Monday, December 4, 2023
Happy December! Although this blog is devoted to appellate issues, I have had trial court on my mind this past week. Why you might ask? First, my husband (also a lawyer), spent much of last week serving on a jury in Pima County Superior Court. As some readers might know, Arizona eliminated preemptory challenges a year or so ago. The result has been that many lawyers (and even some judges) have served on juries. I may have more to say on this blog about my husband's jury service if he agrees to an interview.
The second reason that trial court has been on my mind is that I ran across two stories that emphasis the importance of issue preservation and building a record for appeal. The first came from a friend at NITA. She just finished interviewing Judge Randall Warner from the Maricopa Superior Court on the appellate issues you should be considering at trial. I haven't had a chance to review the whole podcast, but you can find it here.
A few days later I ran across a LinkedIn story about an attorney (suspended attorney) representing himself who failed to provide the appellate court with the appropriate transcripts to support his arguments on appeal. In glancing over the Utah Court of Appeals decision, he also failed to preserve issues for appeal. The appellate court repeatedly notes how the appellant's failure to include the relevant transcripts prevents it from doing its job. Take, for example, paragraph 52:
Johnson makes several arguments against the court’s restitution order; but because there is no transcript of the restitution hearing, “we presume the regularity of the proceedings” in the restitution hearing, and the missing transcript is “presumed to support the action” of the district court. See State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (cleaned up). All we have available to us to review Johnson’s claims are the spartan hearing minutes, from which we confirm that the State provided both evidence and argument to the court. Each of Johnson’s arguments here fails because, assuming the regularity of the proceedings, the State could have presented evidence directly contradicting these arguments during the hearing. “[W]e must presume that” the evidence the State presented at trial “supports the district court’s [order]; under these circumstances, we are simply not in a position to second-guess the court’s [order].” Laker v. Caras, 2023 UT App 125, ¶ 19; see also State v. Case, 2020 UT App 81, ¶ 20, 467 P.3d 893 (“[The appellant] has not provided a record of the hearing at which the court denied his motion, so we cannot analyze the correctness of the trial court’s ruling . . . .”), cert. denied, 474 P.3d 948 (Utah 2020). Accordingly, we reject Johnson’s argument that the court exceeded its discretion in reaching its restitution award.
I commend the entire opinion to trial attorneys--it is a what NOT to do at trial and a reflection of how what happens at trial can make or break your chances to appeal.
Thanks to Cherise Bacalski for the heads up on the Utah decision and to Marsi Mangan for the heads up on the podcast.
Sunday, December 3, 2023
The Fifth Circuit has published for comment the first federal appellate rule on the use of artificial intelligence (AI) in filings. It would require that the person filing “certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human” as part of the certificate of compliance.
A number of recent incidents have highlighted the danger of reliance on AI. As has been widely reported, two New York lawyers were sanctioned for using AI to draft a brief that contained seemingly valid citations precisely making the point they wanted to for the court, but turned out to be entirely made up. Recently, the Washington Post reported that a young, overextended Colorado attorney relied upon AI for a brief that also included fictious citations, was sanctioned by the court, and fired from his position at the law firm. In another instance described in the same article, a Los Angeles law firm was called out for a similar offense by opposing counsel and fined $999 by the court; it blamed a young lawyer who resigned from the firm after the fictious cases were discovered.
The Washington Post article quoted a Brown University computer scientist that what is “surprising is that [AI programs] ever produce anything remotely accurate.” The scientist, Suresh Venkatasubramanian, explained to the Post that these programs are designed to mimic conversation by developing seemingly realistic responses to whatever inquiry is submitted. It realizes that a legal brief includes citations to precedent, but does not read or synthesize the actual cases, so it creates its own.
The topic was part of the discussion with state chief justices at a National Center for State Courts meeting I was privileged to moderate just before Thanksgiving. As one chief justice expressed to me in private conversation afterwards, she was surprised that it happens at all because she could not imagine a lawyer filing a brief that relies on a case that had not been read by the attorney.
The Fifth Circuit’s proposed rule appears to make that the standard. Within the Fifth Circuit, a judge, Brantley Starr of the U.S. District Court for the Northern District of Texas, has already amended the rules for filings in his court, to require a certificate attesting that the filing contains nothing drafted by AI or that a human being checked any language drafted by AI for accuracy. The judge’s rule calls AI platforms “incredibly powerful” and useful for and have many uses in the law for “form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument.” One thing he insists it is not useful for is legal briefs.
Judge Starr explains that, at least as currently devised, AI is “prone to hallucinations and bias.” To put it plainly, he says “they make stuff up—even quotes and citations.”
Judge Starr also worries about bias in the programming. He explains that “attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients.” Neither a computer program nor those who devised adhere to an oath. He states,”[t]hese systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth).”
The judge is prepared to be convinced otherwise. He has put out a challenge: “Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why.” Until that happens, the judge “will strike any filing from a party who fails to file a certificate” and is prepared to Rule 11 sanctions for an inaccurate filing.
These early rules proposals are likely to proliferate, particularly because online legal research systems, such as Westlaw, Lexis, and Casetext, now also offer AI-based research assistance that may blur the lines between lawyer and computer in ways that may not be predictable. Appellate practice is changing once again.
December 3, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Tuesday, November 21, 2023
We may be out of COVID quarantines and lockdowns, but we don't seem to be out of anxiety. With increased polarization and decreased composure, we seem to be, as a society, increasingly unsettled and angry.
Of course, as lawyers, we are used to this. Our profession is combative. We are polarized by the nature of our profession. And we take on the fears and pressures of our clients as we fight their battles so they can feel some peace. But just because we are used to that anxiety doesn't mean it is good.
I stay in contact with many students after they graduate law school. I try to help them navigate these dangerous waters. And the primary advice I give them when they call and say they are miserable happens to have a lot to do with the day we will be celebrating soon - Thanksgiving.
Last year, the ABA GPSolo Report published an article by Rebecca Howlett and Cynthia Sharp (of legalburnout.com), titled The Legal Burnout Solution: How to Improve Well-Being Through Gratitude. In that article they quote Robert A. Emmons, professor of psychology at the University of California Davis and a leading scientific expert on the science of gratitude, who notes that “The practice of gratitude . . . can lower blood pressure, improve immune function and facilitate more efficient sleep. Gratitude reduces lifetime risk for depression, anxiety and substance abuse disorders, and is a key resiliency factor in the prevention of suicide” (Thanks!: How the New Science of Gratitude Can Make You Happier (Houghton Mifflin Harcourt, 2007)).
The article gives several tips for cultivating gratitude, including journaling, breathing exercises, writing thank-you notes, and prayer and meditation. All of these exercises are intended to help us shift our thinking from dwelling on negatives to focusing on positive things. In doing so, you don't lessen the amount of work you need to do or the seriousness of our client's problems. But you do put those issues into perspective, and reframing your experiences, just like reframing the facts in a legal argument, has lasting impact.
In fact, as appellate practitioners and instructors we should know this lesson better than anyone. We know the lasting impact of framing issues in a given way. We know what to emphasize and what to de-emphasize in our writing. We know that our descriptive language will influence how our readers see the characters we write about. And we know that how we characterize the facts can impact how those characters are ultimately judged.
So this week, I'm going to take my own advice and try to focus on things that are noble and good and true. The friends I've made and kept, not those who are gone. The family I have left, not those I've lost. The people I've helped, not the cases I've lost. The good that I've done, and not the mistakes that I've made. And the time I have left, not the time I've wasted.
And I'm going to say "thank you" much more often. And as I try to think of people to say thank you to, I'm going to be thankful that the list is long. And growing longer.
Thank you for reading. Thank you for being who you are. Now, please, go give thanks of your own. And, in doing so, write yourself a better story.
(Image credits: Library of Congress, Udo Keppler, Lawyers at least have plenty to be thankful for, Puck, v. 74, no. 1916 (1913 November 19), centerfold)
Sunday, November 19, 2023
Commentators have long likened the legislative process to sausage-making, something that those with weak stomachs should not observe too closely. Nonetheless, courts have respected legislative decision-making by providing outsized deference to that body as the policymaker most likely to enact laws in accordance with popular sovereignty. When voters object to the decisions rendered, they can throw the rascals out, and different policy choices can then prevail.
Yet, legislators often seem to disapprove of voters who bypass them to enact laws or constitutional provisions by initiative – especially when it supports ends that the legislators oppose. At the moment, we see this playing out in Ohio. In light of the Dobbs decision, which overturned Roe v. Wade and declared that abortion was an issue that could be decided state-by-state, pro-choice voters have sought to enshrine a right to abortion in state constitutions through the initiative process in several states. To date, all have passed.
In Ohio, the legislature attempted to put up an obstacle in advance of the vote. It sought approval of its own initiative on a quicker schedule that would have increased the requirement for approval from a simple majority to 60 percent, as well as from 44 to 88 the number of counties represented in signatures to qualify for the ballot. That initiative failed. Then the secretary of state proposed language, approved by the state ballot board, designed to make the proposed amendment less desirable.
Nonetheless, the amendment was approved by voters earlier this month. Immediately after the election, Ohio House Speaker Jason Stephens claimed that “multiple paths” exist to prohibit abortion despite the constitutional amendment.”
