Appellate Advocacy Blog

Just as rubbernecking at the scene of a car crash is difficult to ignore, appellate advocates find it difficult to ignore the path from the trial courts to the Supreme Court for the various challenges to the new administration’s claims of executive authority that go well beyond the unitary executive theory. Some of it will unquestionably be held illegal or unconstitutional; some of it upheld. Friends will ask what the courts are doing, or what they might rule. Consider this an orientation on one set of cases and why casual observers might not see the full picture of the courts’ slow and tentative approach to what is unfolding.

For its unusual path to the Supreme Court and likely return, I want to focus on two separate cases that became one and challenged the administration’s freeze on foreign aid. Federal District Court Judge Amir Ali issued a temporary restraining order very quickly, as those types of injunctions usually occur. The plaintiffs soon returned to court asking for an enforcement order, claiming that the government had not complied with the order by releasing any money. The order was issued, and the administration was required to file a status report about its compliance with the order.

The government appealed to the DC Circuit, which turned the appeal down because it has no jurisdiction to hear an appeal from a TRO and that the requirements for seeking a writ of mandamus had not been met. The government petitioned Chief Justice Roberts, as the circuit judge, for a stay pending appeal and an administrative stay of the impending deadline set by Judge Ali’s order. The chief justice granted the administrative stay while the full Court considered further action.

Meanwhile, the government filed its status report with the district court, asserting that it had conducted a careful review of the thousands of State Department and USAID grants, contracts, and cooperative agreements in the course of a couple of days and found that all were subject to immediate termination. In other words, compliance with the TRO was not necessary. The plaintiffs returned to court asserting the report demonstrated the administration’s defiance of the court’s order requiring the restoration of foreign aid. Judge Ali issued a limited order requiring that, within 48 hours, the government pay all invoices and letters of credit drawdowns for work already completed before the TRO was issued and otherwise take all necessary actions to ensure “prompt payment of appropriate foreign-assistance funds going forward” without a deadline.

The Supreme Court then acted, issuing a 5-4 per curiam decision that treated the government’s application as too late given that the 48-hour deadline for paying already obligated funds had passed, but nonetheless ordering the district court to clarify the government’s obligations to comply with the TRO, taking the feasibility of mustering the funds into account. Justice Alito authored a comparatively lengthy dissent, characterizing the order upheld by the majority as a $2 billion burden on taxpayers “not because the law requires it, but simply because a District Judge so ordered.” Of course, the district court emphasized that the order was compelled by congressional spending mandates and contractual obligations that were legally binding so it hard to reconcile Justice Alito’s complaint about judicial overreach on behalf of four justices with what had occurred.

What makes the action by the Supreme Court even more interesting than what each side said is the likelihood that the case will return for a merits review. Four justices dissented. The Court grants certiorari upon the vote of four justices. The number of dissenting justices seems to guarantee that the merits will be decided by the full Court. Justice Brennan, however, used to say that, while four justices can vote to take a case, you should not supply the fourth vote unless you can court to five. That means that the four dissenters who reached the merits will want to know that their vote to grant certiorari will not be in vain and that there is a vote to be picked up from the majority. A petition for certiorari is likely coming, with a request for a stay pending its disposition. What the Court does with it will test that theory – and one other. There is a tradition at the Court to grant a stay when a petition is granted, so that a fifth justice, even if not supporting certiorari, usually joins the four as a courtesy to hold the “status quo” while the case receives review.

It pays to understand the Court’s traditions and unwritten rules. When some of this occurs in the near future, those who take what the Court is doing at face value may misinterpret those actions as signaling a change in positions from someone in the majority. Those who understand will know whether the Court is following its own norms – or departed from them. It will be too early to predict an outcome.

March 9, 2025 in Appellate Practice, Appellate Procedure, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Wednesday, March 5, 2025

Alphabet Soup: Fine for Lunch but not for your Briefs

Lawyers love alphabet soup. We use abbreviations (which include initialisms and acronyms)[1] liberally. Take this excerpt as an example:

Facing the uncertainty of collecting from the Lewicki-Swiech Defendants, D&K turned to LL and KFTR, KBP’s prior counsel in this case. In February 2014, D&K’s counsel, now also representing the Polish bankruptcy trustee controlling KBP since April 2013 (See SA93-94 ¶10), asked LL for voluntary production of its documents relating to its representation of KBP in this lawsuit in 2011-12. LL complied. (See Dkt. 765 at 5.) KBP later also asked for and obtained documents from Dienner and KFTR, who had preceded LL as counsel for KBP.[2]

Lawyers in another case used the initialisms “‘SNF,’ ‘HLW,’ ‘NWF,’ ‘NWPA,’ and ‘BRC’” to refer to “‘spent nuclear fuel,’ ‘high-level radioactive waste,’ the ‘Nuclear Waste Fund,’ the ‘Nuclear Waste Policy Act,’ and the ‘Blue Ribbon Commission.’”[3] Well, those are “clear as mud,” as my dad would’ve said.

But I’m sure those abbreviations were clear to the people using them. That’s the problem. The lawyers and parties to a case live with and use abbreviations to talk about the case, perhaps for years.[4] Those insiders readily understand the abbreviations. But you’re not writing your brief for an insider; you’re writing it for an outsider (judge) who reads thousands of pages of briefs each year. Using uncommon abbreviations makes the judge’s job more difficult and distracts from your argument. As one court noted in decrying the parties’ use of abbreviations, “The proliferation of these acronyms and abbreviations created a confusing alphabet soup which actively took the reader out of OSCO’s[5] arguments (at the expense of remembering what everything meant), and necessarily prolonged the Court’s review of the subject motions.”[6]

Some courts expressly discourage the use of uncommon abbreviations.[7] The Supreme Court of Ohio Writing Manua l tells writers to “Avoid using acronyms and abbreviations that are not already widely used; instead, shorten the name of the entity.”[8] It then suggests, “after identifying the Greater Cincinnati and Northern Kentucky Car Dealers Association, provide a parenthetical such as (‘the car dealers’) rather than create the abbreviation ‘GCNKCDA.’”[9] Lawyers (and law professors) need to be aware of and comply with such suggestions. Failing to do so may result in a judge writing something like this:

Petitioner's brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing.[10]

At least two circuit courts of appeals now require parties to include a glossary that defines uncommon abbreviations. The Circuit Rules for the United States Court of Appeals for the D.C. Circuit has this requirement, “All briefs containing abbreviations, including acronyms, must provide a ‘Glossary’ defining each such abbreviation on a page immediately following the table of authorities. Abbreviations that are part of common usage need not be defined.”[11] But the very need to include a glossary suggests there is a problem with your writing—a problem that makes the judge’s job more difficult. Do you really want to write a brief that requires the judge to constantly flip back to a glossary to understand what you’re talking about? As Judge Silberman noted, “Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means.”[12]

A final point: a judge may view the overuse of abbreviations as a signal that the writer is unskilled.[13] One judge referring to the overuse of abbreviations, noted, “Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.”[14]

So, save the alphabet soup for your lunch, not your brief.

[1] While all acronyms and initialisms are abbreviations, not all abbreviations are initialisms or acronyms. See, Abbreviations, Bryan A. Garner, Modern English Usage, 2 (5th ed. 2022).

[2] Locke Lord Appellees’ Brief at 4, Domanus v. Locke Lord, LLP, 847 F.3d 469 (7th Cir. 2017) (No. 15-3647, ECF No. 31, 2016 WL 1072974.

[3] Nat’l Ass’n of Regul. Util. Comm’rs v. U.S. Dept. of Energy, 680 F.3d 819, 820, n.1 (D.C. Cir. 2012).

[4] Fed. Ct. App. Manual § 32:8 (7th ed.); Garner, supra note 2 at 4 (stating “Abbreviations are often conveniences for writers but inconveniences for readers.”)

[5] Goodyear Tire & Rubber Co. v. Conagra Foods, Inc., No. 2:20-cv-6347, 2023 WL 5162655, *5, n.4. OSCO refers to OSCO Industries, Inc., id. at *1, which started as the Ohio Stove Company. https://oscoind.com/about-us/ (last visited March 4, 2025).

[6] Id. at *5, n.4.

[7] The Supreme Court of Ohio Writing Manual, 13.3 Identification, 105 (3d ed. 2024); Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit, 153 (2020 ed.) (“Relatedly, the use of acronyms that are not widely known is discouraged.”)

[8] The Supreme Court of Ohio Writing Manual, 13.3 Identification, 105 (3d ed. 2024).

[9] Id. (I take issue with the need to include the parenthetical if there is only one set of car dealers involved in the case. I’d just refer to the entity as the car dealers after identifying the entity by its full name the first time. But perhaps that’s a topic for another blog post.)

[10] Delaware Riverkeepers Network v. F.E.R.C., 753 F.3d 1304, 1321 (D.C. Cir. 2014) (Silberman, J. concurring).

[11] D.C. Cir. Rule 28(C)(3); 10th Cir. R. 28.2(C)(4).

[12] Delaware Riverkeepers Network, 753 F.3d at 1321 (Silberman, J. concurring).

[13] Id.

[14] Id.

