Appellate Advocacy Blog

Journal of Appellate Practice and Process Archives

I am thrilled to announce that all of the back issues for The Journal of Appellate Practice & Process are now available on our website. The easiest place to find them is by clicking on "Issues" in the menu at the top of the page. Over the next couple of months, I hope to get some some cover images up for the issues.

This content migration would not have been possible without the great work of the folks at Janeway, an open-source scholarly publishing company. If you are looking for a platform to publish a scholarly journal, they are a great platform to consider. I am also very grateful for the help of Ellen Dubinsky at the University of Arizona Libraries. She was instrumental in working with Janeway and UALR to migrate the content.

We hope you enjoy the back content. Keep your eye out for the Summer 2021 issue, which should be published in July.

Five Tips for Students in Moot Court and for Appellate Advocates

Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates.  Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.

1.    Start strong

First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.

Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.

Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.

Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:

May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.

What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:

May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.

 The difference should be obvious.

2.    Answer the judges’ questions.

Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.

To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.

Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:

Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?

Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.

Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?

Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.

That is simply terrible. Now consider this example.

Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?

Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.

Again, the difference should be obvious.

3.    Have a conversation with the court

During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.

The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.

4.    Don’t screw up on the basic aspects of appellate practice

Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:

• Know the record
• Know the law (and please make sure your legal authority remains valid law)
• Know the standard of review
• Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
• Never be disrespectful to the lower or appellate court, or the adversary
• Follow the federal or state rules, and the local rules
• Don’t make weak arguments
• Cite cases and other authority
• Know the difference between binding and persuasive authority
• Have realistic expectations and communicate those expectations to your client
• Don’t use notes at oral argument
• Be honest
• Don’t be a jerk

This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.

5.    Have a short list of ‘non-negotiable’ legal arguments

It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.

And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.

Appellate Advocacy Blog Weekly Roundup Sunday, June 11, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court ruled 5-4 that violent felonies committed recklessly, as opposed to intentionally or knowingly, do not count toward the “strikes” that would trigger the 15-year mandatory minimum sentence under the Federal Armed Career Criminals Act.  The Act requires the mandatory minimum for those convicted of firearms possession when they have been previously convicted of three violent felonies. The plurality opinion (one justice agreed on different grounds) determined that the Act excludes crimes committed recklessly, saying the words “against the person of another” requires purposeful conduct and “demands that the perpetrator direct his action at, or target, another individual.” See the order and reports from The New York Times, Bloomberg Law, and The Hill.

• A few weeks ago, we flagged Johnson & Johnson’s cert petition appealing a $2.1 billion award to petitioners who claimed that J&J talcum powder products caused their cancer. This week, the Supreme Court denied cert. See articles in the Washington Post and The Wall Street Journal.

• Last week, The New York Times’s Adam Liptak and Alicia Parlapiano reported on a survey from researchers at Harvard, Stanford, and the University of Texas looking at what the public thinks about this term’s major Supreme Court Cases.  Find the article here.

Appellate Court Opinions and News

• The Eighth Circuit has affirmed a preliminary injunction blocking a Missouri abortion ban.  The law would have prohibited abortions after eight weeks or because the fetus has Down Syndrome. The ruling is based in the Supreme Court precedent that “[b]ans on pre-viability abortions are categorically unconstitutional.” The ruling recognizes that the law was a ban rather than a restriction: “Unlike a regulation, the Down syndrome provision does not set a condition that—upon compliance—makes the performance of a pre-viability abortion lawful, thus preserving the constitutional right to elect the procedure. Rather, it bans access to an abortion entirely,” See the order and reports from The Courthouse News, The Washington Times, and The Associated Press.

• The well-loved and highly-respected Second Circuit Judge Robert A. Katzmann died this week. See the US Courts announcement, a New York Times tribute and a report, and a statement by U.S. Attorney General Merrick B. Garland.

How to Win an Argument

Winning an argument depends in substantial part on effectively using strategies to maximize your argument’s persuasive and logical force, expose weaknesses in your adversary’s argument, and convince the audience to adopt your position. Below are tips that will enhance your chances of winning an argument in many contexts, such as in court, at a debate, or in a negotiation.

1.    Require that your adversary define relevant terms with specificity.

You should always require your adversary to define important terms that are essential to proving or disproving an argument. And you should never engage in or respond to arguments that consist of overly general propositions. For example, imagine the following discussion between two scholars who differ about the extent to which systemic racism and white privilege exists in the United States:

Scholar: Both history and current laws demonstrate that the United States is systemically racist, and that white privilege is pervasive throughout this country. Ultimately, until our society is more diverse and inclusive, we will continue to oppress marginalized populations.

Wow. There is a lot to unpack in that statement. 

Importantly, the scholar’s adversary should neither react nor respond to the substance of that statement. Instead, the scholar’s adversary should state as follows:

I certainly agree that racism, inequality, and oppression are antithetical to basic human values. But how do you define and quantify systemic, or institutional, racism? Which specific institutions do you allege are racist? And how do you define and quantify white privilege?

This strategy forces your opponent to be specific and places on your opponent the burden to provide a definition upon which most reasonable people can agree. In so doing, the opponent will likely reveal underlying assumptions or biases in an argument and thus allow you to expose the flaws in whatever definition the adversary provides. At the very least, you will prevent your opponent from relying on unproven generalities and enable yourself to avoid a futile discourse involving statements that may lack an empirical foundation.  

2.    Expose logical fallacies in your opponent’s argument, especially appeals to authority and emotion.

Logical fallacies undermine many arguments. Two of the most common are the appeals to authority and emotion.

First, many advocates strive to enhance the validity and persuasiveness of an argument by relying upon well-respected sources or unnamed “experts.” Consider the following example:

Any athlete should have the right to kneel for the national anthem and thus exercise their right to free speech. As nearly every justice on the United States Supreme Court has stated, freedom of speech is critical to protecting liberty and democratic values.

This statement represents an appeal to authority. Specifically, the fact that nearly every justice on the Supreme Court may have expressed these sentiments utterly fails to support the argument that any athlete should have the right to kneel for the national anthem. In essence, the person making this statement is saying, “If the justices on the Supreme Court agree with me, the argument must be valid.” Wrong. An argument is valid only if it is based on facts and evidence.  

Second, many advocates appeal to the audience’s emotion when striving to maximize an argument’s persuasive value. Consider the following example:

We must resist attempts to abolish the death penalty. A few years ago, my teenage son was brutally murdered by a man who had previously murdered four teenagers. The only way justice will be served is if we hold this man accountable for the atrocities he committed.

This is a tremendously sad story. But it is not a logically valid argument. Whether the death penalty should be abolished depends on facts and data regarding, among other things, whether the death penalty is applied fairly and equitably, and whether it deters crime. The above statement addresses none of these points.

3.    Begin your argument with a foundational and well-accepted principle.

To maximize the likelihood that the audience will adopt your position, begin your argument with foundational principles that engender widespread agreement. For example, assume that you are debating whether Georgia’s recently-enacted voter identification law will suppress voter turnout, particularly among minority communities. Consider the following two statements:

Georgia’s voter identification law does not and will not impact voter turnout. And the law isn’t targeted at minority communities. It applies to everyone and enhances election integrity.

Versus

Racism and discrimination are intolerable, and equality is a basic principle of democracy and essential to liberty. To that end, we must embrace the core principle that every person, regardless of, among other things, race, ethnicity, religion, and sexual orientation, has an equal right to vote and must have equal access to the ballot box. Georgia’s law does not violate this important principle.

Which statement is better? The answer should be obvious – as should the reasons why.

4.    Know the statistics. Again, know the statistics.

To win an argument, you must know the relevant statistics and empirical studies that impact the argument’s validity. If you don’t, or if you rely only on statistics and studies that are favorable to you, your argument’s persuasive force vanishes along with your credibility. For example, some scholars have posited, in law review articles and other publications, that implicit bias is a major contributor to ongoing discrimination, marginalization, and oppression in society. In support of this argument, they cite studies allegedly illustrating implicit bias’s pernicious effects.

There is only one problem. Several recent studies have debunked or, at the very least, cast serious doubt upon the relationship between implicit bias and biased behavior. Sadly, very few advocates of implicit bias training have addressed this damaging evidence. This failure renders their arguments unpersuasive and calls into question their objectivity as scholars.

To avoid this mistake, be sure to prepare extensively before any argument by knowing the relevant facts and data, both favorable and unfavorable, that impact your argument. Don’t be afraid to concede bad facts. Instead, explain why they do not affect the outcome you seek and highlight how the statistics favor the position for which you advocate.

After all, facts and statistics are the foundations of powerful arguments.

5.    Transition from abstract to concrete arguments.

When making an argument, avoid extensive reliance on abstract principles. Instead, provide concrete evidence and examples that support your argument, and offer a solution or rule that demonstrates your position's practicality and workability. Consider the following example:

The Fourth Amendment should not be construed to allow law enforcement officers to conduct warrantless cell phone searches. Privacy is a bedrock principle in the Constitution and citizens have a right to be free from unreasonable, government-sanctioned intrusions on privacy. Furthermore, law enforcement must not be given the power to encroach upon basic civil liberties and thus place the freedoms of all citizens at risk.

