Thursday, September 16, 2021
For law students (and some lawyers) appellate argument can be a mystery. It's definitely not the first thing the average layperson thinks about when someone mentions "legal argument." Even when Law and Order made a half-hearted attempt to show an argument at an appellate court, it didn't get it right (for example, I've never gotten a ruling from the bench as soon as the argument was over). And the misconceptions about appellate argument sometimes lead to strange behavior even from attorneys: advocates objecting during opposing counsel's argument (yes, that really happens); appellant's attorneys requesting to reserve their entire time for rebuttal (I've seen that happen, too); and lawyers calling opposing counsel their "friend" (okay, some U.S. Supreme Court advocates do that and maybe some of you think it is fine, too).
De-mystifying appellate argument means not only understanding the basics but also understanding the nuances. Anyone who has ever argued in an appellate court or taught students how to make oral arguments knows the basics: make the argument conversational; be prepared for questions; smoothly return to your argument after answering a question. And, of course, an advocate should know the substance of an argument inside and out. But what are some of the finer points of appellate argument that often are missed both by advocates and students?
- Exude Confidence: Doing my best Yogi Berra imitation, I often tell students that being successful in an appellate argument is 95% knowing the facts and the law and 95% sounding like you know what you are talking about. In reality, knowing the facts and the law in depth should lead to more confidence. In the end, why should an appellate court agree with your argument if you don't sound like you believe in what you saying? Even if you aren't so sure yourself, you are representing a client expecting zealous representation. And the other side is going to have a zealous advocate, so you should be one as well.
- Control Your Body Language: Even before you say your first word at an appellate argument, your body is already speaking to the court. The body tells the truth. If you are confident in what you are going to say (see above), then approach the lectern with confidence and own the stage you have been given.
- Vary Delivery: An appellate argument should ebb and flow. Much like a singing performance is rarely effective at 100% volume throughout, an argument without variation will either put the court to sleep or, even worse, cause you to lose your case. Vary pitch, vary pace, vary volume. This will hold the court's attention, properly emphasize the points you want to emphasize, and downplay facts and law that are bad for your argument.
- Pause: Oral advocates often feel that any dead time in their argument, even a brief second or two, is bad. On the contrary, oral advocates probably don't pause enough. Some pauses are good for effect; others are good because they allow the advocate more time to reflect upon an answer. The mind works very quickly, so it doesn't have to be (and you don't want it to be) a long pause if you are trying to come up with an answer. I often suggest to students that they begin drinking some water, if available, when a question is being asked. Judges will not be thrown off by an advocate finishing their sip briefly as the question concludes. This buys just a little more time for formulating the perfect (or near-perfect) answer.
- Control Your Zone of Authority: In conjunction with the use of body language, advocates should control their zone of authority--the area immediately around them that they control. Look judges in the eye, don't break the zone by bending over or looking around the courtroom, keep gestures within the zone, and never point. As my students also always hear me say, don't take a pen with you to the lectern! You likely won't have the opportunity to write anything down while you are arguing. And you are more likely to cause a distraction with the pen by waving it around, pointing with it, or tapping it on the lectern.
- Start/Finish Strong: Start the argument with your theme and end with your theme. Grab the court's attention at the beginning. Then remind the court again what the case is really about when you conclude. Listeners (like readers) tend to remember and are more affected by the beginning and the end of an argument than what is in the middle.
The basics of an appellate argument are important without a doubt. But mastering the nuances will make an argument even more polished and persuasive.
Wednesday, September 15, 2021
British Philosopher Michael Oakeshott thought of the law (and other social institutions, for that matter) as a language. In language as in the law, there are heated debates about what the rules are and the proper rate at which to change them. But rather than wade into that here, I want to focus on the law as a language that lawyers learn to speak. I think that there are three main branches to this language: logic, grammar, and rhetoric.
First, logic. In many ways, law students learn the law as children learn a language or a new game—by observation and imitation. Some have an easier time of it than others. We’ve all met them; they are the ones who just “get” law school from day one. Annoying. I wondered for some time what it was that these students were getting exactly that so many do not. I’m now convinced that it’s mostly that they intuitively understand logical reasoning. But many of the best players can’t tell you how to do what they do; they just know how to do it. This is also true of native language speakers—most aren’t able to say why something is right or wrong in speech, they just have a feel for it.
While going the feel-for-it route may be fine for most day-to-day legal tasks, the best lawyers I know are more conscious about the logical rules that they are following in arguments. They can tell you the specific reason that arguments are fallacious, not just that they are wrong. The more logical rules that you can articulate and use, the more effective you will be.
Second, grammar. Here the language analogy is a bit on the nose, but it holds up well. I’ve learned a couple of languages beyond my native English, and every time I do, I understand English a bit better. Before I was forced to understand things like the subjunctive mood or declension forms, I never really learned the whys behind my speech and writing. At bottom, the law is just words. And the fine details of grammar and punctuation matter. A company can lose millions of dollars because their lawyer didn’t use the Oxford comma in a contract. The result in a case may turn on which words in a sentence a modifier applies to, or whether a drafter used a semicolon or a comma, or any other number of fine grammatical distinctions. One federal judge even recently ordered parties to diagram a statutory sentence to reach a decision.
Most lawyers couldn’t diagram a sentence without a fair bit of googling, and to be sure that’s a rare case. But fewer lawyers than should can lay out grammar and punctuation rules and why they matter. Those who can have the advantage, in statutory interpretation cases in particular.
Finally, rhetoric. Since at least ancient Greece, people have explained the rules of persuasion—the patterns of speech that make it appealing to a listener/reader. Repetition can be pleasing (“of the people, by the people, for the people”) or it can be grating (“Baby shark, do do do do do do”); it is all in the execution. Some are natural orators (Eliza Doolittle’s father comes to mind), but most have to work at it. The lawyers who do will be more persuasive, to both judges and juries.
I’m willing to bet that no reader here had a course in law school explicitly focused on logic, grammar, or rhetoric. Perhaps that’s because there just isn’t time. Or maybe it’s not practical to explain a game that is easier to learn (at first) by playing. But every lawyer should spend some time learning these rules. This is doubly true for appellate lawyers, who rely so much on these tools to convince courts—who are often full of the sort of lawyers that understand and care about the fine distinctions.
 Stanford Encyclopedia of Philosophy, Michael Oakeshott, available at https://plato.stanford.edu/entries/oakeshott/#RatiRati.
 See Bryan A. Garner, Making Peace in the Language Wars and The Ongoing Tumult in English Usage, reprinted in Garner’s Modern English Usage, xxxiii-lv (Oxford University Press 2016).
 Jeff Haden, How 1 Missing Comma Just Cost This Company $5 Million (but Did Make Its Employees $5 Million Richer), available at https://www.inc.com/jeff-haden/how-1-missing-comma-just-cost-this-company-5-million-but-did-make-its-employees-5-million-richer.html.
 See, e.g., Lockhart v. United States, 136 S. Ct. 958 (2016).
 Mike’s Smoke, Cigar & Gifts v. St. George City, 391 P.3d 1079, 1084 (2017).
 Dara Kam, Legal Battle Over Florida Protest Law Could Come Down to ‘Language and Syntax,’ available at https://www.wlrn.org/news/2021-08-25/legal-battle-over-florida-protest-law-could-come-down-to-language-and-syntax.
