Wednesday, August 17, 2022
This week, I'll note some elements of Justice Kavanaugh's style from a 2019 case, Flowers v. Mississippi.
1., 2. Syllogistic opening and bottom line up front. As discussed in prior posts, this is (almost) a universal in good legal writing--a little law, a few choice facts, and a conclusion either express or implied that flows from the two. Justice Kavanaugh is also inclined to give spoilers at the start (which we practitioners love).
A little law: “In Batson v. Kentucky . . . this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.”
Some facts: “In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials. In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to "numerous instances of prosecutorial misconduct." . . . In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. The trial court seated the black juror. Flowers was then convicted, but the Mississippi Supreme Court again reversed the conviction because of prosecutorial misconduct at trial. In the third trial, Flowers was convicted, but the Mississippi Supreme Court yet again reversed the conviction, this time because the court concluded that the prosecutor had again discriminated against black prospective jurors in the jury selection process. . . . The fourth and fifth trials of Flowers ended in mistrials due to hung juries. In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors.
Conclusion: "[A]ll of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not "'motivated in substantial part by discriminatory intent.'"
3. Lists galore. Justice Kavanaugh loves to use lists to organize his writing and distill his reasoning. I found five in this opinion alone:
"Four critical facts, taken together, require reversal. First , in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. . . . Second , in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third , at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth , the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State."
"Jury selection in criminal cases varies significantly based on state and local rules and practices, but ordinarily consists of three phases, which we describe here in general terms. First, a group of citizens in the community is randomly summoned to the courthouse on a particular day for potential jury service. Second, a subgroup of those prospective jurors is called into a particular courtroom for a specific case. The prospective jurors are often questioned by the judge, as well as by the prosecutor and defense attorney. During that second phase, the judge may excuse certain prospective jurors based on their answers. Third, the prosecutor and defense attorney may challenge certain prospective jurors."
"Four parts of Batson warrant particular emphasis here. First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination. . . . Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant. . . . Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination. . . . Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out."
"Of particular relevance here, Batson’s holding raised several important evidentiary and procedural issues, three of which we underscore. First, what factors does the trial judge consider in evaluating whether racial discrimination occurred? . . . Second, who enforces Batson? . . . Third, what is the role of appellate review?"
"Four categories of evidence loom large in assessing the 1) the history from Flowers’ six trials, (2) the prosecutor’s striking of five of six black prospective jurors at the sixth trial, (3) the prosecutor’s dramatically disparate questioning of black and white prospective jurors at the sixth trial, and (4) the prosecutor’s proffered reasons for striking one black juror (Carolyn Wright) while allowing other similarly situated white jurors to serve on the jury at the sixth trial. We address each in turn."
4. Break up those long sentences. Varying sentence length can help speed the reader along or slow her down, depending on what you're trying to emphasize. But as a general rule, prefer short--words, sentences, paragraphs, briefs, opinions--to long. Justice Kavanaugh seems to enjoy breaking up sentences that most lawyers would put together. For example,
"We cannot just look away. Nor can we focus on the Wright strike in isolation." Many judges would probably write something like "We cannot ignore an overall pattern by focusing on a single juror strike in isolation." Breaking it up makes it the statements have greater urgency, which helps persuade the reader of the need for the result here.
"In this case, Carolyn Wright was a black prospective juror who said she was strongly in favor of the death penalty as a general matter. And she had a family member who was a prison security guard." Again, most would likely put these details about a single juror in a single sentence. But again, breaking it up emphasizes each fact put forward. Very effective.
5. Put the dots close enough so that the reader will connect them before you do. I won't cut an paste the fact section here, but Justice Kavanaugh does a very effective job of showing the reader the facts in a way that helps the reader come to reach the conclusion he wants--small town, deep South, closely divided along racial lines, mostly white victims, black defendant, white prosecutor, etc. In memoranda and briefs, the fact section shouldn't contain argument. Like opening statement, it should just lay out the facts. To use a homely metaphor, it should lay out the dots that you later connect in argument. But if you lay out the dots skillfully enough, the reader will connect the dots for herself before you do it explicitly. Having the reader reach the conclusion on her own is so much more effective than just telling her what to think.
6. Nice turns of phrase. Justice Kavanaugh likes a bit of style with his substance, as shown by a few good turns of phrase:
"And to understand how equal protection law applies to peremptory challenges, it helps to begin at the beginning."
"In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many."
"One can slice and dice the statistics and come up with all sorts of ways to compare the State’s questioning of excluded black jurors with the State’s questioning of the accepted white jurors."
"In the decades since Batson, this Court’s cases have vigorously enforced and reinforced the decision, and guarded against any backsliding." "We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case."
7. Change up syntax. As the Chief Justice is wont to do, Justice Kavanaugh also likes to change up syntax from time to time, putting the subject later in the sentence for emphasis: "Ratified in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.'" Subtext: the Civil War itself was fought to put an end to discrimination like this.
8. Don't bury good stuff in parentheticals. "A primary objective of the Equal Protection Clause, this Court stated just five years after ratification, was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Many attorneys or judges would have put that part in a parenthetical after the case cite. If it's persuasive, you want it in the body.
9. If you're going to have a long string cite, make it simple. "In the decades after after Strauder, the Court reiterated that States may not discriminate on the basis of race in jury selection. See, e.g., Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881); Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Norris v. Alabama, 294 U.S. 587, 597–599, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hale v. Kentucky, 303 U.S. 613, 616, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (per curiam); Pierre v. Louisiana, 306 U.S. 354, 362, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128, 130–131, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Hernandez v. Texas, 347 U.S. 475, 477–478, 482, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Coleman v. Alabama, 377 U.S. 129, 133, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964)."
Most readers are not going to examine these cites in detail, so no need to get bogged down in a bunch of parentheticals.
10. Focus on topic sentences. There are two many to reproduce here, but do yourself a favor and go through the opinion by reading only the first sentence of each paragraph. You will get the entire reasoning of the opinion, and they will read smoothly, as if they were not separated by a bunch of other text. This is a mark of a great writer, because it takes a lot of time and skill to make things that simple and connected.
11. Short sentence starters. Like many of his colleagues--and perhaps to an even greater degree--Justice Kavanaugh likes short words to start his sentences. The first forty sentences, for example: In; In; He; In; In; The; Flowers; In; The; The; The; In; The; In; We; Four; First; Second; Third; Fourth; We; All; In; We; The; Winona; The; The; In; Three; In; Since; In; In; The; At; The; The; The; etc. Of the first 40, only three had more than one syllable. Wow. The pattern continues throughout the opinion.
12. Tell 'em what you told 'em. "In sum, the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial. In the six trials combined, the State struck 41 of the 42 black prospective jurors it could have struck. At the sixth trial, the State struck five of six. At the sixth trial, moreover, the State engaged in dramatically disparate questioning of black and white prospective jurors. And it engaged in disparate treatment of black and white prospective jurors, in particular by striking black prospective juror Carolyn Wright. To reiterate, we need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case."
After going through a detailed argument, a good conclusion will encapsulate your argument and help reinforce it without being needlessly or gratingly repetitive. Justice Kavanaugh does that effectively here.
Monday, August 15, 2022
Last week I posted some advice to 1L law students. Adam has posted some advice too. When I wrote my initial post, I wanted to include more items, but the demands of life (sick kids and a book deadline) cut down on my blogging time. Today I would like to finish up my post.
#6—Don't make enemies on campus (or make only friends on campus). Look, I get it, you will not be BFFs with every other student in your class. That is fine. But, what you don't want to do is make enemies. Your classmates will be your professional colleagues after law school. Many of them will remember you as you were in law school. So, if you are a jerk, they will remember you as a jerk. This will impact how they treat you in cases that you have together or opposite each other. Further, you will find that a decade or two out of law school, some of your classmates assume pretty important positions. (I have classmates who are federal and state judges, one governor, several folks who have served in important state roles, and partners at major law firms.) You never know where your classmates will end up. Keeping your relationships with classmates and faculty civil will help you a lot in the long run.
#7—Keep at least one hobby in law school. It is easy to forget who you are as a person while you are a law student. You could do you class reading 5 times and still not fully understand it. You should devote a large part of your day to law school, but don't forget who you are as a person. For example, I love to walk. As a law student I would do these epic walks around Cambridge and Boston some weekends. It was a great chance for me to clear my head. I also used this time (and time in the gym) to listen to audio books. I have always loved reading, but as a law student I had a hard time picking up a paper copy of a fiction book (since I already did so much reading). That is what worked for me, for others it might be music, dancing, running, knitting, or gaming. Whatever it is, keep one hobby (even if you might have to scale it back just a bit). In addition to whatever hobby you keep, get regular exercise. Getting regular exercise will help both your physical and mental health. Other than my random long walks, I didn’t get much exercise until my 2L and 3L year. I regret not starting sooner.
#8—Live like a student. Try to avoid taking out a lot of debt as a law student. This means when you are a student, you might need to forgo the newest laptop and cellphone and cut back on your streaming subscriptions. Less debt offers more employment opportunities. I tried hard to minimize my debt, which allowed me to work in some interesting government jobs out of law school. And while I think that minimizing debt is good, I would be careful about working your 1L year. I know that some students must work, but if you can just focus on law school your first year, I recommend doing that.
#9—Try out different areas of the law. Even if you think you know what you want to do with your legal career, you might be surprised to find out that you either (1) don’t like that line of work, or (2) find another line of work more interesting. I like to tell students that you get two summer experiences to try out areas of the law. Most law schools also offer internships and externships during the school year (although usually not as a 1L). These experiences will help you decide what to do with your legal education.
#10—Last, but not least, be sure to spell judgment correctly. This one is a bit of a freebie, but if you need convincing, see this article.
Saturday, August 13, 2022
Incoming law students undoubtedly receive a substantial amount of advice regarding how to succeed in law school and the legal profession. Below is some honest advice based on experience and the realities of law practice.
1. Focus on developing your analytical thinking and writing skills.
Great lawyers are extremely intelligent. They have exceptional analytical thinking and persuasive writing skills. Thus, in law school, you should focus predominantly on developing these skills.
Regarding your analytical thinking skills, learn, for example, how to quickly extract the rule of law from a case, synthesize rules from different cases, distinguish unfavorable facts and legal authority, reason by analogy, address counterarguments effectively, present a logical argument, and explain why the policy implications of a ruling in your favor lead to the fairest and most just result.
Concerning your writing skills, focus on, among other things, writing concisely and in plain language, presenting a well-structured and logical argument, crafting a compelling narrative, and avoiding common mistakes, such as unnecessary repetition, overly long paragraphs, over-the-top language, and spelling and grammatical errors.