March 5, 2025 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (3)

Saturday, March 1, 2025

Donald Trump: A Presidency Under Unprecedented Scrutiny

Donald Trump is once again the President of the United States. Over the last decade, the mainstream media, academic elites, and Hollywood figures have painted a grim picture of his leadership, often predicting the downfall of democracy and global catastrophe.

No modern president—or perhaps any public figure—has faced such relentless scrutiny, bias, and political hostility. From presidential debates to legal battles, Trump has been the subject of intense criticism, disinformation, and even assassination attempts. Some of the most extreme claims made about him include:

A threat to democracy
Comparable to Hitler and Nazi Germany
A fascist, authoritarian dictator
A rapist, misogynist, and “insurrectionist”
Capable of destroying the country and the world
Ushering the U.S. into a constitutional crisis
Intent on never relinquishing power

Public figures like Robert De Niro have gone so far as to claim Trump will destroy the world, while Oprah Winfrey suggested that his reelection might mean Americans would never be permitted to vote again.

The Double Standard in Political Narratives

This type of rhetoric—often coming from once-respected scholars and commentators—has fueled fear, division, and incivility in American society. However, these same voices did not sound the alarm when:

President Obama openly criticized the Supreme Court during his State of the Union address over Citizens United v. FEC.
Senator Chuck Schumer publicly threatened the Supreme Court over potential rulings on abortion rights.
President Obama enacted the Deferred Action for Childhood Arrivals (DACA) through executive order despite previously stating he lacked such authority.
President George W. Bush and Vice President Dick Cheney misled the public about weapons of mass destruction to justify the Iraq War, resulting in massive loss of life.
President Obama deported more individuals than any other president at the time.
Hillary Clinton called Trump an “illegitimate” president, and gubernatorial candidate Stacey Abrams claimed her election was “stolen.”
The Centers for Disease Control and Anthony Fauci supported prolonged business closures during COVID-19, while teachers’ unions pushed for extended school shutdowns.
Reports surfaced of voter fraud aiding John F. Kennedy in winning Illinois in the 1960 election.
Conservative academics self-censor for fear of retribution in overwhelmingly liberal universities.

Despite these significant events, there were no widespread claims that democracy was collapsing or that the U.S. was on the brink of fascism. The media and scholars’ relentless claims against Trump reflect little more than a hatred for Trump, and this false and self-serving narrative does nothing except foment division and disunity.

Addressing Claims of a Constitutional Crisis

Contrary to alarmist narratives, the United States is not experiencing a constitutional crisis. Trump has issued numerous executive orders—some controversial—but the judicial system remains a check on presidential power. He has repeatedly affirmed that he will abide by court rulings, stating, “The answer is I always abide by the courts, always abide by them.”

Furthermore, the decisions made by Trump’s Department of Government Efficiency, such as the firing of federal workers, are subject to judicial review. The constitutional framework ensures that no president, regardless of political affiliation, can unilaterally assume unchecked authority.

Is Trump a Fascist?

One of the most extreme and misleading claims is that Trump is a fascist. Fascism is characterized by the suppression of political opposition, yet Trump has not silenced dissenting voices. In contrast, the Biden administration has faced accusations of pressuring social media companies to censor COVID-19-related content. Facebook CEO Mark Zuckerberg even admitted that senior Biden officials pushed for the removal of specific narratives during the pandemic.

Interestingly, during this period, the same media figures and scholars who claim to champion democracy remained silent on the issue of government-influenced censorship.

Conclusion

The accusations against Trump—ranging from authoritarianism to an existential threat to democracy—are not only exaggerated but also reflect a broader pattern of political bias. The media, academia, and entertainment industry have engaged in a campaign of selective outrage, applying different standards to different leaders based on political affiliation.

Rather than fostering informed and respectful discourse, these reckless narratives contribute to the polarization and hostility that define contemporary American politics. If democracy is truly at risk, then intellectual honesty and consistency must be at the forefront of public debate.

March 1, 2025 in Current Affairs | Permalink | Comments (7)

Sunday, February 23, 2025

SCOTUS on Notice and the Current Constitutional Crisis

Alexis de Tocqueville, that trenchant observer of America from the Old World, recognized, even as long ago as 1835, “[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.” Today, as in the past, we are witnessing the truth to that statement.

Playing out before us, we are seeing the dismantling of government structures, norms, and a challenge to the law that exceeds in scope and speed anything that has occurred in the United States in our lifetimes. The firing of federal workers without regard to their functions, abilities, performance, or statutory protections is occurring so rapidly that even those conducting the program admit they have made mistakes by discharging workers safeguarding our nuclear stockpile or preparing for a potential bird flu pandemic without knowing how to rehire them.

Fever dreams of reversing the New Deal and the Great Society are toppling federal agencies or their statutory independence with the eagerness of mobs who pulled down and beheaded an equestrian statue of King George III on the evening the Continental Congress approved the Declaration of Independence. Visions of imperialistic expansion and abdication of our leadership role within what was once called the free world are sending allies scurrying to insulate themselves from the fallout and bringing cheer to our adversaries.

In his 1776 call to action, Common Sense, Thomas Paine confidently wrote, “In America, the law is king,” throwing off the yolk of the king is law and claiming the Enlightenment principle as foundation here that no one stands above the law. Will it remain true? Will our experiment in constitutional government survive when the constitutional blueprint is set aside in favor of plenary presidential prerogative? In the midst of the Korean War, the Supreme Court held that Harry Truman did not have the authority to put aside a strike and keep the steel mills running. Lawsuits challenge many of the new administration’s initiatives. Just Security has posted a litigation tracker listing 83 lawsuits filed a month into the new administration. At some point, several cases will arrive at the Supreme Court’s steps and require the Court to articulate the limits on presidential power.

Keep in mind that executive orders are not law, but presidential directives within the executive branch that exercise existing legal authority to implement the law. An executive order cannot, for example, override the Fourteenth Amendment’s conveyance of birthright citizenship, even though one of the first ones issued this year attempted to do just that. Nor can it go beyond what Congress has authorized, as Joe Biden’s first attempt at student loan forgiveness was struck down.

When the Nixon tapes case landed at the Supreme Court, the president’s criminal defense lawyer declared that Nixon would only obey a definitive ruling from the Court. The statement, letting the president choose defiance if he decided that the public interest favored his position, laid down a gauntlet of potential disobedience. As we now know, the justices worked hard to issue a unanimous ruling with no room for doubt, which resulted in the release of the tapes. Congressional support for Nixon evaporated in light of the tapes’ revelations, and Nixon resigned in the face of certain impeachment and conviction.

Some in the administration, Vice President Vance, OMB Director Vought, and the man with the unlimited portfolio, Elon Musk, have advocated ignoring the courts or threatening impeachment of judges who would restrain unlawful presidential actions. We have already seen defiance of the law in the first days of the administration. Congress enacted a ban on TikTok while owned by a Chinese company, setting a January 19, 2025 date for the ban to go into effect absent a sale. On January 17, 2025, the Supreme Court unanimously upheld the law, which put severe penalties on the app and those how make it available unless it went dark. The administration, however, has chosen not to enforce it because the president, a one-time supporter of the law, now dislikes it and asserts that he will broker a deal or a takeover.

Despite its supposed national security implications, the TikTok issue may seem of little moment. The Republic likely will not fall if the law is ignored, particularly when other issues seem more momentous. Yet, it is the canary in the coal mine. It tells us how easily duly enacted laws validated by the courts can be set aside by a president more committed to his program than his constitutional obligation to “take Care that the Laws be faithfully executed” and his oath to “preserve, protect and defend the Constitution of the United States.” In fact, the president has proudly posted a headline about refusing to comply with a court order unfreezing federal grants and stating that he can violate the law if his objective is to save the country. It is a statement that recalls the Vietnam War justification that the military had to destroy the village to save it.

The Supreme Court knows these challenges are coming and undoubtedly understand that validation of an unconstitutional or statutorily prohibited aggregation of power will only spawn even more aggressive claims that the unitary executive theory extends beyond control of the executive branch to control over the entire government. It also understands that a nuanced decision is equally ineffective in stopping extra-constitutional assertions of authority. At the same time, a muscular decision, along the lines of the 1952 Steel Seizure Case, may be ignored, just as the TikTok ban was ignored. And, if the Constitution and the courts erect mere parchment barriers, then what could stop Donald Trump from overriding the 22^nd Amendment’s prohibition on running for a third term?

Appellate advocates have a role to play in preserving law as a barrier to authoritarianism. We must explain why these issues are important and why courts have the authority to restrain elected officials engaged in extralegal actions. Without public understanding and public support, the Supreme Court will falter or be nothing more than a quaint institution that has outlived its usefulness. It does not matter that one action or another does not personally affect us or most members of the public. As Sir Thomas More in “A Man for All Seasons” reminded us, you can cut down the laws to get after the Devil, but, then, “do you really think you could stand upright in the winds that would blow then?” If the constitutional principles of justice, liberty, and equality really reside in our hearts, we must use all of our legal skills to preserve it in the face of an onslaught that would render it an artifact of a world that will no longer exist.

