Appellate Advocacy Blog

Vol. 21, Issue 1 of the Journal of Appellate Practice & Process

I have been an errant blogger.  Of the many projects occupying my time, getting out the most recent issue of The Journal of Appellate Practice & Process has been near the top of the list.  I am happy to say that the issue is almost done and will hopefully be online this week.

When the University of Arizona James E. Rogers College of Law acquired the Journal, one of our goals was to make it a free online resource. The Journal will be available at www.appellatejournal.com. At that site, you can sign up to receive email notifications about new issues. While we don't yet have the full archives up, we hope to have them soon.

What can you expect in the first digital issue of the Journal? Well, the articles are pretty exciting and timely.  Here is a sneak peak at the table of contents:

 

Jon O. Newman	On Reasonableness: The Many Meanings of the Law’s Most Ubiquitous Concept
Thomas L. Hudson	Structuring Appellate Briefs
Luke Burton	Less is More: One Law Clerk’s Case Against Lengthy Judicial Opinions
Timothy R. Johnson Maron W. Sorenson Maggie Cleary Katie Szarkowicz	COVID-19 and Supreme Court Oral Argument: The Curious Case of Justice Clarence Thomas
Margaret D. McGaughey	Remote Oral Argument in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture?
Pierre H. Bergeron	COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual?
ESSAY
Michael Daly Hawkins	Clerks in the Time of Coronavirus (With Apologies to Gabriel García Márquez)

I plan on blogging about the articles once the issue is published.  Keep a lookout on the website and watch your email for an announcement that the issue is online.

It’s Time to Address the Death Penalty's Constitutionality

It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.

Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong.  Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.

The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.

The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed.[1] Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen.[2] Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants.[3] And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.[4]

However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed.[5] Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.

Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months.[6] In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.

After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.

Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”[7]

 

[1] 408 U.S. 238 (1972).

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

[3] 536 U.S. 304 (2002).

[4] 572 U.S. 701 (2014).

[5] 576 U.S.             , 135 S. Ct. 2726 (Breyer, J., dissenting).

[6] See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog

[7] In re Gault, 387 U.S. 1 (1967) (internal citation omitted).

Appellate Advocacy Blog Weekly Roundup Saturday, January 16, 2021

 

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

US Supreme Court Opinions and News

• This week, the Supreme Court allowed the current administration to carry out three final federal executions, including the first woman to be executed by the federal government since 1953. This administration resumed federal executions after seventeen years without one and has executed thirteen people since July. Justice Sotomayor’s dissent in US v. Higgs, the final case, begins:

After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

See reports in The Wall Street Journal, The Poughkeepsie Journal, CNN, The Washington Post, and The Associated Press. 

• In the first abortion decision since Justice Barrett joined the court, the Supreme Court reinstated a requirement that women appear in person to pick up the pill required for medication abortions. The FDA rule had been waived during the pandemic, allowing the medicine to be distributed via mail. See the opinion and reports from The Associated Press, Bloomberg News, and Politico.
  
  
• Taylor Swift became the subject of oral argument this week when the Justices discussed the singer’s request for nominal damages in a sexual assault suit. The discussion occurred during oral argument in Uzuegbunam v. Preczewski, a case asking whether students may sue their college for First Amendment Violations and seek nominal damages.  See reports in The New York Times and The Washington Post.

Federal Appellate Court Opinions and News

• The Ninth Circuit will allow a SWAT officer’s First Amendment suit against the Las Vegas Police Department (LVPD) to proceed after he was penalized for a Facebook post. The LVPD claimed that the post incited violence but the court stated that the post “could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty.” The decision comes in the wake of the violence at the US Capitol and amid debate about the line between free speech and inciting violence.  See opinion and report in the San Francisco Chronicle.  

• The Third Circuit ruled that Philadelphia’s plan to open the nation’s first safe-injection site would violate federal law. The ruling is another barrier for the nonprofit Safehouse, which hoped to open the site to combat fatal drug overdoses. The site would have offered support to drug users, including providing intervention for overdoses. The court ruled that the site would violate a federal law making it illegal to knowingly host illicit drug use and drug related activity.  According to the court, only a change in federal law would sanction the site. “[Safehouse’s] motives are admirable. But Congress has made it a crime to open a property to others to use drugs.” See the order and reports from The Wall Street Journal and The Associated Press.  

State Appellate Court Opinions and News

The Colorado Supreme Court updated its common-law marriage standard, which was established in 1987, to better account for same-sex couples. The new standard follows from three rulings and creates a more flexible and gender-neutral test that looks only to whether the couple mutually intended to enter a marital relationship and whether the couple’s subsequent conduct supported that decision. See the rulings here, here, and here and a report in The Denver Post. 

Self Over State: Republican Attorneys’ General Supreme Court Briefs Show the Need for Accountability

This is a guest post by Lisa F. Grumet, Visiting Associate Professor of Law at New York Law School.

