Thursday, March 31, 2016
At the risk of shameful self-promotion, and fully aware that there are thousands of articles and blog posts out there providing advice on appellate advocacy practices, I thought readers here might enjoy a short article that I authored and that is available in the latest edition of the American Bar Association's Student Lawyer magazine. The article was written with law students as the intended audience, and with a somewhat informal tone requested by the editors. But the point of the article is to highlight lessons that students are taught in law school that have counterparts or are easily adapted to real world rules and tips for being more effective in writing appellate briefs.
The article is available electronically on the ABA website for law students: Student Lawyer Magazine article.
Sunday, February 14, 2016
As Jennifer has noted in her earlier post, yesterday our country lost a legal giant. Regardless of what one thinks of the substance of Justice Scalia's opinions, it is undeniable that he was a brilliant man who made a huge impact on how we think about and interpret the Constitution. He also contributed greatly to the field of advocacy. I plan to discuss both of those issues in a future post. Today, however, I would like to discuss the impact of Justice Scalia's death on the cases before the Court and its impact on our country as we are in the midst of a presidential election year.
Impact on the Court
There are two main questions to consider when evaluating the impact of Justice Scalia's death on the current Court. The first is what will happen in the cases that the Court has heard argument for and voted on in conference. The second is what will the impact be on the cases yet to be heard this term. The first question is complicated, and in the less than 12 hours since Justice Scalia's passing was announced, I have heard differing views. According to a post by Tom Goldstein of SCOTUSBlog, "Votes that the Justice cast in cases that have not been publicly decided are void." However, a friend of mine who clerked on the Court believes that if Justice Scalia signed on to the final opinion his vote would be counted. So, there could theoretically be a small number of opinions released that Justice Scalia signed on to, but it is unlikely. I expect that we will hear something from the Court on this issue.
So, what happens to the rest of the cases? Well, the Court will decide them with just eight members. There is certainly precedent for the Court deciding cases with just eight members--it happens when a Justice is recused. What happens then in those really controversial cases where the Court ties 4-4? In those cases, the decision of the lower court stands, unless the Court decides to rehear the cases when it has a full bench. Let's look briefly at how that would impact some of the big cases this term.
- Friedrichs v. California Teachers Association: Friedrichs involves a challenge to mandatory public sector union dues. The union won below at the Ninth Circuit.
- Fisher v. University of Texas at Austin: Fisher, up for the second time before the Court, concerns the constitutionality of the University of Texas's affirmative action policy. The Fifth Circuit upheld the University's policy.
- Whole Woman’s Health v. Hellerstedt: This case concerns a challenge to a Texas law regulating physicians who perform abortions and abortion clinics. The regulations were upheld by the Fifth Circuit.
- Little Sisters of the Poor Home for the Aged v. Burwell: This case concerns the regulatory accommodation to contraception mandate for religious nonprofit organizations. There are in fact seven consolidated contraception mandate cases before the Court. The religious nonprofits all lost below (D.C. Circuit, Third Circuit, Fifth Circuit, and Tenth Circuit). Interestingly, there are two Eighth Circuit cases not before the Court where the accommodation was struck down.
- United States v. Texas: In this case, Texas is challenging President Obama's executive action on immigration. Texas won below.
This is just a small sample of the close cases before the Court this term that will be impacted by Justice Scalia's death.
Impact on the Country
Justice Scalia was thought by many to be the leading conservative voice on the Court. By replacing Justice Scalia with a more liberal nominee, President Obama has the opportunity to change the direction of the Court for years to come. President Obama has already announced that he will nominate Justice Scalia's successor. But, in case you haven't noticed, we are in a presidential election year, and that makes things complicated. Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Charles Grassley have announced that they believe that the Senate should wait to confirm a nominee until after the presidential election.
Legal scholars on both sides of this debate have started releasing talking points and statistics on how much (or how little) the presidential election should impact the nomination and confirmation of Justice Scalia's successor. Amy Howe, also of SCOTUSblog, presents the "pro-confirm" argument, while Prof. Josh Blackman presents an interesting discussion of how divided government impacts the nomination and confirmation of a Supreme Court nominee in a presidential election year.