2. Your grades and class rank are incredibly important.
Your grades and class rank largely determine your prospects of obtaining membership on your school’s law review, being selected for a clerkship, and receiving job offers from prestigious law firms. Accordingly, from day one, focus on achieving the highest grade possible on your law school exams. In so doing, manage your time effectively, purchase the LEEWS legal essay exam writing system (www.leews.com), buy commercial outlines, such as Emanuel Law School outlines, take practice exams, use the IRAC/CRAC method in answering your exam questions, draft concise outlines, and learn the rules of law for each subject (not the facts of the cases you studied). Finally, read Getting to Maybe: How to Excel in Law School Exams.
Also, do not worry about performing well in class when the professor calls on you or about impressing your classmates with incisive questions or comments. This has no (or a very minimal) impact on your grade. Additionally, do not brief cases. Instead, learn the black-letter law and practice applying the law to hypothetical fact patterns. And learn how to draft an answer that flows logically, considers all relevant perspectives, and arrives at a reasonable conclusion.
Having said this, law schools provide wonderful opportunities to network, get involved in student organizations, and participate in other extracurricular activities. You should take advantage of these opportunities. But at the end of the day, grades and class ranking are what matter.
3. Your soft skills matter too.
To be a great lawyer, it is not enough to be extremely intelligent and a gifted writer. Although these skills are critical to your success, they are not sufficient to ensure a successful legal career.
Great lawyers have humility. They have strong interpersonal skills. They have emotional intelligence. They listen. They know how to work collaboratively and accept constructive criticism. They have common sense and exercise good judgment. They know how to manage their time and work efficiently. They know how to communicate effectively, think creatively, and adapt to new circumstances. And ideally, they are nice people; they are respectful and decent, not arrogant and narcissistic.
When you begin law school, you will undoubtedly confront students who are jerks and it will not take long to spot them. Typically, they think they are better than everyone else. They have the emotional maturity of a five-year-old. They gossip. They ask you what your LSAT score was and what grade you received on your exams. These losers should be avoided at all costs. And when they become lawyers (or, worse, married), their prospects for success will diminish (and the likelihood of divorce increase) because of their personality. Do not be like these people – or associate with them.
4. Lose your idealism and be realistic about what law practice entails.
When you begin your law school career, you will almost certainly be overwhelmed with platitudes about the law and a legal career. For example, you may hear statements to the effect of “the law is a noble calling and the vehicle by which you can achieve a more just and equal society,” or “lawyers are the agents of social change whose mission is to change the world and make a transformative difference in people’s lives.”
This sounds wonderful. But it is not the reality of what you will be doing as a lawyer. So, if your reason for going to law school is to “make a difference” and to “change the world,” you are going to be disappointed.
Most competent graduates will obtain jobs in private law firms that do litigation and transactional work. They will represent, for example, banks, corporations, developers, universities, and hospitals. They will work long hours under stressful conditions. They will spend most of their time drafting pleadings, motions, briefs, and discovery, taking depositions, dealing with difficult clients, and negotiating settlement offers. Of course, there is nothing wrong with this; lawyers provide a vital service to these clients and ensure that their legal rights are protected.
But disabuse yourself of the notion that you are going to change the world. And be honest with yourself about the realities of the world. If you think that most criminal defendants are innocent, you are delusional. If you think that the vast majority of law enforcement officers are racist and that most prosecutors spend their time convicting innocent people, you are mistaken. Not to mention, the majority of cases result in a plea bargain (or in civil cases, a settlement).
This is not to say that the practice of law is not a noble undertaking; indeed, lawyers have been responsible for protecting civil rights and liberties and achieving greater social and constitutional protections for citizens. It is to say, however, that this is not the common or everyday experience of most lawyers.
5. Be mindful of incurring too much debt.
As has been well-documented, many law students incur crushing, six-figure, non-dischargeable debt and, upon graduation, struggle to find a job to justify that debt. Do not be one of those people.
Now, this does not mean that incurring debt is always a bad thing. If, for example, you are accepted to Yale, Harvard, Stanford, or Chicago, and intent on being a litigator at a large law firm, the debt you incur will likely represent a small fraction of your career earnings. But if you are accepted at a fourth-tier law school where only some graduates obtain full-time jobs in law firms and make modest salaries – and you are not offered a substantial scholarship – you should probably not attend.
Ultimately, make sure to review a law school’s American Bar Association 509 report to assess, among other things, the employment outcomes of its graduates, the types of jobs that graduates obtain, and their average starting salary.
6. Take care of your physical and mental health.
It is no secret that many lawyers are unhappy and that the practice of law is stressful. This should not be surprising; how would you feel if you had to spend hours, days, and years reviewing documents, answering interrogatories, responding to nonsensical motions, and dealing with difficult clients (and unpleasant colleagues who somehow managed to find their way into the legal profession).
To be sure, one survey found that 45% of lawyers suffer from depression, and 36% struggle with substance abuse issues. And approximately 28% of lawyers get divorced, a number that is likely higher for those who work in large law firms.
Given these facts, when entering law school and the legal profession, be sure to prioritize your physical and mental health. Develop healthy coping skills to deal with stress and adversity. Ask for help when you need it. If you are depressed or struggling with anxiety, for example, seek professional help and try cognitive behavioral therapy. Experiment with meditation. Exercise. Focus on getting optimal nutrition, take supplements if needed (e.g., multivitamins, fish oil), and get sufficient sleep. Have a personal life and pursue interests and activities that are unrelated to the law. If you allow law practice to control your life, you will find yourself burned out, unhappy, and unfulfilled.
Perhaps most importantly, avoid the common pitfalls. Do not abuse alcohol or drugs to manage stress. And do not be a victim. Do not blame others – or circumstances – for your problems. Take ownership of your life – and your choices.
7. Be honest with yourself about what you want – and whether a legal career will make you happy.
As you proceed in your law school career, be honest with yourself. Are you passionate about becoming a lawyer? Do you understand fully the demands of law practice? Can you manage the stress, the long hours, and the difficult clients? Are you comfortable with drafting countless motions and briefs, and engaging in prolonged discovery? Are you willing to accept less time with family, friends, and partners? Can you accept the fact that, as a lawyer, you are probably not going to change the world and be the lead counsel in a landmark case before the United States Supreme Court?
If the answer is no, do not be afraid to make a change. At the end of the day, your happiness matters more than anything, and if you are not passionate about, and willing to make personal sacrifices for, a legal career, it may not be worth pursuing. Having the courage to make a change now will benefit you for a lifetime. Simply put, do what is right for you, not what others expect of you, or what you think you should do.
Life is short, and there is much more to life than law. Your family, your relationships, and your friends are far more important than winning a summary judgment motion or an appeal. So put yourself – and your happiness – first.
 See, e.g., www.leews.com Order Audio (CD) Program (incl. Primer [10th edition]) or Primer Alone (leews.com); Emanuel Law Outlines: Constitutional Law, Thirty-First Edition (Emanual Law Outlines): Steven L. Emanuel: 9781454824817: Amazon.com: Books
 Richard Fischl & Jeremy Paul, Getting to Maybe: How to Excel in Law School Exams (Brown Co., 1st ed. 1999), available at: Buy Getting to Maybe: How to Excel in Law School Exams Book Online at Low Prices in India | Getting to Maybe: How to Excel in Law School Exams Reviews & Ratings - Amazon.in.
 See Priscilla Henson, Addiction and Substance Abuse in Lawyers: Statistics to Know (July 5, 2022), available at: Addiction & Substance Abuse in Lawyers: Statistics to Know (americanaddictioncenters.org)
 See Leslie Satterlee, A Fool For a Client: Why Lawyers Should Not Represent Themselves in Divorce, available at: A Fool for a Client: Why Lawyers Should Not Represent Themselves in Divorce – woodnicklaw.com; Harrison Barnes, Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give, available at: Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give | BCGSearch.com
Monday, August 8, 2022
In the next few weeks, a new class of law students will flock to law school campuses for orientation and the start of classes. If you are one of those new students--welcome! Over the next few weeks, you will be inundated with advice on how to survive law school. Allow me to chime in with advice gathered from a decade plus of teaching and attending law school twice--one as a student and once as the spouse of a law student. Because this blog is focused on appellate advocacy, I will give a few tips too for students interested in an appellate career. I am going to post 5 tips this week and 5 more next week.
#1—Read the syllabus, the course website, and emails from your professor. Before your class starts, you should carefully review the course documents. These documents should give you valuable information about the course, and your professor will expect you to be informed on what they contain—like due dates and formatting rules. These course documents are similar to court rules, something that you as an attorney will be expected to know and follow when handling a matter.
#2—Go to office hours. Chances are really good that your professors are a cool group of people with vast legal experience and connections. You should get to know your professors by visiting them in office hours. Ask them questions about the course, ask them questions about the practice of law, ask them questions about their careers. These visits will provide you will valuable information about the course and about possible legal careers. It will also help your professors write you letters of recommendation since they will know who you are apart from the in-class experience.
#3—Go to cool events on campus. Is there a judge coming to talk to a student group? Perhaps an alum is giving a talk on their niche practice area? Maybe a court is hearing oral argument on a case. Whatever it is, try to go to these events. Not only will you likely get free food, but you will also learn something new. When I was in law school I got to meet the Watergate prosecutor Archibald Cox and his wife of 70 years. He was being honored with a portrait unveiling and the whole Harvard Law community was invited. I was surprised that few students attended, but I am glad that I went!
#4—Recognize that you will probably suffer from imposter syndrome. Unfortunately, at some point during your 1L year you will probably suffer from imposter syndrome, meaning you will think that you only got into law school by some sort of lucky (or maybe unlucky) mistake and you are not worthy to be a law student. Imposter syndrome stinks but is also very prevalent. I had (sometimes still have) it. I suspect that most law students do too. Law school is hard and overwhelming, especially for first generation students. I would encourage you to talk to a trusted mentor about your feelings, and maybe even some close law school friends or faculty if you feel comfortable. You will be surprised what you hear!
#5—Understand that the amount that you talk in class rarely correlates with good grades. I am not telling you to not participate in class—you should participate. But please understand that those students who talk all the time (we called them gunners) do not have their #&*$ together any more than you do. Nearly everyone in your class is struggling to adapt to law school.
Sunday, August 7, 2022
Courts often defer to administrative agencies on matters that require the agency’s specialized expertise. Yet even the embattled Chevron deference doctrine puts the brakes on judicial deference sensibly when Congress has spoken on the matter. After all, the statute’s meaning must reflect legislative intent.