The events of this past week have shown the importance, and vulnerability, of the rule of law in the United States. These events have also shown the dangers when public officials who are responsible for upholding the law prioritize their own perceived self-interest over their institutional roles and professional responsibility. While the horrific events of January 6, 2021 were incited by President Donald Trump, as well as members of Congress who supported his efforts to nullify millions of votes, it’s important to remember the antidemocratic efforts of other public officials who also sought to overturn the election outcome. These officials included Republican State Attorneys’ General in Texas and 17 other states who pursued frivolous litigation asking the U.S. Supreme Court to invalidate the election results in four states. President-elect Joe Biden observed that they had adopted a “position so extreme we’ve never seen it before.”

In their enthusiasm to invalidate other states’ votes for Biden, some Republican AGs endorsed legal arguments that put their own states’ elections at risk. The briefs failed to disclose that some of their states had election practices that were similar to the practices they challenged in Pennsylvania, Georgia, Michigan, and Wisconsin. In particular, the briefs questioned the integrity of mail-in voting procedures, and challenged the alleged issuance of “new rules” for the 2020 election. However, as noted in an opposing amicus brief filed by 23 Democratic and Independent AGs, some of the Republican AGs’ states had similar election practices, and some of the states had election rules changed by state executive officials because of COVID-19. For example, Utah had voting by mail options for several years before the pandemic; and Texas’s Governor suspended election laws in October 2020 to extend the early voting period for the November election.

The practice of AGs challenging other states’ laws before the Court, while ignoring similar laws in their own states, is not new. Since lawsuits between states are rare, this dynamic usually arises in the context of amicus briefs. When one state is sued and the state’s AG defends its law before the Supreme Court, sometimes AGs from other states will file an amicus brief supporting the other side. In these partisan times, it’s not uncommon for large coalitions of Democratic and Republican AGs to file briefs on opposite sides in significant cases. When they file or sign on to amicus briefs, they are not required to disclose how the outcome of the case will affect laws in their own states. While some briefs might offer such detail, others do not, making it difficult to assess the potential impact of the litigation on laws in the AGs’ own states.

I have previously described this practice as “hidden nondefense.” “Nondefense” typically refers to an AG publicly declining to defend a state’s law; for example, before Obergefell v. Hodges, some AGs declined to defend laws prohibiting same-sex marriage in their states on the ground that the laws were unconstitutional. “Hidden” nondefense is different: it occurs when an AG ignores the substance—or even the existence—of a law in the AG’s own state, while making legal arguments that may ultimately undermine it. For example, some Republican AGs endorsed arguments that contradicted laws in their own states in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, challenging Colorado’s enforcement of a nondiscrimination law against a bakery, and in Janus v. AFSCME, Council 31, challenging an Illinois law permitting government employee unions to collect “agency fees” from non-members. Also, some Republican AGs have opposed the City of Philadelphia in Fulton v. City of Philadelphia, pending litigation about enforcement of a nondiscrimination ordinance against publicly funded private foster care agencies that refuse to work with same-sex couples. There, two Republican AG briefs discuss the U.S. Constitution and state laws concerning religious freedom, but do not discuss the potential impact of their position on enforcement of laws prohibiting discrimination in public accommodations in some of their own states.

AGs are their states’ chief legal officers. It is because of their institutional role that they are privileged to speak for their states before the Court. The Republican AGs’ actions in Texas v. Pennsylvania and other significant cases show the need for transparency and accountability in the way AGs represent their states before the high court. Hidden nondefense transforms the state AG’s role: when an AG’s brief disregards the state’s own laws and practices, the AG represents the state in name only. This is dangerous and subverts democracy and principles of separation of powers.

One practical solution that I have previously recommended would be to simply amend the Supreme Court's Rules to require all AGs to disclose in Supreme Court briefs whether any laws in their own states could be impacted by the position they are taking before the Court. Members of the press and public should scrutinize AG briefs to ensure that AGs are held publicly accountable for the positions that they take.
Another approach, which could provide for greater accountability, would be to strengthen state professional responsibility codes. Rule 3.3 of the Model Rules of Professional Conduct (“Candor Toward the Tribunal”) provides that attorneys shall not knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” For AGs, the “controlling jurisdiction” should include their own state. Although state law may not be “controlling” for the U.S. Supreme Court, it should at least be mentioned by the AG charged with upholding state law. If the AG has determined that the state’s law is unconstitutional, the AG should say so and explain this position to the Court and the public, rather than ignoring the law’s very existence.

Absent a requirement for disclosing the impacts on their own states’ laws, AGs are seemingly free to use the Supreme Court as a forum for achieving personal or partisan goals, without regard to their professional responsibilities to their constituents and the Court. Change is needed so that our states’ chief legal officers are held accountable when they use Supreme Court litigation to promote partisan politics or personal interests over the rule of law. I am hopeful that the 2020 election results represent a turning point for restoring confidence in our legal system and our governing institutions. Enhancing accountability for state AGs should be one part of this process.

Appellate Advocacy Blog Weekly Roundup Friday, January 8, 2021

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

U.S. Supreme Court News:

As discussed by Bloomberg Law this week, the Court's practice of "relisting" cases can give insight into which cases the justices are interested in hearing.  The article explains the process, how it works, and what it might mean to see a case relisted.

