture, parenthood, law, stuff like that. Judges on social media must be juris-prudent, always honoring our distinctive constitutional role. I take my job seriously, if not myself. The law is a majestic thing, and when citizens confer the title “Justice” on someone, they place in human hands that profound majesty.
In his confirmation hearings this week, Willett was asked whether he would give up tweeting should he be confirmed. He acknowledged that his wife would like him to stop, but that he would take it under advisement.
Sen. John Cornyn, R-Texas, asked if Willett would keep tweeting if confirmed.
“The short answer is, I don’t know if I’ll continue tweeting,” Willett said. “I haven’t thought a lot about it, but if I do, certainly the frequency and the content would change.”
Willett said if he did tweet as a Fifth Circuit judge, he would focus on “civic education” and improving “our collective national civics IQ.”
Later, Sen. John Kennedy, R-Louisiana, asked the same question, and Willett gave a similar answer. But Kennedy expressed concern and asked that Willett consider not tweeting if confirmed. Willett promised the senator that if he did tweet, he would “post nothing that could be remotely construed as political.”
“Don’t you think the wiser course would be to just not do it?” Kennedy said. Willett said his wife agreed, and that he would think about it and get back to the senator.
It is not known when Justice Willett's nomination will be voted on, but it will be interesting to watch his reaction on Twitter!
Thursday, November 9, 2017
In a recently released Maryland Law Review article entitled Do Muddy Waters Shift Burdens?, Professors Carrie Sperling and Kimberly Holst walk readers through the history of what was supposed to be one of the country’s most progressive laws allowing post-conviction DNA testing for inmates whose cases did not originally involved that type of evidence. Article 64.03 in the Texas Code of Criminal Procedure created a uniform process for inmates to petition courts for testing, asking inmates to show, “a reasonable probability that he or she would not have been prosecuted or convicted if DNA testing had provided exculpatory results.”Criminal attorneys will recognize the “reasonable probability” test as a well-established standard that courts interpret as a probability that sufficiently undermines confidence in the case’s result.
Nevertheless, Texas courts have latched onto a metaphor introduced by the Texas Court of Criminal appeals a few years after the statute was enacted. That court first found ambiguity in the standard despite its years of interpretation in other contexts. Instead, that court held, the standard must be interpreted to require inmates to show, with reasonable probability, that the DNA testing would prove a convicted person’s innocence. The defendant in the case did not meet that burden, but showed only that DNA testing would “merely muddy the waters.” Despite the Texas Legislature returning to the statute to clarify its intent, Professors Sperling and Holst found that courts continue to use the metaphor as a statement of the governing rule of law.
Doctrinal metaphors abound in our case precedents. The most famous are found in evidentiary analysis, “fruit of the poisonous tree,” and in civil procedure, “long-arm” statutes. Many doctrinal metaphors are extremely useful in helping frame our thinking about more abstract principles. But, in the situation spotlighted by these two professors, a doctrinal metaphor might be harmful or even a misstatement of the law. What should a lawyer do in that situation?
The answer lies in part in a separate article, this one published by the Mercer Law Review and republished in a monograph, written by Professor Michael Smith, Levels of Metaphor in Persuasive Writing. In that article, Professor Smith advises attorneys to challenge the metaphor directly, a strategy he calls the Cardozo Attack. Justice (then Judge) Cardozo warned other jurists that creative metaphors involved with corporate law, “piercing the corporate veil,” should be used only very carefully and not to the exclusion of more accurate, albeit literal, language. Professor Smith’s article details two examples of successful attacks on doctrinal metaphors.
Both articles spend some time explaining the cognition of metaphor use, which is reason enough to read these two pieces. Beyond that, the articles offer an important lesson for appellate attorneys. First, we must be aware of the notion that metaphoric language is just that: a comparison of two seemingly incongruent things to help readers form connections. By themselves, doctrinal metaphors do not necessarily form the backbone of substantive law. Second, we should spend time in our lawyering process unpacking these metaphors in the event that they conflict with the actual and governing tests. In the event they do, it is incumbent upon us, as part of our client representation, to address the metaphor itself as part of a persuasive argument chain.