Still, in defending the constitutionality of a statute, States will ask courts to read the statute more narrowly than its language supports, to avoid invalidation as applied to common situations. The Supreme Court has supplied advocates with precedent that should overcome these attempts to recast legislative language, particularly where free speech concerns predominate.
For example, in consolidated lawsuits in Susan B. Anthony List v. Driehaus, two organizations brought facial and as-applied challenges to an Ohio statute that prohibited certain false statements made during a political campaign. The plaintiffs alleged that they intended to make statements that could be deemed false and then “face the prospect of its speech and associational rights again being chilled and burdened,” as it had when a complaint about their speech was previously filed.
In holding that pre-enforcement standing existed, the Court found Babbitt v. Farm Workers instructive. There, the plaintiffs challenged a law that proscribed “dishonest, untruthful, and deceptive publicity.” The plaintiffs alleged that they feared prosecution because erroneous statements are “inevitable in free debate,” that they had engaged in past consumer publicity campaigns and any future campaign would be scrutinized for truthfulness, and that they had “an intention to continue” campaigns like the ones they had mounted in the past. Notably, they did not claim that past campaigns were dishonest or deceptive or that future campaigns would be, or that any official action against them was likely or imminent. Still, Babbitt concluded that the “plaintiffs’ fear of prosecution was not ‘imaginary or wholly speculative’” given the statute’s language and allowed the case to proceed.
Two other cases also informed the Susan B. Anthony Court’s analysis. Virginia v. Am. Booksellers Ass’n Inc., found a credible threat of enforcement to a law that criminalized the commercial display of printed material deemed harmful to juveniles. At trial, the plaintiff booksellers named “16 books they believed were covered by the statute” and how compliance to avoid prosecution would be costly. In defense, Virginia contended that the statute was “much narrower than plaintiffs allege” and even conceded that the law would be unconstitutional “if the statute is read as plaintiffs contend.” Nonetheless, the Court found no reason to believe the “newly enacted law will not be enforced” and that one plain harm is “self-censorship; a harm that can be realized even without an actual prosecution.”
In the end, a reasonable reading of a statute based on its language and the lack of discretion an agency (or a court) has to re-write a statute, a purely legislative act, requires the appellate advocate to push back on agency attempts to recast plain language into a more defensible posture.
 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).
 Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).
 573 U.S. 149 (2014).
 Id. at 155.
 442 U.S. 289 (1979).
 Id. at 302.
 Id. at 301.
 Susan B. Anthony, 573 U.S. at 160 (quoting Babbitt, 442 U.S. at 302).
 484 U.S. 383 (1988).
 Susan B. Anthony, 573 U.S. at 160 (describing American Booksellers)
 Am. Booksellers, 484 U.S. at 393-94.
 Id. at 393.
Thursday, August 4, 2022
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.
Putting the Audience First: The Writing Tactic of Restatement
In May, I wrote the post, Putting the Audience First: A Perspective on Legal Writing. In that post, I encouraged readers to adopt a perspective on legal writing that always—always—has at its core the goal of meeting the needs of the actual, imagined, and implied audiences of the document. (If you haven’t yet read that post, I think it’s worth your time to read it before reading this one.) In that post, I promised that June’s post would be about the tactics of an audience-first perspective. Well, June turned out to be terribly unkind to my family; we had a family member with a serious, hospital-stay-causing (but temporary) illness. So, with apologies, here’s the post I promised for June.
Audience-First Perspective, Effective Writing Choices
In May I wrote that a good legal writer imagines the audience and writes for that audience, anticipating needs and meeting them. An even better legal writer recognizes that documents also imply an audience; that is, how the document is written suggests an audience for that document. As such, the work of the writer is not just to anticipate the needs of an audience but to also create needs the writer wants the audience to have and then use the document to satisfy those needs. Ultimately, writers that meet audience needs are more likely to influence those audiences. Accordingly, I suggested that the legal writer’s prime directive is this:
In a deliberate way and in every writing choice, put the audience first.
This directive to put the audience first should lead the writer to identify and deploy writing tactics—the tools in the writer’s toolbox—that best satisfy audience needs. One tactic that cuts across different types of documents and purposes for writing is the rhetorical tool of restatement.
Restatement as a Tactic of Audience-First Writing
Restatement as a writing tactic is a way of calling attention to a concept, point, or idea by stating that information in a different form, one that is often more convincing, clear, or both. Restatement is a powerful rhetorical tactic for satisfying the needs of audiences because restatement can
- Emphasize important ideas;
- Enable the audience to more easily remember important ideas;
- Clarify concepts that might be confusing to the audience; and
- Add a gloss on concepts or ideas that convey emotion or theme to the audience.
Signposts should accompany restatements. Good signposts for restated information include
- In other words
- That is
- Stated another way.
Each of these phrases put the audience on notice that what follows is the restatement of the same idea in a new way. (In general, it’s almost always true that you should put your reader on notice of your next writing move. That’s why transitions are so important to understandable writing.)
Examples of Restatement from Appellate Briefs
Here's an example of restatement in an amicus brief in Axon Enterprise, Inc. v Federal Trade Commission. The question in this case is whether the federal district courts have jurisdiction to hear constitutional challenges to the FTC’s “structure, procedures, and existence.” Pay particular attention to what happens in the second sentence below:
Thus, “if one part” of government “should, at any time, usurp more power than the constitution gives, or make an improper use of its constitutional power, one or both of the other parts may correct the abuse, or may check the usurpation.” Id. at 707–08. Each branch, in other words, must ensure that the others stay in their constitutional lanes.
This excerpt is a good example for seeing how restatement can be an audience-centered rhetorical tool. The brief apparently uses restatement because the quoted language in the first sentence is somewhat complicated. This complication is in part because the quote is from 1791 and because the quote is addressing how the branches of government operate under the U.S. Constitution. In some situations, writers would want to avoid a quote like this and paraphrase the ideas within the quote. The paraphrase is a “shortcut” for getting to the essential meaning the writer wants to convey when the original language is complex.
So, why would a brief include a complicated quote? One explanation is that a writer might think a quote is persuasive because quote’s author is meaningful to the brief’s readers. That might explain the quote in this brief. Here, the quote is from James Wilson’s 1791 lectures on law at the College of Philadelphia. Wilson had participated in drafting the Constitution and had served as a United States Supreme Court Justice. His lectures addressed the U.S. Constitution and the way in which the federal government described within it operated. So, by including Wilson’s quote, the brief appeals to Wilson’s exact words as well as his ethos.
The brief keeps the original ideas in Wilson’s mouth, so to speak. But by retaining the more complicated quote, the brief also creates a need in the audience to have clarity on what the quote means. In this brief, clarity is accomplished with a short, punchy sentence that conveys the key point in a more emphatic and more memorable way and puts a gloss on the quoted language’s meaning:
Each branch, in other words, must ensure that the others stay in their constitutional lanes.
By using the phrase “in other words,” the brief signals to the reader that the sentence is a restatement. Then the sentence restates Wilson’s quote in a more accessible way, by modifying a commonly used phrase, “stay in your lane,” to sum up what the quoted language directs the branches to do. This restatement reduces complexity and it gives a reader a way to more easily remember the overarching concept about the roles of the separate branches.
There’s also an emotional valence to the restatement—this is the gloss. The metaphor of staying in one’s lane gives a modern vibe to an old idea. Merriam-Webster says that “to stay in your own lane” “comes from football . . . where [it] is viewed as advice to worry about your own assignment and not take on the job of defending a different opponent, which can lead to blown coverages and chaos.” In addition, the phrase can mean to stick to your own area of expertise or to maintain your car in a particular lane of the highway.
Even if a reader doesn’t know these exact meanings, a reader is likely to feel the sense of orderliness and security that comes from staying in one’s own lane and getting the job done. This feeling, perhaps, is the feeling the brief is hoping for in its audience—that it is good for each branch to ensure that the others stay within the confines of their own expertise. As such, the restatement provides less complex and more memorable language that has an emotional “feel.”
Beyond satisfying the need of court audiences to easily grasp the content of briefs, restatement can be effective for speaking to other brief audiences. Imagine the news headline that emphasizes the restatement: Case asks whether branches must help others “stay in constitutional lanes.” In other words, a simplified restatement could meet the needs of audiences to express a complicated legal idea in everyday language.
Here’s another example that presents a similar pattern of restatement. This one is from the of the Brief for Petitioner in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Again, pay attention to the end of the paragraph.
Copyright ultimately rests on a “pragmatic,” utilitarian bargain: “[S]ociety confers monopoly exploitation benefits for a limited duration on authors and artists” to incentivize and promote “the intellectual and practical enrichment that results from such creative endeavors.” Leval 1109; see also Google, 141 S. Ct. at 1195 (noting that copyrights are granted “not as a special reward” to creators, but rather “to encourage the production of works that others might reproduce more cheaply”); Harper & Row Publishers, Inc. v. Nation Enters. 471 U.S. 539, 545 (1985) (copyright protection is “intended to increase and not to impede the harvest of knowledge”); supra at 4. In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.
The Warhol case presents a question under copyright law’s fair use doctrine: whether Andy Warhol sufficiently “transformed” another person’s photographs when he used those photographs in his own artworks. In the paragraph above, The Warhol Foundation’s brief makes an argument that copyright is not so much about the protection of artists and authors but about giving society the benefits of its citizens’ creative work. The brief faces a bit of a challenge with this point; true, the precedents say that society is meant to benefit from copyright, but the precedents also say that creators are meant to benefit, too. In other words, the first two sentences of the paragraph point in two directions at once, which makes it less clear what point the reader is to take away from that information. But the brief does not allow that confusion to persist. By invoking the “marketplace of ideas” metaphor, the brief emphatically guides the audience to focus in one direction, on society’s benefit:
In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.
Is there anything special about the “marketplace of ideas” as an element of restatement here? Generally speaking, the marketplace of ideas is a powerful metaphor in American culture. As Schultz and Hudson note, the phrase is “perhaps the most pervasive metaphor to justify broad protections for free speech” and was invoked most recognizably in Justice Holmes’ dissent in the First Amendment case of Abrams v. United States in 1911. A quick Google search shows that the metaphor also has broad, popular appeal as a shorthand for describing prevailing values about how ideas should circulate in public discourse. For better or worse, the marketplace of ideas evokes a set of commitments and emotions that influence how readers might think about Warhol’s use of another photographer’s work.