Most troubling for those who believe in the rule of law and judicial independence is the proposal some Ohio lawmakers have advanced to strip the courts of the authority to review cases that would implement the newly passed constitutional amendment. They released a statement justifying this extreme measure by asserting, without demonstrating any basis for the claim, that “foreign election interference” tainted the vote. The election denialism that infected the last presidential election apparently provides fodder for undermining the courts.
Those courts are currently reviewing a constitutional challenge to a 2019-enacted six-week abortion ban that contains no exceptions for rape or incest. The constitutional amendment would appear to make invalidation of the ban a simple and straightforward inevitability. A jurisdiction-stripping bill, if valid, would prevent that possibility.
At stake is not only the status of abortion, but the authority of our courts – and the place of popular sovereignty in our representative democracy. Certainly, there are arguments against amending laws and constitutions through the initiative process. It can be overused, trivialize the law with popular but ill-considered or poorly drafted mandates, and has spawned an industry that raises and profits from the process. The same, however, can be said of the legislative process itself. While in place, the initiative, a product of progressives a century ago, still provides the rules that we are obliged to follow.
Ohio and the abortion issue is not the only time that legislatures have rebelled against voter initiatives. In 2018, Floridians approved an initiative to restore voting rights to people convicted of felonies and who had completed their sentences, excluding murderers and sex offenders. Months later, the legislature enacted a law that defined completion of a sentence as having repaid in full all fines and fees, even though that often could not be determined. The Florida Supreme Court, in response to a request of the governor while a constitutional challenge was working its way through the courts, read the new law as consistent with the amendment passed by initiative. Whatever one thinks of that conclusion, it conformed to a process that allowed the courts to determine the law.
My favorite example of a voter initiative and a legislature at loggerheads occurred in Massachusetts. In 1988, voters approved the Massachusetts Clean Elections Law, which created a system of public campaign funding for candidates who limited the private financing they accepted. The Massachusetts initiative provision required the legislature to fund it, but no appropriation was ever made. Plainly, legislators were not anxious to fund their challengers. Supporters of the initiative, including a candidate for governor, brought a lawsuit in 2001 to obtain the missing funding or void any election without public funding.
The Massachusetts Supreme Judicial Court held that the initiative, unless repealed, required the legislature to a money judgment in the amount that would provide the public campaign funding promised by the law, while the court would retain jurisdiction with a single justice assigned to assure that other eligible candidates also receive the money. When the legislature dragged its feet in providing the funding, that justice threatened to execute on the Commonwealth’s property to assure that the funding would be forthcoming. The threat proved sufficient, although the legislature exercised its right to repeal the Clean Elections Law a year later.
Ohio’s legislature cannot repeal a constitutional amendment on its own. It could argue that the amendment should not be interpreted to invalidate its 2019 statute. What it should not do, if the rule of law is to prevail, is block the courts from construing the state constitution and measuring legislative acts against its restrictions.
 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
 Roe v. Wade, 410 U.S. 113 (1973).
 Bates v. Dir. of Off. of Campaign & Pol. Fin., 763 N.E.2d 6 (2002).
Saturday, November 18, 2023
On Monday, the United States Senate confirmed President Biden’s nominee, Judge Ana de Alba, to the Ninth Circuit Court of Appeals seat left open when Judge Paul Watford resigned in May 2023. As the Ninth Circuit news release explained, “Judge de Alba has served as a district judge on the U.S. District Court for the Eastern District of California since July 2022, when she became the first Latina appointed to that court.” News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023. Before joining the Eastern District of California bench, Judge de Alba also served as a Fresno County Superior Court judge and a litigator in private practice. Id.
When she formally takes her seat at the Ninth Circuit, Judge de Alba will be the fourth Latina to serve on that court. Senator Alex Padilla told Law360: "The daughter of immigrants from Mexico, Judge de Alba's path to her confirmation to the Ninth Circuit today embodies the American Dream." Courtney Buble, Eastern District Of Calif. Judge Confirmed To 9th Circ., Law360 11/13/2023.
Similarly, the Chief District Judge for the Eastern District of California, Kimberly J. Mueller, offered “[h]earty congratulations to Judge de Alba! We are thrilled that the U.S. Senate has recognized her stellar qualifications and substantial experience as fully supporting her elevation to the federal appellate court.” News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023. Bloomberg Law reported that “three judges she served with on the Superior Court of California” found Judge de Alba “exceptionally well suited for appellate work” because “[s]he excels at research and writing, carefully and meticulously prepares for matters before her and approaches cases and issues with an open mind.” John Crawley, Latina Judicial Trailblazer Elevated to Largest Appellate Court, Bloomberg Law, 11/13/2023.
Judge de Alba will maintain her chambers in Fresno, where she has deep ties to the community. Born in Merced, California, Judge de Alba attended the University of California at Berkeley for her undergraduate and legal studies. As the Ninth Circuit press release explained, Judge de Alba has served on the board of many public interest and bar association boards in the Eastern District and throughout California. Judge de Alba has received service awards from the Rape Counseling Services of Fresno, Centro La Familia Advocacy Services, Central California Legal Services, and many more. Id.; see also Ben Shatz, New 9th Cir. Judge de Alba!, http://socal-appellate.blogspot.com/2023/11/new-9th-cir-judge-de-alba.html, Southern California Appellate News, 11/14/2023.
Welcome Circuit Judge Ana de Alba!
Tuesday, November 14, 2023
Last month, fellow blogger Charles Oldfield posted about some courts requiring lawyers to disclose their use of AI in preparing briefs for the court. In the post, he noted that, while the goal seemed to be ferreting out the use of generative AI, the requirements may have inadvertently stretched beyond that scope. But both instances raise the questions of why and how to cite AI.
I’ve been attending a wonderful conversation group of legal writing professors, led by Professors Kirsten Davis from Stetson University and Carolyn Williams from the University of North Dakota, discussing legal writing and generative AI. And a recent discussion addressed whether and, if needed, how to cite generative AI in legal writing.
Professor Davis first addressed the question of how we, as legal writers, should view the role of generative AI: as the author or authority, as a co-author, as an assistant, or as a tool. She aptly pointed out that our view of the technology directly informs whether we should cite or disclose our use of generative AI. Professor Williams (author of the 7th Edition of the ALWD Guide to Legal Citation) then addressed the purposes of citation:
(1) allowing the reader to locate the source of the writer’s information;
(2) giving credit to the author of the words or ideas the writer used;
(3) showing the reader that the writer conducted proper research;
(4) protecting the writer from plagiarizing;
(5) increasing the writer’s credibility with the reader; and
(6) providing additional information about the sources used and their connection to the writer’s assertions to aid the reader’s choices about whether to pursue the source.
These considerations made me wonder how those judges requiring disclosure are viewing AI and what purpose they believe disclosure serves. And it seems their concern has less to do with the technology, itself, and more to do with skepticism that lawyers will use it in a way that violates the rules of professional conduct.
ABA Model Rule 5.1(b) provides that “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”[i] When a lawyer uses generative AI to draft motions, pleadings, briefs, or other filings with the court, the lawyer is treating the technology as a subordinate attorney and, therefore, should be reviewing the output for compliance with the rules of professional conduct. This review includes verifying that “each and every citation to the law, or the record in the paper, . . . [is] accurate”[ii] and does not reflect any “personal prejudices, biases, and beliefs.”[iii] But these same purposes are served when an attorney signs the document under Federal Rule of Civil Procedure 11.[iv] So including the certification seems superfluous, especially given that supervising attorneys do not habitually credit their subordinating attorneys’ work in drafting.
Requiring the disclosure also fails to serve any of the traditional purposes of citation. Because generative AI rarely, if ever, produces identical output in response to a repeated prompt,[v] a reader cannot use a citation to either verify the accuracy of any assertions or investigate the source any further. And, because generative AI uses predictive language, it is—by design—drawing on the ideas of others represented in the text used in its training; thus, citing it does not serve to give credit to the proper authority or even protect the writer from plagiarism. If a legal writer treats AI-generated drafts as work produced by a subordinate attorney, then the attorney will have already checked the accuracy and validity of legal assertions and associated citations to authority, so the added layer of citing the AI tool(s) used does not further the purpose of establishing thorough research.
With respect to establishing the writer’s credibility, disclosing the use of generative AI might very well have the opposite effect considering highly publicized recent follies involving generative AI and legal filings.[vi] And this negative effect is likely to be exacerbated by disclosure requirements rooted in skepticism.
Mr. Oldfield included as his final endnote that he “used Word’s Editor in preparing th[e] post.” I assume the inclusion was done in jest to emphasize the absurdity and breadth of some of the existing disclosure requirements. But it raises an interesting point: by requiring lawyers to disclose their use of AI, are courts discouraging lawyers from using a potentially valuable tool?
In the small group I was in for our legal writing discussion on if and how to cite generative AI-created content, we concluded that asking students to cite their use of AI on submissions would be futile because it would either discourage them from using AI or encourage dishonesty about whether they did. Requiring attorney disclosure feels the same.
And, if the true goal of requiring disclosure is to ensure ethical usage of AI, it is likely to have the opposite effect. Discouraging lawyers from using AI could cause violations of Rule 1.1, requiring lawyers to “provide competent representation to a client” through “legal knowledge, skill, thoroughness and preparation.” Comment 8 expressly directs that the duty of competence requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[vii] Discouraged usage might also result in violations of Rule 1.5, requiring only reasonable fees,[viii] if a lawyer avoids using generative AI where the AI could complete the same task in less time, resulting in a higher-than-necessary fee for a client.[ix] And, to the extent required disclosure imposes a stigma on lawyers using generative AI, disclosure requirements could encourage dishonesty about usage, causing violations of Rule 3.3’s duty of candor to the tribunal.