Monday, September 13, 2021
A few weeks ago I blogged about the latest issue of The Journal of Appellate Practice and Process, which looks at what lawyers and judges can do to help ease our country’s deep divisions along racial, ethnic, religious, political, and socio-economic lines. Today I want to focus on one article in that issue--Lawyers as Peacemakers by Lance B. Wickman.
Lance Wickman has a fascinating background. Since 1995, he has served as the General Counsel for The Church of Jesus Christ of Latter-day Saints. He has also served in LDS church leadership. Prior to becoming general counsel, he worked for the firm of Latham & Watkins in California as a litigation partner. He also served in the Vietnam war. Much of his career has been centered around conflicts, either through war, litigation, or "political and cultural conflicts." Despite this experience, his article explains his belief that "the heart of what lawyers and judges do--or should be doing--is peacemaking."
Mr. Wickman starts his article by exploring the existing divisions in our country, highlighting some disturbing statistics on the increasing lack of faith in the rule of law. He then gives a defense of the concept of "the rule of law," explaining that it needs "constant tending and defense" and that it promotes fair, neutral, and peaceful resolution of disputes.
After highlighting the importance of the rule of law, Mr. Wickman delves into the role that lawyers and judges can play in defending the rule of law and acting as peacemakers. I don't want to give away the full article, so I will just touch on two of his examples. First, he talks about how lawyers are resourceful. As he writes, "In battles over cultural or moral is-sues, lawyers can help chart approaches that seek fair-ness for all Americans, rather than winner-take-all out-comes that breed resentment and perpetual conflict." As an example, he cites the compromise in Utah over religious freedom and LGBTQ rights that led to the passage of Utah Senate Bill 296. The bill involved collaboration between Equality Utah and the LDS church and "prevented discrimination in employment and housing while preserving religious freedom."
He also writes that lawyers are "resolute." As he explains, lawyers must "defend the rule of law in the teeth of determined opposition, even when doing so seems to threaten our narrow interests." For this point he cites the example of John Adams defending the British soldiers charged with murder during the Boston Massacre. Although Adams's action caused him to lose clients, even in his later years, Adams cited his representation as "'one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.'"
Mr. Wickman ends his article with an excerpt from President Lincoln's first inaugural address. If any person knew how to bring people together, it was Lincoln. I recently finished A Team of Rivals by Doris Kearns Goodwin, which highlights Lincoln's effort to bring several rivals for the presidency together in his cabinet. For those interested in the role lawyers can make as peacemakers, I commend both Mr. Wickman's article and Ms. Goodwin's book.
Sunday, September 12, 2021
“Interrogate the cases.” With that interesting turn of phrase, Michael Dreeben, a veteran of the U.S. Solicitor General’s Office, told an online audience last week that appellate advocates need to do more than read and study the cases that form the basis of each sides’ arguments. The half-day session, sponsored by the Fourth Circuit, contained a number of nuggets from judges and practitioners useful to any appellate practice.
Of course, there is no single way to argue a case, and two advocates can take very different approaches yet still achieve equal success. But when experienced voices from the bench and bar dispense advice, paying attention becomes the order of the day -- even if that advice does not work for you or, in your opinion, would not work for most people.
When Dreeben advised that appellate counsel “interrogate the cases,” he explained that it was important to examine more than a case’s facial holdings and reasoning. Interrogation meant that it was important to scrutinize the foundations of the decision’s results, its take on cited precedents, and its treatment in different contexts by other courts. Every appellate lawyer knows how to rely on a straightforward application of a decision’s essential holding or how to distinguish an opinion that has problematic application to the position you are taking. However, the suggestion to “interrogate” requires an advocate to go deeper and expose the either stronger basis for the rule announced by a case, or the weaker underpinning for it, perhaps based on a skewed interpretation of existing precedential building blocks.
Another useful perspective that Dreeben advocated lawyers adopt was to compose your argument while bearing in mind what does an intelligent jurist want to know to get the answer right? His experience taught him that most judges want to find the right answer. Consider what, whether based on the factual record or the posture of the law, will provide the tools that will help the judge rule your way. While anticipating what the inquiring mind of a generic judge might need to rule in your favor, it also helps to know your court and the judges who serve on it. Doing so will guide you about a judge’s willingness to consider legislative history or other tools that you might employ.
Looking at a case from every angle is a common refrain in appellate advocacy seminars, though the advice often has little content. Underscoring what it really means, Judge Paul Niemeyer called knowing how you can lose the case is “one of the most important aspects of preparation.” It forces you to consider the weaknesses in your argument and address them – or, explain why the problem you face does not doom your case.
Another experienced appellate practitioner, Kannon Shanmugam, provided some practical tips on modern brief-writing. He explained that, today, most judges read briefs on-screen, rather than plow through paper copies. To prevent points from being lost, he uses fewer footnotes than he once did to avoid forcing the judge to scroll up and down the page. Briefs should help the court reach a result. Shanmugam said that he considered a brief that runs 12,999 words, when the limit is 13000, a “tell” that the advocate has not helped the court by limiting the brief to its most essential focus.
Judge Niemeyer echoed a similar sentiment, calling for shorter, more focused briefs. He said he finds shorter briefs more powerful than the ponderous ones that are too frequently filed. He also warned against overuse of string citations: “Don’t just list cases. Argue.”
Finally, Judge Stephanie Thacker offered one other practical point that may often be overlooked. “My favorite part of a brief,” she said, “is the summary of argument.” She urged counsel not to give it short shrift or treat it as an afterthought. Instead, it should provide the reader with a clear and concise explanation of the facts and law. It helps the judge understand the entire argument and provides a basis for narrowing the issues the judge might believe critical to the ultimate resolution of the case.
* * *
In a posting last month, I discussed arguments made in three briefs filed in short order, each of which sought the reversal of a precedents. One of those cases was Oklahoma v. Bosse, where the State of Oklahoma filed a petition for certiorari that asked the Court to reconsider its year-old decision in McGirt v. Oklahoma, because of the dire consequences the state had experienced since the decision. Less than a month after filing its petition, Oklahoma dismissed it, reserving for another day and another case its argument on why McGirt should be overturned.
 No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).
 140 S. Ct. 2452 (2020).
Thursday, September 9, 2021
Thursday's Rhaw Bar: The Objectives and Means of Brief Writing: Who Makes the Rhetorical Choices? Does it Matter?
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
This semester, I’m teaching Professional Responsibility to about 145 second-year law students. We are on the topic of how the ethics rules allocate decision-making between lawyers and clients. The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules. Model Rule 1.2 (a) and Comment 5 provide that
[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.
Objectives, Means & The Appellate Brief
Applying this rule to appellate lawyers writing briefs seems straightforward. When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor. An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle. But generally, the client’s objective is to win on appeal.) Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs. In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective. If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.
So, we might conclude that content of the brief is almost always the means and not the objective of representation. In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art. (I wrote about this concept of rhetoric as productive art last month.) If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide. Maybe consultation is required under the ethical rule, but nothing more. (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)
But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief? Maybe, maybe not. Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal. Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.
Raising Issues on Appeal: The Supreme Court’s View in Jones v. Barnes
In 1976, a New York state jury convicted David Barnes of robbery and assault. Michael Melinger was assigned to represent Barnes on appeal. From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal. Barnes also enclosed his own pro se brief.
Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.
In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s. But Melinger also filed with the appeals court Barnes’s pro se brief. Melinger lost the appeal.
In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.