Because of the strong pull of the “marketplace of ideas” metaphor, this brief provides a useful example of how a restatement has potential to create a need for a brief’s audience. Here, I think, the use of the marketplace of ideas metaphor implies an audience that needs to see how arguments about fair use and copyright relate to the marketplace of ideas concept. In other words, the marketplace of ideas may not have been on the audience’s mind until the brief suggested to the audience that the marketplace of ideas is relevant here. The use of the metaphor in restatement cements that connection and sets up the opportunity for the brief to meet that implied audience’s needs.
Restatement as a rhetorical tactic can help writers craft documents that are clearer and more understandable for audiences. Writers can direct readers to what ideas are most important and distill for audiences the essence and emotional valence of complicated concepts.
What do you think about restatement?
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 did this summer, she presented a CLE on Modern Legal Writing at the South Dakota Bar Annual Conference. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.
Saturday, July 30, 2022
Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.
1. Start strong and get to the point quickly.
Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:
- Tells the court in one sentence why you should win.
- States clearly what remedy you are seeking.
- Explains why the court should rule in your favor.
- Presents the strongest facts and legal authority that support your argument.
Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor.
2. Focus on the facts.
In most instances, the facts – not the law -- win cases.
An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.
To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.
As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.
3. Adopt a more objective tone.
Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:
- Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
- Explains how a ruling in your favor will affect future cases and litigants.
- Considers the policy implications of a ruling in your favor.
- Addresses institutional considerations, such as how the public might react to a ruling in your favor.
- Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.
Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.
4. Break the rules – sometimes.
When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.
Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:
- Captures the reader’s attention from the beginning.
- Emphasizes the most favorable facts and law immediately and throughout the brief.
- Appeals to emotion where appropriate.
- Exposes the logical flaws in your adversary’s argument.
- Uses metaphors or other literary devices to enhance persuasion.
- Ends powerfully.
Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:
During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.” Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.
This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.
5. Perception is reality – do not make mistakes that undermine your credibility.
Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:
- Spelling errors
- Long sentences (i.e., over twenty-five words)
- Excessively long paragraphs (e.g., one paragraph occupying an entire page)
- Failure to comply with the local court rules
- Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
- Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
- Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
- Avoiding unfavorable facts or law
- Requesting relief that the court is not empowered to grant
- Including irrelevant facts or law in your brief (and including unnecessary string cites)
Avoid making these and other mistakes at all costs.
6. The law will only get you so far; convince the court that it is doing the right thing by ruling for you.
Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.
Thursday, July 28, 2022
One of the most overlooked sections of an appellate brief is the Statement of Facts. But it shouldn't be. A good Statement of Facts can get a judge on your side before he or she even reads the Argument. Part of the problem with writing good fact statements is that it's hard. It takes work, and it means being intentional about using persuasive devices and tactics while staying true to the evidence presented in the court below. With apologies to Detective Joe Friday of Dragnet, the Statement of Facts is more than "Just the Facts." Here are some tips for writing a better, more persuasive, fact statement.
- Just do it. Appellants, generally speaking, are required to include a Statement of Facts. But even if you represent an appellee and your jurisdiction's rules say that you can dispense with including a Statement of Facts, do it anyway! Why let the appellant control the narrative? Undoubtedly, the appellant will be represented by a persuasive advocate who presents the facts in the light most favorable to the appellant. And sometimes the appellant's brief will omit, accidentally or purposely, some of the best facts for the appellee's argument.
- Put It Off. Procrastination can be a good thing when it comes to writing the Statement of Facts. Consider drafting the fact statement after completing the Argument (or at least after completing a draft of the Argument). While you need to know the evidence thoroughly in order to put together an argument, leaving the fact statement for later allows you to better understand what needs to be included and what can be omitted. Remember that every fact mentioned in the Argument should be set out in the Statement of the Facts; there should be no facts in the Argument that come as a surprise to the reader.
- Be an Omniscient Observer. If possible, write the facts as though seen from the viewpoint of an omniscient observer. Avoid writing facts by reporting what a witness testified (although you may want to do this when setting out the other side's evidence to downplay that evidence). Just repeating the testimony does nothing to help the Court, and it doesn't make your brief more persuasive. Synthesizing a lot of eyewitness testimony into a coherent story often isn't easy, but it is worth it.
- Be a Storyteller. Speaking of stories, you want your reader to be able to identify the protagonist, the antagonist, and other archetypal characters of your story from the fact statement. You want the reader to fully understand the plot of your story, the arc of the plot, and the climax. While chronological order often works best, fact statements occasionally work well by starting with the climax.
- Bury Bad Facts. You can't just ignore bad facts. If they potentially impact the outcome of the appeal, bad facts must be included. But there are ways to minimize the impact of bad facts. The concepts of primacy and recency--that the first and last parts of an argument, a paragraph, or even a sentence command the most attention from and impact the reader the most--should be considered. By placing facts bad for your argument in the middle of a paragraph between facts good for your argument, you can draw the reader's attention to the facts that most help your position and away from those that do not.
- Be Selectively Passive. We all have heard that passive voice should be avoided. Generally, that's true. However, there are exceptions. Using passive voice to state bad facts makes those facts drier, more mundane, less memorable, and generally less harmful to your argument. Use passive voice sparingly. But don't hesitate to use it when it will help your cause.
- Have a Theme. The theory of your argument is why you should win based on the law. The theme, on the other hand, is why you should win based on the reader's values. It is the emotional center of your case. Use facts to highlight your theme and to tell the reader why you should win on an emotional level.
- Use Background Facts. In creating a story with a theme, you invariably will find you need to include facts that aren't necessary for the portion of your argument that is based strictly on logic and legal precedent. These background facts nevertheless can be valuable in creating the emotional tug you want to have in the fact narrative. Just be sure not to overdo it because you risk overwhelming your reader with irrelevant facts.
- Make It Memorable. One way to make your Statement of Facts memorable is to give it a little flair. Using figures of speech can help. You probably want to save the metaphors and similes for the Argument, but other figures of speech like alliteration can go a long way toward making your writing more eloquent. Of course, this too is something you won't want to overdo.
- Emulate Excellent Examples. The way jurists write is somewhat different from the way practitioners write, but we still can learn a lot from them. Below are examples of facts taken from the majority and dissenting opinions of the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), a case in which the Court decided that criminal defendants with an intellectual disability cannot be subjected to capital punishment. Because the resolution of the case was not dependent on the specific facts, each opinion used only one paragraph to set them out. Both fact statements are honest, but each is written undoubtedly in an attempt to sway the reader.
At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.
Atkins, 536 U.S. at 307.
Justice John Paul Stevens, writing for the majority, included this one lengthy sentence as the only facts. These facts name the co-perpetrator of the crime, contain very little detail about the crime, and utilize the passive voice when the actual shooter goes unidentified. The theme arguably is that the culpability of Atkins was questionable.
The dissenting opinion, written by Justice Antonin Scalia, also contained only one paragraph of facts.
After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.
Atkins, 536 U.S. at 338 (Scalia, J., dissenting).
In this narrative, unlike the majority's narrative, the co-perpetrator is not named. Many more details are included, among them information that humanizes the victim. Finally, the last sentence uses the active voice to state that Atkins was the one who pulled the trigger and uses a figure of speech (known as iconicity or bulk) to emphasize the number of times the victim was shot, thereby making an emphatic impression upon the reader. The obvious theme of the facts is that Atkins was quite capable of and culpable in carrying out the crime.
Both fact statements are honest, but each subtly (or perhaps not so subtly in the dissent) seeks to seize control of the narrative in an attempt to influence those who may be reading the opinions. The point here is not that we have as much leeway to write like a Justice, because we may not. But the point is that we can use various devices and tactics to make a fact statement more powerful and persuasive.
The Statement of Facts shouldn't be overlooked or be an afterthought when writing an appellate brief. It should be a tool to grab the reader's attention and get the reader on your side from the very beginning. The value of a persuasive fact statement makes it well worth the work required to put it all together.
Wednesday, July 27, 2022
Chief Justice Roberts--along with Justice Kagan--has long been reputed to be one of the best writers on the current court. This week I'm going to take a look at Chief Justice Roberts's style using his majority opinion in Trump v. Vance, which struck me as a particularly Robertsy opinion.
1. Open strong. "In our judicial system, 'the public has a right to every man's evidence.' Since the earliest days of the Republic, 'every man' has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves--so far as we and the parties can tell--the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President."
This intro has a little history, a little drama, and is overall a great setup for the opinion. Personally, I would have added the conclusion up front: "We hold that they do not." As it is, the opening has the two premises of a syllogism, while letting the reader draw their own preliminary conclusion.
2. Be efficient with the facts and procedure sections. In slightly less than two pages, Roberts lays out all the important facts and procedure that he will draw on later. Particularly in a multi-issue case, that level of efficiency is going to be hard to reach. But skillfully paring down the record to its bare essentials is a skill that too few attorneys hone. Too many briefs are littered with facts and procedural history that don't affect the issue(s) on appeal. This is especially true of things like dates. If your reader sees information, she's going to assume that it's important and try to hold on to it for later. But if you give too many details, she loses patience and starts to skim, which will not help you to persuade her. Give your reader what she needs to decide the issue--no more, no less.
3. Change up your syntax. "Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity." "Wary of being exposed as the principal coconspirator, Wilkinson took steps to ensure that any blame would fall on Burr."
The basic and usual sentence structure in English is subject (with adjectives), verb (and any adverbs), object (again, with adjectives). Because this is the expected order, changing things up a bit can grab--and keep--your reader's attention. The Chief often flirts with dangling modifiers and the passive voice by putting the subject later in the sentence and verbs up front. This focuses the reader on the action rather than the actor, and makes for compelling reading.
4. Weave good source language into your prose rather than using block quotes. "At common law the “single reservation” to the duty to testify in response to a subpoena was “the case of the king,” whose “dignity” was seen as “incompatible” with appearing “under the process of the court.” Id., at 34. But, as Marshall explained, a king is born to power and can “do no wrong.” Ibid. The President, by contrast, is “of the people” and subject to the law. Ibid. According to Marshall, the sole argument for exempting the President from testimonial obligations was that his “duties as chief magistrate demand his whole time for national objects.” Ibid. But, in Marshall’s assessment, those demands were “not unremitting.” Ibid.
A lazy legal writer who comes across helpful language will just block quote it, thinking, "Well, he said it better than I can." While that may be true, remember that most readers don't have the patience to read block quotes. If you're okay with your reader skipping that, then go ahead. But presumably you're block quoting because the material is helpful and persuasive. Roberts deftly weaves his predecessor's language into his narrative without just giving it to the reader in a big chunk. If you must use a block quote (and sometimes you must), at least introduce it with an intro (and perhaps an outro) that tells the reader the gist of what you want her to get out of it.