While generative AI has not yet reached a point where it can replace lawyers, it is certainly capable of being a valuable time-saving tool that benefits both lawyers and clients. Lawyers should be encouraged to learn about and understand it, rather than avoid it. And, to that end, disclosure requirements should be abandoned.
[i] ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer/
[iv] “By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”
Fed. R. Civ. P. 11(b).
[v] Charles Ross, Does ChatGPT Give the Same Answer to Everyone?, Medium.com (March 20, 2023), available at: https://medium.com/@charles-ross/does-chatgpt-give-the-same-answer-to-everyone-521e3e9355a4
[vi] See, e.g., Benjamin Weiser, Here’s What Happens When Your Lawyer Uses ChatGPT, New York Times (May 27, 2023), available at https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html.
[vii]ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/
[viii] ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/
[ix] Brad Hise and Jenny Dao, Ethical Considerations in the Use of A.I., Reuters.com (Oct. 2, 2023), available at: https://www.reuters.com/legal/legalindustry/ethical-considerations-use-ai-2023-10-02/
Monday, November 13, 2023
Opportunity to contribute to Burton’s Legal Thesaurus' Top New Terms and Expressions in Law for 2023!
This is a guest post from Prof. Margaret Wu.
Two years ago, William Burton, the publisher of Burton’s Legal Thesaurus, established a program to identify new words and expressions that should be added to the lawyer's lexicon, with the goal of creating a helpful resource as well as promoting the growth of clear and precise language. Since then, Burton’s Legal Thesaurus has published an annual list of terms that gained currency during the year and often reflected trends in legal writing, thinking, practice, and advocacy. As reported in Law360 as well as this blog, last year’s terms included:
- Complicit bias: An institution or community’s complicity in sustaining discrimination and harassment.
- "Computational law," or "complaw”: An interdisciplinary field concerned with the automation of legal reasoning.
- Lawfare: The use of legal proceedings and systems to damage an opponent.
- Major questions doctrine: The legal doctrine used for the first time in a United States Supreme Court majority opinion in 2022, striking down the EPA’s 2015 Clean Power Plan and raising major questions of its own as to future effects on agency actions. See Virginia v. Env't Prot. Agency, 142 S. Ct. 2587, 2609-10 (2022).
- Return to Office (RTO): Referring to issues and policies concerning employees returning to work in their employers’ workspaces after working remotely during the pandemic.
The Select Committee on Terminology of Burton’s Legal Thesaurus* is in the process of compiling the list for 2023 and seeks input from a diverse array of legal scholars and practitioners to identify the words and expressions that made an impact in legal writing and the law this year. There have been a number of technology-related terms that lawyers have had to learn this year, but we also encourage you to think about other developments in our legal vocabulary. If you have a neologism to suggest, please send the term and suggested definition to [email protected] by November 21, 2023. If we select your word or expression, your name and title will be listed in the next edition of the book and in all press releases. Thank you in advance for helping us build this resource, and we look forward to seeing your submissions!
*The members of this year’s Select Committee on Terminology of Burton’s Legal Thesaurus are Virginia Wise, former Thayer Senior Lecturer on Law at Harvard University; Megan Ma, Assistant Director of the Stanford Program in Law, Science and Technology; Cindy Thomas Archer, Professor of Lawyering Skills at UC Irvine School of Law; and Margaret Wu, Professor of Legal Writing at UC Berkeley School of Law and Chair of the Committee.
Sunday, November 12, 2023
Law schools should train students how to think, write, and practice like a lawyer. They should only admit students, based on LSAT scores and undergraduate grade point average, who are likely to succeed in a law school and the legal profession. And they should produce competent graduates who can pass the bar examination on their first attempt, and who obtain jobs that justify the non-dischargeable debt that graduates often incur.
To do so, contrary to the views espoused by some scholars, the Socratic method is necessary, as it teaches students the value of, among other things, preparation, thinking on your feet, and performing capably in front of a large audience. And if cold calling causes students stress and anxiety, so be it. Law schools should teach students how to cope with, not avoid, anxiety, pressure, and stress because that will prepare them for the legal profession – and life. Additionally, legal writing courses should be integrated within the law school curriculum and courses should blend doctrine and practical skills to produce marketable graduates. In short, law school is about teaching students how, not what, to think, providing students with real-world skills, and respecting the diverse viewpoints that students of all backgrounds bring into the classroom.
Recently, however, some law schools – and universities – have become so liberal that division and discord have replaced civility and respect, and ideological uniformity has replaced the tolerance of diverse viewpoints. The bias against hiring conservative scholars at many law schools is one example that reflects the liberal bias and discriminatory behavior that pervades some institutions.
Sadly, the current conflict in the Middle East underscores how political – and often extreme – institutions of higher education have become. To be sure, the history of the Israeli-Palestinian conflict is complex. Both Israelis and Palestinians have suffered horribly, and both sides bear responsibility. One would expect that academics, including law professors, would have a balanced view that recognizes the nuances of this conflict and appreciates the diverse points of view that students and citizens express on this tragic situation.
For example, despite the torture and murder of Israelis last month, a professor at Albany Law School posted on social media "Long live the Palestinian resistance & people of Gaza, tearing down the walls of colonialism and apartheid." Did this professor express compassion for the horror and suffering that so many Israelis endured? No. Additionally, a professor at Cornell University described the attacks by Hamas as “exhilarating,” and a professor at Columbia University described Hamas’ attacks as “astounding,” "incredible,” and a "stunning victory." Not to be outdone, an organization that a New York University professor co-founded praised “heroic Palestinian resistance.” And an adjunct professor at the City University of New York posed on social media that “Zionists are straight Babylon swine,” who are “racist arrogant bullies” affected by a “genocidal disease.”
In response, major donors at some institutions, including Harvard University, Stanford University, and the University of Pennsylvania, criticized these universities for failing to explicitly condemn Hamas’ attack, with one Penn donor expressing disgust at the university’s “silence in the face of reprehensible and historic Hamas evil against the people of Israel.” Considering the expressed and unrelenting desire of some of Penn’s faculty and administration to fire Professor Amy Wax, one would have expected that Penn’s administration would immediately condemn the torture and slaughtering of countless Israelis. It did not. Given the increasing toxicity in academia, it should come as no surprise that students are so afraid to disagree with their professors.
This troubling reality, namely, academics with extreme viewpoints who show no tolerance for opposing views, is not new. At Stanford University, former Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach told federal judge Kyle Duncan, who was invited to speak at the law school, that his opinions have “caused harm” thus placating a mob of students who tried to shout down Duncan because they disagreed with his conservative judicial philosophy. Similarly disgraceful conduct occurred when Josh Blackmun, an accomplished and highly respected constitutional scholar, attempted to speak at CUNY Law School, only to be met by students who sought to censor his speech and mischaracterize his views. And consider administrators and professors who, while preaching “diversity, equity, and inclusion,” condemn “whiteness,” embrace segregated living spaces and graduation ceremonies, establish “bias” hotlines where students can anonymously claim to be the victim of “microaggressions,” ban words such as “brave” and “American,” and claim that math is racist. Sadly, this is only a sample of the concerning behavior that is occurring on college and law school campuses across the country – and dividing students based on, among other things, race, gender, and political affiliation.
The deplorable conduct of these and other educators has affected students and inhibited the exchange of diverse viewpoints. For example, Nyna Workman, an NYU law student, refused to condemn Hamas, stating that “Israel bears full responsibility for this tremendous loss of life,” and that Israel’s “regime of state-sanctioned violence created the conditions that made resistance necessary.” Remember that this gibberish was expressed by a student at NYU Law – one of the best law schools in the United States – not at some predatory law school that admits unqualified students, saddles them with non-dischargeable debt, and provides them with no legitimate prospects for long-term employment. Thankfully, in response to Workman’s disgraceful conduct, Winston and Strawn withdrew her offer of employment.
Likewise, at Harvard University several student groups stated that Israel was “entirely responsible” for the violence. And few can forget CUNY Law School’s student commencement speaker who used her platform to denounce “Israeli settler colonialism” and “the fascist N.Y.P.D.” Additionally, some NYU students were seen ripping down posters detailing stories about Israeli hostages, and a student at Cornell University threatened to slit the throats of Jewish students. Not to mention, Princeton and NYU law graduate Colinford Mattis, who, along with Urooj Rahman, thought it would be a good idea to throw a Molotov cocktail at an empty police car. This is a sample of what some universities and law schools are producing these days. Indeed, the damage that ideologically driven professors inflict has far-reaching consequences on the students that they serve because it fails to teach students how to think critically, disagree respectfully, and communicate civilly.
To make matters worse, some professors coddle rather than challenge students, placing less emphasis on the development of critical thinking and other real-world skills, and instead indoctrinating them into a worldview where diverse viewpoints are unwelcome, ‘feelings’ matter more than logic, and emotion matters more than reason. Lest there be any doubt, look at the nonsense occurring on many campuses where ultra-fragile students often feel “unsafe” when confronted with a perspectives different from their own and thus demand “safe spaces,” administrators provide “cry closets,” to help students deal with the stress of examinations, or offer Play-Doh to students who could not cope with the results of the 2016 presidential election.  And consider the shenanigans at Yale Law School, where a group of ‘offended’ students interrupted a discussion on free speech by a speaker whose views differed from their own.