This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”
The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion. Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow out weaker arguments on appeal and focus on . . . at most a few key issues.” A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal, and the lawyer should be the one to choose which of the “few major points” should be raised. The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”
In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.”
In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.” But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”
Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment. At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly, the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice. Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.
Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff. Brennan said: “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.] If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.
Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs
So, what then, do we have here?
Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives. The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible. Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.
The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants: constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so. (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result. The ethics, then, are perhaps not so clear.) For civil appellate lawyers, on the other hand, the implications of Jones are indirect but interesting. The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.
Is brief writing a mean or an objective?
On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief. It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives. Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade.
But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means. One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation. In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important. Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen. Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.
Are legal issues created or identified?
Another question Jones raises is the nature of “issue identification” as a rhetorical (i.e., persuasive) act. That is, do lawyers create issues for argument or do they find them? In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger. But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.
But, on the other hand, even issue identification is a rhetorical act. Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs. Artistic proofs, Aristotle said, are created by the rhetor. An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data. So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)
Which rhetorical choices are means? Which ones are objectives?
Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which? For example, an appellate brief should have a theme. If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean? How about metaphors? How about references to history or popular culture that help make a point? All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client? Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?
Does the appellate lawyer’s professional expertise in legal rhetoric matter?
And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important? Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer. Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing. If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases? If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter? And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.
Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law. Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised. And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair. This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.
That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices. In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.
What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? Your thoughts are welcome in the comments below.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Wednesday, September 8, 2021
The Supreme Court's Office of Public Information announced today that oral arguments for the rest of the calendar year will take place in the Courtroom, but sessions will be closed to the public. Understandable. But here's the good thing: the Court anticipates that it will continue to provide a live audio feed of oral argument, at least for the period where public access to the Courtroom is restricted.
So the Court will return to its traditional unstructured approach to oral arguments rather than continue with the seriatim-questioning approach it adopted for telephonic arguments during the pandemic. And the public will be able to follow arguments in high profile cases like New York State Rifle & Pistol Association v. Bruen in real time.
Tuesday, September 7, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.
Do provide appropriate signposts:
- Do consider using headings and summaries.
- Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.
The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next
1. Point headings make our writing better.
Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.
A. Point headings are topic sentences.
Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.
B. Point headings should be full sentences.
Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better
1. Strict Scrutiny.
2. The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.
The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.
C. Point heading should look like sentences.
Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.
D. Point headings are not just for the argument section.
Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:
1. In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.
The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.
E. Point headings serve as a check on your analysis.
If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.
F. Good point headings start with a good outline.
The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.
G. You should include point headings in your Table of Contents.
Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:
Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.
2. Summaries make our writing better.
Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.
After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.
3. Transitions make your writing easier to follow.
A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.
Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.
September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)
Sunday, September 5, 2021
In the words of the late Justice Antonin Scalia, “[l[ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Roe v. Wade (and Planned Parenthood of Southeastern Pennsylvania v. Casey) stalks the Fourteenth Amendment’s jurisprudence yet again, reflecting the constitutional mess that these decisions created.
Specifically, in Dobbs v. Jackson Women’s Health Organization, the Court will decide whether a Mississippi law, which bans abortions after the fifteenth week of pregnancy, violates the right, created in Roe and reaffirmed in Planned Parenthood, to obtain abortions before viability (which occurs at approximately twenty-four weeks of pregnancy). By way of background, in Roe, the Court interpreted the Fourteenth Amendment’s Due Process Clause to support a fundamental right to terminate a pregnancy in certain circumstances. In so holding, the Court adopted a trimester framework that balanced a woman’s right to terminate a pregnancy with a state’s right to regulate the abortion procedure. In the first trimester, women had an unfettered right to terminate a pregnancy. In the second trimester, states could regulate abortion to protect a women’s health. After the second trimester – when the fetus became viable – states could prohibit abortions except when necessary to protect the life or health of the mother.
Scholars and judges of all political persuasions criticized the Court’s decision in Roe, arguing that the right to abortion could not be found anywhere in the Constitution’s text and certainly was not inferable from the Fourteenth Amendment’s Due Process Clause, which protects procedural, not substantive rights. These scholars were correct: the abortion right in Roe was predicated in substantial part on and an outgrowth of the Court’s decision in Griswold v. Connecticut, where the Court held that the Constitution contains invisible “penumbras,” that are “formed by emanations from those guarantees [in the text] that give them life and substance.” In other words, the Court could create whatever rights it wanted, regardless of whether the text supported creating those rights.
Two decades later, in Planned Parenthood, the Court made the problem worse. In a 5-4 decision, the Court upheld the central holding in Roe (the right to obtain abortions before viability) but rejected Roe’s trimester framework. In its place, the Court adopted the “undue burden,” test, which stated that before viability, states may not enact laws that impose a substantial burden on a woman’s right to access abortion services. It is obvious why Planned Parenthood introduced instability and unpredictability into abortion jurisprudence. After all, what constitutes an “undue burden” on the right to obtain a pre-viability abortion? No one knew the answer. Perhaps it was located in Griswold’s penumbras, which only the Court could access and define.
Not surprisingly, in response to what many rightfully perceived as judicial overreach in Roe and constitutional ambiguity in Planned Parenthood, some states embarked on a decades-long and seemingly never-ending mission to eviscerate, if not effectively overturn, Roe through legislation that imposes various restrictions upon when and under what circumstances women can obtain abortions. For example, in Planned Parenthood, a Pennsylvania law required minors to obtain parental consent, and adult women to inform their spouses, before obtaining an abortion. The Court upheld the former provision and invalidated the latter. In Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, Texas and Louisiana, respectively, enacted laws requiring physicians to obtain hospital admitting privileges before providing abortion services. In two 5-4 decisions, the Court invalidated both laws. These cases are just a sample of the many instances in which states attempted to limit, directly or indirectly, access to abortion.
And in every case, the Court declined the opportunity to clarify definitively the nature and scope of the abortion right, such as by unequivocally upholding or overruling Roe, or adopting categorical rules concerning when and under what circumstances women could access abortions. Instead, the Court applied the malleable “undue burden” test, which resulted in a case-by-case jurisprudence that led to uncertainty and often kept the abortion right hanging by a thread, dependent more on the current justices’ ideological predilections than on principled constitutional law. Simply put, the Court’s approach ensured that the abortion right would remain in constitutional purgatory, mired in uncertainty, and continuously under attack by states that viewed abortion as constitutionally unsupportable and morally indefensible.
Unfortunately, the saga continues.
In the latest installment of How to Overturn Roe While Acting Like You Are Not, the State of Mississippi has enacted a law that bans abortions after fifteen weeks – and thus bans a portion of previability abortions. Only this time, the plot doesn’t just involve Dobbs v. Jackson Women’s Health Organization, where the Court will decide whether Mississippi's law passes constitutional muster. Rather, Texas has decided to make yet another appearance into the abortion sage by passing an unusually bizarre law that: (1) bans all abortions after six weeks; and (2) gives citizens, not the state, enforcement power by authorizing private causes of action against those who provide or assist in providing abortion services after six weeks. This law is certainly unconstitutional; many women do not even know that they are pregnant at six weeks, thus rendering the six-week limit a substantial and unconstitutional burden on abortion access. Not surprisingly, in Whole Women’s Health v. Jackson, the Petitioner sought an order from the Court preliminarily enjoining the law's enforcement.
You’d think that, based on Roe and Planned Parenthood, the Court would have granted the injunction.