February 23, 2025 in Appellate Justice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Monday, February 17, 2025

2025 Corbin Appellate Symposium

The 2025 Corbin Appellate Symposium will be held on March 13 & 14, 2025, in Little Rock, AR. The symposium will include presentations on preparing for oral argument, preserving the record, and writing, The symposium will also include panels on state and federal appeals. The symposium features distinguished members of the bench, bar, and academy. You can find more information and register here: Corbin Appellate Symposium.

February 17, 2025 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Tuesday, February 11, 2025

The Strategy of Kendrick Lamar

By Jayne T. Woods

By now, you’ve probably heard of Kendrick Lamar; he performed the Apple Music Super Bowl LIX Halftime Show and was the first solo rap artist to do so. He is also the first and (so far) only rap artist to win a Pulitzer prize.[i] And while an artist doesn’t find a much bigger stage than the Super Bowl, Lamar began his career by “ducking the spotlight.”[ii] When his song “Alright” became a popular protest anthem in 2015,[iii] Lamar often joined the protests silently and hidden by camouflage.[iv] Throughout his career, Lamar has cultivated his reputation as an artist who prides himself on his own moral authority and authenticity, often deriding those who “pander.”[v]

After he was named as the headliner for Super Bowl LIX, many began to wonder if his set would include his smash hit “Not Like Us,” a diss track that focuses its ire on Drake, another well-known artist.[vi] The song attacks Drake’s authenticity within the rap community and includes express accusations of pedophilia.[vii] The song immediately hit the Billboard Top 100, and Lamar played it in several high-profile concerts that followed.[viii] “Not Like Us” is universally viewed as the nail in the coffin of the Drake-Lamar feud, with Drake the definitive loser.[ix]

In January 2025, Drake sued Universal Music Group (UMG), a record label representing both Drake and Lamar, accusing UMG of knowingly promoting a song that defamed Drake.[x] That same month, “Not Like Us” hit one billion Spotify streams.[xi] And then Lamar won five Grammy awards for “Not Like Us,” which he accepted in a Canadian tuxedo—a subtle dig at Drake’s nationality.[xii]

Given the public feud, among the betting ventures available for Super Bowl LIX was whether Lamar would play “Not Like Us.”[xiii] Before the halftime show aired, betting sites gave “Not Like Us” a 91% chance of not only being played but also being the first song of Lamar’s set.[xiv] There were several factors playing into the calculus behind the decision. On the one hand, “Not Like Us” is hands-down Lamar’s biggest hit, and, as a fan favorite, there were undoubtedly fan expectations to fulfill. But, on the other, playing it would bring more attention to Drake on arguably one of the biggest musical stages in the world.[xv] And, on top of that, there is a pending defamation lawsuit, and some of the lyrics are unsuitable for a broad national audience.

Lamar’s decision as to whether to play “Not Like Us” was a strategic one, much like those attorneys face all the time, especially when confronting the decision to raise and address opposing arguments. The potential benefit is tearing an argument down before your opponent can properly build it, but there’s also a risk in giving airtime to the opposing position. Accordingly, advocates must anticipate and balance the potential harms of raising an opposing argument in hopes of deflating it against those of raising it and giving it more power.

In Lamar’s case, he could have chosen to open his set with his most popular hit, pleasing fans but risking the appearance of pandering that he derides. Or he could have chosen to ignore the song as a means of suggesting that Drake was not worth his time and energy. But Lamar chose a different route. Roughly in the middle of his set, he teased “Not Like Us” by telling some back-up dancers, “I wanna perform their favorite song but you know they love to sue,” followed by the song’s famous beats, and then he remarked, “Yeah that song,” before moving on to a different one.[xvi] Later, however, he approached the dancers again, and they said, “Oh no. You really ‘bout to do it?” Lamar replied, “Yeah, they tried to rig the game but you can’t fake influence,” to which the dancers responded, “Then get it on it like that,” and Lamar launched into it, even calling Drake out by name. And he accommodated concerns about lyrical suitability by omitting the word pedophile and letting the stadium audience sing the final words in the line: “Tryna strike a chord and it’s probably A-Minor.”[xvii]

So what can advocates take away from Lamar’s example?

Risk assessment and mitigation. Lamar recognized the risk in playing a song that contained lyrics unsuitable for all audiences, and he mitigated that risk by omitting the more controversial lyrics.
Controlling the narrative. Lamar also took steps to control the narrative by using Drake’s existing lawsuit both to suggest Drake is out of touch with what the people want and to show that Lamar could not be intimidated by not only playing the song but also calling Drake out by name when doing so.

Most attorneys would probably advise clients to avoid discussing the subject of a defamation lawsuit entirely, and especially in a public setting, to avoid making matters worse. And time will tell with Drake’s defamation suit and how it plays out, but Lamar undoubtedly won the war of public opinion. He made himself a credible speaker by confronting (and in some cases accommodating) the concerns with playing “Not Like Us” at the Super Bowl while also maintaining his own authenticity. While, to some, an artist playing their biggest hit during the halftime show may have been a no-brainer, Lamar’s performance was clearly a calculated one. And his strategy was brilliant.

[i] This Day in History (April 16, 2018), History.com, available at: https://www.history.com/this-day-in-history/kendrick-lamar-wins-the-pulitzer-prize (last accessed Feb. 10, 2025); Andrew Flanagan, Kendrick Lamar’s “Damn.” Wins Historic Pulitzer Prize in Music, The Record Music News from NPR, available at: https://www.npr.org/sections/therecord/2018/04/16/602948758/kendrick-lamars-damn-wins-historic-pulitzer-prize-in-music (last accessed Feb. 10, 2025).

[ii] Joe Coscarelli, ‘Not Like Us’ Reinvented Kendrick Lamar. Is the Super Bowl Ready for It?, available at: https://www.nytimes.com/2025/02/04/arts/music/kendrick-lamar-super-bowl-not-like-us.html (last accessed Feb. 10, 2025).

[iii] Jessica McKinney, The History of Kendrick Lamar’s “Alright” as a Protest Song, available at: https://www.complex.com/music/a/j-mckinney/kendrick-lamar-alright-protest-song (last accessed Feb. 10, 2025).

[iv] Coscarelli, supra n. ii.

[v] Id.

[vi] For a brief history of the Drake and Kendrick Lamar feud leading up to the release of “Not Like Us,” check out this video on The Root: https://www.theroot.com/drake-vs-kendrick-lamar-a-brief-history-of-a-beef-1851455715 (last accessed Feb. 10, 2025).

[vii] Carl LaMarre, Drake & Kendrick Lamar’s Rocky Relationship Explained, available at: https://www.billboard.com/lists/drake-kendrick-lamar-beef-timeline/ (last accessed Feb. 10, 2025).

[viii] Id.

[ix] Coscarelli, supra n. ii.

[x] Nadira Goffe, Does Drake’s Lawsuit Over Kendrick Lamar’s Diss Track Stand a Chance? A Lawyer Explains., available at: https://slate.com/culture/2025/02/kendrick-lamar-drake-beef-feud-not-like-us-lawsuit-umg-super-bowl-grammys.html (last accessed Feb. 10, 2025).

[xi] LaMarre, supra n. vii.

[xii] Id.

[xiii] Coscarelli, supra n. ii.

[xiv] Erich Richter, Kendrick Lamar Super Bowl 2025 halftime show betting odds — ‘Not Like Us’ rapper’s setlist props, available at: https://nypost.com/2025/02/09/betting/kendrick-lamar-super-bowl-2025-halftime-show-betting-odds-not-like-us-rappers-setlist-props/ (last accessed Feb. 10, 2025).

[xv] Rap legend Too Short noted, “Kendrick really wins if he ignores Drake during the Super Bowl.” Coscarelli, supra n. ii. And radio and television host Charlamagne Tha God suggested a performance of “Not Like Us” at the Super Bowl would be unnecessarily “spiking the football.” Id.

[xvi] NFL, Kendrick Lamar’s Apple Music Super Bowl Halftime Show, available at: https://www.youtube.com/watch?v=KDorKy-13ak (last accessed Feb. 10, 2025).

[xvii] Id.

February 11, 2025 in Appellate Advocacy, Current Affairs, Music | Permalink | Comments (2)

Sunday, February 2, 2025

Guns, Young People, and Overturning Precedent

Last week, the Fifth Circuit, continuing to issue decisions likely to obtain further review in the Supreme Court, struck down a federal firearms law that prohibited selling handguns to 18-to-20 year olds. The unanimous decision in Reese v. Bureau of Alcohol, Tobacco, Firearms, and Explosives,[1] suggests a thing or two about appellate advocacy.

In 2012, the same circuit had upheld the same law, rejecting the arguments that succeeded this time. The new decision was written by the author of a dissent from denial of rehearing en banc in the 2012 case, Judge Edith Jones. She wrote that the earlier ruling was “inconsistent” with the Supreme Court’s more recent Second Amendment decisions in New York Rifle & Pistol Ass’n, Inc. v. Bruen,[2] and United States v. Rahimi.[3]

Normally, a panel of the Fifth Circuit cannot overrule an earlier panel’s decision absent an intervening change in the law such as a statutory amendment or a ruling from the Supreme Court or the Fifth Circuit sitting en banc.[4] The Fifth Circuit refers to this well-established practice as the “rule of orderliness.”[5] In the new decision, Judge Jones clearly indicated that the intervening U.S. Supreme Court rulings effectively overruled its 2012 decision. If it were unclear and the panel did believe the 2012 decision was flawed, its authority would have been limited to inviting a petition to rehear the case en banc.[6] Last week’s panel found that unnecessary.