Yeah, whatever. That statement is far too abstract. Consider this example:

Warrantless cell phone searches incident to arrest violate the Fourth Amendment. Unlike searches of closed containers or passenger compartments, a cell phone houses a vast amount of the very papers and effects, such as personal photographs, bank statements and other documents, text and email addresses, and online search history, that the Founders would have afforded the highest Fourth Amendment protection. As such, warrantless searches in this context are unreasonable per se. The Court should thus adopt a rule stating that law enforcement officers must have probable cause and warrant before searching a cell phone incident to arrest.

This statement is far more persuasive because it makes specific points, and proposes a workable and practical rule.

6.    Use ‘hidden’ premises in your argument.

Including ‘hidden’ premises in your argument helps to reframe the issue(s) effectively in your favor and increases the likelihood that the audience will agree with your stated premises and conclusion. Additionally, it often presents as accepted or proven precisely the issue(s) that the argument or debate involves. Consider the following example:

The death penalty should be abolished immediately for three reasons. First, the death penalty disproportionately impacts African-American defendants. Second, it is almost certain that innocent people have been executed. Third, the death penalty serves none of the purposes of criminal punishment. Thus, because I am against racial discrimination and inequality, because I do not believe in intentionally murdering innocent civilians, and because I do not support criminal justice policies that have no societal value, the death penalty should be abolished.

This statement is effective because of the ‘hidden’ premises, even though some scholars would disagree with one or more of these assertions. But that is not the point. The point is that all reasonable people are against racial discrimination and inequality. No one believes in “intentionally murdering innocent civilians.” And few would support any policy that has no societal value. By including in your argument widely accepted principles, you increase the likelihood that the audience will accept your argument and adopt your position.

7.    Never allow your adversary to characterize you or your argument inaccurately.

Make your adversary work diligently to establish any point that impacts negatively your argument. Put simply, always challenge inferences or assumptions that your adversary makes to undermine your position. Consider the following example:

Professor Smith recently drafted an article claiming that the late Justice Antonin Scalia was an “intellectual giant on the Supreme Court and the author of many extraordinary opinions that respected the Constitution’s text and structure.” Professor Smith’s endorsement of conservative values and a conservative judicial philosophy means that he will support judges who turn a blind eye to progressive values and marginalized populations.

Be sure to call out such nonsense. What Professor Smith said does not even remotely support the proposition that he endorses conservative values and will support judges who “turn a blind eye” to progressive values (whatever that means).  Never allow your adversary to get away with such a misrepresentation and never concede more than is necessary to maintain your argument’s credibility.  

8.    Listen more and talk less.

It’s the quality, not the quantity, that matters. In an argument, never talk too much and dominate the discussion. When you do so, it suggests that you are insecure about the merits of your argument, that you believe your adversary has made compelling points that require an immediate response (which gives your adversary credibility), and that you are so rigidly attached to your argument that alternative perspectives are neither necessary nor welcomed. Unfortunately, that approach undermines your credibility.

Remember, less is more.  You should listen calmly and carefully to your adversary’s argument. You should recognize good points that your adversary makes and strive to find areas of agreement. And when you do speak, be sure to make a concise, high-quality, and compelling statement. What does that mean? Get to the point immediately. Start with a powerful theme. Use the Rule of Three. Lead with your strongest points. Use statistics to support your assertions. End powerfully and confidently.

Then, shut up.

The best advocates pick their battles effectively.

9.    Never show emotion.

Getting emotional is one of the worst things that you can do in an argument. When you show emotion, such as by being angry, irritated, or offended, it typically means that your adversary is winning the argument and that you are not confident in your position. Consider the following two statements from the captain of an airline to passengers who just flew through severe turbulence in bad weather:

Hi everyone, please do not worry. I know that things were really rough for several minutes, but I will never allow this plane to crash! Let me repeat – I will not let this plane crash, no matter what! I am a veteran of the Air Force and I’m going to fight this weather to the death!

If I were a passenger on this plane, I would immediately believe that the plane was going to crash nose-first into a ditch. Now consider this statement:

Hi folks, sorry about the rough air we just encountered. The plane is fine, of course, and the turbulence we just encountered is pretty common in this part of the country. We’re going to change our altitude as soon as possible to make your flight as comfortable as possible and we don’t expect much rough air for the rest of the flight.

If I were a passenger on this plane, I would feel assured and safe. The difference wasn’t simply the words. It was the measured manner with which the latter statement was delivered.

Simply put, in an argument, be confident. Be calm. Never act surprised by a point your adversary makes or a question that your adversary asks. This doesn’t mean that you shouldn’t show passion and conviction. You should certainly be your authentic self. But you must avoid the negative reactions and emotional outbursts that invariably raise questions about your credibility and the merits of your argument.

10.    Don’t be an a******.

People like others who are nice. They like others who are respectful, friendly, and civil. They like others who are mature. They like others who are honest and genuine. And when people like you, they will be more likely to listen to you and find you credible. Most importantly, when people like you, they are more inclined to adopt your position. After all, people associate with those that they like and respect.

Conversely, people hate jerks. And they know them when they see them. Jerks attack people rather than ideas. Jerks insult others. Jerks always think that they are right and that else is always wrong. Jerks interrupt people when they are speaking. Jerks misrepresent others’ positions. The list goes on and on.

You get the point. Don’t be an a******.

Remember, when you make an argument, people are not just listening to what you say. They are evaluating you.

Judicial Opinions & Pop Culture (or, are the Star Wars sequels "mediocre and schlocky")

Earlier this week I received an email from a student with this Ninth Circuit opinion attached. The subject of the email was "Judge Lee and Star Wars," and the student told me to look on page 26 at footnote 5. I was a bit puzzled at first, since the case was about class action settlements. But, when I got to page 26 it was all clear. Here is what Judge Lee wrote,

Under the settlement, ConAgra agreed to refrain from marketing Wesson Oil as “100% Natural.” That sounds great, except that ConAgra already abandoned that strategy in 2017 — two years before the parties hammered out their agreement — for reasons it claims were unrelated to this or any other litigation. Even worse, ConAgra’s promise not to 
use the phrase “100% Natural” on Wesson Oil appears meaningless because ConAgra no longer owns Wesson Oil. In reality, this promise is about as meaningful and enduring
as a proposal in the Final Rose ceremony on the Bachelor. Simply put, Richardson — the new owner of Wesson Oil — can resume using the “100% Natural” label at any time it
wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.5

Footnote 5. As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.

I laughed out loud when I read the paragraph and footnote, but I also was not surprised, since I have known Judge Lee for many years, and he is definitely a fan of Star Wars (and apparently the Bachelor?). Judge Lee's Star Wars analogy has also made the news, especially in the movie and comic spheres, with one headline reading:

U.S. Ninth Circuit Court Declares THE LAST JEDI "Mediocre And Schlocky" In Recent Ruling

Although that headline might stretch the analogy a bit, it did get me thinking--should judges throw pop culture references into their judicial opinions? In my mind, the answer is certainly yes.

Before I defend pop culture references in judicial opinions, let me start with what I assume to be the critique--that it trivializes important disputes. The response is--like any other use of humor--there is certainly a time and a place for pop culture references. There are some cases where pop culture references could seem insensitive or overly trivial, but in other cases, they humanize the judiciary and raise awareness about our court system, which is why I think that they are great!

According to a 2020 survey, only 51% of Americans can name all three branches of government, with 23% unable to name any branch of government. Compare this to the 49% of adults who have seen The Empire Strikes Back. I couldn't find statistics for the number of people who can name the three movies in the original trilogy, but I think that you get my point.  Star Wars is a big business and very well known. If a pop culture reference to Star Wars gets people to think, albeit even briefly, about our federal court system, that reference is a plus in my book.

How common are pop culture references in judicial opinions?  I ran a few searches on Westlaw Edge to see what I could find.  Searching "Star Wars" in all cases brought up 403 hits. In glancing at the top 50 results, most of them have to do with copyright infringement--they aren't using pop culture to make an analogy.  Justice Kagan did make a Star Wars reference in her dissent in  Lockhart v. U.S., stating "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. . . . Everyone understands that the modifying phrase—'involved with the new Star Wars movie,' . . . —applies to each term in the preceding list, not just the last." 577 US. 347, 362 (Kagan, J., dissenting).

A search for "Harry Potter" in all cases brought up 284 hits. I looked at the last 84 results, and I found some gems:

• "Between Marshall's status as the only other person at the defense table and the fact that, by this time, Jenkins had twice previously been shown Marshall's face, Jenkins's in-court identification of Marshall was about as unexpected as the mention of Voldemort in a Harry Potter novel." Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1293 (11th Cir. 2016)
• "According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm's current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good." Deseret Mgmt. Corp. v. United States, 112 Fed. Cl. 438, 451 (2013)
• "In a word, today's decision will not require even depositary banks to hire armies of employees to examine each check like something out of Harry Potter's Gringotts Wizarding Bank. It will require only a minimal level of reasonable care." HH Computer Sys., Inc. v. Pac. City Bank, 231 Cal. App. 4th 221, 240, 179 Cal. Rptr. 3d 689, 703 (2014)
• "The effect is that the debtor's homestead is subject to the loss of its exemption because the snapshot taken upon filing catches the potential for movement not unlike a photograph from a Harry Potter novel captures the movement of the subjects in the photograph." In re Montemayor, 547 B.R. 684, 701 (Bankr. S.D. Tex. 2016)

So appellate judges--throw in those pop culture references!  Maybe, just maybe, it will increase awareness and interest in the judiciary.