Last week, in a 5-4 decision, the Court declined to issue an injunction.  To be fair, the majority did not rule on the merits of Texas’s law. Rather, the Court held that the Petitioner did not meet the standard for obtaining a preliminary injunction because, among other things, there was no evidence that any private citizen intended to enforce the law, or that the Court had the authority to issue an injunction against state judges who were asked to decide the law's constitutionality. The Court was careful to emphasize, however, that its decision was not “based on any conclusion about the constitutionality of Texas’s law.”
The majority doesn’t live in a fantasy world. It knew that its decision would allow a law to go into effect that unquestionably violated Roe and Planned Parenthood, and effectively outlawed abortion for most women in Texas. As Justice Sotomayor explained in her dissent:
The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.
Furthermore, as Justice Breyer noted in his dissent, the Court could have enjoined the law on the ground that a state “cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Ultimately, the Court’s refusal to issue the injunction in Whole Women’s Health v. Jackson suggests that five justices may be prepared to overturn Roe or, at the very least, severely restrict abortion rights.
For that and other reasons, Dobbs v. Jackson Women's Health Organization is perhaps the most important abortion case in years. Whatever the justices decide, they should ensure that the opinion ends the constitutional mess that is abortion jurisprudence, in which the abortion right has been plagued by uncertainty and the Court’s decisions characterized by anything by clarity. The Court can do so by issuing a clear and categorical decision about whether abortion is a fundamental right and, if the answer is yes, clarifies definitively the scope of this right. The Court has several options, including:
- Overturn Roe and return the abortion issue to the states.
- Overturn Planned Parenthood but not Roe and return to the trimester framework.
- Overturn Planned Parenthood and Roe, but hold that the Equal Protection Clause supports the right to abortion.
- Uphold Planned Parenthood and Roe based on stare decisis.
The absolute worst result would be if the Court issued yet another fractured, 5-4 decision that invalidated or upheld the Mississippi law, but otherwise provided no clarity regarding the scope of the abortion right and the states’ power to restrict its exercise. The worst result would be if Chief Justice Roberts engaged in legal shenanigans yet again in a misguided to preserve the Court’s institutional legitimacy. The worst result would be if the Court issued a plurality opinion with multiple concurrences and dissents that made readers think that the Court just can’t – and perhaps never will – reach any agreement on how to address the constitutional mess that Roe created, and that Planned Parenthood exacerbated. Whatever happens, the abortion saga should be a lesson in what happens when courts ignore the Constitution and create rights out of thin air.
The time has come to bring the abortion soap opera to a conclusion and end the decades-old constitutional charade that Griswold, Roe, and Planned Parenthood created. In other words, either kill the monster or allow it to forever terrorize constitutional law and lurk in the hidden penumbras, waiting to trap and possess unsuspecting justices in those penumbras.
The Court’s abortion jurisprudence, however, suggests that the ending in the latest installment of How to Overturn Roe While Acting Like You Are Not will leave the audience wanting, just as in those 80s’ horror movies that ended with the killer seemingly dead, only to open an eye or move a body part before the screen fades out, signaling to the audience that yet another sequel is on the horizon.
 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (Scalia, J., concurring)
 No. 19-392, available at: Dobbs v. Jackson Women's Health Organization - SCOTUSblog.
 410 U.S. 113 (1973).
 See id.
 See id.
 See id.
 See, e.g., Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu).
 381 U.S. 479 (1965) (brackets added).
 505 U.S. 833 (1992).
 See id.
 579 U.S. 582 (2016); 591 U.S. , 2020 WL 3492640.
 See id.
 See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
 See Whole Women’s Health v. Jackson, 594 U.S. (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).
 See id.
 See id.
 See id.
 Id. (Sotomayor, J., dissenting).
 Id. (quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976)) (brackets in original).
Friday, September 3, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
Supreme Court Opinions and News:
Most of the activity concerning the Supreme Court this week was related to the Texas fetal heartbeat abortion law. That law was scheduled to take effect on September 1, and was specifically written to make prior judicial review difficult. Nonetheless, litigation was commenced in federal court, where a federal trial court enjoined the law's taking effect and an appellate court reversed. That led to emergency petitions before the Supreme Court. The Court did not issue any response to the emergency petitions prior to September 1, and the law took effect on Wednesday. Late Wednesday night, by a 5-4 vote in an unsigned brief order, the Court ruled that it would not step in to stop the law from taking effect, indicating explicitly that it was not ruling on the merits or constitutionality of the law.
Coverage of the lead-up and requests for the Court's review:
Coverage of the Court's failure to act before the law took effect:
Coverage of the Court's Wednesday ruling:
Discussion of the implications of the Court's ruling and a larger discussion about the Court's "Shadow Docket":
State Appellate Court Opinions and News:
This week, the Arizona Supreme Court issued a decision eliminating peremptory challenges from the jury selection process. See this blog post from the Evidence Prof blog.
The Third Circuit Court of Appeals is taking applications for a staff attorney. See more at the court's website, HERE.
Wednesday, September 1, 2021
Monday, August 30, 2021
This is a guest post by Juvaria Khan, Founder of The Appellate Project.
Launched in September 2020, The Appellate Project (TAP) is the first organization focused on empowering law students of color to enter the appellate field. We are driven by a belief that our highest courts should reflect our communities, and we are excited to work with the appellate bar to make that belief a reality.
The need for diversity in the appellate bar
Appellate courts hear and decide cases that affect almost every aspect of our lives: our ability to vote, how we are policed, our religious freedom, the quality of our education, our workplaces, healthcare, immigration protections, and much more. The attorneys who argue these cases exert great influence as they shape, brief, and ultimately frame the issues before these courts. Although these cases affect all Americans—and, not infrequently, have a disproportionate impact on communities of color—there is a dearth of minority attorneys in the appellate field.
Although the decades since desegregation have allowed more people of color to pursue legal careers, systemic inequalities continue to create barriers to entry at the appellate level. Unlike trial-level work, appellate litigation has long been considered a specialized practice, reserved only for the most elite litigators, with the most successful among them often forming the pool from which judicial nominees are selected.
Barriers to entry start early on. Many students of color, especially those who are first-generation or from lower socioeconomic backgrounds, do not grow up in communities with lawyers, much less appellate lawyers. As a result, many of these students—unaware of the strict requirements needed to succeed in the appellate field—do not take the requisite steps to position themselves for a career in appellate work. Other students are discouraged from seeking appellate-related opportunities for a host of reasons. Some self-select out after not seeing many attorneys in the field who look like them. Others lack mentors or are discouraged by law schools that overlook them.
The result is a staggering lack of diversity in the appellate space. For the few attorneys of color who do pursue appellate work, this lack of diversity can create a difficult environment with implicit—and at times, explicit—biases. And the appellate field’s insular character can make networking opportunities particularly challenging.
This lack of diversity has serious consequences. It erodes trust in our highest courts, particularly for the communities most impacted and least represented. It signals to law students of color that these are spaces where they do not belong. And it means appellate courts are deciding matters of law without being informed by the full range of diverse perspectives and lived experiences that equal justice under law requires.
The Appellate Project
The Appellate Project aims to change that. Our Mentorship Program is the first national effort focused on empowering law students of color to pursue appellate work. We pair law students of color interested in appellate practice with mentors in the appellate field. We also provide students with appellate-focused resources throughout the year: clerkship support, networking opportunities with the appellate bar, skill-building workshops, guidance on appellate job opportunities, and more. We have been grateful to work with an incredibly passionate and diverse group of volunteers from the appellate bar who help make this work possible. The students in our inaugural class have already felt the impact of these efforts, and we look forward to continuing to grow as our resources expand.