Both sides like to discuss the nomination and confirmation of Justice Kennedy. He replaced Justice Lewis Powell, who retired in June 1987. President Reagan first nominated Judge Robert Bork to the Powell seat, but Bork was rejected by the Senate. Judge Douglas Ginsburg was nominated next, but his nomination was ultimately withdrawn. Finally, Judge Anthony Kennedy was nominated in November 1987, and confirmed in February 1988, which was a presidential election year.
Finally, there is always the possibility of a recess appointment by President Obama. However, given the Supreme Court's recent decision in Noel Canning, which concerned when the Senate was properly in recess for purposes of a recess appointment, it seems likely that the Senate can keep itself in session enough to avoid any recess appointments.
Disclaimer: I have joined two amicus briefs in cases noted above. In Whole Woman’s Health v. Hellerstedt, I joined an amicus brief on behalf of Scholars of Federalism in support of Respondents. In Little Sisters of the Poor Home for the Aged v. Burwell, I joined an amicus brief on behalf of Constitutional Law Scholars in support of Petitioners.
Upon the passing of Justice Scalia, I wanted to share my personal recollections I have associated with him. I was only twice in the same room with Justice Scalia. The first time I was just barely a 1L and had a last minute opportunity to see him in an auditorium in downtown Ft. Worth. I even dragged my four year old son with me! I didn't know much about the Court at that time but found him to be engaging, funny, witty, and amazingly quick and intelligent. I loved him immediately.
The second time, I managed to be within a few feet of him at the U.S. Supreme Court when I was sworn in with my Texas Wesleyan colleagues on a special trip to DC. That was a great day - it's memorialized on my office wall where I proudly hang a picture of me with Chief Justice Roberts. I met Justice Ginsberg that day too. I will never get over what a tiny lady she is, but when she speaks you can hear a pin drop. Justice Kennedy was there too and he also was also very funny and lovable.
As a writing teacher, I will especially miss Justice Scalia's unique style. I'll never again rush straight to his opinion, skipping over the others, no matter whether he was in the majority or the dissent. A true historical giant. Regardless of political persuasion, whoever replaces him has monumental shoes to fill.
Tuesday, January 5, 2016
Last month Adam Liptak had an interesting article on a forthcoming article questioning the established wisdom that the Harvard Law Review created The Bluebook. According to Liptak, the conventional account of The Bluebook's origins comes from a speech by former Harvard Law Review President (and former Solicitor General and HLS Dean) Erwin N. Griswold. However, research by librarians Fred R. Shapiro and Julie Graves Krishnaswami shows otherwise. According to the Yale Law School librarians, the true origins of The Bluebook can be found in "an eight-page booklet prepared in 1920 by Karl N. Llewellyn, who was editor in chief of The Yale Law Journal."
Tuesday, November 10, 2015
In a recent episode of the Legal Talk Network podcast Lawyer 2 Lawyer, hosts J. Craig Williams and Bob Ambrogi interviewed Judge Alex Kozinski from the United States Court of Appeals for The Ninth Circuit and Judge Richard Kopf from the U.S. District Court, District of Nebraska, to get the judges’ thoughts on the essential elements that go into persuasive legal writing.
If you have about half an hour, you should listen to the whole interview, available HERE via Soundcloud. If you don’t have time to listen to the whole interview, or in the meantime, here are a few of the highlights:
One interesting perspective about the quality of brief-writing that the court comes from Judge Kozinski’s recognition at roughly the 6:30 mark of the interview, where he noted that the court realizes that lawyers are busy. Judge Kozinski noted that the court recognizes that staffing and economic factors certainly play a role in the quality of the briefs submitted by attorneys, and that quality is not solely a function of the lawyers’ abilities. He noted, for example, that staffing plays a role; larger firms with larger clients with larger budgets can devote more resources, including reviewers and editors, to fine tuning and polishing briefs than a solo practitioner representing an individual without deep pockets. He noted that sometimes the quality of briefs submitted to the court are not necessarily representative of failings of the individual lawyers, but are a matter of economic feasibility. Courts recognize that, and courts have their own staff to work on the case and provide additional assistance to the court in reaching the correct result.
At roughly 5:30 into the interview, Judge Kopf advises that attorneys writing briefs try to emulate what one might read in a “really well-written newspaper.” He identifies the three key attributes of effective brief-writing as that it be simple, precise, and readable.