Put simply, some academics have placed a premium on identity politics, where one’s group identity matters far more than an individual’s character, and on victimhood, where students are convinced that they are ‘oppressed’ and ‘marginalized.’ As Cornell Law Professor William A. Jacobson stated, “[a]lmost everything now is viewed through an identity lens, pitting groups against each other, pitting colleagues against one another, and pitting students against their peers.” In other words, the notion of diversity, equity, and inclusion is anything but diverse, equitable, or inclusive.
As Professor Jacobson stated, "[t]here is substantial evidence that such DEI programming makes race and other relations worse, not better.” Moreover, the impact of this divisive nonsense is that it promotes hate and homogeneity of thought, not diversity and a marketplace of ideas. As one professor at the University of California-Berkeley School of Law stated, “if you don’t want to hire people who advocate hate and practice discrimination, don’t hire some of my students.” No wonder our society is divided and riddled with ignorance.
The role of professors is to prepare students for the real world, not to indoctrinate students into a liberal or conservative worldview that is infused which the very implicit and explicit biases that professors often accuse others of harboring. Professors should develop students’ (particularly law students’) critical thinking, writing, and communication skills, and hold students to high standards. They should also ensure that the classroom is a welcoming place for all students, regardless of, among other things, political affiliation, race, gender, sexual orientation or identity, and socioeconomic status. Equally as important, professors should expose students to conservative and liberal viewpoints, and ensure that dialogue is civil and respectful. After all, if diversity, equity, and inclusion mean anything, it should mean that universities respect and welcome views with which they disagree, and that educators dedicate themselves to equipping students with the tangible and intangible qualities needed to succeed in law and life.
Put simply, educators must teach students how to think, not what to think, because teaching is not about professors or their views – it is about the students.
 See The University of Chicago Law School, The Socratic Method, available at: The Socratic Method | University of Chicago Law School (uchicago.edu)
 See, e.g., Robert Leroux, Woke Madness and the University (Winter 2021), available at: Woke Madness and the University by Robert Leroux | NAS; Lexi Lonas, UPenn Loses Bog Donor, Board Member Resigns Citing ‘Antisemitism,’ (Oct. 16, 2023), available at: UPenn loses big donor, board member resigns citing ‘antisemitism’;
 See Adam Bonica, et al., The Legal Academy’s Ideological Uniformity (2018), available at: The Legal Academy’s Ideological Uniformity (harvard.edu)
 Michael Goot, Albany Law Professor Ripped for Praise of Palestinians ‘Tearing Down the Walls of Colonialism (October 12, 2023), available at: Albany Law professor ripped for praise of Palestinians 'tearing down the walls of colonialism' - WNYT.com NewsChannel 13
 Yarun Steinbuch, Cornell Professor Who Found Hamas Attack ‘Exhilarating and ‘Energizing’ Now on Leave of Absence (Cornell professor who found Hamas attack ‘exhilarating’ and ‘energizing’ now on leave of absence (msn.com)
 Tens of Thousands Sign Petition to Oust Ivy League Columbia Professor Who Praised Hamas Terror Attack Against Israel as an ‘Awesome Stunning Victory,’ (Oct. 16, 2023), available at: Tens of thousands sign petition to oust Ivy League Columbia professor who praised Hamas terror attack against Israel as an 'awesome stunning victory' | Daily Mail Online
 Marya Ruth Dunner, NYU Prof’s ‘Decolonization’ Org Praises ‘Heroic’ Hamas After Brutal Attacks Against Jews (Oct. 11, 2023), available at: Campus Reform | NYU prof's 'decolonization' org praises 'heroic' Hamas after brutal attacks against Jews
 See Juni Nguyen, Some U.S. Professors Praise Hamas’s October 7 Terror Attacks (Nov. 8, 2023), available at: Some U.S. Professors Praise Hamas’s October 7 Terror Attacks | ADL
 Kate Anderon, Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (Oct. 24, 2023), available at: Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (dailysignal.com); see also Judy N. Liu, Alumni Condemn University’s Response to Hamas Attach (Oct. 31, 2023), available at: Alumni condemn University's response to Hamas attack (stanforddaily.com)
 See id.
 See James Freeman, Most U.S. College Students Afraid to Disagree with Professors (Oct. 26, 2018), available at: Most U.S. College Students Afraid to Disagree with Professors - WSJ To be clear, there are many outstanding and inspiring law professors (and professors throughout academia) who are instrumental in helping their students prepare for the legal profession (or whatever profession they pursue). And there are many law schools whose administrations do the same. But that is increasingly becoming the exception, not the rule.
 Josh Moody, Dean at Center of Stanford Law Controversy Resigns (July 21, 2023), available at: Dean at center of Stanford Law controversy resigns (insidehighered.com)
 See Scott Jaschik, Guest Lecture on Free Speech at CUNY Law School Heckled (April 15, 2018), available at: Guest lecture on free speech at CUNY law school heckled (insidehighered.com)
 See, e.g., Paul Farrell, Florida University Adopts Radical DEI Program that Condemns US As a System of ‘White Supremacy,’ (March 1, 2023), available at: Florida university adopts radical DEI program that condemns US as a system of 'white supremacy' | Daily Mail Online; Seattle Schools Propose to Teach That Math Education is Racist—Will California Be Far Behind? (Oct. 29, 2019), Lee Ohanian, available at: Seattle Schools Propose To Teach That Math Education Is Racist—Will California Be Far Behind? | ; Karsten Schneider, New York University Moves to Implement Racial Segregation in Student Dorms (Aug. 24, 2020), available at: New York University moves to implement racial segregation in student dorms - World Socialist Web Site (wsws.org); Richard Vedder, Racial Segregation on American Campuses: A Widespread Phenomenon (Nov. 15, 2018), available at: Racial Segregation On American Campuses: A Widespread Phenomenon (forbes.com)
 Danielle Wallace, Nonbinary NYU Student Bar Association President Loses Job After Defending Hamas Terror Attack on Jews (Oct. 11, 2023), available at: Nonbinary NYU Student Bar Association president loses job offer after defending Hamas terror attack on Jews | Fox Business; Tesfaye Negussie and Aisha Frazier, NYU Law Student Who Blamed Israel After Hamas Attacks Defends Remarks (Oct. 25, 2023), available at: NYU law student who blamed Israel after Hamas attack defends remarks - ABC News (go.com)
 See id.
 Names and Faces of Harvard Students Linked to an Anti-Israel Statement Were Plastered on Mobile Billboards and Online Sites (Oct. 12, 20203), available at: Names and faces of Harvard students linked to an anti-Israel statement were plastered on mobile billboards and online sites | CNN Business
 Ginia Bellafante, She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target (June 2, 2023), available at: She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target. - The New York Times (nytimes.com)
 Krish Dev, Students Caught Tearing Down Israeli Hostage Posters May Face Disciplinary Action (Oct. 23, 2023), available at: Students caught tearing down Israeli hostage posters may face disciplinary action (nyunews.com)
 See Brian Mann, Cornell Student Arrested in Connection with Antisemitic Threats on NY Campus (Oct. 31, 2023), available at: Cornell student arrested in connection with antisemitic threats on NY campus : NPR
 Jonathan Dienst, Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty Oct. 6, 2021), available at: Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty – NBC New York
 See, e.g., Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas are Setting Up A Generation for Failure available at: The Coddling of the American Mind; Grace Bird, ‘Cry Closet’ Installed for Finals at University of Utah (April 25, 2018), available at: 'Cry Closet' Installed for Finals at University of Utah (insidehighered.com); Jonathan Zimmerman, College Campuses Should Not be Safe Spaces (Jan. 17, 2019), available at: College Campuses Should Not Be Safe Spaces (chronicle.com); Stacy Zaretsky, T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled ‘P*ssies,’ (Nov. 14, 2016), available at: T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled 'P*ssies' - Above the Law
 See Yaron Steinbuch, Yale Law Students Disrupt Bipartisan Free Speech Panel (March 18, 2022), available at: Yale law students disrupt bipartisan free speech panel (nypost.com)
 Louis Casiano, Ivy League School Slammed After Professor Calls Israel Attack ‘Exhilarating’: A Much Deeper Problem (Oct. 20, 2023), available at: Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News
 Ryan Quinn White Professor Resigns, Alleges Reverse Discrimination (June 26, 2023), available at: White professor resigns, alleges reverse discrimination (insidehighered.com); Bonica, et al., supra note 3, available at: The Legal Academy’s Ideological Uniformity (harvard.edu)
 Casiano, supra note 26, available at: Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News
 Allie Griffin, UC Berkeley Law Professor Urges Firms to Not Hire His ‘Antisemitic’ Students (Oct. 21, 2023), available at: UC Berkeley law professor urges firms to not hire his ‘antisemitic’ students (msn.com)
Monday, October 23, 2023
Earlier this year Leah Tedford posted on the Third Circuit's proposed rule change to roll back filing deadlines from 11:59 pm to 5:00 pm. After the Third Circuit adopted the rule, Robert Peck and I engaged in a spirited blog conversation about the change. Robert was more critical of the change, and he argued for more uniformity among the circuits. I, on the other hand, argued that the court could do whatever it wanted.