We have also developed innovative appellate training opportunities, such as partnering with Howard University School of Law to bring an appellate focus to their historic Civil Rights Clinic. Taught by appellate attorneys Tiffany Wright and Ed Williams, students work on civil rights appellate cases that center the development of social justice issues. In the first two semesters of the Clinic, the students filed 10 appellate briefs in civil rights cases around the country, including to the United States Supreme Court.
If you know any law students of color who enjoy legal research and writing and may be interested in appellate work, please encourage them to apply to our Mentorship Program by September 6. More information, including a link to the application, is available here. This video also has more information.
Finally, as a new nonprofit our work is made possible thanks to our volunteers and donors. If you would like to donate, get involved as a sponsor, or work with our students, please visit our website. We look forward to working with you!
Sunday, August 29, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court struck a CDC moratorium on evictions during the pandemic. An earlier nationwide moratorium lapsed on July 31, prompting the CDC to impose its own moratorium. This CDC moratorium temporarily halted evictions in counties with “substantial and high levels” of virus transmissions. The Court’s decision allows evictions to resume. The decision held that the CDC lacks the authority to act without explicit congressional authorization and ruled that, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” See the per curium order and reports from the Associate Press, NPR, and The Washington Post.
The Supreme Court revived the previous administration’s “remain in Mexico” asylum policy, refusing to stay a ruling that banned the Biden administration’s attempt end the policy. The policy requires asylum seekers to remain in Mexico while they await hearings in the United States. The Court stated that the decision to end the policy appeared to be arbitrary and capricious. The decision leaves in place the lower court’s ban, which will be heard by an appeals court. See the order and reports from Reuters, The New York Times, APNews, and NPR.
Appellate Court Opinions and News
In a rehearing on the issue, the Second Circuit let stand a lower court’s refusal to grant an injunction against anti-abortion protestors, finding that the district court did not abuse its discretion. New York State sued 13 protestors arguing that protesters crowded women, made death threats against escorts, and blocked the path with posters, which violated the Freedom of Access to Clinic Entrances Act, New York State Clinic Access Act, and New York City's Access to Reproductive Health Care Facilities Act. The district decision rejected the injunction motion, finding that the state had not shown that it would face irreparable harm. The panel on rehearing did not rule on the merits because it found that the lower court did not abuse its "considerable discretion" in denying the injunction. See the order and reports from Reuters and Courthouse News.
The Ninth Circuit affirmed a lower court’s ruling that denied a motion for preliminary injunction by a landlord group attempting to stop Los Angeles from enforcing an eviction moratorium. The court determined that the group could not show a likelihood of success on the merits, finding that, “even if the eviction moratorium was a substantial impairment of contractual relations,” the city “fairly tied the moratorium to its stated goal of preventing displacement from homes” during a pandemic. See order and reports from Bloomberg and The California Globe.
The Fourth Circuit affirmed the death sentence for the gunman who killed nine members of a Black Charleston church in a racially motivated shooting. The court stated that “[n]o cold record or careful parsing . . . can capture the full horror of what [the shooter] did” and that “[h]is crimes qualify him for the harshest penalty that a just society can impose.” The court rejected the argument that the gunman should have been ruled incompetent. The gunman is the first person in the US to be sentenced to death for a federal hate crime. See the ruling and reports from NPR, The Washington Post, and USA Today.
Effective Appellate Advocacy
On September 2, the Ninth Circuit and the Federal Bar Association are sponsoring a free program featuring Judge Margaret McKeown. Judge McKeown will discuss effective brief writing and oral argument. Find information here.
In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.
In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding. In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.” Some state courts of appeal follow the same rule. Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.
The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”
If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.
Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.” For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.
State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.” Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis. Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”
Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana, the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.
The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.
 See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).
 Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
 See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).
 See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.
 Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
 Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).
 Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).
 Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).
 United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).
 Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).
 Childers v. Childers, 74 Cal.App.2d 56, 61 (1946) (emphasis in original).
 140 S. Ct. 1390 (2020).
Tuesday, August 24, 2021
As law students around the country return to the classroom this week and next, they face many challenges that seem unique to the COVID-19 era. In addition to the typical stresses of law school, students must navigate public health orders that seem to shift by the hour; course delivery methods that use unfamiliar or confusing technology that can obfuscate the underlying legal doctrine; and relationships with peers and professors who may be tentative or confused while working behind the virtual and physical barriers in place to manage the pandemic.
These challenges seem unique and insurmountable. But they are species of the same challenges law students already faced every day under “ordinary” conditions. Students can overcome them with the same skills they have already developed to succeed in law school.
First, navigating shifting public health protocols can make students feel like their desks are mounted on quicksand. Whiplash from changing distancing, masking, and contact tracing requirements causes more neck pain than PowerPoint slides in size 10 font. But the shifting requirements to interact in person are striking similar to the substantive legal doctrine students must learn in those classes. Core concepts in nearly any legal discipline, from constitutional law to intellectual property, are in flux over time. Students must be mentally pliable, accommodating and understanding how doctrine evolves over time. To manage changing public health orders without stress, students can lean on the very same skills they have used to adjust to uncertainty in the materials they are studying.
Second, course delivery methods rely more and more upon new technologies and platforms. The variation between the different tools for presenting material and the ways different professors utilize them can distract students from the complex information those tools are designed to deliver. But even when technologies are stabler, students must adjust to the rhythms of different classrooms. Professors play to their strengths as instructors, relying on some pedagogical techniques that others might ignore. Part of the game of law school is for students to adjust their approach to each professor’s style of presentation and assessment. Though technology adds a different wrinkle to that game, the basic rules are the same. As always, students must tailor their approach to each class and communicate with instructors to jointly optimize their learning. That team-based approach, with professors and students united to conquer difficult material, is vital to success no matter how a course is delivered.
Third, personal relationships are under constant strain from the pandemic, to the detriment of study groups, office hours, and even formative assessment. When all parties are uncertain how to interact safely, they may choose to reduce interacting at all to avoid confusion and stress. But we can conquer these divides with the same basic humanity that students and professors rely upon to overcome the generational and political chasms that often separate us. Seeing everyone as human, acknowledging their differing challenges and lived experiences, and approaching interactions with fundamental respect for the dignity of others is vital, no matter how relationships are built. When students and professors rely on that shared humanity, they can overcome the fear and uncertainty of the COVID era and learn to enjoy building relationships again.
As professors and students today, we must overcome these challenges; we have no other choice. But the good news is that we have the skills we need to push forward and be successful. As much as COVID-19 has changed the learning environment, we can rely on what we know to get through what is new.
Saturday, August 21, 2021
In a climate of extreme partisanship and polarization, platforms such as Facebook and Twitter – with the express authorization of Congress under Section 230 of the Communications Decency Act – exercise unprecedented power to censor the content and viewpoints that individuals express on these platforms, particularly concerning political speech. And social media platforms have done precisely that, censoring views that they subjectively deem objectionable or inappropriate – with no repercussions whatsoever. In so doing, social media platforms thwart the robust exchange of opinions and thus undermine the marketplace of ideas that is so essential to a properly functioning democracy and a diverse society.