Federal Appellate Court Opinions and News:

One of the biggest areas of interest to watch during President-Elect Biden's next couple of years is what happens with the federal judiciary.  There has been much discussion of how the makeup of the judiciary has been shaped over the last several years by Republican control of the Senate and President Trump's nominations.  Now, with a Democratic President and Senate, much attention is being paid to how Biden might make his mark on moving the balance of the judiciary.

• • Bloomberg Law had an article discussing how the outcome of the special runoff election for Georgia's two Senate seats has opened a path for Biden to make a bold push, if he wants it.  Law 360 had an article diving into potential nominees that Biden might tap for vacancies.

This week, the Fourth Circuit Court of Appeals ruled that an automatic life sentence without parole is cruel and unusual punishment for intellectually disabled adults.  See the opinion in Avalos v. Texas HERE.

This week, the Seventh Circuit Court of Appeals ruled that Indiana's practice of requiring sex offender registration for people who move into the state in situations where it would not require registration of Indiana residents is unconstitutional.  See the opinion in Hope v. Commissioner HERE.

Appellate Practice Tips and Pointers:

See this article from Eugene Volokh at The Volokh Conspiracy, from June 2007, about breaking into appellate law.

Appellate Advocacy Blog Weekly Roundup Sunday, January 3, 2021

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

 

Happy New Year from the Weekly Roundup!

In the spirit of welcoming in a new year and reflecting on the old one, here are a few links doing just that: 

• Chief Justice Roberts's 2020 year-end report on the Federal Judiciary is available here. 
• Erwin Chemerinsky offers a year-end review of the Supreme Court in 2020. 
• Mark Walsh and Nina Totenberg offer separate previews of the remainder of the 2020-2021 term. 

 

We look forward to bringing you appellate advocacy news in 2021.  

More Support for Oxford, or Serial, Commas

Many of my younger students come from collegiate writing programs which do not use Oxford commas.  These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more.  This comma, known as a serial or Oxford comma, can change meaning.  Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.

The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement.  The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay.  Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation.  (For more laughs, really, I highly recommend one of my family’s favorite books:  Lynne Truss, Eats, Shoots and Leaves:  The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)

Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers.  Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/.  As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”  Id. 

While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing.  As Gurnett concludes:  “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.”  Id.

Last week, Pocket republished Chris Stokel-Walker’s article on serial commas.  Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab.  In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies.  As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.”  Id.  He provides great examples to remind us about the need for precision.

First, Stokel-Walker cites the United States Tariff Act.  As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs.  However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.”  Id.  Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime.  Id.

Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial.  Id.  In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act.  Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.”  Id.  As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free.  Id.  Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown.  Id.  Unfortunately for Casement, the court applied the comma and ordered him executed.

Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.

Happy new year!

The Power of The Rule of Three

Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.

Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.

Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.

The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…

Here is an example:

***

Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”

The defendant’s comments were defamatory for three reasons.  First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.

***

After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.

Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.

Why is the Rule of Three so effective?

1.    The Rule of Three simplifies your arguments

Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.

The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.

2.    The Rule of Three organizes your arguments

The worst briefs are often those that go on…and on…and on…

The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.  

The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.   

3.    The Rule of Three appeals to the audience’s cognition and psychology

Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?

Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.

The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere.  In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.[1]

Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.

Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.

Below are a few videos regarding the Rule of Three.

(1) The Rule of Three: a top speechwriter explains... - YouTube

The Rule of Three - A Law of Effective Communication - YouTube

(1) Steve Jobs: 3 Lessons From The Keynote Master - YouTube

 

[1] Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)

On Semicolons and Interrobangs

I am spending the final days before the holidays reviewing and editing two major projects. One is a book on online law teaching that I am co-editing with Prof. Tracy Norton at Touro Law.  The other is the first issue of The Journal of Appellate Practice and Process that will be published by the University of Arizona James E. Rogers College of Law.  For this second project, I am looking at the final proofs of the articles for exciting things like missing commas, incorrect supra references, and missing en-dashes.  For a legal writing nerd like me, it is pretty fun, albeit exhausting.  What makes it even more fun is that I am collaborating with my friend and colleague Prof. Diana Simon.  

In the spirit of editing, proofing, and a love for punctuation, I wanted to share Diana's forthcoming (short)article in The Arizona Attorney on semicolons.  The article will appear in the February 2021 magazine, or you can read it here. In the article, Diana argues for the elimination of the semicolon. Calling them "snobs and elitists," Diana gives a brief history of the semicolon--including the mark's connection to the Son of Sam killer.  She then shares why it is time for the semicolon to go. Among other reasons, many law students today are not well-versed in punctuation and grammar in general, much less the “complex labyrinth of the semicolon.” Further, there are alternatives to the semicolon, and, she suggests, if we can eliminate the semicolon, the “snobbish semicolon worshippers can satisfy themselves knowing that the comma . . . should be a semicolon and pause the extra second, while the anti-semicolon populists . . . can silently cheer that the semicolon is gone for good.” In short, everyone wins. She makes a convincing case!

