Thursday, September 4, 2014
Just nine days after hearing argument, the Seventh Circuit has issued its opinion in Baskin v. Bogan. Unsurprisingly, the court affirmed the district court judgments “invalidating and enjoining . . . prohibitions of same-sex marriage.” In the 40-page opinion, Judge Posner took time to address the ineffectiveness of the arguments advanced by the petitioners. He wrote, “the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.” (emphasis in original). Even though the states had significant legal precedent on their side, at the time of the oral arguments it did not seem like the Seventh Circuit was likely to be persuaded by any of those arguments. This opinion is final confirmation.
The opinion is lengthy but well-written and soundly reasoned. I’d like to highlight just a few characteristics. First, it is an excellent example of issue-framing to achieve a desired result. Rather than getting too bogged down in the minutiae of rational basis, Judge Posner effortlessly frames the question in such a way as to mandate a higher level of scrutiny. Specifically, he reasons that “more than a reasonable basis is required because this is a case in which the challenged discrimination is . . . ‘along suspect lines.’” Second, Judge Posner ably relies on scientific (non-law) data to support his conclusions. He even relates that data, through the “kin selection hypothesis” (or “helper in the nest theory”), to evolution by arguing that “[a]lthough it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives.” Finally, Judge Posner makes effective use of tabulation to smoothly advance the argument and signpost the logical connections of his reasoning. It’s a fantastic exemplar of writing that simplifies complex legal arguments in a sophisticated and accessible way. Definitely a fascinating and worthwhile read.
Friday, August 29, 2014
Michael Doyle, McLatchy Washington Bureau, has a brief blog post today comparing the opening lines of these D.C. Circuit opinions issued today. He juxtaposes two fact-oriented openings, one that makes terrific use of short, declarative sentences, with a law-oriented opening containing multiple mid-sentence citations.
It’s an interesting dichotomy. This eye-catching difference invites further inquiry into: 1) what is the standard model of judicial opinion writing and 2) what difference does it make in the application of the law. Perhaps further study is warranted by some enterprising scholar, beyond the single day’s anecdote out of the D.C. Circuit, but it seemed worth passing along.
Wednesday, August 27, 2014
Yesterday the 7th Circuit heard argument in Baskin v. Bogan, a case involving Indiana’s same-sex marriage ban. These arguments provide some noteworthy lessons in decorum. Appellant’s counsel began his argument by articulating a precise roadmap in simple, comprehensible terms. He was barely able to finish the first sentence of his first point, however, before being interrupted by one of the judges. Certainly interruptions are to be expected during oral arguments. This interruption, however, initiated a parade of horribles so grand that it left appellant looking like a monster. Throughout the argument, appellant’s counsel struggled to finish a single response before getting pounced with additional questions. When he attempted to advance his own argument in response to a question, he was immediately admonished to answer the question. At one point, another judge even explicitly said the court had no intention of allowing him to advance his own argument. Curiously, the court was not interested in the rich logos arguments appellant was attempting to advance. The judges wanted to know about the pathos arguments like the psychological impact on the children of same-sex couples and the various sociological, anthropological, and psychological literature available on the issue.
Appellant’s counsel professionally withstood the barrage of questions, although his frustration at times was evident in his voice. Toward the end of the argument, though, he became much more adamant in his disagreement with the court’s hypotheticals. His frustration showed both in his word choice and tone of voice. By comparison, both attorneys for the appellee came across much more composed. Granted, the court appeared to favor that side, so their argument was more readily received. The moral of the story is that attorneys should be prepared to frame logos arguments in pathos terms when the logical argument leads to a necessary result the court is reluctant to adopt.
Tuesday, May 27, 2014
When I first began blogging, I focused on exploring category construction as a tool of appellate advocacy. Today, I want to talk about the second given: categories imply a world that contains them. It basically boils down to container logic—does the object fit within the parameters defining the category? If so, it belongs, and if not, it obviously does not belong.
The way a category is defined necessarily constructs the boundaries surrounding what belongs. Take for instance the category of planets. When I was growing up, I was taught we had nine planets in our solar system: Mercury, Venus, Earth, Mars, Jupiter, Saturn, Uranus, Neptune, and Pluto. Those nine belonged to the “world” of planets. But in 2006, astronomers declared that Pluto is no longer a planet. This change occurred because the category of planets was redefined. Pluto belonged to the world of planets when the definition did not require a planet to dominate the neighborhood around its orbit. Once the category changed to require a planet dominate its neighborhood, Pluto, whose moon is half its size, got nudged out of this world containing planets.