5. The versatile dash. Roberts uses dashes to good effect for various purposes. For helpful reminders: "As to the dismissal, the Court of Appeals held that Younger abstention was inappropriate because that doctrine’s core justification—“preventing friction” between States and the Federal Government—is diminished when state and federal actors are already in conflict, as the district attorney and the President were." The bookend to Marshall’s ruling came in 1974 when the question he never had to decide—whether to compel the disclosure of official communications over the objection of the President—came to a head. For important qualifiers: "While the arguments unfolded, Jefferson, who had received word of the motion, wrote to the prosecutor indicating that he would—subject to the prerogative to decide which executive communications should be withheld—“furnish on all occasions, whatever the purposes of justice may require.” For interesting asides: "His Attorney General, William Wirt—who had served as a prosecutor during Burr’s trial—advised Monroe that, per Marshall’s ruling, a subpoena to testify may “be properly awarded to the President.” "Ford obliged—from a safe distance—in the first videotaped deposition of a President." For dramatic pause: "Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity." For emphasis: "In addition, the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties."
There are five punctuation marks in English that indicate pause. From shortest to longest pause, they are: the comma, the semicolon, the colon, the dash, and the period. Each one helps your reader catch his breath--to varying degrees--before taking in the next point. Dashes are often underused, and can effectively break up the flow for emphasis and relief.
6. Italics for emphasis. The meaning of a sentence can often depend on which word(s) one emphasizes. For a reader, italics provide the best way to emphasize a word in your head and get at what the writer is saying. Roberts uses italics well and always on purpose to read the sentence in his intended way and to draw attention to important distinctions: "This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President."; "The history surveyed above all involved federal criminal proceedings. Here we are confronted for the first time with a subpoena issued to the President by a local grand jury operating under the supervision of a state court." "But the President, joined in part by the Solicitor General, argues that state criminal subpoenas pose a unique threat of impairment and thus demand greater protection. To be clear, the President does not contend here that this subpoena, in particular, is impermissibly burdensome. Instead he makes a categorical argument about the burdens generally associated with state criminal subpoenas, focusing on three: diversion, stigma, and harassment." "But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability." "The President’s objection therefore must be limited to the additional distraction caused by the subpoena itself."
7. Focus on topic sentences. If a reader skipped everything but the first sentence of each paragraph, could she follow your argument? If so, you've got yourself some good topic sentences. They should make the primary assertion on that point, and the rest should just be filling in the details. Go through the opinion and just read the topic sentences--they flow beautifully and get all the major points across.
8. Lists, lists, lists. When I was getting ready for my first oral argument, an experienced colleague told me to distill my main points into lists. "Judges love lists," he said. That advice has served me well over the years. Lists can also be very helpful in writing to help guide your reader through a point, as Roberts shows: "And, while we cannot ignore the possibility that state prosecutors may have political motivations, . . . here again the law already seeks to protect against the predicted abuse. First, grand juries are prohibited from engaging in “arbitrary fishing expeditions” and initiating investigations “out of malice or an intent to harass.” . . . These protections, as the district attorney himself puts it, “apply with special force to a President, in light of the office’s unique position as the head of the Executive Branch.” . . . And, in the event of such harassment, a President would be entitled to the protection of federal courts. . . . Second, contrary to JUSTICE ALITO’s characterization, our holding does not allow States to “run roughshod over the functioning of [the Executive B]ranch.” . . . Any effort to manipulate a President’s policy decisions or to “retaliat[e]” against a President for official acts through issuance of a subpoena, . . . would thus be an unconstitutional attempt to “influence” a superior sovereign “exempt” from such obstacles, see McCulloch, 4 Wheat., at 427." "We disagree, for three reasons. First, such a heightened standard would extend protection designed for official documents to the President’s private papers. . . Second, neither the Solicitor General nor JUSTICE ALITO has established that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. . . . Finally, in the absence of a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence."
9. History lessons and stories. As anyone who has heard him speak knows, Roberts loves history. This comes through in his opinions, particularly in this opinion. With obvious relish, he regales the reader with tales from the founding. But this is more than just an aside--it is a critical point for constitutional interpretation. Under the most dominant "original public meaning" strain of originalism, the court looks to what the ratifying public at the time of adoption would have understood the constitution to mean. So Roberts loves telling a story, but it's always a story in service of a point. He famously did this as an advocate in his Alaska v. EPA brief, in which he gave a detailed account of a mine in Alaska to illustrate the importance of local control. Roberts always understands the assignment, and uses history and stories to get his point across memorably and forcefully. None have done it better, and few can do it as well.
Sunday, July 24, 2022
Subject-matter specialists might seem to have an advantage over a generalist on appeal. They would seem to have unmatched familiarity with the underlying statutes and caselaw. In specialty courts, such as the Federal Circuit, focused advocates may stand on a firmer footing than a newcomer in the field.
In most courts, however, the judges are generalists. They hear appeals on a wide range of subjects and cannot keep up with developments in every area of law. For them, the complexities and nuances that a specialist brings to the table may be less important than an experienced lawyer’s ability to boil the complicated down to familiar principles. Seventh Circuit Judge Diane Wood has noted that the “need to explain even the most complex area to a generalist judge . . . forces the bar to demystify legal doctrine and to make the law comprehensible.”[i] Make the unfamiliar familiar by utilizing language a judge will understand.
Moreover, the specialist may rely on memory of a frequently cited case that, over time, becomes little more than code words that only the cognoscenti appreciate. The generalist, however, is certain to find the case, read it freshly, and expose the imprecision while finding legal analogies that point in a different direction than the specialist argued.
A specialist’s command of policy arguments often relies upon the gloss of repetitive usage, twists to conform to his clients’ preferred results, and the dullness of repeated use, a generalist can look at legislative history and intent with fresh eyes that can be revelatory to a judge. Moreover, a generalist will draw from other areas of law enabling the judge to appreciate analogies that the specialist would never consider.
In some ways, the difference is comparable to the difference between an appellate lawyer and a trial lawyer. Trial counsel knows the record from having lived though the case and having pursued key objectives that yielded the desired result. The appellate lawyer looks at the case more dispassionately and often finds that the formula for victory is either an issue quite different from the one that may have dominated trial or a route that may even have been unavailable at an earlier stage.
The bottom line is that tackling a new area of law should not generate fear that the specialist opponent holds all the cards. The well-prepared appellate lawyer should appreciate the advantages that a generalist can bring to the table.
[i] Diane Wood, Generalist Judges in a Specialist World, 50 SMU L. Rev 1755, 1767 (1997).
Saturday, July 23, 2022
Many of my students believe I “prohibit” any use of passive voice. I certainly discourage passive voice, especially in objective writing. As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity. As Bryan Garner explained in his 2019 Michigan Bar Journal piece: “Stylists agree” passive voice is “generally weaker than active voice. It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.” Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34 (Dec. 2019).
However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.” Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).” Id. at 34.
As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice. Garner asks us to count the passive voice examples in this passage:
In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.
Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.” Id. at 35. Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.
I especially like Garner’s explanation: “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).” Id. Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.” Id.
This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point: “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).” Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.” Id.
Returning to the challenge passage, Garner says there are six passives: “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.” Id. Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together. Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.” Id.
Finally, I would ask students to re-write this passage, with the most direct language possible. Students, and lawyers, can then compare their revisions to Garner’s:
In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.
Id. Garner removed what he calls “zombie nouns” along with passive voice, and made the “reader’s job” much easier. Id. Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.
Tuesday, July 19, 2022
After a three-part series on Justice Kagan, I decided to pick apart the newest justice's writing style. As this post will show, Justice Barrett shares some techniques with Justice Kagan, but executes them in a very different way and delivers a very different style. The sample is her recent majority opinion in George v. McDonough.
1. Syllogism, syllogism, syllogism. When I read a Justice Barrett opinion, I'm always struck with how relentlessly logical it is. Her opening paragraph in George is typical: "Veterans may claim benefits for disabilities connected to their military service subject to statutory and regulatory requirements. When the Department of Veterans Affairs (VA) denies a benefits claim, that decision generally becomes final after the veteran exhausts the opportunity for direct appeal. But a statutory exception permits the veteran to seek collateral review at any time on grounds of “clear and unmistakable error.” We must decide whether that exception allows relief from a VA decision applying an agency regulation that, although unchallenged at the time, is later deemed contrary to law. We hold that it does not."
As I've discussed in prior posts, the pattern of major premise, minor premise, conclusion is the basic structure underlying almost all legal arguments. In appellate law, the major premise is a statement of the law, the minor premise is the given facts, and the conclusion is applying the law to those facts. Justice Barrett does this constantly, as this introduction shows: here's a bit of the law on veterans' disability benefits; here are a few choice facts; here's the conclusion. It makes her reasoning very easy to discern--and if you agree with the premises, you have to agree with her conclusions. It's critical for an attorney to think this way, even if not all succeed in writing this way.
2. Bottom line up front. Using the example of the introduction again, Justice Barrett doesn't leave her reader guessing at what the result will be. As a practitioner, I appreciate this. It can be stressful poking through an opinion trying to figure out whether you prevailed.
3. Short starters. Like Justice Kagan and Chief Justice Roberts, Justice Barrett loves to start sentences with short words, which helps the reader to glide along: "Most important for present purposes, the history reveals that this category of error does not encompass a subsequent “change in law . . . or a change in interpretation of law.” 38 CFR §3.105 (Cum. Supp. 1963). And for good reason: During the many years when clear and unmistakable error was purely a creature of regulation, the governing statutes generally did not allow “[n]ew or recently developed facts or changes in the law” to “provide a basis for revising a finally decided case.” . . . . To stay within that statutory constraint, authorities dating back to 1928 confirm that “[a] determination that there was ‘clear and unmistakable error’ must be based on the record and the law that existed at the time of the prior [VA] decision.” . . . . So, for example, the VA’s failure to apply an existing regulation to undisputed record evidence could constitute clear and unmistakable error. . . . But a subsequent legal change could not, because “only the ‘law that existed at the time’ of the prior adjudication . . . can be considered” in this posture. . . . . Or as the Veterans Court summed up, shortly before the enactment of the 1997 statute: A “new interpretation of law . . . from a case decided in 1993 could not possibly be the basis of [clear and unmistakable] error in 1969,” as “a simple recitation of the time sequence” should “make . . . clear.” . . . . The invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice."