In editing book chapters and articles for The Journal, I have been struck several times by how authors develop a "pet" punctuation mark or word. From colons to em-dashes to filler words, I have seen it all.  I am sympathetic.  I know that I have my favorite words and punctuation styles.  It has been even more apparent now that my 2 year old is talking.  Do I really say "ok" that often?  Ok, yes I do.  

In addition to her discussion of the semicolon, Diana's article taught me that there is a punctuation mark that is definitely missing from my life, the interrobang.  As she explains, "the interrobang, was created to combine a question mark and an exclamation point. It looks like this: ‽ While this might seem like a good invention, it never quite caught on . . . ."  Why on earth did it not catch on‽ It seems to fill a real void in my punctuation life.  So, perhaps I will exchange my use of the semicolon with commas and start working on revitalizing the interrobang.

 

 

Appellate Advocacy Blog Weekly Roundup Friday, December 18, 2020

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

US Supreme Court Opinions and News

• The Supreme Court refused to hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.

• The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.

• The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.

  A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here. 

Federal Appellate Court Opinions and News

• The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police.  See reports by NYU’s First Amendment Watch and CommonWealth.   

• The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),

Other News

The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.

Tips for Zoom Court & Moot Court: Follow In-Person Best Practices Even More Closely

Tired of online court, school, happy hour, family holidays, and more?  Me too.  However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve. 

Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court.  As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.

Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument.  You can see his blog here:  Judge Pierre Bergeron's Tips.  He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.”  Id.  These tips apply equally to in-person arguments. 

Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general.  See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020).  As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.”  Id.  Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.

Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico.  See id.  Thus, “preparing a presentation ahead of time is still crucial.”  Id.  Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam.  See id.  I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom. 

Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire.  Alder recommends:  “Dressing properly means wearing professional attire from head to toe, not just head to waist.”  Id.  “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.”  Id.  The key:  “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said.  Id.

We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges.  This lesson matters even more for online arguments, where the format makes true eye contact impossible.  To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal.  Id.  

Finally, we all need to be more attentive to virtual context clues in online arguments.  “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.”  Id.  Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said.  Id.  As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’”  Id.  And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question. 

In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world.  I know many law students and lawyers feel the same way.  But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.  

Be well!

Appellate Advocacy Blog Weekly Roundup Friday, December 11, 2020

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

Supreme Court Opinions and News:

This week, the Court rejected an appeal from parents challenging a school policy that allows transgender students to use bathrooms aligned with their gender identity.  In rejecting the appeal, the Court let stand a federal appeals court decision throwing out the parents' suit against a Dallas school district.  More from Bloomberg HERE.

As Amy Howe posted on Twitter, the Court this week declined to act on President Trump's petition for review of a decision from the Second Circuit holding that the President violates the First Amendment when he blocks people from his Twitter account.

This week, the Court heard arguments in a case involving a collection of medieval Christian art on display at a Berlin museum.  In the suit, the heirs of several German Jewish art dealers sought relief, alleging that the art had been sold to the Nazis under duress.  More about the case and the arguments from SCOTUSblog.

This week, the Court heard arguments in another case involving the scope of the Federal Arbitration Act, in a repeat appearance of a case that was decided just a few years ago. The key question the Court will address is whether the court or the arbitrator is the appropriate one to determine whether the parties' dispute is arbitrable.  The case seems highly similar in that respect to the issue the Court addressed the last time it heard the case.  The summary from SCOTUSblog is HERE.

One of the more noteworthy cases heard by the Court this week was one involving "Facebook robocalls" -- unwanted text messages from Facebook -- and whether the dialing of a number from a database counts as a violation of the Telephone Consumer Protection Act's prohibition against automatic telephone dialing systems. More about the case from Bloomberg, SCOTUSblog, and Law and Crime.

This week, the Court issued an opinion holding that the Religious Freedom Restoration Act allows individuals to seek money damages from individual federal employees who violate their religious freedom.  See the opinion HERE.

Federal Appellate Court Opinions and News:

This week, the Second Circuit Court of Appeals issued a decision in a case applying the false claims act to set-aside contracts.  The ruling arguably strengthens the hand of the government and of whistleblowers in cases against companies awarded government set-aside contracts who do not meet the requirements of the particular set-aside.  See more from the National Law Review.

Appellate Practice Pointers:

Earlier this week, Judge Bergeron posted right here at the Appellate Advocacy Blog about pointers for zoom oral arguments based on his experience serving as an appellate judge for dozens of virtual arguments.  Check out his tips HERE.

Matthew Stiegler offered up a Twitter thread this week laying out several basic for competent typography that is worth checking out.

Can Writing Tech Help You Craft Your Tone?

Oh, technology. As much as you frustrate us, you sure make things interesting. 

While I wasn't looking, a slew of new writing technologies emerged on the scene. And three of them really caught my eye. I've been experimenting with each. And at the least, they are worth a gander. 