Monday, October 23, 2017
Yes, at least according to a recent study by the American Academy of Appellate Lawyers. Jennifer posted an excellent summary of the report last Thursday. I won't repeat her discussion, but I wanted to focus on a few other points.
The Academy, concerned with both the decline in cases listed for oral argument and the time allotted for oral argument in federal appellate courts, sent their report to Chief Justice John G. Roberts, Jr., and the chief judges of the federal appellate courts. As Academy member James Martin told the National Law Journal, more oral argument could shed light on the role of judges: "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about."
According to the report, there are four federal circuits with oral argument rates in the teens. The Fourth Circuit is the lowest, with only 11% of cases being scheduled for oral argument. The D.C. Circuit, with 55% of cases being scheduled for argument, has the highest rate of oral argument. According to the research I did along with my co-author for the third edition of Winning on Appeal, only 18.6% of federal appellate cases were scheduled for argument in 2015. In 1990, 44.8% of cases received oral argument, with the Second Circuit granting argument in 76.4% of cases. And, as we noted in Winning on Appeal, these numbers don't take into consideration the litigants who do not ask for oral argument in circuits that require such a request. So why the decline?
Some of the decline can be attributed to the rise in cases appealed. In 1969 the federal appellate courts terminated 9,014 appeals. In 2015, that number was 52,881, or an increase of 586%. It would be incredibly difficult for judges to hear argument in every case given the large number of appeals. Furthermore, in surveying judges for Winning on Appeal, we found that most judges found the briefs to play a highly significant, if not dispositive, role in helping them resolve the appeal.
Still, oral argument has its purposes. In chapter 3 of Winning on Appeal, we set out some of these purposes. For judges, oral argument allows them to (1) question the legal and factual positions in the briefs, (2) clarify the issues, (3) consider the impact of the positions taken, (4) lobby other members of their court, and, at times, (5) help the advocate present the case. For attorneys, on the other hand, oral argument allows them to (1) face the decision makers, (2) emphasize or simplify positions in the brief, (3) address the issues that trouble the court, (4) correct misimpressions, and (5) show the logical soundness of their position. In observing oral arguments, I have found that many attorneys fail to capitalize on these opportunities. While, as Mr. Martin noted, oral argument puts judges in "a very good light," it doesn't always do the same for attorneys. Perhaps the answer to more oral argument is to ensure that the quality of oral argument is excellent and beneficial to judges and the disposition of cases.
Thursday, September 7, 2017
The influential Chicago judge [is] known for his wit, no-nonsense writing style and his provocative commentary on law, politics and society—which he offered both on and off the bench. Unlike most federal judges, Posner gave interviews and rarely held back—even when the topic was the U.S. Supreme Court.
Judge Posner is 78, and plans to descend the bench by this Saturday. He was appointed by Ronald Reagan in 1981 and served as chief judge from 1993-2000.
“I am proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case,” Posner said in a statement. He noted that he had written more than 3,300 opinions during this time on the bench.
He said he looks forward to teaching and publishing “with a particular focus on social justice reform.”
As a few notable jurists before him, Judge Posner stands out through his clear prose and frequently humorous writing. He was not a fan of the Bluebook - which depending on who you talk to could be seen as heresy within the profession:
“At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook.”
Nor was he a fan of the class action lawsuit:
“The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
He made quite a stir with his ostrich opinion (the lawyer in the case didn't think it was very funny, or befitting of a legal opinion):
"The ostrich is a noble animal, but not a proper model for an appellate advocate," Posner wrote in a November 2011 ruling that featured an illustration of a man in a suit burying his head in the sand.
Judge Posner's blunt writing style might be held up against Justice Scalia's - not really for their similarity, but for their ability to make readers take notice. Judge Posner made waves when he criticized Scalia for seemingly undermining his staunch aversion to allowing legislative history to creep into his interpretation in Heller:
“[Antonin] Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.”
Judge Posner's humor, banter, and incisive writing will certainly be missed. Congratulations on to him on such a monumental career as a jurist and here's to many more years of being an influential force in the legal profession.