Justice Thomas, COVID, and Remote Oral Argument

One of the "surprises" of the Supreme Court's remote telephonic arguments is Justice Clarence Thomas's participation.  In the latest issue of The Journal of Appellate Practice & Process, Timothy Johnson, Maron Sorenson, Maggie Cleary, and Katie Szarkowicz share their research findings on Justice Thomas's oral argument participation. Specifically, they explore whether Justice Thomas's increased participation can be attributed to the changed format of Supreme Court arguments or some other explanation.

There is a lot to enjoy in this article.  I found the authors' parsing of Justice Blackmun's personal notes about Justice Thomas to be very interesting.  It seems that from the beginning of Justice Thomas's tenure on the Court, Justice Blackmun took notice of when Justice Thomas spoke at argument.  The authors' provide some of Justice Thomas's own reasons for his silence, and they discuss other scholarly discussions of Justice Thomas's silence on the bench.

Then, the authors delve into detailed research on the different times that Justice Thomas has asked questions at oral argument. They look at both the volume of participation and the types of cases, postulating that Justice Thomas's participation in oral argument often occurs in certain types of cases. But, as their research shows, it was really the change in argument format that led to the biggest change.

Many suspect that the Court will return to in-person arguments for the October 2021 Term, which features several blockbuster cases. It will be interesting to see if any of the structure from the telephonic arguments remains and, if it doesn't, does Justice Thomas resume his silence on the bench.

The Supreme Court, Abortion, and the Future of Roe v. Wade

Last week, the United States Supreme Court agreed to review the constitutionality of a Mississippi law that prohibits most abortions after fifteen weeks.[1] This case, Jackson Women's Health Organization v. Dobbs, represents yet another episode in the seemingly never-ending abortion saga. Simply put, a state enacts legislation striving to restrict the right to abortion and the Court renders a divisive decision, often by a 5-4 vote along ideological lines, that fails to resolve and clarify permanently the scope of the abortion right. The Court’s incremental, case-by-case jurisprudence has invited confusion and unpredictability into abortion jurisprudence and incentivized states to continue testing the viability of Roe v. Wade, which held that the judicially-created right to privacy under the Fourteenth Amendment encompassed a right to abortion.[2]

So, here we go again.

Another divisive abortion decision is likely and whatever the Court decides, its decision will likely be viewed as political and compromise the Court’s institutional legitimacy.

This constitutional mess can be traced to Roe v. Wade and Griswold v. Connecticut, in which the Court manipulated the Fourteenth Amendment’s Due Process Clause to create unenumerated rights that no reasonable reading of the text could support.[3] In Griswold, the Court held that the Due Process Clause, along with other provisions in the Bill of Rights, contained invisible “penumbras … formed by emanations from those guarantees that give them life and substance.”[4] Within these judicially-invented “penumbras,” the Court gave itself the power to discover unenumerated “rights” out of thin air, including the right to privacy, that could not possibly be found in or inferred from the text.  Relying in substantial part on Griswold, the Court in Roe held that the right to privacy encompassed the right to terminate a pregnancy.[5]

Regardless of one’s policy views on abortion, liberal and constitutional scholars largely agree that Roe was constitutionally indefensible. Harvard Law School Professor Laurence Tribe, for example, stated that “behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found.”[6] The late Justice Ruth Bader Ginsburg described Roe as “heavy-handed judicial activism,” and Edward Lazarus, a former clerk to Justice Harry Blackmun (who drafted the majority opinion), stated that “as a matter of constitutional interpretation ... if you administer truth serum … [most scholars] will tell you it is constitutionally indefensible.”[7] These scholars are correct – Roe was one of the worst decisions of the twentieth century.

Importantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had the opportunity to overturn Roe and return the abortion question to the states. Instead, the Court made the problem worse.[8] In a 5-4 decision, the Court upheld the “central holding” of Roe but overturned Roe’s trimester approach, which provided that, absent a compelling interest, states could not restrict a woman’s right to access abortion services during the first two trimesters, or pre-viability phase, which lasts approximately twenty-four weeks.[9] In the third trimester, the states had the authority to prohibit abortion except where necessary to protect the life or health of the mother.[10] In Planned Parenthood, however, the Court rejected the trimester approach; instead, the Court held that abortion restrictions during the pre-viability phase that imposed a “substantial burden” on the right to access abortion services were unconstitutional.[11]

Planned Parenthood was equally, if not more, constitutionally indefensible than Roe and it thrust the right to abortion into legal purgatory. After all, what precisely constitutes a “substantial burden” on the right to access abortion? And what criteria should be used to determine whether a burden is substantial? The Court had no answer.

But the states opposing abortion did.  Recognizing the ambiguity that Planned Parenthood created, these states have repeatedly enacted legislation that seeks to restrict abortion rights and thus rendered the scope of abortion rights unclear and uncertain. To make matters worse, the Court has evaluated these laws on a case-by-case basis and, in divisive and muddled opinions, failed to resolve the abortion question. Recently, for example, in Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, the Court invalidated – for good reason – laws requiring abortion providers to obtain hospital admitting privileges.[12]

The problem is that the Court, in these and other abortion decisions, has failed to definitively clarify the nature and scope of the abortion right, thus perpetuating a never-ending saga in which some states continue, in various ways, to eviscerate the abortion right. Instead of deciding each case narrowly – and based on an arguably subjective application of the undue burden standard – the Court should have either: (1) overturned Roe and returned the abortion issue to the states; or (2) held that women have an unfettered right to abortion before viability. Whatever one’s views on abortion, this would have resolved the constitutional question and precluded the seemingly never-ending litigation that Roe and its progeny have engendered. In short, Roe was a terrible decision and Planned Parenthood only compounded the constitutional damage that Roe inflicted. By way of analogy, when a person lies, the best course of action is to admit and own up to the lie rather than try to cover it up with additional lies. The Court’s abortion jurisprudence reflects the latter.

As such, the Court once again finds itself in a constitutional quagmire, the result of which will surely divide the country and risk compromising the Court’s institutional legitimacy. But the Court has no one but itself to blame. It created – and exacerbated – the constitutional fictions known as “penumbras” and substantive due process.  

Of course, one’s views on whether women should have a right to abortion are irrelevant. Most polls suggest that a majority of citizens support at least a limited right to abortion. And the reasons are understandable. But the abortion issue should have always been resolved by state legislatures, not nine unelected and life-tenured judges. The Court should have never involved itself in the abortion debate.

Ultimately, what should the Court do in Jackson Women's Health Organization? It should end this constitutional charade. In so doing, the Court should hold that, although Roe was constitutionally indefensible, it should not be overruled. For nearly fifty years, women have relied on Roe to make decisions, in conjunction with their health care providers, regarding whether to terminate a pregnancy. Put simply, Roe is entrenched in the public consciousness and stare decisis counsels in favor of reluctantly upholding Roe despite its obvious flaws. Furthermore, the Court should return to the trimester framework and hold that states may not restrict abortion access prior to viability.

That will end the inquiry and the uncertainty.

But don’t count on it. The most likely result will be a decision, engineered by Chief Justice John Roberts – who has become the Court’s most political actor – that confuses, rather than clarifies, abortion jurisprudence. That is the sad reality of the U.S. Supreme Court. Despite Chief Justice Roberts’s assertions to the contrary, the Court is unquestionably political.

Most importantly, in the future, the Court should hold that the penumbras upon which Griswold and Roe are predicated no longer exist. Had the Court adhered to an originalist framework, we would never be in this mess.

Hopefully, the Court will learn its lesson. There is ample reason, however, to be skeptical.

 

[1] Jackson Women's Health Organization v. Dobbs, No. 19-1392 (October Term, 2021).

[2] 410 U.S. 113 (1973).

[3] Id; 381 U.S. 479 (1965).

[4] Id. at 484.

[5] 410 U.S. 113.

[6] Timothy P. Carney, The Pervading Dishonesty of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner

[7] Id.

[8] 505 U.S. 833 (1992).

[9] Id.

[10] Id.

[11] Id.

[12]  136 S. Ct. 2292 (2016); 2020 WL 3492640.

Appellate Advocacy Blog Weekly Roundup Sunday, May 21, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court has ruled that their April 2020 decision on non-unanimous jury verdicts is not retroactive. The April 2020 decision found that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then the court considered this case (which we wrote about here back in December 2020) asking whether the April decision should apply retroactively to prisoners in Louisiana and Oregon (the last remaining states to allow non-unanimous verdicts as of the April decision) convicted in the past by non-unanimous juries. The Court ruled that it should not, stating: “It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.” See the order and reports from The New York Times and The Associate Press.

• The Supreme Court has agreed to hear an abortions case that many believe may test Roe v. Wade. The case challenges a Mississippi law that bans most abortions after 15 weeks. The Court accepted the appeal of the Fifth Circuit’s decision that the law could not survive Supreme Court precedent on abortion restrictions, saying that it would consider whether “all pre-viability prohibitions on elective abortions are unconstitutional.” The case should be heard in the Court’s next term, which begins in October.  Here is a sampling of the many recent reports: The New York Times, The Washington Post, The Los Angeles Times, The Associated Press, and Reuters.