4. Writing about people, not statutes. Using what Ross Guberman calls the "back to life" technique, Justice Barrett takes a maze of statutes and instead of writing about them in the abstract, talks about a people navigating them in real life: "“The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service.” . . . . A veteran seeking such benefits must first file a claim with the VA. §5101(a)(1)(A). A regional office of the VA then determines whether the veteran satisfies all legal prerequisites, including the requirement that military service caused or aggravated the disability. . . . To that end, the statute governing wartime service imposes a “[p]resumption of sound condition”: If a veteran’s disability was not noted at the time of entry into service, then the veteran is presumptively entitled to benefits unless the VA shows by a heightened burden of proof that the disability “existed before . . . and was not aggravated by such service.” 38 U. S. C. §1111. After applying this and other statutory and regulatory requirements, the regional office issues an initial decision granting or denying benefits. §§511(a), 5104(a). A veteran dissatisfied with this decision may challenge it through several layers of direct review. As a general rule, the veteran may appeal within one year to the VA’s Board of Veterans’ Appeals (Board). §§7105(b)(1), 7104(a). If the Board also denies relief, the veteran may seek further review outside the agency. Such review was once limited to constitutional and certain statutory claims, but since 1988 Congress has generally allowed veterans 120 days to appeal any Board decision to the Court of Appeals for Veterans Claims (Veterans Court). . . . A veteran dissatisfied with that court’s decision may seek review of any legal issue in the Federal Circuit and ultimately in this Court. §7292; 28 U. S. C. §1254(1). After this direct appeal process, the benefits decision generally becomes “final and conclusive and may not be reviewed by any other official or by any court.” 38 U. S. C. §511(a); see §7104(a). Still, the veteran enjoys a few limited options for seeking collateral review in exceptional circumstances."
5. Positive before negative. It's almost universal in judicial opinions, but not universal enough in brief writing, so I'll point it out. Justice Barrett makes her affirmative points about what the real meaning of the law is (slip opinion 1-8) before dealing with losing arguments and dissenting opinions (slip opinion 8-12). A mentor of mine once called this "positive before negative"--say why you're right before you say why the other side is wrong. It's rhetorically more pleasing and makes greater logical sense. Even so, I'm surprised at how often attorneys will start pleadings or briefs just attacking what the other side or lower court did and why they are wrong (of course, judges in dissent often do the same thing). You may feel strongly about that, but save it for after you show why yours is the better approach. If you attack first, the court/reader is likely to adopt a defensive posture in favor of what you're attacking (It couldn't have been that bad...), which is never what you want a judge reading your work product to think when they're starting out.
6. Trim all the fat. I've been struck when I read Justice Barrett's opinions at how lean they are--they get right to the point, have little ornamentation, and say no more than they need to about the subject at hand. Her opinions are all business. If Justice Kagan's style is akin to having a relaxed dinner conversation with one of your most interesting friends, full of clever asides, Justice Barrett's is more like getting a military briefing in wartime, serious and to the point. It's Sergeant Joe Friday--just the facts, ma'am. It's very different than many justices, but has an austere, desert-like beauty about it.
Monday, July 18, 2022
- Foreword: Words Matter, by Tessa L. Dysart
- All Mixed Up About Statutes: Distinguishing Interpretation From Application, by Hon. Randall H. Warner
- Dictionary Diving in the Courts: A Shaky Grab for Ordinary Meaning, by Joseph Kimble
- Bracton’s Warning and Hamilton’s Reassurance, by Hon. D. Arthur Kelsey
- Supplementing Supplemental Briefing, by Ziv Schwartz
- An Empirical Study of Class-Action Appeals, by Bryan Lammon
- Book Review: Principles of Appellate Litigation: A Guide to Modern Practice, by Raffi Melkonian
- Book Review: Something Reinforced, Something New: A Review of The Appellate Prosecutor, by Tessa L. Dysart
For questions about The Journal or to submit an article, please feel free to email me.
Sunday, July 10, 2022
In the play and movie, Amadeus, Mozart proudly debuts one of his new compositions for the emperor. The emperor's verdict took Mozart by surprise. The composition was fine, the emperor intoned, but it suffered from "too many notes.” In providing some "helpful" criticism, the emperor advises, “cut a few and it will be perfect.”
While briefs do not approach the timelessness or artistry of a Mozart opera, courts and judges sometimes offer the same critique: “too many (foot)notes.” The judicial critique can have more validity than the emperor's issue in Amadeus. The federal court in the District of Columbia, as well as several other courts, warn brief-writers against too many footnotes, instructing that these drop-down asides “shall not be excessive.” Recently, lawyers defending Meta Platforms (formerly, Facebook) in an antitrust action ran afoul of the DC court's rule this month according to an order from Judge James E. Boasberg. The offending brief contained 19 footnotes, including several lengthy ones, including a footnote that topped 150 words. In striking the brief for violating the rule and attempting “to circumvent page limits” by taking advantage of the single-spacing that footnotes use, the judge ordered counsel to file a new brief immediately “with no more than five footnotes containing no more than 20 aggregate lines of text.”
Scholars commonly use lengthy and extensive footnotes in law review articles, but that practice provides no guidance to counsel filing briefs. Justice Scalia often remarked that he did not read footnotes. In Making Your Case: The Art of Persuading Judges, Scalia's co-author, Bryan Garner, proselytizes for putting citations in footnotes but warns against using footnotes for substantive text. The justice dissented from that view in the book because he wanted to know the authority behind a statement while reading along, rather than having to dart his eyes to the bottom of the page. Still, Scalia's hostility to footnotes did not extend to his own writing, where he apparently wanted his footnotes read. In Obergefell v. Hodges, 576 U.S. 644, 720 n.22 (2015) (Scalia, J., dissenting), he reserved his most unjudicial and quotable criticism of the majority's decision to a footnote, where he said, if forced to make certain statements in an opinion to obtain a fifth vote, he "would hide my head in a bag" and not allow the Court to descend “from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Scalia's inconsistency suggests that footnotes have their place. In my own briefs, I tend to use footnotes to advise the court of factual or legal points that it should know but placing them in the body would detract from the flow of the narrative I constructed. I also consult any expressed views on footnotes by the judges on the court because, after all, you never want to offend your intended audience.
Perhaps counsel's new knowledge of Judge Boasberg's abhorrence of footnotes explains why, in the Meta Platform case, their refiled brief contained no footnotes.
Saturday, July 2, 2022
On June 24, 2022, in Dobbs v. Jackson Women’s Health, the United States Supreme Court overturned Roe v. Wade and, in so doing, sparked impassioned reaction in the United States.
Below are a few thoughts on the decision.
1. The majority was correct.
In today’s climate, particularly in some academic institutions, it’s not advisable to publicly criticize Roe – or praise Dobbs – if you want to advance in your academic career.
But the truth is the truth.
Roe was a terrible decision. The majority got it right.
The right to abortion was not based on any reasonable interpretation of the Constitution’s text. And it was not inferable from the text, particularly the Fourteenth Amendment’s Due Process Clause, unlike, for example, the right to effective assistance of counsel, which can be inferred from the Sixth Amendment right to counsel. It was not rooted in the nation’s history or traditions, which is a critical factor that constrains the Court’s power and prevents justices from creating whatever “rights” they subjectively deem desirable. Instead, the Roe Court created a constitutional right out of thin air, divining such right from the invisible “penumbras” that the Court in Griswold v. Connecticut likewise created out of thin air. And the nonsensical doctrine of substantive due process, which the Court invoked in Planned Parenthood v. Casey to uphold Roe’s central holding, is a legal fiction. Not surprisingly, constitutional scholars of both conservative and liberal persuasions, along with the late Justice Ruth Bader Ginsberg, have recognized that Roe was incredibly, if not irredeemably, flawed.
The Court’s decision reflected a principle that is vital to a functioning democracy and the valuers of federalism, de-centralized governance, and bottom-up lawmaking: nine unelected and life-tenured judges should not have to right to decide for an entire country what unenumerated rights should or should not be recognized when such “rights” are neither contained in nor inferable from the text, or not deeply rooted in history and tradition. The reason for these constraints is obvious: without them, the justices would have the unfettered authority to create – or take away – whatever rights they wanted, whenever they wanted, and for whatever reason they wanted, which would reflect nothing more than their subjective policy predilections. That is antithetical to a democracy that vests power in the people, not philosopher kings. And for those who claim that the Ninth Amendment is a source of unenumerated rights, they are correct. But where in the Ninth Amendment does it state that the Court has the authority to create those rights, particularly where there is no basis in the Constitution to do so?
Ultimately, Roe was the perfect example of a raw exercise of judicial power. This does not necessarily mean, however, that the right to abortion lacked a textual basis in the Constitution. As stated below, to the extent that there is a constitutional basis to support a right to abortion, it is through the Equal Protection Clause (or possibly the Privileges and Immunities Clause).
2. Justice Roberts’ approach was sensible but not principled.
Chief Justice Roberts’ concurrence strikes a sensible but not necessarily principled balance between recognizing the fatal flaws in Roe yet respecting the fact that Roe has been the law for nearly half a century. For this reason, Roberts would have upheld the Mississippi law, which banned abortions after fifteen weeks, but not entirely overturned Roe and Casey.
This approach, although understandable given the practical impact of overturning Roe (and, as Roberts put it, the “jolt” to the legal system), is akin to taking a band-aid off slowly rather than ripping it off. Moreover, given the Court’s on-again, off-again relationship with stare decisis, with both liberal and conservative justices selectively applying the doctrine, Roberts’ concurrence appears more as a misguided attempt to preserve the Court’s legitimacy. Indeed, in this and other decisions, Roberts appears to lend more weight to perceptions about the public reaction’s reaction to a particular decision than the text of the Constitution itself. But basing decisions primarily on how the Court’s legitimacy will be affected invariably leads to political decisions and the precise result – a decline in the Court’s legitimacy – that Roberts is so intent on protecting. It should come as no surprise that the public opinion of the Court is now at twenty-five percent.
Put simply, interpreting the Constitution’s text reasonably is the key to the Court’s institutional legitimacy.
3. Justice Kavanaugh’s concurrence was surprisingly misguided.
In his concurrence, Justice Brett Kavanaugh argued that the decision in Dobbs returned the Court to a position of neutrality on abortion. It is difficult to believe that Kavanaugh believes this to be true.
The Court did not return to a position of neutrality. Roe was decided 7-2, and in Planned Parenthood v. Casey, the Court by a 5-4 margin affirmed Roe’s central holding. Thus, the Court had previously – and in numerous other cases – affirmed Roe and protected the fundamental right of women to access abortion services. In other words, it had already taken a position – repeatedly – on whether the Constitution protected abortion.