Monday, August 7, 2017
Somehow I missed this news last week, but the Seventh Circuit has announced that it will rehear, en banc, the case Dassey v. Dittman. If you watched the Netflix documentary "Making a Murder," you were probably shocked by Brendan Dassey's conviction, which certainly appeared coerced.
A split panel of the Seventh Circuit had upheld the district court's decision overturning Dassey's conviction. Now the whole Seventh Circuit will have a chance to opine. Eugene Volokh's post has some statistical information about the Seventh Circuit, including the number of judges appointed by Republican and Democratic presidents and the gender make-up of the court. Based on the actions of the panel, Prof. Volokh doesn't think that the typical stereotypes apply to this case. This is certainly a case that will attract significant media attention, so it will be interesting to see how it comes out on appeal.
Monday, July 31, 2017
I recently received a link to a Seventh Circuit in-chambers opinion that I thought was worth sharing. On July 10, Chief Judge Diane Wood issued an in-chambers opinion striking briefs in two cases. The briefs, one a respondent brief from the Attorney General and the other an appellee brief from the Air Line Pilots Association, were stricken for failing to comply with court rules. So what court rule did these parties fail to follow? Circuit Rules 3(c)(1) and 28 on jurisdictional statements.
This is surprising, as the briefs that were stricken were from an appellee and a respondent. As Chief Judge Wood explains, however, appellees and respondents have responsibilities too when it comes to the jurisdictional statement. While appellees and respondents are exempted “from filing a jurisdictional statement unless it is ‘dissatisfied’ with the appellant’s statement,” Seventh Circuit Rules “direct that ‘[t]he appellee’s brief shall state explicitly whether or not the jurisdictional summary in the appellant’s brief is complete and correct. If it is not, the appellee shall provide a complete jurisdictional summary.’”
As the Chief Judge points out, “The job of the appellee is to review the appellant’s jurisdictional statement to see if it is both complete and correct. These terms are not synonyms.” So where did the briefs of the Attorney General and the Air Line Pilots Association fall short? With respect to the Attorney General’s brief, the jurisdictional statement only said that the appellant’s statement was correct, not that it was complete. Chief Judge Wood explained, “If the Department [of Justice] concludes that Mr. Baez‐ Sanchez’s jurisdictional statement is both complete and correct, it should say so in the amended brief.” As for the Air Line Pilots Association, while their statement said that the appellant’s statement was complete, but mentioned nothing about correctness. Chief Judge Wood directed the Association to “review the appellants’ jurisdictional statement for both completeness and correctness, and if the statement is wanting on either score, . . . supply a comprehensive statement that complies with FRAP 28(a) and Circuit Rule 28(a).”
So what is the moral of this story? Follow the rules. In both cases, the jurisdictional statements would have been perfectly acceptable if they had two additional words. Now, the parties will have to incur the costs (both in time and money) of filing amended briefs.
Filing a brief that comports with the rules of the jurisdiction should not be such a difficult endeavor. As Chief Judge Wood notes in her opinion, the Seventh Circuit even provides a checklist to assist litigants follow the rules. Other legal writing books or courts provide similar lists or examples. As lawyers, we can, and should, do better.
Monday, July 17, 2017
According to Law360, Seventh Circuit Judge Richard Posner (age 78), advocated for mandatory judicial retirement ages in a recent interview published by Slate. Judge Posner suggested setting the retirement age at around 80 years old, saying "[t]here are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians." Currently, Justice Kennedy is 80 years old (he turns 81 in just a few days--happy birthday Justice Kennedy), and Justice Ginsburg is 84.
The notion of a mandatory judicial retirement age is not new. In fact, many states have such rules, although most states set the age at 70. The problem with a federal judicial retirement age is that Article III of the Constitution states judges "shall hold their Offices during good Behaviour," which has been read to confer life tenure on federal judges. Article III, however, is not an obstacle for Judge Posner who, according to the article, reads the clause "as simply meaning judges can be fired at any age for bad performance."