• This week, a reader flagged for us the petition for certiorari in Johnson & Johnson v. Ingham, No. 20-1223 (U.S., pending), and shared two pieces that discuss the case and its legal issues. Thanks, Abby! The Supreme Court will conference on the case this week. Johnson & Johnson (J&J) is appealing the $2.1 billion judgment on the claims of 22 plaintiffs who claimed J&J’s talc products contained asbestos and caused their ovarian cancers. Of particular import in the appeal is whether the lower court properly consolidated multiple plaintiffs into a single trial. For background, see pieces from Reuters and Bloomberg.  Both shared pieces question the legitimacy of consolidated trials and can be found here: Drug & Device Law and Justices Should Stand For Jury-Trial Fairness And Grant Writ Of Certiorari In J&J v. Ingham.

• There’s a new podcast about the Supreme Court, “Divided Argument,” presented by law professors Dan Epps and Will Baude seems to be well-received; find the first three episodes here.

Appellate Court Opinions and News

• The Ninth Circuit has rejected an appeal of the $25 million verdict against Bayer-owned Monsanto. This is the second appeal that the company has lost on a similar verdict and another appeal is pending. This case concerned the claim that the weedkiller Roundup caused the plaintiff’s cancer and considered whether the company should have included a warning on the product. The court rejected the company’s claim that conflicting federal and state laws on labeling prohibited it from including a warning. As Bayer faces many similar suits and because this ruling is a split from a decision from a US District Court in Georgia that sided with Monsanto (now pending in the Eleventh Circuit), some predict that Bayer will ask the Supreme Court to weigh in.  See the order and a report from The Courthouse News.

 

Mandates Matter

    We hear a lot about mandates these days. Politicians claim mandates when they eke out wins. Social media warriors fight over when masks should be worn. And state and federal officers joust over social distancing and mask mandates in public spaces. But if you are an appellate practitioner, one mandate you should definitely pay attention to is the one that actually ends your appeal.

    The judgment of the court does not end an appeal. The mandate does. The mandate terminates the jurisdiction of the case in the court of appeal and returns it to the district court (or, in rare cases, the Supreme Court) for action. Thus, even if a case is simply affirmed, the mandate must first issue before the district court can enter judgment. And if there is any additional action necessary, such as with a remand, the mandate will define exactly what actions can be taken (with certain exceptions, of course).

    Federal Rule of Appellate Procedure 41 provides that a mandate can either be a formal document entire in itself, or can simply be "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." FRAP 41(a). Because it is the mandate that controls, close attention should be paid to the directions it contains.

    The mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41(b). It is important to note what does NOT extend the deadline for the mandate - motions for extensions of time to file petitions for rehearing, for instance, do not extend the deadline. Neither does the filing of a petition for writ of certiorari.

    In the case of either a motion to extend or the filing of a petition for writ of certiorari, a party can (and should) move the court to stay issuance of the mandate pending action. To stay issuance for filing of a petition for writ of certiorari, the party must show that the petition "would present a substantial question and that there is good cause for a stay." FRAP 41(d)(2)(A). If the request is denied by the court of appeals, it can be renewed in the Supreme Court under its Rule 23.

    If a stay is granted for a certiorari petition, it can only be for an initial maximum period of 90 days from entry of judgment, mirroring the time period for filing the petition. FRAP 41(d)(2). The stay can be extended on a showing of good cause, or upon notice that the deadline to file the petition has been extended or that the petition has actually been filed (in which case the stay is extended until the petition is disposed). FRAP 41(d)(2)(A),(B). If the Supreme Court denies the petition, the mandate immediately issues. FRAP 41(d)(2)(B)(4).

    Close attention should be paid to the interplay of the mandate and any supersedeas bond. Such bonds stay execution of any judgment and remain in effect until their terms are fulfilled. See FRCP 62(b). Some bonds may be written to end upon issuance of the mandate. Thus, even if an appeal is pending, if the mandate issues, collection could begin without the proper stay being requested.

(Image attribution: Mask-wearers in Mill Valley, Calif., 1918. (Photo by Raymond Coyne/Lucretia Little History Room, Mill Valley Public Library/Public domain.) Proving that there has always been someone with their nose sticking out.)

Derek Chauvin's Conviction Should Be Overturned

On April 20, 2021, after a brief deliberation, a jury convicted former police officer Derek Chauvin for second-degree unintentional murder (i.e., felony murder), second-degree manslaughter, and third-degree murder in connection with George Floyd’s death.

Chauvin’s attorney, Eric Nelson, who has already moved for a new trial before Judge Peter Cahill, will certainly appeal Chauvin’s conviction. Although the likelihood of succeeding on appeal is relatively small, several issues in Chauvin’s case render the guilty verdict vulnerable to reversal.

1.    The jury deprived Chauvin of a fair trial

Chauvin’s defense team will likely argue that the conduct and composition of the jury deprived Chauvin of a fair trial. First, the defense will assert that the jury violated Chauvin’s Fifth Amendment rights. The Fifth Amendment provides, among other things, protection against self-incrimination. At a criminal trial, a defendant may invoke the right against self-incrimination and thus refuse to testify. Importantly, jurors may not infer guilt from a defendant’s silence; doing so is grounds for overturning a guilty verdict.

During the trial, Chauvin invoked his Fifth Amendment right and thus did not testify. Unfortunately, there is some evidence that at least one of the jurors construed that silence against Chauvin. Specifically, shortly after the verdict, Brandon Mitchell (Juror No. 52), spoke to the media and, after being asked whether Chauvin’s silence impacted the jury, stated as follows:

Yeah, definitely it [Chauvin's silence] did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout.  You know it probably was to his detriment that he didn’t take the stand ’cause people were curious on what his thoughts were throughout the entire incident.”[1]

At the very least, Mitchell's statement may cause Judge Cahill to question the jurors regarding the effect, if any, that Chauvin’s silence had on their deliberations.

Second, the defense will argue that the jury was impermissibly biased against Chauvin. Once again, Brandon Mitchell’s conduct provides a basis upon which to support this assertion. After the trial, a photograph emerged of Mitchell wearing a t-shirt that stated, “Get your knee off our necks,” which Mitchell allegedly wore at a Washington, D.C. rally commemorating Martin Luther King’s “I have a dream” speech.[2]

The photograph’s impact on appeal will depend primarily on whether Mitchell was truthful when answering the jury questionnaire during voir dire. Specifically, Mitchell was asked the following questions:

“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.

 “Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”[3]

Mitchell answered “no” to both questions.

At the very least, the photograph of Mitchell wearing a shirt stating, “Get your knee off our necks,” coupled with his “no” answer to the second question, supports a further inquiry by Judge Cahill into Mitchell's potential bias.

2.    Failure to sequester the jury

Chauvin’s defense team will certainly argue that the jury should have been sequestered from the beginning of the trial, not merely during deliberations. There may be some merit to this argument, given: (1) the pervasive media coverage in the months following Floyd’s death and particularly during the trial; (2) the statement by Maxine Waters, in which she stated that protesters should “get more confrontational” if a guilty verdict was not reached.[4] Indeed, Judge Cahill stated that Waters’ statement may lead to a reversal on appeal. Furthermore, Alan Dershowitz stated:

Well, first, what was done to George Floyd by officer Chauvin was inexcusable, morally, but the verdict is very questionable because of the outside influences of people like Al Sharpton and people like Maxine Waters,” … Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, 'If you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed,' seeped into the jury room because the judge made a terrible mistake by not sequestering the jury. 

And a statement by alternate juror Lisa Christensen, although not necessarily relevant to the appeal, suggests that the pressure to reach a guilty verdict may have impacted the jury. When questioned about the possible social unrest that may result from the verdict, Christensen stated as follows:

There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.[5]

Coupled with Brandon Mitchell’s statement (and the photo), Christensen’s statement arguably supports the argument that the jury should have been sequestered.

3.    Failure to Change Venue

Chauvin’s defense will argue that Judge Cahill erred by failing to grant a change of venue. To begin with, the incessant media coverage in Minneapolis and elsewhere following Floyd’s tragic death, coupled with the widespread protests in Minneapolis, which universally condemned Chauvin’s actions (some of which turned violent), may support the argument that Judge Cahill should have granted the defense’s motion to change venue. However, the prosecution will argue that the media coverage and protests occurred throughout Minnesota and the United States, thus rendering it unlikely, if not impossible, that Chauvin would have received a fairer trial anywhere in Minnesota. The prosecution will probably succeed on this aspect of the venue issue.

That, however, does not end the inquiry. Shortly before jury selection, Minneapolis announced that it reached a settlement of twenty-seven million dollars with Floyd’s family in connection with the family’s civil suit. The timing of this settlement is certainly suspect and a legitimate question exists concerning whether the settlement affected the jurors' impartiality.  

4.    Insufficiency of evidence on one or more of the charges

The defense will likely argue that the evidence did not support a conviction for second-degree unintentional murder (felony murder) or third-degree murder. The third-degree murder conviction is problematic because Minnesota’s statute requires that an individual engage in conduct that is a threat to “others.” It is difficult to conceive of how Chauvin’s actions threatened anyone by Floyd, thus warranting a reversal of the conviction on this charge. As a practical matter, however, this will have no impact on the sentencing because the conviction for second-degree unintentional murder, which results in the most severe sentence, will likely be upheld, and because the sentences for each conviction will be imposed concurrently, not consecutively.