If the federal government engaged in such conduct, it would unquestionably violate the First Amendment. Social media platforms, however, are private companies, not government (state) actors, thus rendering the First Amendment inapplicable and enabling social media to engage in content and viewpoint-based discrimination with impunity.
That has to change – now.
For the reasons set forth below, the United States Supreme Court should hold that social media platforms such as Facebook and Twitter are state actors and, as such, prohibited from engaging in conduct that would violate individuals’ free speech rights.
1. Through Section 230 of the Communications Decency Act, Congress gave (and delegated to) social media the power to engage in content-based discrimination.
A private company can be deemed a state actor when there is a close relationship between the private party's actions and the government's objectives, or when the private party performs a traditional government function. In Skinner v. Railway Labor Executives’ Association, for example, Congress empowered private companies to conduct drug tests of their employees. The Labor Association objected, arguing that the drug tests violated the Fourth Amendment's protection against unreasonable searches and seizures. The Supreme Court held that, although the railroad was a private company, the tests, which the government explicitly authorized, rendered the railroad a state actor for this purpose. Additionally, in Marsh v. Alabama, the Court held that when a private company exercises powers that are traditionally reserved to the states, it is engaging in a public function and thus must respect constitutional safeguards.
Based on Skinner, social media can arguably be deemed a state actor. Through Section 230, Congress explicitly authorized social media platforms to do precisely what the First Amendment prohibits: censor information based on content or viewpoint. As one commentator explains:
Section 230 … grants a … “good Samaritan” immunity to online platforms as well. In this second immunity, Section 230 authorizes internet platforms to block content deemed “lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 explicitly exempts websites from most civil and state criminal liability for any action they take in a “good faith effort” to exclude such “offensive” material.
As Professor Dawn Nunziato states, “Congress encouraged private Internet actors to do what it could not do itself—restrict harmful, offensive, and otherwise undesirable speech, the expression of which would nonetheless be protected by the First Amendment.”
Simply put, Section 230 “effectively immunizes and induces private conduct that would be unconstitutional if governmental actors did it themselves.” And that is the problem. Congress should not be permitted to evade First Amendment protections simply by giving social media platforms – the modern-day marketplace of ideas – the power to do that which it could never do.
2. Social media is the new public forum and the modern-day marketplace of ideas.
Most citizens do not express their political views on Main Street, in public parks, or in the public square. Rather, they express their views online, such as on their Facebook and Twitter pages. Indeed, the views that millions of social media users express often relate directly to political and public policy issues, such as judicial nominees, abortion, climate change, campaign finance reform, and infrastructure. To be sure, a person need spend only a few minutes on Facebook or Twitter – or read Alexandria Ocasio Cortez’s Twitter feed (among others in both parties) – to realize that these platforms are the primary vehicle by which users express a diverse array of political views and engage in often heated debates on public policy issues.
Put simply, the marketplace of ideas – the forum in which diverse ideas on matters of public concern, however unpopular or distasteful, are welcome – is now located on social media platforms.
By censoring information that it subjectively and arbitrarily deems “objectionable,” social media is compromising the marketplace of ideas by doing precisely what the First Amendment prohibits – engaging in content and viewpoint discrimination. If legislators are to remain committed to respecting all points of view, rejecting discrimination and arbitrariness, and recognizing that unpopular ideas are essential to public discourse, they should conclude that social media platforms, particularly due to the power Section 230 grants, are state actors.
3. A robust public discourse – including welcoming offensive and unpopular ideas – is essential to democracy, liberty, and diversity.
Politics and public discourse have become so divisive and polarized that diverse and unpopular viewpoints – regardless of political affiliation – are often met with scorn and ridicule. By censoring diverse views that challenge widely accepted and prevailing views, social media exacerbates this problem.
It encourages groupthink.
It discourages critical analysis of public policy issues.
Don’t be fooled by the claim that social media platforms are simply preventing the dissemination of “misinformation.” That determination is subjective and arbitrary. It is also anathema to the principle that liberty, democracy, and diversity depend on tolerating speech that we hate and views that we abhor. Ultimately, welcoming all viewpoints and eschewing discrimination vindicates every individual’s interest in having a voice in democracy. As Erwin Chemerinsky stated:
Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action.
Upholding the social consensus – and the First Amendment’s original purpose – supports a finding that social media platforms, due both to Section 230 and their status as the new public forum, are state actors.
The solution to this problem is simple: social media should retain immunity for the comments posted by its users. However, social media should only be prohibited from censoring speech that the Court has held receives no First Amendment protection. This includes, for example, obscenity and speech that incites violence.
Otherwise, the marketplace of ideas should remain a place where diverse and unpopular ideas are welcomed.
 489 U.S. 602 (1990)
 See id.
 See id.
 See id.
 Jed Rubenfeld, Are Facebook and Google State Actors? (Nov. 4, 2019), available at: Are Facebook and Google State Actors? - Lawfare (lawfareblog.com) (emphasis in original).
 David L. Hudson, Jr., In the Age of Social Media, Expand the Reach of the First Amendment, available at: In the Age of Social Media, Expand the Reach of the First Amendment (americanbar.org) (quoting Erwin Chemerinsky) (emphasis added).
Thursday, August 19, 2021
For the Supreme Court, the question of the summer has been whether Justice Stephen Breyer will retire or remain on the Court. Aware that both racial and gender diversity have been historically lacking on the Court, President Biden has promised to nominate an African-American woman if Justice Breyer leaves. Although racial and gender diversity are the most important and most visible considerations in having a diverse Court, President Biden should consider other matters of diversity as well in selecting a nominee.
Racial diversity is a top priority. Only two African-Americans have sat on the Supreme Court, and neither has been a woman. One Hispanic, Justice Sonya Sotomayor, has been a member of the Court. But no Asians or Native Americans have served on the Court.
Gender diversity also is an essential consideration. When asked how many women on the Court would be enough, Justice Ruth Bader Ginsburg famously answered "nine." Although the Court has as many women now as it ever has had at one time, only five women have been justices in the history of the Court.
The more diverse the Court is the more it will reflect the diversity of the nation. This will benefit the Court by adding different perspectives and by increasing the bar's and the general public's faith in the Court. But the president should not stop at just racial and gender diversity. In addition to race and gender, he should consider other attributes of a prospective justice: experience, geography, education, and religion.
Experience. Recent appointments to the Supreme Court have overwhelmingly come from federal appellate courts (the only current justice not to have been a federal appellate judge is Justice Elena Kagan, who was the Solicitor General before her appointment). The last state court judge appointed to the Court was Justice Sandra Day O'Connor (also the first woman on the Court), who had been on the Arizona Court of Appeals (and also in the state legislature). While it has been said that a federal judge is someone who knows a Senator and a state judge is someone who knows a Governor, there obviously are differences between the two. That being said, many cases come to the Supreme Court directly from the highest court of a state. Having a justice who has worked in a state court system would be a plus.
And who says that Supreme Court justices need to already be judges anyway? It has been quite a while since the appointment of a practicing attorney or academic without judicial experience.
Although Justice Sotomayor was a federal prosecutor, there also generally has been a lack of justices with criminal law experience. How about the appointment of a Public Defender to bring a different perspective?
Geography. It was essential in the early years of the Court that there be geographical diversity because the justices were required to ride the circuits. In recent memory, though, the Court has been the domain primarily of justices who either were from the Northeast or worked there a considerable portion of their careers. When Justice Ginsburg and Justice Antonin Scalia were on the Court, there were four justices from New York City (at least each was from a different borough).