Well, according to a recent Reuters story, Robert almost got his wish! Apparently the U.S. Judicial Conference Committee on Rules of Practice and Procedure has had before it, since 2019, a proposal from the now-chief judge of the Third Circuit to make the earlier filing time a nationwide rule. According to the article, the chair of the Committee wants to wait and see how things work in the Third Circuit before adopting any sort of national rule. According to the article, part of the Committee's concern was the opposition that the rules changed faced from the bar.
I think that the Committee's decision makes perfect sense. As I expressed in my earlier blogging on this issue, I am perfectly fine with the federal circuits having different rules. Attorneys should always check the rules well in advance of any filing. And many attorneys frequently practice before a wide variety of courts with diverse rules. Just think of attorneys who practice in both state and federal court or in both trial and appellate court. They must know very different sets of rules.
Moving to the substance of the rule, I actually think that it is a good proposal. I agree with Robert that it will just shift when attorneys decide to burn the midnight oil, but I do think that it allows attorneys who don't want to burn that oil the chance to address key filings that come in during normal working hours. As the mom of two young kids, I try to guard my evenings to spend time with them. Now, I get that I could work on filings after my kids go to bed, but that time is often reserved for chores or a little bit of downtime. I also get that a 5 pm filing time can be hard if you have to pick up kids from school--I chose my daughter's school specifically because it offered a longer aftercare. Still, in the world of appellate practice it is best to have documents finished well before the filing deadline. Further, an attorney's decision to burn the midnight oil in advance of filing a brief likely means that support staff needs to be available to also burn that oil to help with any formatting or filing issues.
So, while I encourage the Committee to wait and see how it all works out in the Third Circuit, I hope that it all works out well and a national change is made.
Sunday, October 22, 2023
Sometimes, after an opinion is drafted, members of a court change their minds. It may be that the draft highlights something a member of the majority finds sufficiently troubling that the result should change. It may be that the draft opens the door to something a judge believes should be off the table.
One way that an outsider can tell that a judge lost the majority is when the dissent contains a fuller statement of the facts than the majority opinion. It suggests that the original majority opinion was turned into a dissent and the original dissent became the opinion of the court.
Something quite unusual in this regard took place in the Fifth Circuit earlier this month. The State of Texas filed an emergency appeal of a stay of execution for a death-row prisoner who challenged state statutes that precluded him from receiving DNA testing to establish his innocence of crimes that he was not convicted of but that qualified him for the death penalty because of presumed “future dangerousness.” The issue he raised was also pending in the Fifth Circuit in another case brought by a different inmate.
In this case, the inmate first argued that the court had no jurisdiction over the interlocutory appeal because the district court called its order a stay, rather than an injunction. The majority opinion, by Judge Leslie Southwick, quickly set that semantical issue aside, calling it “commonplace” that such jurisdiction existed and noted that the dissenting opinion “contains the same analysis, and we restate much of it here.”
Judge Jerry Smith, a member of that Court since 1987, dissented. His dissent begins with a strange and unique statement:
The majority opinion is grave error. It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago.
In the interest of time, instead of penning a long dissent pointing to the panel majority's and district court's myriad mistakes, I attach the Fifth Circuit panel opinion that should have been issued.
What follows is an opinion that in look and feel appears to be a majority opinion written by Judge Smith and joined by all members of the panel. The opinion expresses the same pique evident in the second prefatory sentence before it about the courts’ indulgence of repeated appeals and a rejection of the merits of the prisoner’s case.
Judge James Graves specially concurred in the majority opinion. attachment of a proposed majority opinion drafted by Judge Smith. The opinion takes pains to rebut the dissent’s “proposed majority opinion,” which Judge Graves said he never joined. The detail in this concurrence suggests that it was originally a dissenting opinion, which succeeded in changing Judge Southwick’s mind, much to Judge Smith’s apparent consternation.
For an appellate advocate, the self-evident dynamics in the case makes the concurrence worth studying. It carefully parses the position of the original majority to demonstrate that it decides more than the case presents. Instead of looking to the validity of the laws that prevent use of DNA evidence to sentencing, which Judge Smith suggests is a losing proposition for the inmate, but that, procedurally, with another case under advisement raising the same issues, the district court did not abuse its discretion in staying the execution pending its disposition because there is no reasonable “basis to distinguish the present appeal.”
Perhaps if appellate counsel had limited the argument to the common-sense idea that a determinative case is pending, we might have seen a straightforward and brief opinion similarly supporting the stay without the odd display of internal friction at the court. This case is Murphy v. Nasser, No. 23-70005, 2023 WL 6814520 (5th Cir. Oct. 10, 2023).
Saturday, October 21, 2023
A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative
As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration. One of my favorite aspects of full time appellate practice was just that: time. I treasured having more time--albeit never enough time--than I had in trial practice. I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court. Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research. Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients. In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized? Neither have I.
In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar. The Bar is considering whether to adopt a pilot for this PBE alternative. You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here: https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf. In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure.
The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test. Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision. These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients. As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.” Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).
How would this work? Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.” Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.” https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.
Of course, not everyone favors the PBE proposal. Some opponents raise thoughtful and important issues of bias and discrimination. A small pilot can help us address these concerns. Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities. See https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion. As former Trustee Mendoza explains:
The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly. Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.
The most vocal opposition seems to be from people connected to profitable bar preparation courses. Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising. See id. While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.
The State Bar is asking for public comment on the PBE Pilot. The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys. If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”: https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.
If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button. The Bar has also provided a box for typed or uploaded comments. The deadline to comment is Wednesday, October 25, 2023. I clicked “AGREE” and completed my comment in less than two minutes. I urge you to weigh in on this important question too.
Saturday, October 14, 2023
Starting your legal career can be an uncertain and stressful time. Below are some tips that can help new lawyers successfully transition from law school to the legal profession.
1. Ask for help.
If you need help, ask.
Of course, do not spend your day asking hundreds of questions. Try to solve the problem first and exhaust every resource available to do so. After all, if you approach a partner and say, “I just got an assignment to research defamation law in New Jersey, and I can’t find a single case,” it will not go over well. But when you have exhausted all available resources and cannot resolve the problem, don’t be afraid to ask for help. You are doing yourself – and the firm – a great disservice by trying to figure it out yourself, only to see it become a much bigger problem later.
2. Pay attention to the details.
The little things matter. This includes, but is not limited to, ensuring that everything you write is grammatically correct, free of spelling errors, and cited properly. For example, if your brief is filled with spelling errors, how can a judge possibly trust that your arguments are credible? Focusing on the little things also means, among other things, that the legal authority you cite in a brief or memo is good law, that you follow the local court rules, that you don’t cite ten cases for a simple legal proposition, that you file in the right court or venue, that you cite the record accurately, that you meet deadlines, and that you show up to meetings on time.
If you cannot pay attention to the little things, no partner will trust you with the big things.
3. Focus on developing your writing skills.
Some, if not many, law school graduates struggle to write effectively and persuasively. This is due in substantial part to the fact that universities (and law schools) do not place sufficient emphasis on developing predictive and persuasive writing skills. It is also because writing persuasively, particularly in the legal context, is difficult. As such it takes time, practice, and repetition to continuously improve your writing skills. It also requires you to embrace the writing process, which entails writing, re-writing, and editing. In short, it is a grind.
Young lawyers often fail to appreciate the process of what it takes to be an excellent writer, re-writer, and editor. Some believe that a first or second draft is the final draft. Or their standard for what constitutes an outstanding memorandum or brief is far too low. To be a great writer, you must embrace the writing process and go through the hard thinking – the grind – to produce an excellent work product. And you must be dedicated to improving your writing skills throughout your life.
Put simply, if you don’t put in the work, you won’t receive the outcome that you want.
4. Be humble.
As a new lawyer (and as a person), you should demonstrate humility. If you act like an entitled, narcissistic jerk, you will not get very far. If you gossip about your colleagues and supervisors, you will go nowhere because no one will want to associate with you.
When you are a young lawyer, your focus should be on being an asset to the firm. This means being a team player, and being someone who will sacrifice your time and energy for the firm. Indeed, and particularly if you are working in a large firm, you will likely get assignments that you do not like, or work on cases in areas of law that you despise. For example, a partner may ask you to sacrifice your weekend to review hundreds (or thousands) of documents for relevance or privilege.
Sure, these tasks are not fun. It’s not pleasant when you plan a mini vacation with your friends or partner, only to find out that your weekend will be spent in the office. However, as stated above, your job is to be an asset to your firm and to demonstrate your value. So, deal with it by having a positive attitude and realizing that your sacrifices in the short term will have tremendous benefits in the long term.
5. Take feedback well and respond effectively to adversity.
As a young lawyer, you will make mistakes. You will fail. The worst thing that you can do in response to these realities is to get discouraged. Rather, your colleagues want to know that you can overcome adversity and persevere through challenges. They also want to know that you are a good listener, such that you can receive constructive criticism and use it to improve your work product.
Experienced lawyers will understand (within reason). But they won’t understand when you make excuses, blame others, or otherwise show a lack of accountability. That shows a lack of maturity. What they will admire is that you learn from adversity and, as a result, become a better lawyer and person.