***

Ultimately, the vast majority of commentators and citizens viewed Chauvin’s actions as egregious and criminal. Moreover, the likelihood of overturning a conviction on appeal is small.

But in this case, the chances of success are higher. Based on Brandon Mitchell’s statements (and the photograph), the failure to sequester the jury despite the incessant and negative media coverage, and the twenty-seven million dollar settlement on the eve of jury selection, Chauvin’s defense team will have a strong argument to overturn the conviction.

And for the reasons stated, the conviction should be overturned.

Process matters – regardless of Chauvin’s egregious and deplorable conduct.

 

[1] Scott Cosenza, Did Floyd Jurors Violate Chauvin’s Fifth Amendment Rights? (April 29, 2021), available at: Did Floyd Jurors Violate Chauvin's 5th Amend Rights? - Liberty Nation

[2] See Paulina Villegas, Photo of Chauvin Juror Wearing BLM T-Shirt at March Raises Questions of Impartiality, Experts Say (May 3, 2021), available at: Brandon Mitchell, juror in Derek Chauvin’s murder trial, faces allegations of prejudice after photo surfaces - The Washington Post

[3] Jonathan Turley, Juror No. 52: Does Chauvin Have a New Challenge Over Juror Brandon Mitchell? (May 4, 2021), available at: Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell? – JONATHAN TURLEY

[4] See Chandelis Duster, Waters Calls for Protestors to ‘Get More Confrontational’ If No Guilty Verdict Is Reached in Chauvin Trial (April 19, 2021), available at: Maxine Waters calls for protesters to 'get more confrontational' if no guilty verdict is reached in Derek Chauvin trial - CNNPolitics

[5] Jordan Davidson, Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting and Destruction’ and ‘People Coming to My House’ to Protest Verdict (April 23, 2001), available at: Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting And Destruction’ (thefederalist.com)

Using Inclusive Language As Allyship

While avoiding grading recently, I found an interesting analysis of inclusive language as a lawyer’s professional responsibility, and as a form of allyship.  Jayne Reardon, a former Illinois State Bar disciplinary counsel, posted a thoughtful piece on inclusion and allies on the Illinois Supreme Court Committee on Professionalism’s 2Civility website.  See Jayne Reardon, Inclusive Language Is Allyship (Apr. 22, 2021).  

Reardon aptly concludes:  “Given that ‘effective communicator’ is part of a lawyer’s job description, we should be sensitive to how listeners may interpret our language.”  Id.  As lawyers, “our stock in trade is language. We can choose language that makes our points persuasively or language that is distracting and possibly offensive. Distracting or offensive language, of course, doesn’t serve our clients, our profession, or our image in the eyes of the public.”  Id.

As appellate lawyers, we are in an especially good position to combine our duty to communicate clearly with the goal of using language non-offensively.  In so doing, we can also use our privilege to serve as allies for underrepresented groups. 

How do we combine communication with allyship?  Hopefully, in many ways, including using our writing skills and engaging in conversations on bias and inclusion.

Reardon suggests we start by avoiding metaphors and by thinking carefully about the way phrases like “Chinese wall” and “the blind leading the blind” can be offensive and painful.  Id.  Ellie Krug, founder and president of Human Inspiration Works, LLC, finds “the language of ‘us vs. them’ particularly pernicious to our democratic values and “exhorts lawyers to embrace the diversity, equity, and inclusion practices that the business community adopted long ago.”  Reardon, Inclusive Language Is Allyship.  

We can also connect our language to allyship with a full understanding of what being an ally can entail.  As Nicole Asong Nfonoyim-Hara, the Director of the Diversity Programs at Mayo Clinic, defines, “allyship” is "when a person of privilege works in solidarity and partnership with a marginalized group of people to help take down the systems that challenge that group's basic rights, equal access, and ability to thrive in our society."  Samantha-Rae Dickenson, What Is Allyship?  (Nat’l Inst. of Health Jan. 28, 2021).  “Allyship” can also focus on “help[ing] humans who often lack a voice to speak on their own behalf or who aren’t always in the room when demeaning or marginalizing comments/behaviors occur, or marginalizing policies or plans are made.”  Ellie Krug, Allyship for Lawyers in an Awakened America (Apr. 21, 2021).

As Reardon notes, “[w]hen we disregard how others may interpret our language or are unthoughtful with our words, we risk offending members of our professional community, like the judge, judge’s staff, opposing counsel, or others who may hear the oral argument or read the brief. In choosing more inclusive language, we choose allyship.” 

I am working to choose allyship in my writing and teaching, and I appreciate the resources and conversations about being an ally from 2Civility and others.  If you are interested in seeing more of the 2Civility website and programs, you can subscribe here for the Commission’s weekly newsletter.

Zombie Precedents? Stare Decisis and the New Footnote Fourt in Jones v. Mississippi

The Supreme Court’s recent decision in Jones v. Mississippi purported to do all the right things with respect to precedent cases. The majority claimed to uphold precedents like Miller v. Alabama that highlighted the intransigence of youth and the need for courts to consider whether a juvenile defendant is permanently incorrigible before sentencing them to life without parole.[1] It then noted Montgomery v. Louisiana’s holding that Miller’s rule was substantive, and therefore applied retroactively on collateral review.[2] Yet in the opinion’s fourth footnote, the majority purported to limit Montgomery’s holding, stating that because it was in “tension” with other retroactivity cases, Montgomery “should not guide the determination of whether rules other than Miller are substantive.[3] Essentially, the majority acknowledged its disagreement with the holding of Montgomery—that Miller’s rule was substantive and not procedural—but refused to overrule it, saying that it ought to be a one-of-a-kind precedent courts in future retroactivity cases should feel free to ignore. Perhaps unsurprisingly, the Court then rejected the juvenile petitioner’s argument that under Montgomery a court could only sentence him to life without parole after making and on-the-record finding that he was permanently incorrigible.[4]  

Will footnote four in Jones come to rival other famous fourth footnotes in Constitutional jurisprudence?[5] That all depends on one’s conception of stare decisis and its meaning. It might create categories of precedents not just limited to their facts, but limited in their peculiar readings of long-standing doctrinal puzzles. Sure, one might say, Montgomery still stands as a precedent holding that Miller retroactive, but its comments on retroactivity doctrine and the distinction between substantive and procedural rules do not extend to future cases. Thus, Montgomery still exists, but has limited value in the development of retroactivity doctrine. It stands as a unique form of zombie precedent that appears all but dead, yet stills lurk the corridors of the United States Reports.[6]

Several Justices challenged footnote four’s approach, though they raised conflicting critiques of the zombie precedent model. Justice Thomas’s concurrence and Justice Sotomayor’s dissent used differing versions of stare decisis to make their points. First, Justice Thomas cited to his opinion Gamble v. United States that would permit overruling any “demonstrably erroneous” precedent, without further analysis, to argue that Montgomery could not survive and should be directly overruled.[7] As I’ve noted in an earlier post, that trend towards a weaker version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone, has taken root on the Court in the last decade, though it is yet to garner a clear majority of the Justices’ support. On the other hand, Justice Sotomayor relied upon a stronger conception of stare decisis traceable to 1992’s Planned Parenthood v. Casey.[8] That conception of stare decisis only permits the Justices to overrule based upon special justifications beyond “poor reasoning,” such as unworkability, special reliance interests, new legal developments, or vastly changed facts.[9] Applying those possibly justifications, Sotomayor and her colleagues saw no reason to overrule Montgomery’s retroactivity holding, then chided the majority for seemingly overruling it nonetheless.[10]

The Jones majority’s effort to render Montgomery a zombie precedent introduced a new battle front in the larger ongoing war over the future of stare decisis. Justices that support both the strong and weak version of stare decisis should take note of the possibilities and perils that such zombie precedents present. Jones’s footnote four has the potential to become a flashpoint in the stare decisis debate for years to come.

 

[1] Jones v. Mississippi, 141 S.Ct. 1307, 1317-19 (2021).

[2] Jones v. Mississippi, 141 S.Ct. 1307, 1317 (2021).

[3] Jones v. Mississippi, 141 S.Ct. 1307, 1317 n. 4  (2021).

[4] Jones v. Mississippi, 141 S.Ct. 1307, 1321 (2021).

[5] See United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938).

[6] These should not be confused with “phantom precedents,” which are decisions the Court finds so incomprehensible that they may never have existed at all.

[7] Jones v. Mississippi, 141 S.Ct. 1307, 1323 (2021) (Thomas, J., concurring).

[8] 505 U.S. 833, 854-55 (1992) (plurality opinion).

[9] For more on the competing strands of the stare decisis doctrine, see Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 98-112 (2020).

[10] Jones v. Mississippi, 141 S.Ct. 1307, 1330, 1335-36 (2021) (Sotomayor, J., dissenting).

In Honor of Mother's Day--Everyone Has to Eat (A Review of Meal Kit Services)

Let's face it--adulting is hard.  As a wife and a mom, when I saw this meme it hit home.