There are two Southerners by birth currently on the Court, Justice Clarence Thomas (Georgia) and Justice Amy Coney Barrett (Louisiana). This is the most representation the South has had on the Court in recent memory. And the appointment of Justice Neil Gorsuch to the Court added a justice originally from a mountain state (Colorado), giving the Court that added perspective.
Although it no longer is necessary to have justices from different regions in order to ride the circuits, the Court best reflects the nation when it reflects the nation's geographic diversity. Further, some matters that come before the Court are unique to certain areas of the country. A justice from one of these areas would be able to contribute knowledge and perspective that other justices may lack.
Education. When Justice Barrett joined the Court, the dominance of Ivy League law schools in producing Supreme Court justices was diminished ever so slightly. Justice Barrett graduated from the University of Notre Dame law school, leaving an even split of law school alma maters among the other justices between Harvard University and Yale University. But it has been many years since any member of the Court has been a graduate of a public university's law school. There certainly must be excellent jurists from top public law schools like the University of California, the University of Michigan, and the University of Virginia who could be nominated. While diversity in law schools attended may not make much difference in perspective, it could help in dispelling the notion that the Court is elitist or somehow out of touch with those who are not.
Religion. Prior to Justice Gorsuch joining the Court, it was composed of six Catholic justices and three Jewish justices. Justice Gorsuch became the first Protestant on the Court since Justice John Paul Stevens. The Court has never had a Muslim justice or any justice who did not identify as Christian or Jewish, nor at least recently has it had a justice that did not identify with some religion. While religious affiliation does not necessarily produce monolithic perspective among justices (see, for instance, Justice Thomas and Justice Sotomayor, both Catholic), diversity in this area would increase confidence in the Court's decisions related to religious matters.
In the end, perfect diversity is neither required nor achievable. After all, the Court is not a representative body. Even so, the standing of the Court in the eyes of a more and more diverse citizenry would increase if it better reflected this increasing diversity. And the Court itself would benefit from greater diversity of experience, geography, education, and religion as it deals with the difficult and complex issues that come before it.
Although Justice Breyer may not retire this year, a new justice will be nominated sooner or later. When that happens, the President should consider a variety of diversity matters in addition to race and gender.
Wednesday, August 18, 2021
The things that helped me most as a law student and young attorney were learning how attorneys that I admired did things--what concrete things did they do to get ready for trial, to understand a record, to prepare for oral argument, etc. I've kept mental (and sometimes written) lists of those things over the years and have tried to pass them on to law students and young attorneys. Here's a checklist I've put together for oral arguments:
- Prepare an outline, go over it a few times the night before.
Just like law school—get your case down to its essence and get out all of the points you want to hit. Odds are you won’t get to everything, and almost certainly not in the order you want to get to it, but it isn’t about you, it’s about the court and its concerns.
Some necessary elements:
a. Decide the points you want/need to make, and make them prominent—put them first, in bold, highlighted, etc.
b. Include record cites and case names after assertions you’re likely to get questions/pushback on.
c. Leave space to write in questions/answers that come up during opposing counsel’s argument.
- Re-read the relevant parts of the record—trial transcript, pleadings, jury instructions, etc. What you read will depend on the case. If it’s a small record, re-read everything; if it’s a large one, then just read pertinent parts. It helps to have all the stuff in the case fresh in your mind when you go to court.
- Re-read the briefs. You’ll be surprised how much you forget about even your own arguments. If you find good cites here, include them in your outline.
- Re-read important cases, statutes, and rules. Memorize if central to appeal issues.
- Spend at least one full day coming up with questions. This was some of the most helpful advice I got when I started out. Don’t neglect very basic questions like what happens to the case if you win/lose.
- Find a quiet place to just think things through and strategize about argument. In normal times, I would come up with really good stuff on the train ride into work, mostly staring out the window and thinking.
- Explain the case to a non-lawyer, see how well you have it boiled down.
- Say your opening out loud—in the car, in the shower, in your office, wherever—just practice somewhere.
- Practice giving your argument while being interrupted with questions (this was John G. Roberts’s approach when he was an appellate attorney).
- Watch other oral arguments—find what style works for you.
- Keep issues on the backburner in your mind—you’ll be surprised what answers come at random times. Write them down when they come
- Have a good argument decompression ritual—get your favorite sandwich, take a walk, do something to get the adrenaline out.
- Come back and listen online to your argument about a week later. Listen for what worked, what did not. Then work on verbal tics (“um,” “so,” “you know,” etc.), pacing, responses, interruptions, etc., and incorporate these into your prep for next time.
Monday, August 16, 2021
Last week I blogged about the recently released special issue of The Journal of Appellate Practice and Process. The issue focuses on what lawyers and judges can do to ameliorate the division in our country.
Like I did for the last issue of the Journal, I plan on blogging on the individual articles. Today my focus will be on the prefaces.
The first preface was written by retired California Appellate Judge George Nicholson. Judge Nicholson has devoted a significant part of his career toward educating the public about what judges do and encouraging judges to participate in civic education. In fact, he was the driving force behind the issue--using his vast network of contacts to recruit most of our authors. While his preface discusses the topic of civic education and outreach, his two appendices are a wealth of information--a how-to manual of sorts--for conducting court/community and court/clergy outreach.
The second preface was written by Vice Chief Justice Ann A. Scott Timmer. In her preface, Justice Timmer notes how decreased faith in government risks "adherence to the rule of law and democracy itself." She writes, "it is incumbent on those who have devoted their careers to upholding the rule of law and promoting equal justice to work towards shoring up faith in our institutions even as we disagree on how they should operate and what improvements are needed." She provides an excellent overview of the issue, discussing each of the individual pieces.
The third preface was written by Kenneth B. Morris, Jr., who is a descendant of Frederick Douglass and Booker T. Washington. I have already written a bit about Mr. Morris's preface in an article on Governing.com. As I wrote there,
Guided by history, Morris emphasizes the importance of collaboration between the judiciary and other groups to “restore faith, increase understanding and promote public confidence in the integrity of our system of justice and fairness.” He invites judges to partner with his organization, the Frederick Douglass Family Initiatives, to help address this very challenge. Undoubtedly, there is a role for state and local government in those efforts.
The final preface was written by noted legal journalist Tony Mauro. Mr. Mauro offers a few suggested for how appellate judges can help the new media, including writing with more clarity, talking to journalists, and understanding the role that they play when they report on opinions.
I commend each of these prefaces to you, as well as my short foreword, which provides some timeless advice from my toddler.
Sunday, August 15, 2021
In rapid succession, the Supreme Court recently received three briefs asking it to overturn different precedents. The one that got widespread national attention was Mississippi’s brief in the high-profile case being heard next term, Dobbs v. Jackson Women’s Health Org., which asks the Court to overturn Roe v. Wade. Then, on the heels of that brief, a petition for certiorari asked the Court to overrule Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Soon afterwards, Oklahoma filed a petition seeking reconsideration of the Court’s one-year-old, 5-4 ruling in McGirt v. Oklahoma.
The unusual spate of requested nullifications of existing precedent plainly reflects a calculation that the Supreme Court’s new majority is less tied to stare decisis than their predecessors. Still, each brief makes an effort to provide grounds why stare decisis should not insulate the targeted decisions from reassessment. A review of the arguments against simply following precedent provides lessons for appellate counsel confronting an unavoidable but adverse controlling decision.