First, QuillBot's Paraphraser. Have you ever needed to paraphrase a quote and just not had the energy to do it well? Enter the Paraphraser. This tool automatically rewrites quoted passages. You can even use it to auto-summarize long snippets (with surprising accuracy). A menu of customization options allows you to tweak the paraphrase, including its tone. 

You might need to do some editing after. But this little tool can give you some great ideas for rewriting a sentence.

Next, try Wordtune for help hitting that perfect tone. Deep AI (machine learning, neural networks, and big data sets) have transformed quite a lot. But the potential for language processing may be one of the most exciting areas to watch. 

A new AI-driven tool, Wordtune is a fascinating example of how AI could change how we communicate. The tool uses some impressive back-end tech to subtly tweak your words to get your message and tone just right.

Tune your writing for each audience: Client, judge, or colleague. Make your point more casual, more formal, shortened, or longer. 

Wordtune can be a great way to get inspiration for your next legal writing project. It also offers a deep library of example phrases to compare your writing to others. Check out Wordtune. 

Finally, most of us are endless-email machines. Email automation (whether it be templates, editing programs, or full-on email generators) are among the most powerful time-saving devices for legal folks. If you pay attention, I bet you'll find that many of your emails are repetitive. At the least, they include repetitive parts. You can save so much time and angst with smart email programs.

The simplest tool is a template. If you use Gmail, templates are already built into professional plans. Save any email as a template and paste it into any new message with a click. Add-ons will do the same thing for Outlook and other platforms. 

If you're feeling more adventurous, a neat new tool worth checking out is OthersideAI. It's in a class of tools that help clean up short-hand notes or rough drafts and turn them into great prose. 

This particular tool allows you to insert some bullet points or notes. It then drafts an impressively professional email in moments.  Check out OthersideAI. 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here. 

Appellate Advocacy Blog Weekly Roundup Friday, December 4, 2020

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

US Supreme Court Opinions and News

• The Supreme Court has been asked to block the certification of Pennsylvania’s results in the 2020 presidential election. The case argues that absentee voting provisions were unconstitutional under the state constitution. Experts opine, however, that the Court’s scheduling order asking for responsive briefs one day after the Safe Harbor Deadline indicates that the case is unlikely to affect the election results. The Safe Harbor Deadline is the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in. See reports in USA Today and The Philadelphia Inquirer.
  
  
• The Court heard oral argument about the retroactive implications of their April decision on unanimous jury verdicts. In April, the Supreme Court ruled that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then, the ruling applied only to future cases; the court left unanswered the question of whether the decision should apply retroactively. The current case asks whether April’s decision should apply to prisoners in Louisiana and Oregon convicted in the past by non-unanimous juries. (These are the only states that allowed such verdicts at the time of the April decision).  See reports from NPR, The New York Times, and The Washington Post.
  
  
• James Romoser posted a thread this week about the petitions the Court is considering this week.

Federal Appellate Court Opinions and News

• While acknowledging North Carolina’s “long and shameful history of race-based voter suppression,” the Fourth Circuit reversed a lower court and upheld the state’s law requiring voters to present photo identification before casting ballots. The court determined that the lower court had improperly considered the state’s “past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster.”  See the order and reports from The Washington Post and The Hill.
  
  
• The Seventh Circuit reinstated ex-Penn State President Graham Spanier’s 2017 conviction for child-endangerment.  The ruling determined that the lower court improperly overturned the guilty verdict about Spanier’s mishandling of claims of sexual abuse against Penn State assistant football coach Jerry Sandusky.  See the order and reports from the Philadelphia Inquirer and ESPN.

Other News

Beth Wilensky posted a thread on Twitter looking at the style and legal writing of an opinion of Third Circuit Judge Bibas. The thread points out the various ways that Judge Bibas employs good writing techniques, including using plain English and simple transitions.

Practice Pointers for Zoom Oral Arguments

            Since virtually every appellate court in the country is conducting oral arguments by video at this point (I’ll use “Zoom” for shorthand, since that appears to be the platform of choice), I thought it appropriate to offer a few pointers for Zoom arguments based on my experience serving as an appellate judge for dozens of such arguments. And I’ll preface this by saying that overall these arguments have gone very well—the technology has worked, counsel has performed admirably, and I think Zoom arguments have exceeded our expectations.

            Practice with the medium: Make sure that you’re comfortable with the technology, and that you have a reliable internet connection (hard-wired if at all possible). Do a virtual moot with some colleagues to ensure that you’re ready for the argument.

            Pause: Some judges are a little more reluctant to interrupt during Zoom arguments, so bear that in mind. A good practice is to pause periodically, just for a split second or so, in an effort to invite questions. Some lawyers launch into extended soliloquys with hardly a breath, which discourages questioning. You want oral argument to be a discussion so that you can tell where you need to persuade the panel.

            Know your record (and cases): When you are in court, there’s a limited amount of materials that you can take with you to the podium. For Zoom arguments, however, you can be surrounded by all sorts of record cites and cases at your desk. But be wary of this – just because you have stacks of papers does not mean you can actually locate key record cites in response to a question. Consider just having the most important parts of the record at the ready, much like you would in court.