To some degree, this meme was exacerbated by the pandemic. While some people took all the time at home to bake sourdough bread and make home cooked meals, I mourned the ability to eat out and wondered how many nights a week we could eat pancakes (and what wine to pair with them). I finally decided to sign up for some meal kit delivery services, thinking that it would be a great chance to try something new, and I could also write a review for the blog.  The two that I tried were Home Chef and Hello Fresh. 

In signing up for a service, I was looking for something with generous portions (think, leftovers), something that would be easy (I have a newly turned 3 yo and a baby), and something that would be kid friendly (my 3 yo could live off dino nuggets and pancakes). 

We tried Home Chef first. Here is what I liked:

• Meal selection--I thought that they had a great selection of meals. I have some food allergies, and it was generally easy for me to find meals that accommodated those allergies.
• Portion size--I was shocked at how generous the portions were.  We would make a 2 person meal and have leftovers. I sometimes added a starch to stretch the meal a bit, like noodles or rice.  
• Kid friendly--My toddler was not super impressed, but throwing his dino nuggets into the toaster oven was pretty easy and gave us more leftovers.
• Ease of cooking--So this is where I was both impressed and disappointed.  Home Chef has 15 minute meals. If you did not have two small children either crying or trying to help you, I think that these meals could actually be prepared in 15 minutes.  For example, if the meal called for cut chicken, the chicken was sent to you pre-cut, which I loved. But, they also have these "oven ready" meals. If you see the ads for Home Chef, you just assume that these meals come ready to pop in the oven. Not true.  At least twice we had "oven ready" meals that included meatballs, and I was expected to make the meatballs.  That is not oven ready.  We also had a few oven ready dishes that took a lot longer to cook then what the instructions said.  Still, nearly all the ingredients were packaged in the servings that you needed. It was pretty easy.
• Packaging--For the first two weeks we got three days of meals with four servings.  But, the four servings came in two bags of two servings each. This was awesome!  It allowed us to easily cook just a two serving portion, which is what we needed unless we had company.
• Delivery--I did like that we could pick our day of the week for delivery. This allowed us to use these meals during the busy workweek (and then eat pancakes for dinner on the weekends).

What didn't I like:

• Ease--As I noted above, I was a little disappointed in the so-called "oven ready" meals. They weren't super "oven ready."
• Cost--Once our promo period ended, we didn't continue the meals. It was just too pricey.  Honestly, I could buy a few Costco meals for the same cost and keep them in our deep freezer.

Now on to Hello Fresh.  I have to be honest, there wasn't anything that I thought Hello Fresh did better than Home Chef.  But, I will provide comments on some of the same categories.

• Meal selection--The meal selection was ok. I saw a lot more noodle dishes, which is what I was trying to avoid with my allergies
• Portions--The portions seemed noticeably smaller. We did not have the same amount of leftovers.
• Kid friendly--I think that this was about the same. My toddler might have eaten tacos once, but only because they were on my husband's plate and all parents know that food is more appealing when it isn't on your plate.
• Ease of cooking--These meals were a lot more time intensive.  Hello Fresh has a handful of faster meals, but most of them ended up being the same type of meal.  It seemed like there was just so much more prep work.  And, the packaging didn't make it easy. The four portions came in one package, and sometimes they didn't always send two of the same condiment or spice.  I also found that the produce was not as fresh.
• Delivery--We could not change our delivery date. That was a pain. Our meals came on Saturday.
• Cost--Hello Fresh was a little cheaper, but not a lot, and still not worth it.

If we had to sign up for one of the services again, I would definitely do Home Chef. I have looked into a few other services but have not been impressed with their menus. Now that summer is almost here, my teaching load will ease up and I will hopefully have more time to cook. Or, there is always Costco and the frozen options they offer.

Ten Tips to Create a Legal Writing Course That Prepares Students for The Real World

In the past year, COVID-19 has transformed how legal education – and legal writing – is delivered to students. Online instruction replaced in-person instruction, professors and students were forced to adapt quickly to an alternative learning format, and grading policies were adjusted to account for the unique hardships that online learning engendered for many law students. And all of this occurred while administrators, faculty, and students were living in fear of a virus that has killed more than 570,000 citizens in the United States.  

Notwithstanding, the challenges involved in transitioning to online learning – along with the challenges of transitioning to in-person instruction post-COVID – need not compromise the transformative and practical instruction that legal writing courses can effectuate, regardless of whether through online or in-person instruction. Indeed, several universal principles or designs can ensure that students learn real-world writing and critical thinking skills in online and in-person contexts. Those principles are below and can be useful to both new and experienced legal writing faculty to ensure that legal writing courses provide students with the competencies to succeed in law school and the legal profession.

1.    Connect legal writing to the real world – a memo and appellate brief are not sufficient.

The best legal writing courses and curriculums connect pedagogy and assignments to the real world.  To do so, legal writing professors should require students to draft and re-draft the most common litigation documents in their courses, including complaints, answers, motions to dismiss and motions for summary judgment, trial briefs, and appellate briefs.[1] And these assignments should be given in the order they would be drafted in practice.

To accomplish this objective, legal writing professors should, either individually or collaboratively, draft a detailed hypothetical fact pattern that includes substantive issues from all first-year courses and requires students to “litigate” a hypothetical case from the complaint to appellate brief in the first year of law school (or the first three semesters). The assignments could be administered as follows:

Semester One

Client meeting

Legal research assignment (one or more issues in the hypothetical)

Predictive memorandum (closed research)

Re-write of the predictive memorandum with one or more issues added (open research)

Complaint

Semester Two

Answer (which allows students to self-critique their complaint consider a legal issue from an opposing perspective)

Motion to Dismiss

Motion for Summary Judgment (with previously prepared discovery provided)

Re-write of the Motion for Summary Judgment

Oral argument

Semester Three

Appellate Brief

Re-write of Appellate Brief

Oral Argument

Appellate court opinion (students assume the role of judge and draft an opinion affirming or overturning the lower court)

This format will allow students to gain experience in drafting and re-drafting the most common litigation documents in the order that they would be drafted in practice, thus enabling students to understand the ‘big picture’ of how law is practiced, and gain experience in applying predictive and persuasive writing techniques to various real-world documents and contexts.[2] Perhaps most importantly, this approach enables professors to focus on persuasive advocacy from day one, in which students will be required to, among other things, formulate a theme and theory of the case, distinguish relevant from irrelevant facts, and synthesize the law to present a compelling legal argument. Of course, this would not eliminate instruction on predictive writing; it would simply incorporate the predictive writing component into the litigation and sequence it appropriately.

2.    Prioritize integration over separation – legal writing assignments should be connected to doctrinal courses

When drafting a multi-issue hypothetical that allows students the opportunity to litigate a hypothetical case from the complaint to the appellate brief, law professors should include issues from the students’ required first-year courses. Doing so will enable students to apply the legal doctrines that they are learning in their required courses to real-world contexts and help students to understand how these doctrines operate in law practice. Furthermore, by applying foundational legal doctrines (e.g., personal jurisdiction, negligence) to a real-world fact pattern, students will simultaneously improve their writing and critical thinking skills and learn how to effectively analyze legal issues, which will maximize their performance on end-of semester-exams and enhance their ability to think like lawyers.

For example, a multi-issue fact pattern in a first-year legal writing curriculum can include issues such as negligence, personal jurisdiction, assault and battery, proximate causation, and supplemental jurisdiction. By connecting the assignments in legal writing courses to the topics students are learning in doctrinal courses, the legal writing curriculum will be an essential and integrated part of the curriculum.

3.    Require students to read excellent writing

Before students write, they should read excellent legal writing texts and documents. After all, students need to understand what good writing is before they can become excellent legal writers. For example, professors should require students to read Plain English for Lawyers by Richard Wydick and Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which is a perfect example of outstanding storytelling and persuasive advocacy.[3]

4.    Make the Rule of Three a cornerstone of legal writing instruction.

The Rule of Three is an effective technique to maximize the persuasive impact of an argument. This technique instructs students, when making legal arguments, to identify three reasons that support a desired outcome or remedy. Social science research demonstrates that the Rule of Three effectively simplifies and organizes an argument for the audience, and appeals to the audience because people respond positively and attentively to arguments that are delivered in sets of three.

5.    Teach students how to re-write and edit, not just write

Excellent writing requires excellent editing.

Indeed, to write effectively, students must understand and embrace the writing process, which consists of the: (1) first draft; (2) rewriting phase; and (3) revision phase. Thus, legal writing professors should instruct students on macro and micro level editing, including issues such as organization, conciseness, word choice, grammar, and style. Put simply, if students do not understand how to re-write and edit effectively, they will not write persuasively.

Perhaps the best way to train students in re-writing and editing is to provide them with a legal brief written by a practicing attorney and require them, individually or in groups, to re-write and edit the document, and explain why their edits made the document flow better and present the arguments more persuasively.

6.    Include time-pressured assignments

As every lawyer knows, legal documents must often be drafted under strict time constraints. Thus, law students should gain experience in drafting real-world documents under the pressures that attorneys face daily.[4] For example, legal writing instructors can require students to draft a rule section explaining the law of defamation and give students, either individually or in groups, twenty-four hours to complete the assignment. Doing so enables students to continue developing their legal writing skills while simultaneously coping with the pressures that they will encounter in law practice.