Simplicity is really important to Judge Kopf and, in my experience, most judges. They are busy and are always trying to focus in on the essential aspects of the case to reach a timely and accurate resolution, usually in the most direct way possible. Judge Kopf explains starting at roughly the 11:00 mark of the interview that a litigant who spends a little time narrowing in and simplifying the issue right at the outset of a brief does the court a significant favor. He compares an example wherein a litigant starts a brief by noting that it is in support of “a motion for summary judgment” with one noting that it is in support of “a motion for summary judgment, limited to the issue of qualified immunity.” Simplifying and narrowing the focus at the outset helps the court to understand immediately where the rest of the discussion is going to go.
In cases involving complex technical issues or areas of the law, simplicity obviously becomes all the more important. In class, I always stress to my students the importance of explaining the issues, the law, and the facts in the simplest and most straightforward way possible. I always tell my students that there is little risk of offending any judge by making something seem “too simple,” but there is great risk of a judge not fully understanding technical issues that are not simplified and explained. Judge Kopf echoes this thought at roughly the 30:15 mark of the interview by noting that a litigant writing a brief should “not assume [the judge is] smart.” Judge Kopf advises at roughly the 29:25 mark of the interview that a litigant writing a brief addressing a technical issue have “a real human being” read the brief before it is submitted – someone with no background in that technical area. If that person cannot understand it, the writer needs to reevaluate.
The advice of seeking review by a reader who is not technically trained in the particular subject matter of the brief was also echoed by Judge Kozinski in his final thoughts, at roughly the 31:20 mark of the interview. Judge Kozinski urged writers to ask themselves if they could explain the arguments presented in their briefs to an educated, smart person who is not an expert, in plain language. If not, the writer needs to go back and rethink the argument and rethink how to present it. As Judge Kozinski put it, “writing is thinking.”
Saturday, October 31, 2015
I am constantly stressing to my appellate advocacy students the importance of not just excellent substance in their briefs, but also the importance of complying with the court’s technical rules. There is nothing more frustrating as a legal writing professor than reading a brief that makes great legal arguments, but is so poorly formatted that the substance is lost in the technical errors.
A few days ago one of my students sent me a post by Casey C. Sullivan on FindLaw’s Strategist Blog about an attorney in Indiana who requested permission to file a corrected Table of Contents and Table of Authorities in a case before the Court of Appeals of Indiana. The court granted the request, but directed that “[n]o substantive changes . . . be made to the Amended Appellant’s Brief.”
According to the court’s opinion the new Table of Contents represented “at best, an abject failure to understand the most basic requirements of appellate briefing.” The attorney expanded the one-page Table of Contents in her first brief to a whopping thirty-seven pages in the amended brief. The Table of Authorities was expanded from four to eleven pages. The court’s opinion contains a few snippets from both tables including this gem from the Table of Authorities:
Hirsch v. Merchants Nat’l Bank & Trust Co. of Indiana, 336 N.E.2d 833 (Ind. Ct. App. 1975) (providing eight percent interest in action for breach of lease). When the parties’ contract does not provide an interest rate; therefore, the statutory interest rate of eight percent is applicable. (cited in App. 75-76) [appearing on page] 12
Unfortunately for the attorney, not even the page number in this entry was correct, as page 12 of the brief contained no case citations at all and was actually part of the Statement of Facts. According to the court, “the Table of Authorities fail[ed] at its basic and only purpose of informing us of the cases cited in the brief and directing us to where in the brief a particular case is discussed.”
The attorney’s failure to follow the rules came at a steep price—the court disregarded the entirety of both Tables—proving once again that formatting matters!
Thursday, October 15, 2015
With the Supreme Court’s new term now underway, there is likely to soon be much to discuss in the world of appellate advocacy and developments from cases heard by the Court. In the interim, I thought I’d share a handful of links for those who are in practice or in law school settings, working on drafting an appellate brief, and looking for some little tidbits concerning ways to maximize effectiveness. The following links cover a wide range of brief-writing topics and perusing them might offer some new thoughts or perspectives to increase your overall impact.