            Backup plans: Crazy things happen in Zoom arguments. Sometimes counsel disappears; sometimes judges do. The important thing is to anticipate such problems (much like a difficult hypothetical) and know what to do if you’re cut off from the argument. Most courts have information sheets with telephonic numbers to call into in the event of a technological glitch, but if not, ask for this in advance of argument.

            Provide a roadmap: Roadmaps are always helpful for oral arguments, but I’ve found that particularly so for Zoom arguments. Some courts don’t have a clock on the screen, and it’s not unusual for judges and counsel to lose track of time. If you’ve provided a good roadmap, it might encourage questions from the judges to focus you on the arguments they’re interested in, and it may help you manage your time better.

            Seek clarification when necessary: Sometimes the judges encounter technological glitches themselves—if this occurs during a question, don’t be shy about asking the judge to repeat the question rather than risk answering the wrong question. Also, I’ve seen situations where a presiding judge may have not understood that a particular counsel was going to argue (in multi-party appeals) until too late—if you have any doubt about something like this, it’s best to clarify that you’re going to argue for x minutes and co-counsel will argue for y, or something similar.

            Good luck out there! We hope to see you in person in 2021! -- Judge Pierre Bergeron

Covid-19 and Religious Liberty

In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Roman Catholic Diocese of Brooklyn sought emergency injunctive relief, claiming that an Executive Order issued by Governor Andrew Cuomo regarding, among other things, capacity limits at houses of worship, violated the Free Exercise Clause of the First Amendment.[1]

The Free Exercise Clause provides citizens with the liberty to freely hold and practice religious beliefs without government interference. The right to freely exercise religion, however, is not absolute, and the United States Supreme Court’s jurisprudence has established several principles regarding the scope of religious liberty. First, although the government may not regulate religious beliefs, it may, in some circumstances, regulate religious practices.[2] Second, the government may not enact laws that impose a substantial burden on religious practices.[3] Third, courts may not assess the validity of particular religious beliefs when deciding if the Free Exercise Clause’s protections apply.[4] Fourth, the government may not coerce individuals into acting contrary to their religious beliefs.[5] Fifth, the government may not target or discriminate against religion generally or specific religious denominations.[6]

In Roman Catholic Diocese of Brooklyn, New York, the issue concerned whether Governor Cuomo’s Executive Order impermissibly targeted houses of worship for disparate treatment. By way of background, in response to the rising rates of Covid-19 infections in New York, Governor Cuomo adopted a color-coded microcluster model that designated areas of New York as red, orange, or yellow zones. These zones were defined as follows:

Red zones: areas where the seven-day rolling positivity rate was above 4% for ten days.

Orange zones: areas where the seven-day rolling positivity rate was above 3% for ten days.

Yellow zones: areas where the seven-day rolling positivity rate was above 2.5% for ten days.[7]

In red zones, no more than ten persons were permitted to attend religious services, and in yellow zones, no more than twenty-five persons could attend religious services, regardless of the seating capacity of a particular house of worship. In these same zones, however, all businesses deemed “essential,” which included acupuncture facilities and liquor stores, were not subject to these capacity restrictions. Furthermore, in “orange” zones, even “non-essential” businesses were not subject to any capacity restrictions.[8]

In a 5-4 decision, the United States Supreme Court held that Governor Cuomo’s restrictions on gatherings at various houses of worship in red and orange zones violated the Free Exercise Clause.[9] To begin with, the Court held that these restrictions did not constitute “laws of general applicability” (i.e., the capacity limits applied exclusively to places of worship), and thus applied strict scrutiny, which required New York to demonstrate that the Executive Order furthered a compelling government interest, was narrowly tailored, and constituted the least restrictive means of achieving the asserted governmental interest.[10]

Although holding that the interest in reducing the spread of Covid-19 was undoubtedly compelling, the Court held that the restrictions were not narrowly tailored. For example, the capacity limits could have been tied to the size of a church or synagogue, particularly given that, in the red and orange zones, fourteen churches could accommodate at least 700 people, and two could accommodate at least 1,000 people.[11] Given these facts, the Court noted that “[i]t is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.”[12] Moreover, as Justice Neil Gorsuch stated in his concurring opinion, these restrictions applied “no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.”[13] This was particularly troublesome given that, as Justice Gorsuch stated, secular businesses deemed “essential” faced no similar restrictions:

[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?[14]

Additionally, Justice Gorsuch explained that the differential treatment of places of worship implicated precisely the type of discrimination that the Free Exercise prohibited:

People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.[15]

Thus, the restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”[16]

Chief Justice Roberts dissented, arguing that, because Governor Cuomo had recently re-codified the areas in question as yellow zones, and thus removed the restrictions on the houses of worship in question, the issue was essentially moot.[17]  For this reason, although questioning the constitutionality of Governor Cuomo’s Executive Order, Chief Justice Roberts did not believe that the Court needed to decide the issue at this juncture.[18]  

Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the restrictions treated houses of worship identically to other similarly situated businesses.[19] In her dissent, Justice Sotomayor relied on the Court’s prior decisions in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, where the Court held that the government may restrict attendance at houses of worship provided that comparable secular institutions faced equally restrictive measures.[20] Based on these decisions, Justice Sotomayor argued that the Executive Order passed constitutional muster because it imposed equally stringent restrictions on other activities where “large groups of people gather in close proximity for extended periods of time,” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances,” [21] Put differently, the Executive Order treated differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”[22]

Regardless of what one thinks of the Court’s decision, the justices’ opinions were quite revealing for other reasons.