So, what changed since Planned Parenthood? Nothing – except the composition of the Court, namely, the confirmation of three conservative justices.
This is not to say that appointing conservative justices – and originalists – is a bad thing. Given the Court’s abortion precedent, however, and the known political affiliations of Justices Kavanaugh, Gorsuch, and Barrett, the notion that the Court returned to a position of “neutrality,” without acknowledging that, since Casey reaffirmed Roe, nothing changed but the Court’s composition, is ridiculous. That’s why Chief Justice Roberts’ approach was arguably the most sensible, although not the most principled, way to decide Dobbs.
Of course, this does not change the fact that, as a matter of constitutional law, Roe was one of the worst decisions in the twentieth century (not as bad, though, as Plessy and Korematsu), that Casey too was profoundly wrong, and that the Court was correct as a matter of constitutional law. The original sin was Roe itself, and the flaws in Roe were compounded by Court’s decision in Casey, which reaffirmed Roe based on untenable constitutional grounds, and on nonsensical justifications such as, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That’s what you get when you subscribe to “living constitutionalism," which makes about as much sense as substantive due process or the belief that Elvis is still alive.
Having said that, the optic is not good – Dobbs suggests that constitutional rights change based on the political ideologies of the current justices. Kavanaugh’s concurrence displayed a startling disregard of this reality.
4. Justice Thomas went too far.
With all due respect, Justice Clarence Thomas went too far in his concurrence. Yes, Thomas is correct that substantive due process is a nonsensical legal doctrine, and that Roe and Griswold were constitutionally indefensible decisions.
This doesn’t mean, however, that you revisit and overrule every flawed legal precedent that substantive due process produced. The truth is that, in many instances, the justices must consider the practical consequences of their decisions, and if the Constitution’s text can be reasonably interpreted to support a particular outcome, the Court should reach outcomes that will expand rights and promote, among other things, equality and the equal dignity of all persons. And in some instances, even if a precedent is irreparably flawed, the resulting “jolt” to the legal system and the material harm to citizens that may result can support letting the precedent stand on stare decisis grounds (or, as in the case of abortion, justifying it based on the Equal Protection Clause).
This analysis applies directly to Griswold, which was equally, if not more, flawed than Roe, because the majority, despite recognizing that the text didn’t support invalidating Connecticut’s ridiculous contraception ban, nonetheless decided to invent invisible “penumbras” from which it could single-handedly invent unenumerated constitutional rights.
But that doesn’t mean that Griswold should be overruled. If it was, you can be sure that misguided legislators would try to outlaw contraception. After all, imagine a world where women cannot access contraception and cannot access abortion services. That’s not a world that most reasonable people want to imagine.
Additionally, Thomas is wrong about Obergefell, which was defensible – and rightly decided – because, like the Seventh Circuit held in Baskin v. Bogan, same-sex marriage bans (and interracial marriage bans) violate the Equal Protection Clause.
Thankfully, there is no support for Thomas’s position on the Court, as the majority explicitly and repeatedly stated that precedents such as Griswold and Obergefell were not implicated by the decision because they did not involve the state’s interest in protecting fetal life. And there is reason to believe the justices in the majority because their reputations would be forever tarnished if they betrayed what they had explicitly written in a prior opinion.
5. Justice Ginsburg was right – if abortion can be justified by any provision in the text, it is in the Equal Protection Clause.
Despite Roe’s indefensible reasoning, there is arguably a basis, as Justice Ginsburg argued, to justify a right to abortion under the Equal Protection Clause. Abortion bans relegate women to second-class citizens. If a woman gets pregnant, she – and she alone – must often bear the financial, emotional, and psychological burdens of pregnancy, not to mention the medical issues (perhaps life-threatening) that some women may face if they are forced to carry a pregnancy to term. The burden on men, however, is not comparable and, in many cases, non-existent. Think about it: a woman who gets pregnant while in college, while pursuing a graduate degree, while starting a job, or while impoverished, must now bear the financial, emotional, and psychological burden of an unwanted pregnancy, which may cause that woman to drop out of school, lose her job, or sink further into poverty. The result is that some women will be prohibited from participating equally in the economic and social life of this country. That is wrong – and that is why the Equal Protection Clause arguably provides a basis to justify a constitutional right to abortion.
The problem is that neither Roe nor Casey was based primarily on the Equal Protection Clause. They were based on a right to privacy found nowhere in the Fourteenth Amendment and, later, on a substantive liberty interest that no reasonable interpretation of the Fourteenth Amendment can support. That is in part why Roe created such a backlash and, ultimately, was overruled.
6. Imagine where we’d be if the Court had embraced judicial restraint and deference.
If liberals had embraced the concept of judicial restraint, and of deferring more frequently to the decisions of federal and state legislatures, the world might look very different now.
New York’s law regulating who could carry a gun in public would still be on the books. The high school coach who prayed on the fifty-yard line after his high school’s football games would still be fired (although he shouldn’t have been fired). And abortion would still be accessible in every state, albeit with a fifteen-week limitation. For liberals, that sounds like a much better situation than they are in now.
That highlights the problem with judicial activism, which both conservative and liberal justices have embraced at various periods in the Court’s history. As stated above, when you rely on the Court to effectuate social change and disregard the constraints on judicial power, you give nine unelected judges the power to identify and define unenumerated rights for an entire nation based on their subjective policy preferences. And what the Court gives, it can certainly take away. In other words, advocates for an activist Court – conservative or liberal – will see their luck run out when the Court’s composition changes. That is precisely what happened in Dobbs.
7. Stop criticizing the Court
Predictably, after Dobbs was released, some in the media, and even some scholars, brought out all the usual buzzwords, such as characterizing the decision as misogynistic, white supremacist, racist, and the like. Even President Biden made disparaging comments about the Court that undermined his and the Court’s legitimacy. Biden had the audacity to state during a conference in Madrid, Spain, that “[t]he one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States, in overruling not only Roe v. Wade, but essentially challenging the right to privacy.” He should be ashamed.
Few, if any, however, including Biden, defended Roe on its merits. How could they? As Laurance Tribe stated, “one of the most curious things about Roe is that, beyond its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Ultimately, the Court’s job is to interpret the Constitution, not reach the outcomes that you like. And even when you disagree with a decision, it’s wrong to hurl insults at the justices. At this juncture, time would be better spent lobbying state legislatures across the country to protect women’s bodily autonomy and provide access to abortion services.
 381 U.S. 479 (1965).
 505 U.S. 833 (1992).
 See 381 U.S. 479 (1965).
 576 U.S. 644 (2015); 766 F. 3d 648 (2014).
 See Opinion, How Liberals Should Rethink Their View of the Supreme Court (June 21, 2022), available at: Opinion: Liberals should rethink view of Supreme Court - CNN
 See, e.g., Ramesh Ponnuru, The Times Distorts Alito’s Draft Opinion, (May 5, 2022), available at: New York Times Distorts Alito's ‘Dobbs’ Opinion | National Review
 Alex Gangitano, Biden Calls Supreme Court Overturning Roe v. Wade ‘Destabilizing’ (June 30, 2022), available at: Biden calls Supreme Court overturning Roe v. Wade ‘destabilizing’ | The Hill
 See, Opinion, Roe Was Wrong the Day It Was Decided. The Supreme Court Did the Right Thing (June 24, 2022), available at: Roe Was Wrong the Day it Was Decided. The Supreme Court Did The Right Thing | Opinion (newsweek.com)
Friday, July 1, 2022
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 News and Opinions:
This was the last active / opinion week of this term for the Supreme Court. And a lot happened.
On Monday, the Court issued its opinion in Kennedy v. Bremerton School Dist., ruling by a vote of 6-3 that a public school could not discipline a football coach for post-game prayers at the 50-yard line. The Court ruled that the conduct did not violate the First Amendment's Establishment Clause, dismissing concerns that players might have felt compelled to participate in the prayers. More from SCOTUSblog.
On Wednesday, the Court issued its opinion in Oklahoma v. Castro-Huerta, ruling by a vote of 5-4 that the State of Oklahoma has authority to separately prosecute non-Indians accused of committing crimes on tribal grounds. The Court ruled that the State enjoys concurrent jurisdiction and that the tribe does not have sovereignty to exercise sole jurisdiction over such criminal matters. More from Bloomberg.
On Thursday, the court issued its opinion in West Virginia v. Environmental Protection Agency , ruling by a 6-3 vote that Congress had not sufficiently granted the Environmental Protection Agency authority to enact industry-wide emissions standards. The Court ruled that it did not believe Congress had intended to give the EPA authority to enact standards that would try to shift power generation away from fossil-fuels to cleaner sources and that Congress would need to speak more clearly to do so, relying on the "Major Questions" doctrine. More from Bloomberg.
As the active term came to an end, the Chief Justice issued a press release announcing that the Court had acted on all cases submitted for decision during the term, thanking all Court employees and members of the Court's bar for their work during the term, and recognizing employees for lengthy service and/or retirement. Justice Breyer's retirement became official, as he stepped down and Justice Ketanji Brown-Jackson was sworn in to take his place.
The Texas Supreme Court is hiring a Judicial Staff Attorney. More information HERE.
The Massachusetts Supreme Judicial Court has two openings in the Office of Chief Staff Counsel. More information HERE.
Wednesday, June 29, 2022
Last week’s decision in Vega v. Tekoh did not, on its own, monumentally change the Miranda warnings made famous in pop culture for half a century. Government investigators should still provide the same basic recitation of rights to a suspect in custody before conducting any interrogation, just as they have in the past. But Vega continued a pattern of Supreme Court decisions that have slowly undermined the value of those warnings, largely by declining to provide any meaningful remedy when investigators fail to provide them.
In 2010, Barry Friedman argued that the Supreme Court was engaged in the “stealth overruling” of precedent, with Miranda v. Arizona at the forefront of the trend. He claimed that the Court had slowly chipped away at Miranda’s doctrinal core until almost nothing remained, leaving it so weak that it could even be formally overruled under stare decisis factors that examine the workability of a decision and its alignment with subsequent legal developments. That has largely been achieved by permitting more and more statements taken after a violation of Miranda to be introduced at trial. As Vega noted, the Court has already permitted the introduction of non-Mirandized statements to impeach a witness’s testimony, if the statements are merely the “fruits” of the improper statement, or if officers conducted un-Mirandized questioning to respond to ongoing public safety concerns.
Vega appeared different from those decisions, because on its surface it did not directly implicate the constitutionality of the Miranda warnings or the use of un-Mirandized statements in criminal courts. The case concerned a criminal defendant who was later acquitted, then filed a civil suit against an officer who failed to provide the Miranda warnings. The civil suit sought monetary damages under 41 U.S.C §1983, which allows a citizen to sure for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Thus, the case concerned whether a violation of Miranda’s rules was a sufficient deprivation of rights to give rise to a section 1983 suit.