Overview of Each Section:
The Duke Law School has a helpful guide to appellate advocacy on its website that includes a table of contents and then individual sections addressing various parts of an appellate brief, including the Question Presented, the Tables, the Statement of the Case, the Argument, and the Conclusion:
Finding Your Appellate Voice:
Some Tips Regarding Your Statement of the Case / Fact Section:
Stephen V. Armstrong (Director of career Development at Wilmer, Cutler & Pickering, an international firm based in Washington, D.C. and former Director of Professional Development and Training at Paul, Weiss, Rifkind, Wharton & Garrison, a law firm based in New York City) and Timothy P. Terrell (Professor of Law at Emory University in Atlanta, Georgia, and former Director of Professional Development a the law firm of King & Spaulding in Atlanta) present tips on “Organizing Facts to Tell Stories” in the Winter 2001 edition of Perspectives:
Palmer Gene Vance II and Madonna E. Schueler (both of the firm of Stoll Keenon Ogden PLLC in Lexington, Kentucky) present “Ten Tips for Developing Your Case Theme” in the September/October edition of GPSolo, a publication of the American Bar Association:
Standard of Review:
Mike Skotnicki, an appellate attorney in Alabama, presented “The Standard of Review is the Lens Through Which You View Your Facts and Issues” on his appellate practice blog, Briefly Writing, back in January 2012:
Paragraph and Sentence Structure:
Mike Skotnicki presented “Borrowing a Fiction Writing Technique: Using Pacing by Paragraph and Sentence Length to Build to a Conclusion” on his appellate practice blog, Briefly Writing, back in March 2012:
Raymond Ward, an appellate lawyer in New Orleans, linked to articles by Stephen V. Armstrong and Timothy P. Terrell from recent issues of Perspectives, concerning “Lessons in Paragraph Building” on his blog, the (new) legal writer:
Editing to Meet Page Limits:
Lady (Legal) Writer presented a blog entry in September about “Editing to Meet Page Limits”:
If you have links to articles, blog posts, or other resources that you’ve found to be useful with tips and thoughts on ways to improve appellate brief writing, share them in the comments!
Tuesday, September 15, 2015
Readers may find this of interest:
Monday, August 31, 2015
Adam Liptak’s article in the New York Times last Thursday (August 27), Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own, has been making the rounds on legal blogs, social media, and email exchanges.
In the article, Liptak notes that not only is Justice Thomas the least likely Supreme Court Justice to ask questions during oral argument, but that he is also the most likely to author opinions that “contain language from briefs submitted to the court.” Although the article noted that Justice Thomas’s reliance on the words of others in this manner did not suggest any wrongdoing, it did repeatedly indicate that Justice Thomas’s opinions contained the “highest rates of overlaps with language in parties’ briefs,” and referred to the “high rates of seemingly borrowed language in his opinions.”
Last Friday (August 28), Orin Kerr at Volokh Conspiracy posted A misleading story about Justice Thomas, in which Kerr opined that Liptak’s article created an inaccurate impression of the actual data in the studies that precipitated the article. As Kerr noted, although the data did indicate that Justice Thomas’s majority opinions contained language from merits briefs at a rate of 11.29%, Justice Sotomayor’s majority opinions contained such language at a rate of 11.04%, Justice Ginsburg’s majority opinions at a rate of 10.55%, and even Justice Kagan’s majority opinions (at the bottom end of the spectrum) at a rate of 7.13%. As Kerr points out, that means that the spectrum on the Court is really a rate of 7 to 11 words out of 100 being taken from majority briefs, and the difference between Justice Thomas’s opinions and Justice Sotomayor’s is really less than 3 words out of every 1,000. Kerr suggests that although the data may support the notion that Justice Thomas’s opinions contain more language from briefs and lower court opinions than the other Justices, the differences are not sufficient to label Justice Thomas as an outlier in this regard.
From an appellate advocacy standpoint, I think the underlying notion of appellate courts (at any level) taking language from the briefs and including it in the opinion is an interesting one. I teach my students that they should strive to craft briefs and arguments to the court in a way that the court could take the language and adopt it as the court’s decision. Courts are busy, have large caseloads and many issues competing for the attention and focus of the judge, and are always under some timing crunch to get decisions out to the litigants. If, as an advocate, you focus crafting your arguments in a way that you are helping to provide the court with a way to explain a favorable decision and analyze the legal issues that is so well done that the court could simply take your presentation and adopt large portions of it wholesale, then you are doing your job. You are helping the court, advocating in an effective way for your client, and developing a reputation for presenting work product that the court will look forward to seeing in future cases.