In terms of appellate advocacy, this principle becomes incredibly important, especially in light of the first principle that categories are made and not found. We see attorneys constantly battling over how to define the legal world applicable to a given case, and in judicial opinions we see judges struggle to define a world clearly encompassing the resolution of the case. Take for example a recent Ninth Circuit opinion, United States v. Ezeta. There the defendant successfully moved to dismiss an indictment by claiming that the defendant did not “obtain” federal financial aid as defined by the statute. The defendant claimed that “obtain” as used in the statute meant to exercise dominion and control over the financial aid, and that since the defendant had assisted other students in completing and submitting forms, he had not exercised dominion and control over the funds in violation of the statute.
On appeal, the Ninth Circuit reasoned that the category of “obtain” as adopted by the district court defined a world that was far too narrow. In a relatively straightforward statutory analysis, the Ninth Circuit defined a world around the meaning of “obtain” to include procurement on behalf of someone else. In so doing, the Court created a world large enough to encompass the acts committed by Mr. Ezeta, and his case has now been remanded for prosecution in District Court.
As advocates, attorneys must constantly assess the boundaries of the world surrounding legal disputes. This principle that categories imply a world that contains them provides appellate attorneys the creative power to identify existing categories and imagine better ones for solving legal disputes.
Monday, March 31, 2014
This post is the second in the series on Categories that I began late in February. Today we begin with the first premise: categories are made, not found. As lawyers, we often take for granted the applicability of pre-existing categories of law. The doctrine of stare decisis has a stronghold on our legal thought processes. History teaches us, however, that the law has the ability to evolve and redefine over time. This phenomenon has been described by Anthony Amsterdam and Jerome Bruner in their book, Minding the Law. They observe that “category systems derive from canonical general theories of the world and template narratives about life; when these theories or narratives are contorted too much or too obviously, when they come to be seen as endangered, we have culture wars and fierce debates about paradigm shifts…”
Over the last few years, the Supreme Court has been engaged in just this sort of fierce debate over Fourth Amendment jurisprudence. Historically, the Fourth Amendment has been categorized as a privacy interest, which the Court defined in Katz v. United States, 389 U.S. 347 (1967). In 2012, however, the Court articulated a new category of Fourth Amendment protection related to property interests. United States v. Jones, 132 S. Ct. 945 (2012). Since then, the Court has been unable to reach strong consensus on its Fourth Amendment jurisprudence, as marked by cases such as Bailey v. United States, 133 S. Ct. 1031 (2013), Missouri v. McNeely, 133 S. Ct. 1552 (2013), Florida v. Jardines, 133 S. Ct. 1409 (2012), and Maryland v. King, 133 S. Ct. 1 (2012), among others. This new category has prompted a fruit-basket turnover in terms of the alliances amongst the members of the Court, and resolution of Fourth Amendment cases is more unpredictable than ever. Brooks Holland, Associate Professor of Law at the Gonzaga University School of Law, provides a concise analysis of the competing jurisprudential categories that have emerged since the Jones decision in his review of The Fourth Amendment in the October 2012 Term.
The recent evolution of Fourth Amendment jurisprudence proves that the Court is willing to redefine categories of law, even well-established ones. This evolution does not necessarily occur sua sponte, though. Appellate advocates participate in the creation of new categories by breaking down existing barriers and reconstructing new ones. Consider how each case begins with a given set of facts and law. Within those facts and law, the advocate has the power to tap into pre-existing categories or create new ones. If a pre-existing category supports the desired result, exploiting that category and relying heavily on principles of stare decisis would be beneficial to the advocate and would perpetuate the existing category. By the same token, when the law or facts are not easily categorized in existing frameworks, or the existing framework demands a negative result, the advocate must deconstruct and redefine the boundaries in a way that is acceptable to the reader.
These paradigm shifts, of course, take time. Recall, that “category systems derive from canonical general theories of the world and template narratives about life.” (Minding the Law) Thus, to achieve success an advocate should attempt redefine the law by connecting new categories to life narratives that are already familiar to the reader, just as Justice Scalia in Jones was able to recategorize Fourth Amendment jurisprudence in terms of property doctrine that the Court already understood.
Thursday, February 27, 2014
This past weekend Professor Lucy Jewel and I presented Categories! A Cognitive Rhetorician’s Approach to Logos and Pathos at the Psychology and Lawyering: Coalescing the Field conference held at the William S. Boyd School of Law at UNLV. The conference itself was superb and presented abundant opportunities to learn about the intersections of law and psychology. The field of cognitive psychology offers insight into how individuals receive and process information, so it presents a gold mine for studies in persuasion. My first few blog posts will tap into this area to offer some of the insights we developed for the presentation on categories.