Interestingly, there have been efforts to increase state mandatory judicial retirement ages in recent years, due in part to the fact that life expectancies are increasing. These efforts, however, have largely been rejected by voters in the past. In fact, Oregon voters recently rejected an effort to remove the mandatory judicial retirement age of 75. On the other hand, last year Pennsylvania voters, by a rather narrow margin, approved an increase in the mandatory retirement age from 70 to 75.
Monday, June 19, 2017
Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban. There is also a case in the Ninth Circuit challenging the ban. In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions.
Should the Court grant certiorari in these cases? My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.” Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore. Professor Blackman argues:
The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.
Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.”
While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law. Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore). I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore. Perhaps even a non-speedy decision would suffer the same fate. At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C. I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months. Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.
Friday, December 9, 2016
As we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Ruling in Samsung v. Apple
On Tuesday, a unanimous Supreme Court ruled in favor of Samsung in Samsung v. Apple, the patent infringement suit brought by Apple, sending the case back to the Federal Circuit for further consideration. In the case, Apple alleged that Samsung infringed on patents covering specific design elements of Apple's iPhone, including the rectangular front face with rounded corners and colorful grid of icons. Federal law provides that companies found to have infringed design patents on an "article of manufacture" are liable for their total profits. The lower court had awarded Apple $399 million in damages for Samsung's design patent infringement. In the Supreme Court opinion, Justice Sotomayor wrote that the operative phrase in the statute, "article of manufacture," could sometimes be the entire product (the phone) and sometimes be the components found to have infringed the design patent. The Supreme Court opinion held that the Federal Circuit erred in ruling that the "article of manufacture" must always be the end product (the phone), but did not resolve whether the article of manufacture in the case was the whole phone or parts of it.
Ruling in Salman v. United States
On Tuesday, the Supreme Court unanimously ruled in Salman v. United States, a significant insider trading case that raised the question of whether gifts of confidential information from business insiders to family members without direct financial benefit violate securities law. The Court ruled in favor of prosecutors, ruling that gifts to friends or relatives, whether in the form of cash or a tip of information, sufficiently "benefit" the insider to be considered a violation of securities law.
Takeaways from 2016 SCOTUS Oral Arguments So Far:
Adam Feldman writes on the Empirical SCOTUS blog about "Four Takeaways From this Term's 2016 SCOTUS Oral Arguments" so far. There is a wealth of great information about the Justices' interactions with one another and with advocates during the first 1/3 of this term's oral arguments, including which Justices tend to speak the most (or the least), the issues that interest the Justices the most, and the tendencies of some of the best and most frequent advocates to appear before the Court.
Highlights from Appellate Twitter: #PracticeTuesday
On Tuesdays the brilliant tweeters of #AppellateTwitter post a variety of useful tips, strategies, guidelines, advice, etc. Here are a few of the highlights from this week, where the topic was mythbusting -- conventional wisdom with which experienced appellate practitioners disagree:
- Sean Marotta (@smmarotta) argued against the myth that a law student should take "any" clerkship, regardless of location, judge, etc. He argued that young graduates should definitely consider costs to family, significant others, and other factors when deciding whether a clerkship is really the right opportunity to pursue.
- Rachel Gurvich (@RachelGurvich) argued against one of my personal favorite myths, that being on Law Review is some kind of prerequisite to a successful legal career. I always tell students that law review is not for everyone and is not a magic bullet -- the key is to find something that catches a potential employer's eye and once you get your foot in the door, you can explain why you didn't go the law review route.
- Bryan Gividen (@BryanGivi) argued against the myth that a young associate should never so no to an assignment -- because if you don't learn how to say no to assignments that you cannot perform well, you are sure to start alienating colleagues and clients with poor work product.
- Jennifer Romig (@JenniferMRomig) argued against one that is dear to my heart, as an educator -- the myth that law school conclusively reveals whether someone will be a good lawyer. I've known many students who were "average" or even below in performance in law school, but went on to be fine and highly successful members of the legal community -- even some who took a couple of tries to pass the bar exam. I've known students who excelled in classes, but not so much in the real world. There's just more to it than that.