7.    Include simulations and require students to argue opposing viewpoints

When using a multi-issue hypothetical that requires students to litigate a case from the complaint to the appellate brief, legal writing faculty should include simulations, such as a client interview, presentation of the law to a partner, settlement negotiations, and trial and appellate court oral arguments.  The point is to train students to communicate effectively and interpersonally, which essential to excellent counseling and advocacy.

8.    Truly ‘Flip the Classroom’: Turn the students into teachers

Students should be challenged in the legal writing classroom and curriculum – and treated as peers. One way to do this is to truly flip the classroom by requiring students, as part of an assigned group, to teach particular classes that discuss topics such as IRAC/CRAC, case synthesis, and binding versus persuasive legal authority. Doing so will ensure that the ‘teaching students’ master the relevant material and gain experience in public speaking and communication. Also, this exercise can empower students and create an environment in which they are views as peers in a collaborative learning process.

9.    Stay away from politics

No one cares about your political views.  More specifically, no student wants to enroll in a course where they will be subject to ideological indoctrination. Students learn best – and are motivated to learn – in a classroom where they feel welcomed and accepted. As such, classrooms should be places in which all views – liberal, conservative, libertarian, and whatever else – are welcomed and respected. Thus, to promote diversity of viewpoint and experience, law professors should never make statements or design assignments that strive to advance a particular point of view or agenda. Doing so is antithetical to creating a diverse and inclusive classroom environment.

10.    Be available – always

Great professors care deeply about their students’ success and demonstrate that commitment by being accessible and available to every student – even in the evenings and on weekends. Indeed, getting to know each student individually – and establishing productive relationships with each student – inspires trust and motivates them to work hard and succeed. For these reasons, go the extra mile and be available to students whenever they need advice or assistance. It shows that you care, which inspires students to excellent lawyers – and citizens.  

Ultimately, the best legal writing professors realize that their mission is not about them – it is about improving the skills and lives of their students. These tips will help in achieving those objectives and make the legal writing curriculum a place where students learn to become great lawyers and great people.

 

[1] See Adam Lamparello & Megan Boyd, Legal Writing for the Real World (LexisNexis, 2014).

[2] See Adam Lamparello & Charles E. MacLean, The Guide to Experiential Legal Writing (Carolina Academic Press, 2015).

[3] See Alaska v. Environmental Protection Agency, Petitioner’s Brief, available at: 02-658.mer.pet.pdf (findlawimages.com)

[4] See, e.g., Kathleen Elliot Vinson & Sabrina DeFabritis, Under Pressure: How Incorporating Time-Pressured Performance Tests Prepares Students for the Bar Exam and Practice, 122 West Va. L. Rev. 107 (2019).

Appellate Advocacy Blog Weekly Roundup Friday, April 30

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Su​preme Court News and Opinions:

The Supreme Court heard oral arguments on Monday in Americans for Prosperity Foundation v. Bonta (consolidated with Thomas More Law Center v. Bonta) a case involving California's requirement that charities disclose their top donors.  In an unusual alliance between liberal and conservative groups, the Americans for Prosperity Foundation and the Thomas More Law Center are asserting that California should not be allowed to require charities to provide information about donors who contribute more than $5,000 because they don't trust the state to keep the information private.  New York, New Jersey, and Hawaii have similar requirements.  The case has drawn significant interest because of its potential future implications for political campaigns and campaign-finance regulations.

• • • Bloomberg News 
      
    • NPR News 
    • SCOTUSblog post-argument summary 

The Supreme Court heard oral arguments on Wednesday in Mahanoy Area School District v. B.L.,  a big free speech case involving a Pennsylvania teenager who was banned from her school's cheerleading squad as a result of a profanity-laced post on Snapchat made away from school and on a weekend.  The lower court ruled in favor of the teenager, holding that the First Amendment bars public schools from regulating off-campus speech.

• • • Reuters
    • Washington Post 
    • USA Today 
    • SCOTUSblog post-argument summary

The Supreme Court issued its opinion in Niz-Chavez v. Garland on Thursday.  The case is an immigration case involving whether the government is required to provide all necessary information to a nonresident it seeks to deport in a single notice or whether it can provide that information piecemeal in numerous mailings over an extended time.  In an opinion authored by Gorsuch and joined by Thomas, Breyer, Sotomayor, Kagan, and Barrett the Court ruled against the government and in favor of the nonresident.  Kavanaugh authored a dissent, joined by Roberts and Alito.  The opinion is another important ruling in cases involving longtime nonresidents whose deportation would have impacts on American citizen family members.

• • • • Opinion (.pdf)
      • Reuters 
      • NY Times 

​The Supreme Court this week agreed to take up Ny State Rifle & Pistol Assoc. v. Corlett, a case in which the Court is asked to consider the extent to which the Second Amendment protects the right to carry guns outside the home for self-defense.  The question was left open in the Court's decision in Heller.

• • • Bloomberg News

Appellate Practice Tips: 

Carl Cecere had a Twitter thread about the value of good Introductions and Summaries in your briefs -- they educate and orient the reader to the landscape of the arguments that will follow in a way that makes it easier for the audience (the judge or judges) to follow, understand, and accept your arguments.  

Appellate Jobs:

 The Arizona Supreme Court is accepting applications for law clerk positions for the 2022-23 term from law students graduating in 2022.  More info HERE.

David Lat Has New Legal Blog/News Site

One of the more exciting pieces of news that I heard this week is that David Lat has a new legal blog/news site--Original Jurisdiction. I have followed David's writing since his days writing anonymously at "Underneath their Robes," and I was sad when he left "Above the Law" a few years ago.  

Since 2019, David has worked for the legal recruiter Lateral Link. But, as he recounts on his new site, after his near-death experience with COVID-19 in March 2020, he realized that he missed writing.

David's new venture uses the platform Substack.  Although his site is currently free, he will later offer it on a subscription basis, still with some free content.

Congratulations David on your new endeavor--I hope that our readers will check it out!

Reducing Exigencies and Rebuilding Trust

Exigent circumstances have appeared on the Supreme Court’s mind (and docket) frequently in recent months. After hearing arguments on the hot pursuit species of exigent circumstances in February’s Lange v. California (a case I blogged about here), the Court heard arguments concerning the so-called community caretaking exception to the warrant requirement in March’s Caniglia v. Strom. Caniglia gave the Justices plenty to chew on, including whether there is really a separate community caretaking exception or if warrantless entry into a home to check on a resident 's wellbeing is simply another species of exigent circumstances.

That question came into clear focus during Justice Breyer’s questioning of the petitioner’s attorney. Breyer struggled to define the bounds of a distinct community caretaking exception. Nonetheless, he believed some such exception must exist so that officers can respond to protect citizens’ wellbeing even if there is no emergency that requires action immediately.[1] Breyer worried that tying officers hands so they could only warrantlessly react to immediate threats would stop them from responding in slower-burning, yet equally dangerous, circumstances—such as an unattended baby crying in a home for hours.[2]

But limiting officer discretion to act warrantless to only scenarios where a response is required in seconds, rather than minutes, is appropriate in the modern world for two reasons. First, given the speed with which warrants can be obtained today, only traditional species of exigent circumstances—like rendering emergency aid, chasing a fleeing felon, or preventing the imminent destruction of evidence[3]—seem truly necessary.  As the Supreme Court has acknowledged, modern electronic warrant procedures allow officers to obtain a warrant in just a few minutes.[4] That is little help when officers must act in a matter of seconds. But the ready availability of warrants undermines arguments for many other categorical exceptions to the warrant requirement, perhaps including community caretaking, when time is less of a limiting factor.

Second, Breyer wrongly implies that officers will fear responding warrantlessly to a slow-burning, community-caretaking style “emergency.” Officers genuinely interested in protecting the community should not be afraid for two reasons. First, even if the officers’ instincts prove incorrect and no community safety threat was present inside the home, there is little chance they will face civil liability. The homeowner is unlikely to file a § 1983 suit given the minimal, if not nominal, damages involved. Even if the homeowner sues, current qualified immunity doctrine provides officers broad protection so long as their actions were not contrary to existing precedent. Second, the officer should hardly be concerned if evidence of a crime that they happen to find inside the home is excluded from a later trial. Such evidence would be an unexpected windfall for an officer genuinely interested in protecting the community from a slow-burning harm. Losing windfall evidence should not concern such well-meaning officers.

If the Court limits exigent circumstances doctrine to genuine emergencies, while at the same time curbing other categorical exceptions to the warrant requirement that seem antiquated in light of the rapid availability of warrants today, it will begin lowering the temperature in many officer-citizen interactions. Both officers and citizens can easily understand and justify a narrow exigent circumstances exception. Everyone sees the benefits of allowing officers to respond to genuine, immediate threats. And if officers have little discretion to act warrantlessly beyond those emergencies, citizens may be less wary of any interaction with officers. Counterintuitively, limiting any community caretaking exception to the warrant requirement may actually help officers care for the communities they police.

 

[1] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[2] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[3] Kentucky v. King, 563 U.S. 452, 460 (2011) (outlining these traditional species of exigent circumstances).

[4] “[P]olice can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes.” Missouri v. McNeely, 569 U.S. 141, 172–73 (2013) (citations and quotations omitted).

Is that an appellate opinion or a novel?