Justice Alito’s majority opinion held that it did not. Alito noted that Miranda is only a prophylactic rule to protect Fifth Amendment rights, even if the Supreme Court has subsequently confirmed Miranda as “constitutionally based” and a “constitutional rule” in Dickerson v. United States, 530 U.S. 428, 440, 444 (2000). Although the Miranda rule is of constitutional nature and could not be altered by ordinary legislation, not all Miranda violations also violate the Fifth Amendment—such as when a technical Miranda violation does not result in a compelled statement. Alito also highlighted the myriad ways in which Miranda has been weakened over time—or, as Friedman would argue, has been stealthily overruled. Given Miranda’s weak pedigree, Alito claimed that section 1983 suits based upon Miranda should only be permitted if their value outweighed their costs. He then discounted any value to such suits at all, claiming that they would have little deterrent effect upon officers that might otherwise violate Fifth Amendment rights. The decision thus rejected section 1983 suites based upon Miranda violations.
Alito’s claim that civil liability for Miranda violations would do little to deter officers only makes sense if Miranda is a robust constitutional protection for Fifth Amendment rights. But the Court has already weakened the value of Miranda by limiting its application in the criminal context. As Alito admitted, prosecutors can readily introduce un-Mirandized statements during a criminal trial for a myriad of reasons related to public safety or the limited constitutional nature of Miranda itself. The modern Miranda rule thus provides little deterrent against Fifth Amendment violations. In that context, a civil remedy that likely would add some deterrence while providing a real remedy for those subject to Miranda violations. Allowing section 1983 suits based on Miranda violations would meaningfully change that status quo, despite Alito’s claim that those suits lack any real deterrent value.
What Vega demonstrates is not that Miranda rights have disappeared from the criminal justice landscape, but instead that they have become rights without any practical remedy. Statements obtained in violation of Miranda are routinely introduced in criminal court without any sanction against the violators, and now Vega signals that violators are not likely to face civil penalties either. In light of Miranda’s lack of remedies, it may even be good police practice to avoid Mirandizing suspects in the name of ensuring that incriminating statements emerge. Evidentiary consequences can seemingly always be worked around, and civil penalties are no real threat.
Vega is another step in the same course the Court has been taking for decades. It limits the remedies for a Miranda violation even further—this time in the civil context—ensuring that officers will face few consequences for those violations. Miranda’s place as a “constitutional rule” may not be under threat from Vega, but that is little salve. “Constitutional rule” status seems to afford no real remedies for those who suffer a violation.
Tuesday, June 28, 2022
A recurring discussion on #AppellateTwitter and #LegalWriting Twitter is the importance (or lack thereof) of proper citation format. A recent post said that time spent learning to cite properly was not time well spent. I don’t take the author of that post to mean that citations are unimportant, but the view expresses a writer-centric view of citations rather than a reader-centric view. As writers, and particularly as appellate advocates, we must take a reader-centric view of writing. So, let me explain why I think that time spent learning to cite properly is time well spent.
First, and most obviously, your reader needs to be able to easily find what you’re citing. Judges and their law clerks are busy people. Why make it more difficult for the people who you are trying to persuade to find your source? You must do the work so that they don’t have to.
Next, as Professor Alexa Chew explains in Citation Literacy, citations provide the law-trained reader with important information about the weight of the cited authority. Is it binding or only persuasive? Is it a recent case or well-settled law? Is what is being cited from a concurring or dissenting opinion? All of those things matter to the reader. If you omit part of a citation, or worse, incorrectly cite a source, you’re depriving your reader of important information.
Finally, and as Professor Tracy L. M. Norton pointed out in a post responding to the original Tweet, judges and law clerks use adherence to proper citation format as a proxy for your diligence and attention to detail. I know this to be true from my experience as a law clerk and from talking to other law clerks and to judges. A writer who doesn’t take the time to put citations into proper format is often assumed to have neglected other matters in their writing. Because let’s face it, it doesn’t take much effort to format most citations properly. The answers are right there in the citation manual. You just have to spend some time looking them up.
That said, I don’t mean that you are expected to properly format every part of every citation. It won’t matter if the comma is italicized when it shouldn’t be. What I’m suggesting is that it’s important to do your best to properly format citations so that your reader will know that you pay attention to detail. Doing so will reflect well on you and your work.
Oh, and one practical tip. Don’t blindly rely on the “copy with reference” feature of your favorite online legal research platform. The citations produced by those features are not always correct. For example, the Supreme Court of Ohio has its own citation manual. The Ohio “copy with reference” feature of one legal research platform produces this citation for an Ohio trial court case: State v. Vita, 2015 WL 7069789 (Ohio Com.Pl.) The correct citation format is State v. Vita, Clermont C.P. No. 2015 CR 0071, 2015 WL 7069789 (Oct. 29, 2015).
 Alexa Z. Chew, Citation Literacy, 70 Ark. L. Rev. 869 (2018).
 Id. at 872-73.
 We’ll leave what “well-settled” law is for another day.
Sunday, June 26, 2022
In writing today’s post, it is difficult to overlook the Supreme Court’s predictable rulings on abortion and guns, with a less certain but likely precedent-shattering decision on coach-led public-school prayer. Others will critique the decisions, extrapolate their consequences for issues beyond the cases decided, and speculate about new doctrinal implications. For today, I want to focus solely on the tools it suggests appellate advocates must use.
Dobbs and Bruen place a heightened emphasis on history. It is not the history that originalists who look to the Framers’ intent utilize, but whether an asserted constitutional liberty is “deeply rooted in this Nation’s history and tradition.” In Dobbs, the majority rejected a constitutional right of access to abortion because it held that no historical tradition, common law or otherwise, enabled women to have abortions regardless of the legislative policy choices, before the Constitution’s framing or in its aftermath or even following the ratification of the Fourteenth Amendment. In Bruen, similarly, the Court held text, history, and tradition informed the meaning of the Second Amendment, with the Court holding that history without consideration of possible countervailing government interests dictates the result.
While the decisions fail to take account of constitutionally significant differences in the principles that animate modern society, including, for example, the equal status of women and minorities or the contemporary principle of religious tolerance, an essential approach to argument emerges from the decisions. First, advocates must focus on the relevance of historical analogy. Are historical restrictions on the exercise of a right animated by the same considerations that underlie a modern restriction? Thus, for example, it is well-accepted that online publications receive the same type of free-press protections that publications that emerged from hand-operated printing presses issued in large measure since the time of John Peter Zenger.
Even though Justice Breyer’s Bruen dissent criticized the majority’s use of “law office history,” the majority’s reliance upon it constitutes the order of the day. Justice Thomas’s majority opinion rejects contrarian historical examples as “outliers,” unworthy of bearing constitutional significance. Similarly, Justice Alito’s history of abortion in Dobbs seems to be selective about what history counts.
The two decisions, then, place a burden on an advocate to make the history that favors a position compelling and part of an unbroken narrative (except for insignificant outliers). Messy renditions of history open too many doors to predilection. That historical advocacy, then, also reflect timeless principles consistent with constitutional understandings.
A pure historical approach is not a complete stranger to constitutional law. The Seventh Amendment’s right to trial by jury has long adopted that approach, defining the scope of the right by how it was practiced at common law when the Bill of Rights was ratified. Thus, then-appellate advocate John Roberts won a unanimous victory, written by Justice Thomas, where the Court recognized that jurors have always served as the “‘judges of the damages,’” even under the English common law that predated the Constitution in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (19978) (quoting Lord Townshend v. Hughes, 86 Eng. Rep. 994, 994-995 (C.P. 1677)). The decision hinged, in large part, on close 18th-century analogues to the statutory copyright damages at issue in the case. Similarly, in invalidating administrative procedures utilized by the Securities and Exchange Commission the Fifth Circuit in Jarksey v. SEC, No. 20-61007, 34 F.4th 446, 451 (5th Cir. 2022), relied upon historical analysis to find that “[c]ivil juries in particular have long served as a critical check on government power,” so that the civil enforcement at issue could not be assigned to agency adjudication.
Where constitutional rights are at issue, history has become destiny.
Friday, June 24, 2022
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
Today was the penultimate opinion issuance date on the Court calendar. As the term winds to a close, the Court has issued a number of highly anticipated opinions this week, perhaps the most anticipated came today.
As foreshown by last month’s leaked opinion, for the first time, the Supreme Court has taken away a basic right, a right that has existed for nearly 50 years. Today’s decision in Dobbs v. Jackson Women’s Health Organization overturns Roe v Wade and Planned Parenthood of Southeastern Pa. v. Casey and claims that the right to abortion is not “implicitly protected by any constitutional provision, including . . . the Due Process Clause of the Fourteenth Amendment” because the right to abortion is not “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” (quoting Washington v. Glucksberg.) The dissent of Justices Breyer, Sotomayor, and Kagan characterizes the right protected by Roe and Casey as “a woman’s right to decide for herself whether to bear a child.” The dissent defends the rationale of Roe and Casey and questions today’s decision, stating: “It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.” The dissent closes: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” See the decision and dissent and a sampling of the many reports, which cover the decision and dissent and discuss the consequences of the decision: NPR, The Associated Press, Reuters, and The New York Times.
Earlier this week, the Court struck a New York law that required a gun-owner to show proper-cause to obtain an unrestricted license to carry a concealed firearm. The Court held that the law violated the Second Amendment right to keep and bear arms. The decision protects an individual’s right to carry a handgun for self-defense outside the home and announced a standard for courts to judge restrictions on gun rights: “The government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.” See the decision and reports from New York Times, The Washington Times, The Los Angeles Times, and NPR.
Also this week:
- The Court rejected a Maine ban on tuition programs for religious schools, holding that the state cannot exclude religious schools from a state tuition program. See the decision and reports from The New York Times and USA Today.
- The Court limited Miranda rights, holding that suspects who are not warned about the right to remain silent cannot sue police officers for damages. See the decision and reports from CNN and Bloomberg Law.
Appellate Court Opinions and News
The Fourth Circuit affirmed a district court ruling that stuck as unconstitutional a North Carolina charter school rule that required girls to wear skirts. The court ruled that the rule, based on the view that girls are "fragile vessels" deserving of "gentle" treatment, is unconstitutional and that it violated students' equal protection rights as a policy based on gender stereotypes about the "proper place" for girls in society. See the ruling and reports from Reuters and The New York Times.