1.    Chief Justice John Roberts and Justice Neil Gorsuch aren’t best friends

Based on the language and tone of their opinions, it appears that tension exists between Chief Justice Roberts and Justice Neil Gorsuch. For example, in his concurrence, Justice Gorsuch severely criticized Chief Justice Roberts’s concurrence in South Bay United Pentecostal Church, stating as follows:

What could justify so radical a departure from the First Amendment’s terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.[23]

In fact, Justice Gorsuch went so far as to suggest that Chief Justice Roberts, by refusing the rule on the merits, was concerned more with political rather than legal considerations:

In the end, I can only surmise that much of the answer [to why the dissenters did not find the Executive Order unconstitutional] lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.[24]

In Justice Gorsuch’s view, “[t]o turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”[25]

Chief Justice Roberts responded to Justice Gorsuch’s concurring opinion in an equally dismissive tone, stating as follows:

To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.[26]

The tone of both opinions suggests that Chief Justice Roberts and Justice Gorsuch are not the best of friends. The reason is likely that Justice Gorsuch, an originalist who strives to uphold the rule of law regardless of an outcome’s desirability, views Chief Justice Roberts as capitulating to, even prioritizing, political considerations over principled legal analysis.

2.    Chief Justice Roberts is arguably prioritizing politics over the rule of law

Chief Justice Roberts’s approach to deciding cases has changed considerably from his previously expressed fidelity to originalism and to a modest judicial role that, in his words, was analogous to umpires calling balls and strikes.

Indeed, as Justice Gorsuch intimated, in some cases Chief Justice Roberts appears more concerned with preserving the Court’s institutional legitimacy than with engaging in principled legal analysis. And the consequences are likely to cause precisely the result that Roberts seeks to avoid: the politicization of the judiciary. After all, what is the criteria by which to decide whether a decision will preserve the Court’s legitimacy? Little more than a justice’s subjective values. Put differently, concerns regarding what constitutes a “legitimate” decision are predicated on nothing more than prevailing political attitudes rather than principled legal considerations. Such an approach abdicates the judicial role and weakens the rule of law. As Justice Gorsuch stated, “we may not shelter in place when the Constitution is under attack.”[27]

Additionally, Chief Justice Roberts’s jurisprudence suggests that he lacks a coherent judicial philosophy. On one hand, for example, in Shelby County v. Holder, Chief Justice Roberts voted to invalidate two provisions of the Voting Rights Act in (despite a vote of 98-0 to re-authorize these provisions), but on the other hand, in National Federation of Independent Investors v. Sebelius, Roberts went to great – and dubious – lengths to uphold the Affordable Care Act. This is just one of many examples where Chief Justice Roberts’s adherence to certain principles, such as deference to the coordinate branches, is inconsistent and unpredictable.

Simply put, Chief Justice Roberts’s focus on preserving the Court’s legitimacy is likely to cause the very result he so ardently seeks to avoid, namely, politicizing the Court and the judiciary.

3.    Ideology continues to influence the justices’ decisions

It is not difficult to predict how the justices will rule in cases involving, for example, the Fourth, Eighth, and Fourteenth Amendments. Indeed, the justices’ decisions in such cases often coincide with their perceived ideological preferences. For example, in cases involving affirmative action, it is all but certain that Justice Sonia Sotomayor will vote to uphold almost any affirmative action policy. In cases involving abortion, it is all but certain that Justices Clarence Thomas and Samuel Alito will vote to uphold restrictions on abortion and argue for the overturning of Roe v. Wade.

Not surprisingly, the Court’s 5-4 decisions often predictably split along ideological lines. Some may argue that these decisions reflect the justices’ different judicial and interpretive philosophies, but the fact remains that such decisions almost always coincide with the justices’ policy predilections. And that is precisely what has politicized the judiciary.

These and other concerns lead to the conclusion that perhaps the best way for the Court to preserve its legitimacy is for it to deny certiorari in politically and socially divisive cases where the Constitution’s text is silent or ambiguous. Simply put, the Court should leave more disputes to the democratic process.

 

[1] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[2] See Reynolds v. United States, 98 U.S. 145 (1878)

[3] See Wisconsin v. Yoder, 406 U.S. 205 (1972).

[4] See United States v. Ballard, 322 U.S. 78 (1044).

[5]  See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).

[6] See Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993).

[7] See Lisa L. Colengelo, Yellow, Orange, and Red: How New York’s Covid-19 Microclusters Work (Nov. 24, 2020), available at: Yellow, orange and red: How New York's COVID-19 microclusters work | Newsday

[8] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[9] See id.

[10] See id.

[11] See id.

[12] Id.