On this point, however, there is good reason to question that conclusion and seek rehearing en banc, although it may well result in affirming the decision due to the current make-up of that court. The earlier decision, Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,[7] had found that the restriction on people under 21 years old was “consistent with a longstanding, historical tradition, which suggests that the conduct at issue falls outside the Second Amendment's protection” and supported by considerations of public safety.[8] It surveyed “founding-era thinking” and “the views of various 19th-century legislators and courts,” as well as congressional findings that the age group selected “tend to be relatively immature and that denying them easy access to handguns would deter violent crime.”[9] The United States, defending the statute in the current case argued in its brief, that “NRA’s detailed review of the historical record shows that the commercial sale restrictions satisfy Bruen’s historical standard.” U.S. Br. 15.

The NRA decision, then, relied on precisely the type of historic evidence that Bruen required. There was no change in the analytical framework that the Fifth Circuit employed in 2012. The only difference, then, was a different set of judges who discounted the history that the first panel found decisive. Because what happened was not a change in the law as much as it was a change in the panel’s views of what counts for applying the same rule of law, the overruling would seem to violate the rule of orderliness.

Lesson one, then, is when the rule of orderliness applies and how it may be used.

The statute invalidated was the 1968 Omnibus Crime Control and Safe Streets Act. Among other things, the Act prohibited Federal Firearms Licensees from selling handguns to 18-20 year olds. In last week’s decision, the court concluded that the Second Amendment “includes 18- to 20-year-old individuals among ‘the people’ whose right to keep and bear arms is protected.”[10]

Bruen established a new framework for evaluating Second Amendment claims, employing the “history and tradition” version of originalism. It held that New York’s more than century-old law that prohibited carrying handguns in public, even if concealed, was unconstitutional. That approach places the burden on the government to justify its law implicating the Second Amendment as “consistent with the Nation’s historical tradition of firearm regulation.”[11] Although New York proffered a number of historical antecedents it claimed support the law’s validity, the Bruen Court rejected their relevance because that “handful of late-19th century” exemplars provided “little evidence of an early American practice of regulating public carry by the general public.”[12] Instead, the Court relied on the continuous practice “stretching from medieval England to the early 20th century,”[13] where people were largely free to carry their firearms as they pleased.

Bruen was justly criticized in dissent by Justice Breyer as being selective in its choice of historical precedent, and by others for taking the position that state legislatures acting under the shadow of the Second Amendment both best understood the scope of its constitutional reach and chose to enact the maximum constitutional limits consistent with the Amendment at the time they enacted laws, fully anticipating the issues it could pose down the line. In other words, the theory appeared to defer to the judgment of 18th and 19th century legislators as constitutional gurus who had exercised their maximalist authority. Such a position is easily rejoined by the observation of Gideon J. Tucker about how legislation proceeds in 1866: “No man’s life, liberty or property are safe while the Legislature is in session.”[14] He hardly endorsed any concession of constitutional prowess.

Two years later, in a case arising from the Fifth Circuit, the Court faced an issue in how to apply Bruen. In Rahimi, a man challenged a federal statute that prohibited individuals subject to a domestic violence restraining order from possessing a firearm if he represents a credible threat to certain others. The Fifth Circuit invalidated that statute, too, as inconsistent with the Nation’s historical tradition of firearm regulation. The Supreme Court reversed, 8-1. Asserting that some courts have misunderstood Bruen’s methodology and that it was “not meant to suggest a law trapped in amber,” the Court held that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791,” for to hold otherwise would suggest the Second Amendment only protects a “right only to muskets and sabers.”[15] Even so, the Court undertook a history-and-tradition analysis, giving analogous historic gun regulations greater play in the joints than it had found acceptable in Bruen. As a consequence, the Court said that in its Rahimi ruling, that federal law could bar a domestic abuser from possessing a firearm without violating the Second Amendment consistently with Bruen. The one justice to disagree with that holding and to agree with the Fifth Circuit that the law must be invalidated: Justice Thomas, the author of Bruen.

In the new Fifth Circuit case, the government defended the statute, much as New York defended its law in Bruen, by pointing to earlier regulations it claimed were analogous. One came from colonial times; three others became law between 1829 and 1868. The Fifth Circuit found these unpersuasive: “One brief pre-ratification aberration and a handful of post-ratification examples do not outweigh the consistent approach of all states—including Virginia—where the minimum age of eighteen prevailed at or immediately after ratification of the Second Amendment,” noting that most states considered 18 year-olds eligible to serve in the militia and carry arms.

The government also contended that 19 states enacted laws between 1856 and 1897 that limited gun ownership among the relevant age group, but the court quoted Bruen to say that “courts must “guard against giving [such] postenactment history more weight than it can rightly bear,” and “that not all history is created equal.” Bruen, 597 U.S. at 34. 35. It found the availability of guns, regardless of age, widespread during the ratification period and that fact sufficed to invalidate the law so that the text of the Second Amendment, which did not limit access by age had to be vindicated. In the end, the Fifth Circuit found more fodder for its views in Bruen than in Rahimi.

Although the new administration’s views on the Second Amendment likely align with the Fifth Circuit, the invalidation of a federal law is certworthy fodder for the Supreme Court,[16] even if someone else must be appointed to defend the law. As is often the case in appellate advocacy, existing precedent is difficult to reconcile. Bruen points in one direction, and Rahimi provides grounds for a potentially opposite conclusion. Why was it that the Court (and historic precedent) allowed a prohibition on domestic abusers to survive constitutional scrutiny? It was plainly because there was a cognizable and substantially certain risk that accompanied the availability of guns for that category of individual. Can a generalized assumption that a particular age group, eligible to serve in the military, also qualify as having a heightened risk? Is it enough that 18-20 year olds commit a disproportionate number of gun homicides? Or is this an opportunity to attack the history-and-tradition approach that Bruen adopted?

Lesson number two is that, even with Supreme Court and Solicitor General sentiment likely to side with the Fifth Circuit, there are appellate strategies that could help reach a different result. I should also note that the issue decided in Reese is also under advisement in the Fourth Circuit.

[1] 23-30033, 2025 WL 340799 (5th Cir. Jan. 30, 2025).

[2] 597 U.S. 1 (2022).

[3] 602 U.S. 680 (2024).

[4] Jacobs v. Nat'l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[5] Id.

[6] Id.

[7] 700 F.3d 185 (5th Cir. 2012),

[8] Id. at 203.

[9] Id.

[10] Reese, 2025 WL 340799, at *13.

[11] Bruen, 597 U.S. at 38.

[12] Id.

[13] Reese, 2025 WL 340799, at *4 (characterizing Bruen).

[14] Final Accounting in the Estate of A.B., 1 Tucker 248, 249 (N.Y. Surr. Ct. 1866).

[15] Rahimi, 602 U.S. at 692.

[16] See Iancu v. Brunetti, 588 U.S. 388, 392 (2019).

February 2, 2025 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts | Permalink | Comments (0)

Saturday, January 25, 2025

Writing an Effective Opposition Brief

In litigation, attorneys write countless briefs at the trial and appellate stages, many of which involve opposing motions filed by an adversary, such as motions to dismiss, compel discovery, or for summary judgment. Effectively responding to these motions is critical to maximizing your chances of success. Below are tips on crafting an effective opposition brief:

1. Use the Introduction to Win the Motion

First impressions matter. Use the introduction to persuasively and concisely argue why you should win. Start with a compelling theme that encapsulates your position. Clearly state the remedy you seek and apply the Rule of Three to outline three key reasons supporting your argument. Highlight your strongest facts and case law while exposing weaknesses in the adversary’s argument, such as omitted facts or precedent. Conclude the introduction by reiterating your theme and requesting a ruling in your favor.

2. Reframe the Narrative

The adversary’s Statement of Facts will present a narrative that favors their position. In your opposition, take control by reframing the narrative. Highlight the most favorable facts, add vivid details where appropriate, and show—not just tell—why your version is superior. Avoid argumentative or hyperbolic language in this section but respond where necessary, such as by pointing out omitted or mischaracterized facts. Ultimately, aim to establish a narrative that supports your position while undermining the adversary’s credibility.

3. Leverage Case Law

Judges heavily rely on case law to decide motions. Present binding precedent that closely aligns with your case and supports your desired outcome. Avoid over-explaining or overstating the precedent, and refrain from unnecessary string citations. Maintain credibility by accurately representing the facts and holdings of your cited cases. When necessary, distinguish unfavorable precedent or explain why it does not apply. Review the adversary’s cited cases and identify misstatements or omissions that weaken their argument.