Principles of cognitive psychology teach us that categorizing objects is natural. Indeed, categorizing is essential to our very survival. Just imagine the cognitive overload if we had to reprocess every daily experience as if it were brand new. Categories form a figurative box permitting us to create cognitive shortcuts to quickly determine whether something fits in or falls out. Categories facilitate the creation of prototypes. For example, if I ask you to think of a bird, you will likely picture something like a sparrow or a robin rather than a penguin. By the same token, categorizing at the fringes presents difficulty—have you ever pondered whether a tomato is a fruit or a vegetable? Categorization also leads to dichotomous thinking—yes/no, black/white, in/out—even though the world cannot be broken down into such simplistic terms.
Because categories tend to oversimplify the complexities of everyday life, they can sometimes interfere with our ability to candidly assess the world. In the instant we categorize something, we cease to see that something for what it truly is. Rather, we only look at how it fits within the assigned category.
Since individuals process and categorize based on their personal experiences, appellate advocates must become adept at predicting existing categories and either utilizing or changing them to advance their clients’ positions. An essential component of persuasive advocacy is reaching the audience in a way that the audience can understand the message. Through categories, an advocate can tap into pre-existing cognitive shortcuts for the benefit of the client. Conversely, if the pre-existing category is detrimental to the client, an advocate may need to insulate against any implicit bias or prejudice that the category is likely to produce.
Regarding categories, Anthony Amsterdam and Jerome Bruner, in their book Minding the Law, posit seven principles:
- Categories are made, not found.
- Categories imply a world that contains them.
- Categories are not always clean-cut.
- Categories serve a particular function
- Categorizing is an act of meaning making.
- Categories become entrenched in practice.
- Categories are never final.
My next several posts will take these principles in turn, break them down, and provide strategies for effectively managing cognitive categories. For now, I leave you to consider the power of categories and the great potential for challenging categories inherent in appellate advocacy. Think about the attorneys who challenged the existing category of separate but equal in the case of Brown v. Board. By deconstructing the doctrine of separate but equal, the advocates were able to reconstruct a new category rooted in the principle that separate is inherently unequal. In a different way, Abe Fortas deconstructed a negative category surrounding his client, Clarence Earl Gideon, to successfully argue for a defendant’s right to counsel in both state and federal proceedings. If we stop to think about it, nearly every landmark Supreme Court case has relied on the successful management of categories.
Friday, January 17, 2014
Earlier this week, Lyle Denniston reported and Josh Blackman commented on Tuesday's Supreme Court oral argument in Marvin Brandt Revocable Trust v. United States. Apparently, there was a "are you talkin' reading to me?" moment between Justice Scalia and one of the advocates. Steven J. Lechner, the lawyer for the trust, had barely begun his argument when Justice Scalia interrupted him to brusquely ask: "Counsel, you are not reading this, are you?" Lechner didn't immediately answer, and Justice Breyer intervened, commenting, "It's all right." Lechner continued his argument and no further mention was made of the issue, though Denniston suggests Lechner was understandably somewhat faltering in the rest of his argument, likely on account of this rough start.
Blackman regards this comment by Scalia as a "dick move," and others proposed we give Mr. Lechner a break. Inversecondemnation suggested:
You know, we've all been there in some venue, haven't we? We're all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won't even go down to muni court naked (so to speak). Especially when what's at stake is the language in an otherwise obscure 1875 federal statute, where it's important to get the language just so.
The blogosphere and twitterverse were awash in comments, some facepalming at Lechner's reading, some Scalia-blaming, and some genuine sympathy for Mr. Lechner. These all seem appropriate reactions. It's widely known and probably universally taught that judges, at any level, do not appreciate being read to by counsel. Advocates in every legal writing program and moot court organization across the country are taught not to read from a prepared text except when necessary to quote some legally relevant text. The Supreme Court actually has a rule, Rule 28, stating: "Oral argument read from a prepared text is not favored." Similarly, Federal Rule of Appellate Procudure 34(c) states: "Counsel must not read at length from briefs, records, or authorities."
And yet, Scalia could have acheived the goal of taking the advocate off his notes with a substantive question or at least allowed the advocate a bit more time to move to extemporaneous commentary. The man was still giving his introduction, after all. Finally, I, for one, sympathize with Mr. Lechner, not just for the discomfort caused by Justice Scalia's comment but also because of the extensive media commentary that followed, dubbing it, at best, an embarrassing moment.
What can advocates learn from this experience? Well, obviously, that the Supreme Court, or at least some members, have no tolerance for reading prepared statements. And, appellate rules forbid, or at least discourage, reading from prepared texts at the lectern. But more generally, that the instruction to avoid reading to the court is not just something your legal writing or trial ad professor tells you to make your life more difficult. Reading at length to the court is ineffective in building a rapport with the bench, but it also violates a very deeply-rooted tradition about how oral arguments are conducted.