6. Exude confidence and don’t apologize too much for mistakes.
When you make a mistake (and you will), own it. Be honest. Be committed to improving. But don’t apologize for every little thing that goes wrong. And always exude confidence. Being confident engenders trust from your colleagues; insecurity engenders concerns about your poise, ability, and competence.
7. Don’t focus too much on being successful – understand how to be successful.
Great lawyers work hard. Very hard. They know that to achieve a certain outcome, you must put in long hours, learn from failure, cope with adversity, and persevere when circumstances are less than optimal.
Put simply, they embrace the process of what it takes to be a great lawyer. Sometimes, that means working until 3:00 a.m. on consecutive days to finish a brief or motion or sacrificing a trip to the Michigan-Ohio State game to summarize hundreds of pages of deposition testimony. Yes, this is not fun. It is essential, however, to establish your value and to show that you are a reliable employee who will go the extra mile to achieve the best result possible for the firm's client.
8. Don’t over-promise or under-deliver.
Often, young lawyers represent to a partner that they can complete an assigned task by a particular deadline despite knowing that doing so will be next to impossible. Alternatively, they take on too many assignments, which leads to unnecessary stress and missed deadlines. Simply put, they are afraid to say no, for fear that they will lose the confidence of a partner. That could not be further from the truth. Partners appreciate it when you do not over-promise – provided you have a legitimate reason for doing so.
Of course, when you do take on a project, be sure not to over, not under, deliver. For example, if a partner asks you to draft a memorandum summarizing the elements of defamation, be sure to include in your memorandum the defenses against a defamation claim so that your supervisor can obtain a comprehensive understanding of defamation law.
9. Show that you have the intangibles.
A high LSAT score, outstanding critical thinking skills, and a law degree from Yale do not mean that you will be a great lawyer.
Great lawyers know how to relate to and deal with people. They are not arrogant jerks. They are empathetic. They have common sense. They know how to cooperate, work with a team, and accept constructive criticism. They persevere. They consistently perform well. They are disciplined and focused. They have good instincts and judgment. They communicate effectively. They don’t allow external factors to affect their choices and decisions. And they are the types of people that you would want to have a drink with on a Friday evening.
10. Understand that being a great lawyer first requires you to be a healthy person.
If you want to be an outstanding lawyer, you must lead a healthy life that includes balance, a strong mindset, and effective coping skills. This means, among other things, taking care of your physical and mental health, having supportive family and friends, and pursuing interests outside of the law.
Simply put, you can’t allow the law to consume you and your life.
Ultimately, remember that no one expects you to be perfect or to immediately perform at the highest level upon graduation. What they do care about is whether you are committed to continual improvement and consistency in performance and are willing to put in the work to become an asset to the firm and an attorney who accepts nothing less than excellence.
Tuesday, October 10, 2023
“We . . . must continue individually and in voices united . . . to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will [be] and are making.” –Justice Sonia Sotomayer[i]
The Appellate Project is an organization doing just that. It is designed “to empower law students of color, particularly those most underrepresented, to become the next generation of lawyers and judges in our highest courts” and “thrive in the appellate field.” It was founded in 2019 by civil rights litigator Juvaria Khan. The organization offers programming, mentorship, and resources for law students to build the skills and connections needed to break into and succeed in the appellate field.
Their work is incredibly important. Increased representation in appellate courts leads to an “enhance[d]. . . legitimacy of courts among traditionally underrepresented groups”[ii] and the public as a whole.[iii] The value of legitimacy cannot be overstated because “[d]ecisions of our courts are to be complied with, even when we disagree with them.”[iv]
And “diversity on the courts enriches judicial decisionmaking[;] . . . the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decisionmaking, especially on our appellate courts.”[v] Studies have shown that “female and minority judges, on average, bring a different judicial perspective to the bench.”[vi] Adding just one female judge “to an otherwise all-male panel significantly increases the probability that the male judges will support a plaintiff in sex discrimination or sexual harassment cases.”[vii] And the inclusion of a single Black judge on a three-judge panel “increases the likelihood that a non[B]lack colleague will find that a state or locality violated the Voting Rights Act.”[viii] In short, “the interaction of wise Latinas,[[ix]] white men and women, African Americans, Native American judges--just like the interaction of former prosecutors, defense counsel, corporate practitioners and in-house counsel--provides opportunities for a robust exchange that can inform appellate decisionmaking.”[x]
The Appellate Project offers a mentorship program each year, pairing law students of color interested in appellate practice with two mentors in the appellate field, including attorneys, judges, professors, and law clerks. If you are an appellate practitioner, I urge you to volunteer as a mentor. And, if you are a student, this is a fantastic opportunity you don’t want to miss. The deadline for this year’s mentorship program is October 13, 2023.
[i] Hon. Sonia Sotomayor, A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87, 93 (2002).
[ii] Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts, 57 Am. J. Pol. Sci. 167, 168 (Jan. 2013).
[iii] Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 2d 45, 48 (2009).
[v] Id. at 49.
[vi] Kastellec, supra n. ii, at 167.
[vii] Id. at 169.
[viii] Id. at 170.
[ix] In her speech, A Latina Judge’s Voice, Justic Sotomayor controversially stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” Sotomayor, supra n. i, at 92. She was later questioned about this statement during her Supreme Court confirmation hearings in the United States Senate. Sotomayor Explains "Wise Latina" Comment, CBS News (July 14, 2009), available at: https://www.cbsnews.com/news/sotomayor-explains-wise-latina-comment/
[x] Ifill, supra n. iii, at 52.
Monday, October 9, 2023
With forty-five years of legal practice under my belt, I paused for a moment as I was working on a new brief to think about the enterprise that has been my career. My new brief covers an issue I had never encountered before in an area of law that was new to me. I certainly enjoyed getting to know the law in this area, hoping that my understanding is solid and not a misreading of the cases and historical background. And it is the opportunity to discover new things and apply my perspective to it that keeps me going.
As with any brief, this one is being written with an eye to its audience. In this case, that means the justices of the Supreme Court. I know that what may play well with one justice may be off-putting to another. Thinking about that, I recalled remarks that Justice Ginsburg once gave at the University of South Carolina.
She advised that a “brief skips long quotations, but doesn't unfairly crop the occasional quotations used to highlight key points.” Every judge I know agrees with that statement. However, she made another that day, which may not be universally shared. She said, a “good brief does not shy away from citing law review commentaries or other scholarly analyses that may aid the court as much as they did the brief writer to get an overview of the area.” As a former law professor, she had a natural interest in scholarly work.
However, an interest in law reviews is not universally shared by judges. Chief Justice Roberts once said that “as a general matter, law reviews are not―particularly helpful for practitioners and judges. Roberts later made a similar point when he challenged judges in the Fourth Circuit to pick up a law review, where they are likely to see that the first article is likely to be an esoteric article “of great interest to the academic that wrote it, but isn’t of much help to the bar.
A 2012 study of the frequency with which justices cited law review articles concluded that citations had fallen off from earlier eras and that 40 percent of the articles cited were written by people who were not full-time academics.
Certainly, all articles are not of equal value. Some cover the history with precision and diligence that will help where that is at issue. Others conduct a survey of the law of various states that also provides useful fodder for a brief. However, where the law review article is more philosophical or theoretical, it may have limited value. Those quick thoughts suggest that law reviews are most helpful when they provide practical information that supports the argument you are making. When the article provides that type of information, the judge need not sit on the Supreme Court to approve of its use in a brief. Keep that in mind when the issue requires more than an analysis of a law, rule, or trial record.
 Hon. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S. C. L. Rev. 567, 568 (1999).
 Quoted in Brent E. Newton, Law Review Scholarship in the Eyes of the Twenty-First-Century Supreme Court Justices: An Empirical Analysis, 4 Drexel L. Rev. 399, 399 (2012).
 Id. at 399 n.1.
 Id. at 416.
Happy Indigenous Peoples' Day. As President Biden said in 2021, "On Indigenous Peoples’ Day, our Nation celebrates the invaluable contributions and resilience of Indigenous peoples, recognizes their inherent sovereignty, and commits to honoring the Federal Government’s trust and treaty obligations to Tribal Nations."
While I am not quite sure it can be called an "invaluable contribution," I am thrilled to share that my essay, The Rise and Fall of the Roman Numeral, has been published in the latest issue of the Green Bag. You can find the issue (with a link to my article) here.
In the essay, I explore the use of lower-case Roman numerals (romanettes) to paginate the front matter for appellate briefs. I look both at SCOTUS practice and the recently changing practice in the states. If you don't have time to read all 7 pages, I can give you the tl;dr--it is time to do away with romanettes and use Arabic numbers. I feel so passionately about the subject, I might even propose a rules change to the Arizona Supreme Court in an effort to update my state's rules.
I have been thinking about this essay for years (literally), so I was thrilled to finally finish writing it. I am also grateful to the good folks at the Green Bag for agreeing to publish it.
Tuesday, October 3, 2023
Following well-publicized instances of lawyers using generative artificial intelligence to draft briefs that misrepresented the law, some courts now require lawyers (and pro se litigants) to certify whether, and if so, to what extent, they used AI in preparing briefs. These orders are not uniform and may require more disclosure than would be apparent at first blush. But before delving into what disclosures may or may not be required, let’s talk about AI.
Merriam-Webster defines AI as, “the capability of computer systems or algorithms to imitate intelligent human behavior,” and as “a branch of computer science dealing with the simulation of intelligent behavior in computers.” Merriam-Webster defines generative AI as “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples.” Generative AI includes things like ChatGPT.