4. Problematize the Issues

The adversary’s motion will frame the legal issues in their favor. Your job is to add complexity and nuance to those issues. Present facts and legal authority demonstrating reasonable disagreement, showing that the adversary has failed to meet their burden of proof. For example, when opposing a motion for summary judgment, emphasize disputed material facts that preclude judgment. Use the burden of proof to your advantage, focusing on undermining the adversary’s position without overcommitting to proving your case outright.

5. Highlight What the Adversary Omitted

Undermine the adversary’s credibility by pointing out what they failed to include. This could be relevant facts or precedents that, if considered, would favor your position. Emphasizing these omissions strengthens your argument and casts doubt on the reliability of the adversary’s brief.

6. Anticipate and Address the Reply Brief

Anticipate the arguments the adversary will likely raise in their reply brief and address them proactively in your opposition. Excellent attorneys often save some of their strongest arguments for the reply brief. By preemptively countering these points, you strengthen your position and reduce the impact of their final arguments.

7. Focus on Key Arguments

Avoid responding to every argument the adversary raises. Some attorneys will present numerous weak arguments, hoping something will stick. Do not fall into the trap of addressing every point. Instead, focus on credible arguments and devote the most attention to the strongest issues. If you must respond to weaker points, do so briefly. Remember, giving undue attention to a weak argument can inadvertently lend credibility to that argument.

8. Maintain Professionalism

Avoid combative or hyperbolic rhetoric. Personal attacks on the adversary, prior court decisions, or excessive legalese detract from your credibility and weaken your position. Instead, rely on a clear, factual narrative and solid legal reasoning to persuade the court. Let your arguments speak for themselves, and avoid artificial devices that add no persuasive value.

By following these strategies, you can craft an opposition brief that not only counters the adversary’s arguments but also positions your case for success. The key is to stay focused, professional, and persuasive, leveraging the facts and law to your advantage.

January 25, 2025 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, January 14, 2025

Using ChatGPT as an Editor in Three Easy Steps

By Jayne T. Woods

ChatGPT is great for all kinds of tasks, including editing and revising your writing. It has endless patience and works on your schedule. Want to write more like Justice Roberts or Justice Kagan? It can help you do that. Need help finding the right turn of phrase? It can help you do that. Need to change the tone of your prose to be more assertive? It can do that, too.

And you don’t need a degree in computer science to do it.

In just three steps, you can turn ChatGPT into a fantastic editor.[i] Those steps are (1) train it, (2) prompt it, (3) evaluate the output.

Step 1: Train the AI

Training ChatGPT sounds intimidating, especially for those of us who still struggle to order a pizza online, but it’s really just simplified teaching. Imagine you want your writing to sound more like the late Justice Antonin Scalia’s work. Before ChatGPT can help you, you have to teach ChatGPT what makes Justice Scalia’s writing unique. To do that, you could describe his use of various rhetorical devices, wit, and tone. Or you could simply upload some of your favorite examples of his work to ChatGPT.[ii]

Step 2: Prompt the AI

Once you’ve given ChatGPT an idea of what you are looking for, you’ll need to tell it how you want it to assist you. In your prompt, tell ChatGPT that you want your writing to sound more like the examples; then upload something of your own, ask it to compare your work with the examples, identify distinctions, and suggest changes. You can ask for this output in whatever form suits you—a chart, a table, a list, etc.

Step 3: Evaluate the Output

In the final step, evaluate ChatGPT’s suggestions to see if they accomplish your stated goal. If so, great! If not, tweak your prompt to give ChatGPT more guidance or provide it additional examples to work from. Using ChatGPT as an editing assistant is an iterative process; the more information you give it, the better output it creates, and the more useful it becomes. And it will continue working as long as you want and making as many changes as you need, all without complaint.

It can also help by performing smaller tasks. For example, I recently used ChatGPT to help my students identify passive voice in their own writing. While their initial thought was to simply ask ChatGPT to analyze a passage and correct the passive voice, that approach does not yield great results. It frequently misidentifies other writing errors as passive voice and fails to identify actual instances of passive voice. It is much more effective when you give it the same advice I give my students: identify the verb and insert the phrase “by zombies” after it; if the sentence still makes sense, it’s probably passive voice.

To try this yourself, first upload a passage of writing and tell ChatGPT to identify and italicize all verbs. (When I first did this, I checked ChatGPT’s work to see if what it identified were, in fact, verbs. It was correct about 99% of the time.) Then, ask it to insert [by zombies] immediately after every verb. It produces a product where you can easily read each sentence with the phrase “by zombies” after the verbs and more readily identify where passive voice is present.

The ways in which ChatGPT can be used as an editor are limited by only your own imagination. And though you may have to teach it how you want something done, once you do, it becomes an invaluable and indefatigable assistant.

[i] Though I refer to ChatGPT here, this process is equally applicable to other generative AI platforms.

[ii] If you are not sure what makes Justice Scalia’s writing unique, you could also ask ChatGPT what the various examples have in common. You could then use its answer in conjunction with the examples to help ChatGPT understand what you are looking for.

January 14, 2025 in Legal Writing, Web/Tech | Permalink | Comments (1)

Monday, January 6, 2025

As-Applied Challenges to the Felon-in-Possession Law: Range III

This is a guest post by Professor Dru Stevenson.

The en banc Third Circuit recently re-decided Range v. Attorney General of the United States (Range III), a closely-watched as-applied Second Amendment challenge to the federal ban on felons possessing firearms in 18 U.S.C. § 922(g)(1). The case came back to the Third Circuit on remand from the Supreme Court, to be reconsidered in light of the Court’s decision in United States v. Rahimi. While no circuits have held that the law is facially unconstitutional, there is now a circuit split about the availability of as-applied challenges to the statute. For example, just a week before, the Fourth Circuit rejected as-applied challenges to § 922(g)(1) in United States v. Hunt.

Mr. Range is a fairly sympathetic party in the area of Second Amendment litigation. In 1995, he pleaded guilty to one count of making a false statement on an application for food stamp benefits (his wife actually completed the application and penned the false statement, but Mr. Range co-signed the application). Range was sentenced to three years’ probation (no jail time), restitution, and a fine. The statute, however, allowed up to five years imprisonment, so the federal statute applied. Years later, after a couple failed attempts to purchase a firearm (he couldn’t pass a background check), he learned that his misdemeanor conviction for welfare fraud prevented him from doing so. He sued for a declaratory judgment that § 922(g)(1) was unconstitutional as applied to him, and he asked the court to enjoin enforcement of the law if he bought a hunting rifle and a shotgun for home defense.

The district court ruled against him in 2021, and while his appeal was pending the next year, the Supreme Court upended Second Amendment jurisprudence with New York State Rifle & Pistol Ass'n, Inc. v. Bruen. A panel of the Third Circuit applied Bruen and rejected his challenge, but a rehearing en banc resulted in a reversal. While the case was pending at the Supreme Court in 2024, the Court decided Rahimi, which recalibrated the Bruen methodology somewhat, and then granted certiorari in Range. The Court then vacated and remanded the case to the Third Circuit, which brings us to Range III, which mostly reiterates what the Third Circuit said the last time. Each time the Third Circuit has considered Range, it has provided a lengthy discussion of Founding-era firearms laws, with yet more judicial historiography in long concurring and dissenting opinions. The latest round has four concurrences and a dissent.

One feature of the case that sets it apart from most other challenges to § 922(g)(1) is that Mr. Range was not prosecuted for unlawful possession – this is not an appeal of a conviction, or a motion to have charges dismissed. He sought a declaratory judgment that the law was unconstitutional as applied to him.

In a 2022 law review article, I defended the felon-in-possession law. As the Supreme Court noted in Rahimi, our country has a long historical tradition of legislatures and courts disarming individuals and groups considered a threat to public safety or national security. While Mr. Range does not appear to pose a threat to his community (no history of violent crime), any attempt to distinguish “dangerous” from “non-dangerous” felons or felonies will inevitably plunge courts into the same quagmire they now have with the Armed Career Criminal Act (ACCA), in part because so many penal statutes include provisions for both violent and nonviolent variations on the underlying crime. Thus, I mostly agree with Judge Shwartz’s dissent in the Range case, which was joined by Judge Restrepo, and I disagree with the majority opinion. The basic gist of the dissent is that once we reject facial challenges to § 922(g)(1), which the Third Circuit has already done, it is up to Congress to balance the policy tradeoff and decide which felonies should disqualify a person from possessing firearms, even if the answer is “all felonies.”

That said, I also sympathize with the (lengthy) concurrence by Judge Krause, which takes a moderate approach, one that Congress arguably intended when it enacted the law in the first place. On the one hand, Judge Krause explains, the majority simply ignored many historical examples of the government disarming people for committing crimes or seeming to pose a serious threat to public safety. On the other hand, many, if not most, of these examples included a path for an individual to have their rights restored under certain circumstances. Thus, he concludes, courts should not determine whether the law was always (retrospectively) unconstitutional as applied to certain individuals or types of felons, but there should be a way for felons to petition a court for restoration of their firearm rights, and if they provide sufficient evidence that they pose no threat of violence to anyone, a court should be able to grant the petition.