To be sure, the doctrine of stare decisis remains a “foundation stone of the rule of law” and the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” The Court has deemed that following precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.” Still, stare decisis is not an “inexorable command” or “‘mechanical formula.’” In constitutional cases, stare decisis has less gravitational pull because “correction through legislative action is practically impossible.”
Dobbs presents the politically voluble issue of abortion, which has percolated for years, dominated national politics at times, and influenced Supreme Court appointments and confirmations. The potential impact of the issue in the political arena is inseparable from the legal arguments made, simply because the conversations in both playing fields have merged. That happenstance probably allows counsel to undertake a more opinionated and overtly political argument than might be prudent in other cases, particularly when some of the justices have expressed similarly strong opinions on the relevant jurisprudence.
In that vein, Mississippi’s brief asserts that both Roe and the subsequent decision in Planned Parenthood of S.E. Pa. v. Casey, “are egregiously wrong” and lack any “basis in text, structure, history, or tradition, leading to a hopelessly unworkable” legal framework. The brief’s unworkability argument is not a traditional one, though. In most instances, unworkability focuses on why an adopted test or stance fails to resolve recurring problems or issues. It asserts that the lower courts do not apply it consistently so that application of the precedent produces inconsistent results.
Mississippi’s brief frames its unworkability argument in terms of the frustration that States experience when they seek to end or heavily regulate abortion, blaming the application of heightened scrutiny when, it claims, rational-basis analysis should apply. The argument reminds a reader of the “heckler’s veto” in First Amendment law, because it relies on the sustained objections of opponents as a basis for claiming that the Court should recede from precedent. In this instance, it asserts that Roe and Casey have not contributed to a settled state of the law because they tend to block laws that Mississippi favors. In this brief, unworkability appears only as an obligatory nod. Mississippi’s argument really depends on justices’ agreeing that abortion should not receive constitutional protection so that laws restricting it are reviewed by the most deferential form of scrutiny.
Egbert v. Boule seeks the abandonment of an equally longstanding precedent, Bivens, but one that has had a lower public profile. Still, it boasts a vocal set of opponents in government and academia. Bivens and its progeny implied a direct cause of action under the Constitution for federal officer violations of the Fourth and Eighth Amendments, as well as due process. Yet, more recently, the Court has taken a narrowing view of Bivens and even suggested that the current Court would not have reached the same decision as the Bivens Court about implying a cause of action.
The petition’s unworkability argument emphasizes the Ninth Circuit’s more expansive view of Bivens in the case submitted for review to show that Bivens is irreconcilable with more recent precedent and therefore provides an uncertain basis for implying a constitutional cause of action that the lower courts cannot uniformly apply. Coming in the context of a lawsuit against a Border Patrol agent stationed near the Canadian border for First and Fourth Amendment violations, the petition claims “that judicially crafted Bivens actions could skew agents’ decision-making about whether and how to investigate suspicious activities in carrying out their important national-security mission.” Playing to the jurisprudential predilections of a majority of the Court, the petition asks that it “bring this important area into line with the Court’s modern jurisprudence respecting the separation of powers and recognizing Congress’ primacy in creating causes of action.”
Oklahoma’s petition in Oklahoma v. Bosse attempts a rare, though not unheard of feat: the overruling of a fresh precedent. Only last year, in McGirt, the Supreme Court held a large swath of Oklahoma remained part of the Muscogee (Creek) Reservation and subject to federal, not state, criminal law jurisdiction under an 1885 statute. What makes the Bosse petition credible was the immediate impact that McGirt had on future criminal prosecutions in Oklahoma, even if the effect on past prosecutions was expected.
The Bosse petition asserts that McGirt was wrong and has already had disastrous consequences, sending thousands of crime victims on a mercurial adventure to “seek justice from federal and tribal prosecutors whose offices are not equipped to handle those demands.” At the same time, it tells the justices that public safety is endangered as “crimes are going uninvestigated and unprosecuted,” confirming the worst fears of the McGirt dissenters.
The overruling of a recent Supreme Court decision, as Oklahoma seeks in Bosse, is not unprecedented. One prominent example occurred in the Flag Salute Cases. In 1940, the Supreme Court decided Minersville Sch. Dist. v. Gobitis, holding that a school district did not violate the rights of several schoolchildren who were expelled because they had religious objections to participating in the school’s morning flag-salute ceremony. Those objections led to accusations that Jehovah’s Witnesses, the religion of the expelled schoolchildren, were unpatriotic, releasing a wave of terrorism against its followers. The intolerance generated by the decision caused three members of the Gobitis majority to re-think their position. When joined by new appointee, the formerly 8-1 decision turned around to uphold a right to object to pledging allegiance as a right of conscience in West Virginia Bd. of Ed. v. Barnette. Remarkably, the new decision also ended the terroristic attacks on the Witnesses. Still, Bosse may have a higher climb than Barnette had to swing a member of the majority to the other side.
Each of these briefs demonstrate three things when asking a Court to overrule prior precedent. First, know your audience. If a court has expressed misgivings about a precedent, that become fodder for your request to abandon stare decisis. Second, explain why the precedent fails to achieve the stability that stare decisis is supposed to bring about. Third, make the consequences of staying with precedent seem as dire and bleak as possible. There is no guarantee that checking these boxes will bring about your desired result, but their absence almost guarantees failure. Advocates, no doubt, will watch developments in these cases closely to see if they succeed.
 No. 19-1392, Br. for Petitioners (S.Ct. Jul. 22, 2021).
 410 U.S. 113 (1973).
 403 U.S. 388 (1971).
 140 S. Ct. 2452 (2020).
 Payne v. Tennessee, 501 U.S. 808, 827 (1991).
 Id. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).
 Id. at 828 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).
 Id. (quoting Burnet, 285 U.S. at 407 (Brandeis, J., dissenting)).
 505 U.S. 833 (1992).
 21-147, Pet. for Certiorari (S.Ct. Jul. 30, 2021).
 Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017).
 No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).
 319 US 624 (1943).
Saturday, August 14, 2021
Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like. When I teach upper-division students, I always include some exercise on malpractice and default judgments. On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021). See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021). The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.
Judge James C. Ho started the opinion with a great “hook,” explaining: “This is a cautionary tale for every attorney who litigates in the era of e-filing." Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences:
Kevin Rollins brought suit against his employer for personal injury. The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions. But Rollins’s counsel never saw the electronic notification of that motion. That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.
As a result, Rollins did not file an opposition to the summary judgment motion. So the district court subsequently entered judgment against Rollins.
Rollins, __ F.4th at __, 2021 WL 3486465 at *1.
According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot. Id. Rollins then sued Home Depot in state court. In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot.
In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.” Id. The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.
On May 7, Home Depot filed its motion for summary judgment. Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’” Id. As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.” Id.
Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system. He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.” See Weiss, 5th Circuit warns of “cautionary tale for every attorney.” In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.” Id. The firm tried to open the email, but it had been corrupted. Id.
Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.” Rollins, __ F.4th at __, 2021 WL 3486465 at *1. On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment. Id. Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins. The district court denied the motion, and Rollins appealed.
The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review. Id. at *2. The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.” Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law. Id.
On the merits, the court began: “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’” Id. Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion. The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.” Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings. According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.” Id.
In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.” He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court. See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”
I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion. And, we can all watch online dockets to see if Rollins decides to move forward.