The instances where lawyers found themselves in trouble for using AI involved the use of generative AI. And it was those instances that prompted the orders requiring lawyers to disclose the use of AI. But tools like Grammarly and Word’s “Editor” are AI—they’re just not generative AI. And there lies the problem—the orders requiring disclosure don’t always distinguish between AI and generative AI. For example, Judge Baylson of the United States District Court, Eastern District of Pennsylvania put on this order:
If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper filed with the Court and assigned to Judge Michael M. Baylson, they MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing and CERTIFY that each and every citation to the law, or the record in the paper, has been verified as accurate.
On the other hand, Judge Starr of the United States District Court, Northern District of Texas, has put on order that distinguishes between the use of AI and generative AI. That order says:
All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being. These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why. Accordingly, the Court will strike any filing from a party who fails to file a certificate on the docket attesting that they have read the Court’s judge-specific requirements and understand that they will be held responsible under Rule 11 for the contents of any filing that they sign and submit to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.
Thus, a lawyer filing something in Judge Baylson’s court should disclose the use of an AI tool like Grammarly or Word’s “Editor” function in preparing the brief, whereas a lawyer filing something in Judge Starr’s court does not have to disclose the use of those tools, but instead must only disclose the use of generative AI. While Judge Baylson’s order suggests that he might have only meant to require the disclosure of the use of generative AI (because he refers to checking citations), the language of the order sweeps more broadly and requires disclosing the use of any AI.
Given the increased use of AI and particularly generative AI, it’s likely that more courts will require the disclosure of the use of AI in preparing filings. It’s important that lawyers fully comply with those requirements.
 Disclosure: I used Word’s Editor in preparing this post.
Saturday, September 30, 2023
Christopher Columbus Langdell got it right – for the most part. What Langdell got right is the Socratic Method – and the accompanying cold calling – that is essential to training law students to be outstanding lawyers. Below is a brief explanation of why Langdell’s method is a vital component of legal education, along with a few suggestions to maximize the competency and marketability of law school graduates.
I. Why Langdell was right.
A. The Socratic Method works because it improves critical thinking skills.
Critical thinking (and intelligence generally) is among the most important skills needed to be an excellent lawyer. For example, great lawyers know how to read and distinguish cases, synthesize complex precedents, reason by analogy, and make persuasive arguments. To do so, you must know how to think critically, identify the weaknesses (and strengths) in arguments, distinguish relevant from irrelevant facts (and law), use the law and facts to craft a compelling narrative, and make policy arguments that support a judgment in your favor.
Put differently, intelligence matters. The Socratic method makes you a smarter and more analytical thinker.
B. Cold Calling is beneficial.
Cold calling is essential to an effective legal education. Indeed, cold calling teaches students the value of preparation. It teaches students to think on their feet. It forces students to perform in front of a large audience. And it teaches students the importance of, among other things, being attentive to detail, responding to unexpected questions in a persuasive manner, and examining the flaws in their previously held beliefs.
C. Making students uncomfortable (and nervous) is a good thing.
Law students must learn how to deal with adversity, and they must learn how to respond effectively to adversity. They need to understand that they will fail often in life, and that failure is an opportunity to gain experience and persevere through challenges in life and in the law. They must be taught that your choices and decisions, not your circumstances, determine your destiny.
The Socratic Method – and cold calling – accomplishes these objectives. Sure, students may experience anxiety. They may dread being called upon in class. They may embarrass themselves. They may experience self-doubt. So what? Experiencing – overcoming – these challenges help a person to grow, develop thick skin, and understand the value of preparation, perseverance, assertiveness, and confidence. In other words, learning how to cope with negative emotions, and developing a strong mindset where you take responsibility for your choices, is essential to succeeding in the law and in life.
II. Additional Suggestions
As stated above, the Socratic method is a critical component of a rigorous and beneficial legal education. But other components matter too.
A. Legal Writing and Communication
The ability to write and communicate persuasively is essential to being an excellent attorney and advocate. For this reason, law schools should devote more time to their legal writing curriculum and require students to take a writing course in every semester of law school. In so doing, law schools should require students to draft the most common litigation and transactional documents and train students in rewriting and editing. After all, if law graduates cannot write persuasively, they will not practice law effectively.
B. The Intangibles
Law schools should emphasize that success in the legal profession and in life is due in significant part to intangible factors that transcend raw intelligence, an LSAT score, or law review membership. These factors include, but are not limited to, humility, a strong work ethic, maturity, excellent judgment, discipline, consistency in performance, and passion. It also includes respecting diverse viewpoints, being willing to admit that you are wrong, and accepting responsibility for your mistakes.
Perhaps most importantly, students need to learn how to overcome adversity and respond well to and learn from failure. They need to understand that they will face injustice and unfairness in life. And they need to be told that they are not victims, that they should not embrace victimhood, and that they aren’t “oppressed.” Rather, law students need to understand and embrace the fact that their choices, not their circumstances, determine whether they will be successful.
C. High Standards
Law schools must hold students to high standards. Law professors need to be honest about the demands of the legal profession and the skills that separate mediocre lawyers from outstanding lawyers. Professors do a tremendous disservice to students if they inflate grades, coddle their students, or fail to help students acquire the skills needed to prepare them for the real world. And law professors whose teaching is influenced by political ideology or bias, and who show hostility to viewpoints that differ from their own, should not be professors.
Of course, students’ feelings matter and should never be disregarded. But the real world does not care about your “feelings” or sensitivities. Law firms, lawyers, and clients care about what you can do for them. Can you write a persuasive motion to dismiss, a summary judgment motion, and a trial brief? Can you make a persuasive oral argument? Can you work well under pressure and deal effectively with stress? Are you likable and relatable, or are you a narcissistic jerk? Can you communicate with clients in a simple, honest, and straightforward manner, and maintain positive relationships with them?
Teaching the tangible – and intangible – qualities necessary to succeed as a lawyer means holding students to high standards and being honest with them. After all, they will discover the truth when they enter law practice. Preparing them for those realities reflects the truest form of empathy.
Monday, September 25, 2023
A few weeks ago, I received an email from David Lat's substack Original Jurisdiction. The email contained an interview with Yale Law professor Amy Chua, known to some the Tiger Mom for her book Battle Hymn of the Tiger Mom. David's interview, however, centered around Amy's newest book--a novel set in the 1930s and 1940s in San Francisco. The novel, entitled The Golden Gate, was published last week.
Intrigued, I requested an advanced copy of the book on NetGalley, which I received. David said he consumed the book in two days, an impressive feat for a dad of two young kids. As the mom of two young kids who is also teaching first year legal writing, I was skeptical that I could finish the book in a timely manner. Fortunately (for this review) and unfortunately (for the rest of my life), I had a few days of not feeling well. This allowed me to cuddle on the couch with my cats and my kindle and devour The Golden Gate in three days.
At its most basic level, The Golden Gate is a double murder mystery--jumping between the tragic death of a young girl in the 1930s and the murder of a notable politician in 1944. Both deaths occurred at the Claremont Hotel. But the novel is so much more than simply a murder mystery--it is a thoughtful, meticulously researched, look at many of the complicated issues of that time (and the present) like race and racial identity, prejudice, gender, social status, mental health, politics, and policing practices. The story is told primarily from the perspective of Al Sullivan (or Alejo Gutiérrez), the detective assigned to solve the second murder, and Mrs. Bainbridge, the matriarch of a wealthy San Francisco family. Mrs. Bainbridge's granddaughters are implicated in the murder, and her narration comes through in a deposition and a later factual narrative that she wrote for the district attorney.
I don’t want to give away too much of the story #nospoilers, so let me tell you what I loved about the book. In short, nearly everything.
First, it was a gripping story. I definitely wanted to figure out whodunnit, and the author certainly kept me guessing.
Second, the writing and research was phenomenal. While I expect a Yale Law professor to meticulously research her academic writing, I don’t think that I was prepared for the level of careful detail I saw in a novel. I highly recommend reading the author note at the end of the book for additional resources and further context about the story. But what made the writing and research extra impressive was how accessible it was to the average reader. I would recommend this book both to lawyer friends and to friends who just like a good mystery. The most lawyerly part of the novel was a brief discussion about incorporation and the exclusionary rule, and even that section was accessible to nonlawyers.
Third, the author addressed controversial, complex topics in extremely thoughtful ways. Her characters were complex—there were few overt “good guys” and “bad guys.” In fact, my opinion of the characters morphed as I read the book. Her characters dealt with difficult questions. Perhaps the most poignant for me was Detective Sullivan’s complex approach to his identity. I appreciated how the topic was personal to the author—it is personal to me as well.
This wouldn’t be a good review if I didn’t point out something that could have been improved. Although I am a bit hard pressed to identify a defect, I will say that the last 25% of the novel dragged a bit (until I got to about 90% finished).
Thank you Netgalley and the publishers for the free e-ARC, and thank you Amy Chua for an excellent read!
Sunday, September 24, 2023
Every appellate advocate wants an impartial and independent judiciary, not a bench populated by people who would trim their sails to whatever political winds put them in their seat or is blowing so hard that the easier course is to let it dictate a result. Instead, we ask for a fair application of the law.