When Congress enacted the gun ban for felons, it included a way for felons to petition for restoration of their gun rights (the statutory phrase is “relief from disabilities”), in 18 U.S.C. § 925(c). Petitions were to go to the Attorney General, which in practice meant ATF, with judicial review for denials. The statute provides:

…the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

Moreover, a reviewing court “may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.”

From the standpoint of traditional doctrines of Constitutional avoidance, this statutory provision seems like the easy answer. Unfortunately, after some high-profile cases of felons committing crimes after having their firearms rights restored in the 1980’s, Congress stopped this process by defunding it, though the statute remains intact. As ATF explains on their website,

Although federal law provides a means for the relief of firearms disabilities, ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.

Mr. Range would presumably be a good candidate for relief under § 925(c) – he is probably the very type of person Congress had in mind when they enacted this. Congress could fix the problem that was before the (deeply divided) Third Circuit, and that has caused a circuit split, by merely omitting this budget rider in the future. Even though gun rights have long been a partisan issue, even the party that champions gun rights has passed on every opportunity so far to revive this law that allows for restoration of gun rights for nondangerous felons.

My proposal for appellate courts like the Third Circuit (and the Fifth and Sixth Circuits) that choose to recognize as-applied Second Amendment challenges to the felon ban is that they try to approximate the system set forth in § 925(c) – to consider whether a petitioner’s “circumstances of [the original felony conviction], and the applicant’s the record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety.” In other words, courts should deem Congress’ backdoor blockage of the petitions for relief as a constructive denial of the petitions, and proceed with judicial review of the case, just as the courts would have done with denials prior to 1992. Of course, the review would necessarily be de novo, rather than whatever standard of review courts may have used when ATF actually processed the petitions and produced a record of decision in each case.

This approach would avoid the perilous and felony-by-felony road that the Third Circuit is heading down at the moment, and would allow the circuits to coalesce around a reasonable approach, the approach Congress originally intended. The evidentiary burden would be on the felon seeking relief – which the majority of the Third Circuit has not embraced, but Judge Krause insisted was necessary in his concurrence, and which the Sixth Circuit has adopted. Proceeding with a constructive § 925(c) approach would also avoid the disruptions to the background check system that Judge Krause warns about, because the individual’s name would be removed from the FBI’s NICS database. In contrast, approaching these cases by whether the underlying felony was “dangerous” or “violent” throws the entire background check system into uncertainty – if whole categories of individuals should never have been there (the majority’s reasoning), how is a local gun dealer supposed to know whether to consummate a sale? Or the FBI to know whether any given individual’s name should be removed (the records sent to the NICS database do not include all the details about the nature of the crime committed). In addition, the majority’s approach in Range is functionally a judicial amendment or rewriting of the statute – the statute stays, but the court is gradually creating a list of felonies that are unwritten exceptions. Finally, it is also worth noting that some individuals with felony convictions for nonviolent crimes may also have a (sometimes recent) history of violence, even though their violent acts may yet have resulted in felony convictions for a variety of reasons (charged as misdemeanors instead, prosecutors decided it was a low-priority case or had evidentiary problems, etc.).

I have a second, more modest proposal about “as applied” Second Amendment challenges in general. In Bruen and Rahimi, the Court has carved out some categories of exceptions to the Second Amendment, although it has left the parameters of these exceptions mostly undefined and uncertain. They have said that some types of dangerous individuals can be disqualified, some types of unusually dangerous and uncommon weapons can be banned, some regulations of firearms commerce can exist, and some sensitive places can be gun-free zones. Lower courts are now wrestling with undefined categories, and legal academic commentators are still debating where the lines should be. As-applied challenges are inherently individualized – a court decides whether it would be unconstitutional for the law to apply to this person. Due to the highly particularized nature of these decisions, it would be appropriate for a court to rule on more than one of these categories for the as-applied constitutionality of the law. For example, the Third Circuit mentions that Mr. Range claims he only wants a rifle for hunting and a shotgun for home defense, which does not seem like a threat to the community. Would the court have felt different if Mr. Range announced he planned to amass a huge personal arsenal, enough to outfit an entire local militia, and that he planned to acquire several used fully automatic machine guns, albeit through all the proper NFA registration and licensing channels? What about large capacity magazines, which may or may not be banned? (SCOTUS has yet to decide this question.) The way the court drafted its opinion, there is nothing to prevent Mr. Range from doing this, or from stockpiling military-style weapons while secretly dreaming of starting a civil war. I doubt that Mr. Range will do that, but when this case is applied to the next felon claiming he is not dangerous enough to be banned from gun possession, I am not so sure.

Given the individualized adjudication involved in these “as applied” challenges, including future decisions that will apply Range III as binding precedent, it would have been appropriate for the court to issue a decision tailored to Mr. Range’s situation rather than a general rule that firearms ineligibility for felons is unconstitutional if they are not clearly “dangerous.” The court should have said, “§ 922(g)(1) does not apply to Mr. Range for purposes of owning a hunting rifle and a shotgun for home defense, and the necessary ammunition for these weapons,” and had left undecided questions like whether Mr. Range is eligible to operate a gun dealership, or have guns and accessories that are banned in some states, or can carry his firearms in a gun-free zone whose status is currently being litigated. If the challenge is “as applied to him,” then the decision should be narrowly tailored to him, and should steer clear of these unsettled areas of Second Amendment law.

January 6, 2025 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts | Permalink | Comments (1)

Sunday, January 5, 2025

New Year, and Some New Courts

The start of a new calendar year often presents fresh opportunities. For appellate advocates, cases continue, and new ones develop. That would seem to make January uneventful – just a new month like any other month. Still, in at least some states, courts operate on a calendar-year basis. The end of December may be the end of a state supreme court term and often marks the issuance of the remaining cases of the term. January, then, brings a fresh set of cases and, possibly, new justices and chief justices. The impact of these changes is unpredictable. In some instances, things will continue as they have in the past; in others, significant change may occur.

Past experience with the U.S. Supreme Court and with attempts to avoid it offer some perspective. For example, the change represented by the Warren Court was revolutionary. It had become so trailblazing that state courts had difficulty keeping up and adopted what one scholar called “the drowsy habit of looking no further than federal constitutional law.”[1] In the late 70s and early 80s, the change in direction in the U.S. Supreme Court from the Warren Court’s heyday brought talk of a “New Judicial Federalism,” in which advocates were urged to refocus on state constitutional issues and state supreme courts to achieve their appellate goals. Prominent law review articles to that effect were written by Justice William J. Brennan, Jr.[2] and then-Oregon Justice Hans Linde.[3] A New Jersey supreme court justice even suggested that failing to brief the state constitutional issues fully and separately might be considered malpractice.

As I’ve written before, “[s]tate constitutions have distinctive language, histories, and provisions that combine with the unique nature of state police power and cultural orientations to produce singular takes on American constitutional jurisprudence.”[4] Notably, the New Judicial Federalism also received heavy criticism, with one professor labeling the courts’ emphasis on different state constitutional takes “a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements.”[5]

The New Judicial Federalism was not something new, though. Instead, it constituted a rediscovery of what state courts had previously undertaken. Many now-familiar federal constitutional holdings and doctrines were first developed in state supreme courts under state constitutions. Judge Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, reminded us of the critical role of state courts and constitutional principles in a 2018 book, “51 Imperfect Solutions: States and the Making of American Constitutional Law.” What advocates discovered in turning to state constitutions was a whole set of independent state law grounds to achieve victories not available under the U.S. Constitution and immune from U.S. Supreme Court review. The popular view was that the U.S. Constitution provided a floor of minimum rights, while state constitutions could provide a higher ceiling.

With a solid more conservative majority on the U.S. Supreme Court, and the aftermath of decisions on reproductive rights, guns, and even presidential immunity, some advocates have once again redirected their gaze at state supreme courts. The Brennan Center for Justice at NYU Law School has taken up its namesake’s reminder about considering state constitutions and now publishes the State Court Report, which follows state courts and state constitutional law. It is a valuable legal resource for appellate advocates.

Today, after appointments and elections this past November have placed new members onto chief justice seats and on various courts, new opportunities arise to test ideas and doctrines in the state courts. Justice Byron White once said that with each new member who joined the U.S. Supreme Court, a new Court was constituted. The same is likely true for our highest state courts.

[1] A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va. L. Rev. 873, 878 (1976).

[2] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

[3] Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379 (1980).

[4] Robert S. Peck, For Trailblazers, When the U.S. Constitution Is Not Enough, 45 New Eng. L. Rev. 855 (2011).

[5] James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 763 (1992).

January 5, 2025 in Appellate Advocacy, Appellate Justice, Appellate Practice, Books, Current Affairs, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, December 22, 2024

How Will the Arguments on Birthright Citizenship Develop?

Upon taking office again as president, Donald Trump has promised to end birthright citizenship though executive action. Anyone adversely affected will challenge the constitutionality of that effort.

The argument that the president lacks the power to do so would seem pretty straightforward. The Fourteenth Amendment declares “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The landmark decision interpreting that language, United States v. Wong Kim Ark, 169 U.S. 649 (1898), provides essential background. The plaintiff was the child of immigrants from China, still subjects of the Emperor of China, when Wong Kim Ark was born in California. He remained in the United States when his parents left for China. In 1890, he went on a temporary visit to China. He returned to the United States and was readmitted with the collector of customs recognizing his U.S. citizenship. Four years later, he again visited China, returning to the United States in 1895. This time, however, officials denied him reentry on the supposed grounds that he was not a U.S. citizen and excludable under the Chinese Exclusion Acts.