- Finally, Supreme Court Places (@SCOTUSPlaces) called for the debunking of a myth that is near and dear to the hearts of anyone who has ever clerked for an appellate court -- "There must be a case for that simple, seemingly incontrovertable proposition." It's amazing how often you think that but research seems to come up empty!
Friday, November 11, 2016
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).
Presidential Election and the Courts:
The Presidential election dominated news this week, in blogs, online news sites, and Twitter. As a result, the biggest discussion point this week regarding appellate practice was the variety of thoughts about how Donald Trump's election will impact the courts -- the Supreme Court and other federal courts.
Here at the Appellate Advocacy Blog, Tessa posted on the topic in a post on Monday: The Election and the Courts. But that discussion ramped up even more starting midweek, after the election and Donald Trump's victory. Discussions of how the Supreme Court is likely to change under a Trump presidency made headlines at The Economist, Bloomberg, the New York Times, NPR, and other sites. A list of the potential candidates from which Trump might pick a replacement for Justice Scalia (and other potential vacancies) is on the Trump/Pence website. The National Law Journal expanded the discussion to remind us of the 52 nominees for open federal court seats already put forth by President Obama but not acted on.
Appellate Judges Education Institute:
The 2016 Appellate Judges Education Institute Summit begins today in Philadelphia. The annual summit provides a variety of educational opportunities specifically designed for appellate judges, lawyers, and staff attorneys. When I worked for the Nebraska Court of Appeals, I was fortunate enough to attend the summit one year, and it is without a doubt one of the best appellate-specific educational opportunities there is.
If you are an appellate practice person -- lawyer, judge, casual fan -- you are likely already aware of the Twitter hashtag #AppellateTwitter. It's continuing to grow, and is a source of some really great Twitter users, posts, and practice tips and discussion. Jason Steed (@5thCircAppeals) recently indicated an interest in creating some #AppellateTwitter swag -- starting with coffee mugs. And he's following through on it. He posted on Twitter this week how you can order your own #AppellateTwitter coffee mug, paying through Paypal. Sign me up.
Thursday, November 3, 2016
An issue looming large in this election year is the ultimate composition of the Supreme Court. The newly elected president could have up to three or four opportunities to make judicial appointments. That is significant considering that with the current composition of the Court only one is enough to potentially swing it in either ideological direction. This is already the current situation as Judge Merrick Garland stands by waiting for the Senate to act on his nomination from earlier this year.
From corpcounsel.com, collage of Obama's judicial appointees since 2009:
But the Supreme Court is not the only court to watch with regard to political influence. President Obama has made 55 appointments during his term as president and 31 of those judges have replaced Republican nominees. Have these appointments had any effect on the decisions in the lower courts?
Appellate lawyers say it’s too early to see major swings in the law, but individual rulings on labor, class actions and administrative law show signs of a shift to the left.
“Over the last eight years the courts of appeals have become decidedly less friendly to business overall, though the Supreme Court has served as something as a check on those courts,” said Kannon Shanmugam, who leads the appellate practice at Williams & Connolly.
Obama's appointments count for almost a third of all active judges on the circuit courts. That is a sizable number but it might not be enough for a definite shift in the law to occur unless similar changes happen at the Supreme Court.
Rex Heinke, co-leader of the appellate practice at Akin Gump Strauss Hauer & Feld, said he hasn’t observed an overhaul in areas of law affecting business over the past eight years, although the president’s nominees to the bench “are certainly more liberal than the judiciary when he came into office.”
“There would be a dramatic shift if there were liberal justices added to the Supreme Court,” Heinke said.
While all eyes focus on the Supreme Court, the presidential appointments of lower court judges will carry significant political influence over the long term.
Friday, September 30, 2016
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.
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.
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.
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.
Hat Tip: Howard Bashman (@howappealing)
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.
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."
Friday, September 23, 2016
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.
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.
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.
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?)"
Friday, August 26, 2016
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.
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.
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.
Monday, August 1, 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."
Tuesday, September 15, 2015
Readers may find this of interest:
Friday, May 29, 2015
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.
Tuesday, April 14, 2015
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.
Thursday, April 2, 2015
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.
Thursday, March 19, 2015
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