It may seem obvious that our justice system should operate that way, but political partisans often seek to bend the courts to their favor, whether through the appointment process or through elections. Even so, we hope that on the bench our judges will seek to make decisions rooted in law rather than political preference. Not everyone agrees, however.
In 2006, one stripe of political partisans operating under the banner of the South Dakota Judicial Accountability Project sought approval of a constitutional amendment that became known as “Jail for Judges.” The proposed amendment, which was defeated at the ballot box, would have allowed thirteen special grand jurors to decide that a judge’s ruling was wrong and either fine or jail the judge, as well as strip away as much as one-half of earned retirement benefits. Judicial rulings made years ago would have been subject to this process, as long as the jurist was still alive.
As extreme as that measure was, we are seeing a spate of new challenges to our courts that seek to guarantee certain results and threaten judicial independence. One that has received a great deal of attention is the threat of impeachment aimed at a newly installed Wisconsin Supreme Court justice. It has a transparently political purpose: keeping the Court’s new majority from upsetting the legislature’s redistricting handiwork. The basis for impeachment is incredibly weak. During her campaign, now-Justice Jane Protasiewicz called the gerrymandered districts “unfair” and “rigged,” while still avoiding any promise that she would rule one way or another. Republican Assembly Speaker Robin Vos accused her of “prejudging” the challenge to those districts, now before the Court, and has suggested the impeachment was a proper response if she chooses not to recuse herself.
Of course, this is not the first time an elected judge spoke to issues coming before a court. In one instance, the Washington Supreme Court considered whether one of their newly elected members was subject to discipline for his participation in an anti-abortion rally on the day of his swearing-in ceremony. At the “March for Life” rally, Sanders thanked the crowd for supporting his election and expressed “his belief in the preservation and protection of innocent human life.” A judicial conduct commission found probable cause that Sanders violated several different canons of judicial conduct, but the state supreme court found that he acted within his free speech rights and his comments and actions did “not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge.”
In another case that reached the U.S. Supreme Court, Republican Party v. White, the Republican Party and several candidates for judicial office successfully challenged a canon of judicial conduct that prohibited candidates for judicial office in Minnesota from announcing their views on disputed legal and political issues on First Amendment grounds. Justice Scalia’s opinion for the Court distinguished between “pledges or promises,” a prohibition that was not before the Court, and merely announcing ones views, which the Court said does not bind a candidate once elected.
The opinion found it incongruous to permit candidates to express support for a prior judicial decision, but not criticism of it. It further noted that the prohibition related to taking positions on issues, but not expressing oneself for or against particular lawsuit parties. Thus, rather than be aimed at impartiality, which was its putative purpose, the Court found the prohibition was against expressing a view of the law upon which voters might choose to vote. As Justice O’Connor expressed in a concurrence, as long as you have judicial elections, something she disfavored, candidates, including incumbents, are going to express views on issues before the public, and that doing so was necessary to maintain public confidence in the courts.
These cases suggest that the principal basis for impeachment in Wisconsin is inconsistent with established First Amendment principles. Garnering less attention, but no less problematic, is the tactic being employed in North Carolina. Justice Anita Earls, a black jurist on the state supreme court, gave an interview in which she advocated for greater diversity in the state court system, labeled the frequent interruptions of female advocates before the court an example of implicit bias, and bemoaned the termination of racial equity and implicit bias training in the judiciary. She relied on a recent study for her comments and said that diverse decision-making results in better outcomes, assures that a range of perspectives are considered, and secures greater public support because people are confident that more voices are heard.
For those remarks, the North Carolina Judicial Standards Commission began an investigation in August based on reading those remarks as accusing her judicial colleagues of “racial, gender and/or political bias.” The Commission suggested that the remarks “potentially violate Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’” Earls, who believes she was supporting public confidence in the judiciary, filed a federal lawsuit to enjoin the Commission from proceeding, citing First Amendment grounds and intimating that the Commission’s investigation could be used by the legislature to remove her from the bench.
Early in our history, these types of attacks on judges when the political powers that be disagreed with rulings had a brief lifespan. The party of Thomas Jefferson, in control of the presidency and the Congress, was frustrated by the Federalist judicial appointees and their rulings. They tested the impeachment powers first against a New Hampshire district court judge, John Pickering, who was removed from office in 1804 upon apparently deserved accusations of habitual intoxication and insanity. Then Congress went after Justice Samuel Chase in what was generally regarded as a dry run at Chief Justice Marshall. Chase had placed himself in the sights of the new Democratic-Republican majority through partisan rants contained in his jury charges, as well as his handling of cases under the Alien and Sedition Acts. Despite holding a sufficient majority to convict in the Senate, enough party members balked at the process so that conviction fell four votes short, effectively ending the effort aimed Marshall and understood as a commitment to judicial independence that seemed strong until more recently.
As advocates, we need to recommit to first principles and denounce these new efforts to turn the judicial branch into a political football that can be manipulated to achieve what proper legal arguments cannot. While the judiciary is not immune from the ebb and flow of political opinion, it should not be reshaped by political threats based on the expression of views.
 Matter of Disciplinary Proceeding Against Sanders, 135 Wash. 2d 175, 178, 955 P.2d 369, 370 (1998).
 Id. at 768, 955 P.2d at 370.
 Republican Party of Minnesota v. White, 536 U.S. 765, 768 (2002).
 Id. at 770.
 Id. at 788–89 (O’Connor, J., concurring).
 Earls v. N.C. Jud. Stds. Comm’n, et al., Complaint, Case No. 1:23-cv-00734 (N.C. M.D., filed Aug. 29, 2023).
Wednesday, September 20, 2023
I spent my 2L and 3L years as a law clerk in the criminal appeals division of the Utah Attorney General's Office. After graduation, I stayed on for a few months as I got ready to take the bar and start my career in a county prosecutor's office. Around that time, I went to a division barbecue. As I was heading to my car to leave, the division chief (Fred Voros, later a member of our state court of appeals) stopped to talk to me. He wanted to wish me luck and give some parting advice. He said, "John, if you remember nothing else from your time with us, remember that you need three things to win on appeal: 1. A rule; 2. Someone who broke it; and 3. That it made a difference."
This has been the most enduring, helpful advice I've ever gotten for appellate advocacy, whether for brainstorming arguments or responding to someone else's. Once this high-level thinking is clear, filling in the details is a lot easier.
1. What's the rule?
When I first started in criminal appeals as a law student, I was assigned a defense brief to draft the response to. I spent an afternoon reading and re-reading that brief, and could not make heads or tails of it. It had English words organized into sentences and paragraphs, but I could not for the life of me figure out the basis for his claim. He clearly disagreed with the jury verdict, but didn't say what rule was broken. I went to the assigning attorney and told him of my plight; he chuckled a bit and said, "John, there's a certain value in dealing with this level of incompetence; it forces you to understand the issues, and gives you the chance to be helpful to the court." I went back and tried again, and eventually figured out his problem: he thought the jury should have believed his evidence instead of the State's. I was then able to look through the rules for such things and realize that his claimed error--that is, what rule was allegedly violated--was no error at all. Case closed.
There are many sources of rules in the law--court rules (evidence, procedure, etc.), statutes, case law, constitutions, etc. If you're wondering how to make or respond to a claim, first figure out what the rule is for what happened.
2. Who broke it?
Nicholas Quinn Rosencranz wrote two of the most insightful law review articles I've ever read (sad to say, not a very competitive category): The Subjects of the Constitution, 62 Stan. L. Rev. 1209 (2010), and The Objects of the Constitution, 63 Stan. L. Rev. 5 (2011). The biggest takeaway for me is the need to be precise about the "who" question. Judges and lawyers--in an effort to be nice--often use the passive voice or personify laws to obscure who violated the constitution. For example, they will say, "this statute violates the First Amendment" or "the First Amendment was violated." But saying who violated the rule clarifies the test and its basis. Was it Congress who violated the First Amendment by writing a bad law? That's a facial challenge. Was it the Executive who enforced an otherwise valid law in a bad way? That's an as-applied challenge. There are very different standards to prove depending on the answer to the "who" question.
So when you get a case and you have a rule, ask yourself who it was that violated it. Was it the legislature? Some branch of the executive? The judge? The jury? Counsel? And what about sins of omission? An alleged judicial sin of omission is viewed through the lens of plain error. An alleged error of counsel in criminal cases is viewed through the lens of ineffective assistance. These latter questions concern preservation, and can also greatly affect the analysis of the underlying issue.
3. Did it make a difference?
“Anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Puckett v. United States, 556 U.S. 129, 134 (2009) (cleaned up). To undo the whole process of a lower court proceeding and either forbid future proceedings or get a do-over is serious business, and appellate courts are often reluctant to do it. This manifests structurally in the prejudice requirement--that is, whether an error made a difference, and to what degree. There are different forms for different claims. Most will require the appellant/petitioner to prove a reasonable likelihood of a different result absent the error. But (preserved) constitutional errors switch both the bearer of the burden (from the defendant to the State) and the nature and degree of the burden (to harmlessness beyond a reasonable doubt). Some errors--like a biased trial judge--are structural, and the prejudice is from that judge sitting, not from what the outcome might have been otherwise. And as with the "who" question, preservation can affect this.
So when you're puzzling over a legal issue, step back and ask yourself: what's the rule? who broke it? and did it make a difference? It will help you winnow out bad claims, strengthen good ones, and respond to anything.