When the Supreme Court decided the case, the justices relied upon “the common law, the principles and history of which were familiarly known to the framers of the Constitution” to define the meaning of being born in the United States and subject to its jurisdiction. Drawing on the English common law, the Court found guidance in the “fundamental principle” that English nationality applied to persons “within the King’s allegiance and subject to his protection.” It included children of aliens who were born in England, but not children of foreign ambassadors or alien enemies because their allegiance would not be to and thus outside the jurisdiction of the King.

After an extensive survey of English and American law, very much fitting the history and tradition approach that the current Court espouses, the Court concluded that a “child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”

Supporters of an end to birthright citizenship often focus on the Citizenship Clause’s language “and subject to the jurisdiction thereof.” They find wiggle room in Wong Kim Ark’s recognition that the Chinese parents had a “permanent domicile and residence in the United States.” In their view, people here illegally and subject to deportation are not subject to U.S. jurisdiction, lack the necessary allegiance to this country, and therefore cannot convey citizenship upon their children by the location of their birth.

Yet, a contrary interpretation, finding that being subject to the jurisdiction only excludes those who, after birth, will return on a permanent basis to the country of their parents by the parents’ choice. Objections to the Citizenship Clause during debates on the Fourteenth Amendment, such as those of Senator Edgar Cowan, complained that the language would grant citizenship to children of foreigners who owe no allegiance to the United States and regularly commit trespass upon its soil. Supporters did not deny that consequence but instead celebrated it.

As every appellate advocate knows, the details of an executive order or other action on birthright citizenship will dictate the arguments for and against. If limited to those in the United States quite recently and illegally and written to apply prospectively, different arguments will be in play than if it reaches back and seeks to deny citizenship to those who have already received the fruits of that status and whose parents have demonstrated a permanence to their residency. Furthermore, it will be a test to the Supreme Court’s allegiance to history and tradition.

December 22, 2024 in Appellate Advocacy, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, December 15, 2024

Democracy and Deference

In U.S. v. Skrmetti, the United States Supreme Court will determine whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause.

On December 4, 2024, the Court held oral argument, and the attorneys for Petitioner and Respondent presented strong arguments. Among the issues under consideration is whether the prohibition on gender-affirming care discriminates based on age or sex, the latter of which would require heightened scrutiny under the Court’s jurisprudence. Petitioner and Respondent’s attorneys also presented competing arguments regarding, among other things, the benefits and harms that upholding Tennessee Bill 1 would engender. In so doing, the justices acknowledged that both sides presented compelling arguments and that reasonable people could disagree on whether Tennessee Bill 1 furthered legitimate and salutary purposes.

Given this fact, a few justices questioned why the Court, rather than the legislature, should resolve this issue through the democratic process. For example, during oral argument, Justice Kavanaugh stated:

I want to ask about our role here and pick up on the Chief Justice's questions at the beginning, who decides. You've put forth forceful policy arguments to allow these medical treatments, and Justice Sotomayor's questions elaborated on that. But the 20-plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors. So it seems to me that we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question. At least that's one way to look at it. I want to get your reaction to that. You know, if the Constitution doesn't take sides, if there's strong, forceful scientific policy arguments on both sides in a situation like this, why isn't it best to leave it to the democratic process?[1]

As Justice Kavanaugh stated, “[y]ou say there are benefits from allowing these treatments,” but given that “there are also harms … how do we as a Court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?”[2]

The concern that the democratic process, rather than the Court, should resolve this issue—particularly when reasonable people differ on whether the law is beneficial or harmful and where the Constitution’s text is ambiguous—will likely carry the day. If it does, the Court will rightfully embrace a principle that promotes democracy and bottom-up governance: where reasonable people can disagree about a law’s constitutionality, the democratic, not judicial, process is the proper forum to resolve policy disputes. In other words, when the Constitution’s text is broadly worded and reasonable people can interpret such text differently, the Court should defer to the democratic process. Deference is essential to democracy, the Court’s legitimacy, and the right of citizens to determine whether specific unenumerated rights should be recognized.

Unfortunately, in many instances, the Court has taken the opposite approach and issued rulings in cases that have undermined the democratic process and invalidated legislation promoting participatory democracy and addressing important economic and social issues. For example, in Citizens United v. Federal Election Commission, the Court by a 5-4 margin invalidated a provision of the Bipartisan Campaign Reform Act that limited corporate funding of independent political broadcasts in elections.[3] In so doing, the Court overturned Austin v. Michigan Chamber of Commerce and held that corporations enjoy First Amendment protections.[4] But what language in the First Amendment supported this holding? At the very least, reasonable people could differ on whether, for example, the First Amendment applies to corporations. As such, why didn’t the Court defer to the coordinate branches and uphold a law that sought to reduce the corrupt influence of money in politics? There is no answer—at least not a good one.

Similarly, in Kennedy v. Louisiana, the Court considered whether a law authorizing the death penalty for child rape violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[5] Neither the Eighth Amendment’s text nor its original purpose answered this question; at the very least, reasonable people could differ on whether such a punishment was cruel and unusual. Notwithstanding, the Court ruled 5-4 that the law violated the Eighth Amendment and thus prohibited the states from resolving this issue democratically. In Roper v. Simmons, the Court made the same error, holding that the Eighth Amendment categorically prohibited the execution of minors even though the Eighth Amendment could not possibly be interpreted to support this result, or the “evolving standards of decency” upon which the Court relied to reach its decision.[6]

Improvident intervention in the democratic process is the norm, not the exception, in the Court’s jurisprudence. In Griswold v. Connecticut, the Court invalidated a Connecticut law prohibiting contraception, holding that although the Constitution’s text did not resolve this question, there existed invisible “penumbras” in the Constitution’s text that enabled the Court—and only the Court—to recognize unenumerated rights, such as the right to privacy, and thus impose its policy views on an entire nation.[7] In Roe v. Wade, the Court compounded this error by holding that the right to privacy encompassed a right to terminate a pregnancy, even though nothing in the Constitution’s text could be interpreted to support its holding.[8] To be sure, a deferential approach is not about promoting a particular political viewpoint. Whether one supports a right to abortion is irrelevant; what matters is that nine unelected judges decided that their views should remove this issue from democratic choice.

In contrast, some decisions have demonstrated appropriate deference to democratic processes. For example, in Washington v. Glucksberg, the Court declined to create a right to assisted suicide, holding that because the Constitution’s text was silent on this issue, it should be resolved democratically.[9] Additionally, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts cast the deciding vote upholding the Affordable Care Act, concluding that the Act’s individual mandate constituted a tax, not a penalty.[10] The primary reason underlying Roberts’ decision was arguably to preserve the Court’s institutional legitimacy by deferring to the coordinate branches and avoiding a decision that appeared politically motivated. In Dobbs v. Jackson Women’s Health, the Court remedied the harm that Roe caused to the Court’s legitimacy by returning the issue to the states.[11]

Of course, the Court has the power to say what the law is, but how can the Court say what the law objectively is when a constitutional provision is ambiguous and subject to differing interpretations? It cannot. In such circumstances, saying what the law is requires the justices to determine subjectively what the law should be. That is the problem. In a democracy, the people have the right to say what the law should be, not nine unelected and life-tenured justices. Thus, where the Constitution is silent or capable of reasonably different interpretations, the Court should defer to democratic choice. A court with limited power is essential for preserving democracy, and the process by which the Court makes decisions is equally, if not more, important than the outcomes it reaches.

[1] U.S. v. Skrmetti, Transcript of Oral Argument, (Dec. 4, 2024), p. 40-41, available at: 23-477_c07d.pdf

[2] Id. at 44-45.

[3] 558 U.S. 310 (2010).

[4] 494 U.S. 652 (1990).

[5] 554 U.S. 407 (2008).

[6] 543 U.S. 551 (2005).

[7] 381 U.S. 479 (1965).

[8] 410 U.S. 113 (1973).

[9] 521 U.S. 702 (1997).

[10] 567 U.S. 519 (2012).

[11] 597 U.S. 215 (2002).

December 15, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, December 8, 2024

A New Rule on Amicus Briefs?

The Advisory Committee on Appellate Rules has published for public comment amendments to Federal Rule of Appellate Procedure 29, which covers amicus briefs. One amendment seeks to impose disclosure requirements so that entities filing as amici can clearly be identified. It would require all amicus briefs to include “a concise description of the identity, history, experience, and interests of the amicus curiae, together with an explanation of how the brief and the perspective of the amicus will help the court.” To reveal whether an amicus was created for purposes of this particular case, the proposed rule also requires an amicus that has existed for less than 12 months to state the date the amicus was created.