Recently the Fifth Circuit issued a 325 page opinion in an en banc case, Brackeen v. Haaland, which concerns the constitutionality of the Indian Child Welfare Act. The actual per curiam opinion is only 5 pages. But then you have the concurrences and dissents.  Figuring out who joined what part of what opinion could be an LSAT logic game. I want to read all of the opinions, I am interested in ICWA issues, but the time that it would take to really sit down and process it is pretty overwhelming--like reading a novel!

Luke Burton, a career clerk on at the Eighth Circuit, recently published an article in The Journal of Appellate Practice and Process on the need for shorter appellate opinions. In the (short) article, Burton postulates a few reasons why judicial opinions are getting longer and offers some virtues of shorter opinions. I want to just focus on one of his points--public participation in the judicial system.  Burton argues that long opinions "encourage public ignorance of the law and the courts" because "[i]n today's 280-character culture, the public simply does not have the attention span to spend hours reading judicial opinions."  Amen to that.  Long opinions take a long time to read, and then an even longer time to analyze, which can lead to another problem Burton notes--"misinterpretation."  Burton cites an example of misinterpretation from his own court. Misinterpretation, of course, can also destroy public confidence in the courts as an institution and lead to more division and strife.

Some cases are complex and may require lengthy opinions, and perhaps the Brackeen case fits the bill.  Hopefully this summer I will have time to relax by the pool and read it, instead of the latest novel that has been released.  

 

Appellate Advocacy Blog Weekly Roundup Sunday, April 25, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court ruled that courts did not need to find that juvenile offenders were beyond hope of rehabilitation to sentence them to life without parole, ending a nearly two-decade trend of expanding protections for young offenders. The ruling, penned by Justice Kavanaugh, finds that “[i]n a case involving an individual who was under 18 when he or she committed a homicide, a state’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” Justice Sotomayor’s dissent argues that the decision departs from Miller v. Alabama, 567 U. S. 460 (2012), and Montgomery v. Louisiana, 577 U. S. 190 (2016), precedent holding that that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Miller.  The dissent states: “[T]he Court attempts to circumvent stare decisis principles by claiming that ‘[t]he Court’s decision today carefully follows both Miller and Montgomery.’ Ante, at 19. The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.” See the order and reports from The New York Times, NPR, and The Wall Street Journal. 

• The Court dismissed as moot the final challenge to the 2020 election, a challenge to the Pennsylvania mail-in ballot deadline. See reports from ABC News, The Hill, and CNN.  

Appellate Court Opinions and News

• The Eleventh Circuit ruled, with regret, against one of Jeffery Epstein’s accusers, holding that she cannot pursue a claim to hold prosecutors accountable for a non-prosecution agreement reached with Epstein in 2007. See the order and reports from The Atlanta Journal-Constitution and Reuters. 

Life Imprisonment Without Parole for Juvenile Offenders: An Analysis of Jones v. Mississippi

In Jones v. Mississippi, the United States Supreme Court ruled by a 6-3 margin that a sentence of life imprisonment without parole for a fifteen-year-old juvenile who was convicted of murder did not violate the Eighth Amendment’s Cruel and Unusual Punishment Clause.[1] The Court’s decision will likely engender criticism because it is arguably inconsistent with the Court’s precedents.

By way of background, in Roper v. Simmons, the Court held that it was unconstitutional to impose capital punishment for crimes that an individual committed while under the age of eighteen.[2] In so holding, the Court emphasized that juveniles’ brains are not fully developed and, as such, juveniles lack the maturity of adults and often engage in impulsive conduct that reflects a failure to appreciate the consequences of particular actions. For these reasons, juveniles are less culpable than adults and therefore not among the narrow category of offenders for whom the death penalty is warranted. Additionally, in Miller v. Alabama, the Court relied in substantial part on the differences between juveniles and adults to hold that laws authorizing mandatory sentences of life without parole for juvenile offenders convicted of murder violated the Eighth Amendment.[3] The Court emphasized that a juvenile’s crime often reflects “unfortunate but transient immaturity,” and that a sentence of life without parole should be reserved for a narrow category of juvenile offenders “whose crimes reflect irreparable corruption” or “permanent incorrigibility.”[4] Accordingly, imprisonment for life “is a disproportionate sentence for all but the rarest children.”[5] And in Montgomery v. Louisiana, the Court held that the rule announced in Miller applied retroactively to juveniles previously sentenced to life without parole, thus requiring re-sentencing for these offenders.[6] Finally, in Graham v. Florida, the Court held that sentencing juveniles to life imprisonment without parole for non-homicide offenses violated the Eighth Amendment.[7]

The Court’s decisions in Miller and Montgomery arguably require that, before a juvenile can be sentenced to life without parole, a court must determine whether a juvenile’s crime reflects “unfortunate yet transient immaturity,” therefore precluding a sentence of life without parole, or “irreparable corruption” (permanent incorrigibility), thus justifying the imposition of such a sentence.[8]

In Jones, the Court’s decision, although not technically inconsistent with Miller and Montgomery, certainly appears at odds with the spirit and purpose underlying these decisions.[9] Writing for the majority, Justice Brett Kavanaugh noted that Miller only prohibited the imposition of mandatory sentences of life without parole for individuals who were minors when the crime was committed. In Jones, however, the trial court had the discretion to impose a lesser sentence on the defendant – who was fifteen at the time of the crime – and thus did not violate Miller by exercising that discretion to impose a sentence of life without parole. Furthermore, because Graham v. Florida only prevented the imposition of life without parole for non-homicide offenses, it violated neither Miller nor Graham to impose a discretionary sentence of life without parole for a homicide offense.[10] Furthermore, Justice Kavanaugh stated that, when exercising such discretion, a trial court is not required to determine whether a juvenile’s crime reflected “transient immaturity” or “irreparable corruption,” the very distinction upon which Miller relied to identify the narrow category of juvenile offenders for whom life imprisonment without parole could be justified.[11] Rather, it suffices that a court has the discretion to consider youth as a mitigating factor – even in the absence of a record showing that the court considered this issue to a meaningful degree.[12]

The Court’s decision in Jones appears inconsistent with Miller and Montgomery and casts doubt upon their continued viability. First, if a sentence of life without parole should be, as the Court stated in Miller, reserved for a narrow category of juveniles who demonstrate irreparable corruption (or permanent incorrigibility), it seems logical and constitutionally necessary for courts to determine at sentencing that a juvenile falls within this narrow category. Holding that a sentence of life without parole is permissible simply because the lower court had the discretion to impose a lesser sentence – even if the court did not meaningfully exercise this discretion as Miller and Montgomery contemplate – eviscerates the precedential value of these decisions.

Second, as the Court in Roper, Miller, and Montgomery recognized, juveniles lack fully developed brains and the capacity to act with the same degree of maturity as adults. For that reason, only juveniles whose conduct reflects “irreparable corruption” may be sentenced to life imprisonment without parole. Unfortunately, by refusing to require a finding that a juvenile falls into this narrow category, the Court’s holding in Jones eviscerates the distinction between juveniles whose actions reflect “transient immaturity” and those whose actions reflect “irreparable corruption.” And Jones arguably undermines, at least to a degree, the distinction previously recognized by the Court between juvenile and adult culpability. After all, in Roper and Miller, the Court relied on the differences between juveniles and adults regarding brain development, maturity, and rational decision-making to hold that juveniles are less culpable for even the most serious crimes. After Jones, the Court appears willing to relegate decisions regarding culpability to courts who have the “discretion” to impose lesser sentences while imposing no requirements on how courts exercise this discretion.  

Put simply, Jones cannot be reconciled with the Court’s prior jurisprudence, suggesting yet again that stare decisis is a doctrine of convenience rather than conviction. Indeed, Chief Justice Roberts, despite pledging fidelity to stare decisis in June Medical Services v. Gee, where he voted to invalidate a Louisiana law requiring abortion providers to have hospital admitting privileges, joined the majority in Jones and appears to have an on-again, off-again relationship with stare decisis.[13] And given that Roberts seems to care more about public perceptions of the Court rather than constitutional law, his decision to inconsistently apply the doctrine is surprising because it undermines the very institutional legitimacy he strives to preserve.

Third, the Court failed to address the concern that permitting a judge to consider youth as a mitigating factor violates precedent holding that the Sixth Amendment requires juries, not judges, to make such factual findings, particularly where they may result in an increased sentence.

Ultimately, the Court’s decision in Jones confuses, rather than clarifies, the law regarding whether, and under what circumstances, juveniles can be sentenced to life imprisonment without parole. And by countenancing such sentences simply because a court has the discretion to impose a lower sentence – without any requirement that a court determine that a juvenile’s actions reflect irreparable corruption – the Court turned a blind eye to the risk that sentencing in this area will become arbitrary and unfair.

The decision was a mistake.

 

[1] 593 U.S.              (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)

[2] 543 U.S. 551 (2005).

[3] 567 U.S. 460 (2012).

[4] Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.

[5] Montgomery, 577 U. S., at 195.

[6] 577 U.S.             , 136 S. Ct. 718 (2016).

[7] 560 U. S. 48 (2010)

[8] Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.

[9] 593 U.S.              (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)

[10] See id.

[11] See id.

[12] See id.

[13] 591 U.S.            (2020), 2020 WL 3492640.