Liptak recognized as much in his article, when he quoted an email from Professor Ronald Mann, a law professor at Columbia, who specifically attributed the use of common language from briefs to successful advocacy.
That’s not to say that the court will, or even should, just resort to cutting and pasting arguments and analysis presented in briefs, without the court’s personal revisions, as a matter of habit. But if you consider the quality of advocates that typically appear before the United States Supreme Court, the number of nuances and revisions that the arguments being presented have undertaken from the beginning of a trial to briefing before the Court, and the highly technical nature of some of the cases presented, that one Justice averages an additional 2.5 words out of every 1,000 in a majority opinion being common with the briefs or lower court opinion does not seem like something that merits going viral.
Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, (March 20, 2015), http://ssrn.com/abstract=2574451.
Pamela C. Corley, Paul M. Collins Jr., and Bryan Calvin, Lower Court Influence on U.S. Supreme Court Opinion Content, 73 The Journal of Politics 31 (2011).
Sunday, July 26, 2015
A colleague is seeking input from law professors regarding the use of popular culture in the classroom...
Greetings Law Teacher Colleagues:
I am working on an article this summer on uses of popular culture in the law school classroom. I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area. If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:
Thanks in advance for your time and have a wonderful rest of summer!
Please direct questions to Cynthia Bond, The John Marshall Law School, Chicago, IL: email@example.com.
Monday, June 22, 2015
A reader kindly passed along this interesting link: The Art of Appellate Advocacy: A Conversation With the Supreme Court of Virginia.
The two-hour video, organized by Jeffrey A. Breit, adjunct professor at William & Mary Law School, offers members of the Virginia Supreme Court discussing brief writing, oral advocacy, structuring arguments, and the role of appellate courts. Inspired by the Bryan Garner series, interviewing U.S. Supreme Court Justices, this video may be similarly useful in legal writing and appellate advocacy classrooms. The video can be viewed in its entirety or in shorter, topic-specific segments.
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.
Thursday, May 7, 2015
Of interest on the topic of writing...
First, Bryan Garner has a column on the ABA Online, "First impressions endure, even in brief writing." In it, Garner makes use of social science research and the work of Nobel laureate Daniel Kahneman to support three basic principles regarding good (legal) writing: "(1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader." While the advice isn't novel, the use of psychology and economic principles to support these ideas may be compelling to some readers.
Second, in a similar vein, "10 top writing tips and the psychology behind them," offers ten discrete pieces of writing advice and discusses why it matters, why we often fail to heed the advice, and how to fix our processes to follow that advice more consistency. The advice is mostly applicable to legal writing and the format, which tries to pull back the curtain on why we make the errors we do, is especially helpful.
Third, some amazing filings: dismissal of a complaint filed in D. Nebraska against "Homosexuals" and a filed in N.D. Georgia, a "Notice to F*ck this Court and Everything It Stands For."
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.
Wednesday, April 1, 2015
The Federal Appellate Rules Advisory Committee held a public hearing today on the proposal to reduce the word limit of federal appellate briefs from 14,000 words to 12,500 words.
When drafting my March 19 post on the issue, I searched around a bit looking for a single post that covered How Appealing's coverage of the issue. There it is. Plus, it contains the promise of links to news coverage as it becomes available.
Friday, March 20, 2015
Congratulations to Savannah Law School Professor Caprice Roberts who was recently cited by Justice Thomas in his dissent in Kansas v. Nebraska, 135 S. Ct. 1042 (2015). The case involved a dispute between the states of Nebraska and Kansas over the apportionment of river water. In his dissent, Justice Thomas disagrees with the majority’s reliance on Restatement (Third) of Restitution §39 (2010). This section “proposes awarding disgorgement when a party’s profits from its breach are greater than the loss to the other party.” Kansas, 135 S. Ct. at 1068 (J. Thomas, dissenting). Thomas asserts that the Court has never relied on Section 39 because the theory of disgorgement is not supported in law. His analysis relies on Professor Roberts’s description of Section 39 as a “’novel extension’ of restitution principles that ‘will alter the doctrinal landscape of contract law.’” Id. at 1068-69(quoting Roberts, Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008)). According to Justice Thomas, the majority’s decision has in fact altered the doctrinal landscape of contract law.
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
Wednesday, March 11, 2015
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.
Tuesday, February 10, 2015
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.