These requirements are, in part, designed to prevent parties from extending their briefs through proxies filing as amici. The proponents also claim it will inform the court about how independent the amicus really is. Instead, leave of the court would always be required. The proposed rule would require that the amicus brief bring to the court’s attention “relevant matter not already mentioned by the parties. Briefs that do not accomplish that or are “redundant with another amicus brief” are disfavored. Nothing in the proposal indicates how amici might know what another amicus will file.

The Supreme Court has gone in a very different direction, welcoming all amicus briefs and no longer requiring either leave or consent. The advisory committee chose not to follow suit because the Court’s booklet printing requirement acts as a deterrent to overwhelming the Court, it claims, even though the growth in filing Supreme Court amicus briefs continues.

The proposals were published August 15 and have a comment period that runs through February 17. Comments may be submitted electronically. In addition, the advisory committee will hold two hearings on the proposals next year before the comment period ends. Those interested in appellate advocacy may want to view the proposals and their explanations, which are available at https://www.uscourts.gov/sites/default/files/preliminary_draft_of_proposed_amendments_2024.pdf.

December 8, 2024 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts | Permalink | Comments (2)

Tuesday, November 26, 2024

Reframing your Thanksgiving

By Lance Caughfield

This last week was a whirlwind. I co-coached a moot court team at the NY Bar National Moot regionals, and my students won. I received some exciting professional news. And I lost a friend.

One day, my friend was shining her brilliant smile and support on everyone she met. The next she was gone.

In the midst of all of these events I found myself pondering the vicissitudes of life. While I was sitting in a room where we applauded our achievements, I was also sitting in grief. And I knew that the following week, we would be celebrating Thanksgiving. And I wondered how my friend's family was going to give thanks at a time like this.

But I know them, and I know they will. Despite her sudden loss, they will give thanks for her life. Despite their tears, they will find joy in their memories, and in her victories and their own. They will give thanks for each other. They will give thanks for her life and their own. Because of their faith and hers, they will be able to grieve and be thankful, together.

As attorneys, we often sit in grief and anxiety. Our jobs are hard. Our clients suffer, and we try to lift them up both as attorneys and as counselors. Opposing counsel can be hateful. Judges can rule in ways that hurt us and our clients. And our friends and families can grow to resent the time and attention our jobs require.

At the same time, as attorneys, we are blessed. We made it through a series of tests and trials that most people could not pass. As a result we have jobs that make a difference. We are able to help people who cannot help themselves. We are financially rewarded for our talent. We have colleagues that support us. We provide for our families and help them solve problems when they arise. We are problem solvers, communicators, writers, and speakers in a world that values those skills.

Those skills and training teach us that how we frame things changes how people see them. We know what to emphasize and what to de-emphasize in our writing. We know that our descriptive language will influence how our readers see the characters we write about. And we know that how we characterize the facts can impact how those characters are ultimately judged.

This training is reinforced by neuroscience. Tversky and Kahnemann were among the first scientists to study the framing effect. Their research, and studies since, show that how things are introduced or described influences the way we think about them. So we know that when marketing meat, consumers will choose ground beef that is "75% lean" over beef that is "25% fat," even though it is the same product. And in a study by Judge Stephanos Bibas, whether a criminal defendant will accept a plea bargain is influenced by whether they are currently incarcerated, since that changes their baseline perception of freedom.

The same is true with how we frame our lives. We each have our share of grief and joy. How we chose to focus in or frame our lives will influence how we perceive it. It can be hard, when the picture of lives seems mostly dim, to find the bright spots. But when we do, and we focus on them, everything else becomes a bit brighter.

In 2022, the ABA GPSolo Report published an article by Rebecca Howlett and Cynthia Sharp (of legalburnout.com), titled The Legal Burnout Solution: How to Improve Well-Being Through Gratitude. In that article they quote Robert A. Emmons, professor of psychology at the University of California Davis and a leading scientific expert on the science of gratitude, who notes that “The practice of gratitude . . . can lower blood pressure, improve immune function and facilitate more efficient sleep. Gratitude reduces lifetime risk for depression, anxiety and substance abuse disorders, and is a key resiliency factor in the prevention of suicide” (Thanks!: How the New Science of Gratitude Can Make You Happier (Houghton Mifflin Harcourt, 2007)).

The article gives several tips for cultivating gratitude, including journaling, breathing exercises, writing thank-you notes, and prayer and meditation. All of these exercises are intended to help us shift our thinking from dwelling on negatives to focusing on positive things. In doing so, you don't lessen the amount of work you need to do or the seriousness of your (or your client's) problems. But you do put those issues into perspective, and reframing your experiences, just like reframing the facts in a legal argument, has lasting impact.

Are you a religious person? Then most likely, your religion teaches the same thing. Jesus's sermon on the mount dealt extensively with anxiety and reframing difficulties, and Paul later wrote in Philippians 4:6 that Christians should "...not be anxious about anything, but in every situation, by prayer and petition, with thanksgiving, present your requests to God." The Quran says in Surah 31:12 "Be grateful to Allah, for whoever is grateful, it is only for their own good." And many Buddhist practices, particularly in Shin Buddhism, focus on gratitude and start each morning giving thanks, even for the difficult things.

So this week, I'm trying to take my own advice and focus on things that are noble and good and true. The friends I've made and kept, and the joy of remembering those I have lost. The family I have left, and the legacy of those I have lost. The people I've helped and the good I have done, and the lessons learned from the cases I've lost and the mistakes I've made. And the time I have left, not the time I have wasted.

And I'm going to say "thank you" much more often. And as I try to think of people to say thank you to, I'm going to be thankful that the list is long. And growing longer every day.

Thank you for reading. Thank you for being who you are. Now, please, go give thanks of your own. Focus on the good. Reframe your experiences. And, in doing so, write yourself a better, and more thankful, story.

(Image credits: Library of Congress, Udo Keppler, Lawyers at least have plenty to be thankful for, Puck, v. 74, no. 1916 (1913 November 19), centerfold)

November 26, 2024 | Permalink | Comments (0)

Sunday, November 24, 2024

Can You DIG It?

On Friday, the Supreme Court issued its first decision of the term in an argued case – and it was a DIG, dismissed as improvidently granted, in a one-sentence order. The effort and attention given the case until that resolution can seem frustrating and a waste of judicial resources, although respondents generally should be pleased given that their victory below is thereby preserved.

The case was Facebook, Inc. v. Amalgamated Bank, No. 23-980. The issue involved whether Facebook was sufficiently forthcoming in its securities filings when it failed to mention that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

The event in the past that animated this case was Facebook’s sharing of user data of some 30 million users without their permission with a researcher who founded the infamous Cambridge Analytica. The data was originally used by Senator Ted Cruz’s presidential primary campaign to target voters. The data was used to place political advertising on Facebook while covering up its cooperation in the effort. Eventually, Facebook’s role in sharing the data became public, and the Securities and Exchange Commission filed suit against Facebook for misleading investors about the risk it incurred from the episode. Facebook paid a $5.1 billion civil penalty in settlement.

When a class of investors sued to recover damages in a securities action, the district court dismissed, but the Ninth Circuit held that Facebook’s risk statements “represented the risk of improper access to or disclosure of Facebook user data as purely hypothetical when that exact risk had already transpired.” The gist of the opinion scored Facebook for portraying the risk of a breach of private users data as if it did not and could not occur, when it had and when it resulted in a significant drop in stock prices.

The Supreme Court granted certiorari after the petition suggested that a three-way split existed in the circuits. It claimed that the Sixth Circuit took the position that no disclosure of past instances was necessary. It then claimed that six other circuits require disclosure of past risks but only if the company knows it will harm the business. It then asserted that the Ninth Circuit, along required disclosure even if there is no known threat of business harm.

The Brief in Opposition, known as the BIO, asserted that the question presented assumed a factual premise that the Ninth Circuit rejected as unsupported by the record. According to Facebook, when it filed its disclosures with the SEC, the breach was public without adverse consequences. The claimed sequence of events and the lack of adverse public reaction, the BIO asserted, was inconsistent with the Ninth Circuit’s filings. It then claimed that the case did not qualify for certiorari, because the Supreme Court had recently advised that granting certiorari is “imprudent” when the premise of the issue presented “does not hold.” DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

Even so, the Court granted certiorari, received full briefing, and conducted oral argument earlier this month. When the Court decides to DIG a case, something that happens once or twice a term, it usually does not provide an explanation. The usual assumptions are that the case turned out to be a poor vehicle for resolving the issue, the issue granted turns out not to be the principal basis for the petitioner’s argument in a bait-and-switch stratagem, new developments either in the case or related to the issue changes the need for a decision, or the justices are so divided on what the real issue is that the case no longer looks to them to be what it was when certiorari was granted.

In this case, it seems likely that the arguments about what the Ninth Circuit did or did not decide that were made in the BIO became clearer to the justices and resulted in the DIG. Still, it often seems that a more careful review of the BIO would certainly result in fewer cases that are granted for plenary review only to be rejected without decision through a DIG with the result being the same as it would have been if certiorari had been denied.

November 24, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, November 17, 2024

How to Persuade Judges When a Constitutional Provision is Ambiguous

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

1. Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

2. Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

3. Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

November 17, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (2)

Wednesday, November 13, 2024

Legal Writing for the Digital Reader - CLE