[13] Id. (Gorsuch, J., concurring)

[14] Id.

[15] Id.

[16] Id.

[17] See id.

[18] See id. (Justice Breyer also dissented on similar grounds).

[19] See id. (Sotomayor, J., dissenting).

[20] See id.; South Bay United Pentecostal Church v. Newsom, 590 U.S.                 , (2020), available at; 19a1044_pok0.pdf (supremecourt.gov); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S.      , available at: 19a1070_08l1.pdf (supremecourt.gov)

[21] Id. (Sotomayor, J., dissenting).

[22] Id.

[23] Id. (Gorsuch, J. concurring).

[24] Id.

[25] Id.

[26] Id. (Roberts, J., concurring).

[27] Id. (Gorsuch, J., concurring).

Appellate Advocacy Blog Weekly Roundup Friday, November 27, 2020

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

Supreme Court Opinions and News:

Skadden, Arps, Slate, Meagher & Flom announced that it is starting a U.S. Supreme Court and appellate litigation group. Veteran appellate advocate Shay Dvoretzky is going to begin and lead the group, leaving Jones Day to undertake the venture.  More info from The National Law Journal.

Aaron Tang had an op-ed in the LA Times this week discussing his view that the early signals from the currently constituted Supreme Court suggest a "surprisingly centrist" approach. He reviews several recent decisions and arguments and makes the case that the Justices are leaning toward a "least harm" approach to resolving cases, tending to favor ruling in ways that put the burden of the ruling on "the side that can most easily minimize its harm." See the op-ed in the LA Times.

On the other hand, Steven V. Mazle had an opinion piece in the Washington Post this week discussing his view that the arrival of Justice Amy Coney Barrett marks a sea change toward more far conservative decision making that will "accelerate a trend toward deference to religious institutions." See the opinion piece in the Washington Post.

The Court announced this week that it will hear arguments in January via phone, livestreaming them, as it has during each sitting since May.  More from Bloomberg.

The Court issued a ruling this week in which it rejected pandemic limits on religious services in New York.  The Court issued a 5-4 decision -- unsigned -- ruling that restrictions on the size of gatherings for religious services in New York likely violated the First Amendment, departing from recent rulings involving restrictions in Nevada and California, where the Court had opted to defer to state health officials. More from CNN.

Appellate Jobs:

The Texas Fifth District Court of Appeals has posted an opening for two staff attorney positions.  See more from the Texas Courts website.

The Deceptive Power of Nostalgia

As autumn turns to winter, we all reflexively long for the warmer days of summer. We might also wish for a return to the “normalcy” of pre-COVID-19 holiday gatherings with dear family and friends, or for a more “normal” political climate, or for a more “normal” era of employment and financial security prior to the digital age. But in longing for those normal times, we often fail to acknowledge the negative feelings that came with them. We ignore the insufferable heat waves of summer, or the bickering relatives at the dinner table, as we imagine a return to a better time that, in reality, never existed.

The term “nostalgia” is derived from the Greek work “nostos,” or homecoming, and “algos,” or ache.[1] The concept appears across cultures under various guises, but with the common feature that one can long so deeply for a past moment in time as to experience pain at the mere thought of that period. Nostalgia can be classified as personal—where the subject pines for their own past experiences—or historical, where the subject pines for a distant, bygone era that they did not personally experienced.[2] In either form, Nostalgia often involves a degree of self-deception. When a subject feels nostaligic, they idealize the time or place they imagine, focusing on the peaks of that personal or historic period while ignoring the valleys.[3] Nostalgia, though sometimes useful, thus has a dangerously deceptive component; “If overindulged, nostalgia can give rise to a utopia that never existed and never can exist, but that is pursued at all costs, sapping all life and joy and potential from the present.”[4]

Today’s political debates are steeped in such deceptive nostalgic rhetoric. Campaign promises to “Make America Great Again” explicitly appeal to nostalgia for a prior period where crime was lower, employment steadier, and futures more secure. But such appeals gloss over the challenges of those bygone eras, inviting voters to reminisce about glory days that never existed. Those nostalgic appeals disregard the plight of minority populations systematically disadvantaged in decades past; downplay the dangers and challenges of employment in a less-regulated, manufacturing-based economy; and ignore the innumerable ways that technological advances have improved daily life and at least arguably been a boon to society, even as they have imposed painful employment losses and economic retrenchment. Nostalgia is also at the root of campaigns that seek a return to some form of political normalcy, where opposing parties and opposing ideals coexist peacefully and compromise is plentiful. Such compromise was never truly at the root of our political discourse, even in the founding era. Though America’s political parties were less diametrically opposed in previous years, the cold math of the electoral college or Senate majority always made politics a zero-sum game where victories for one party meant losses for others. Even if the political rhetoric can be less heated, there is no returning to a non-existent “normal” era where politics were not cut-throat and compromise was easy to find.

Modern debates over constitutional interpretive philosophy similarly evoke flawed nostalgic thinking, with nostalgic flaws imbedded in many theories. Originalism is partially defined by what Professor Robert W. Gordon  calls “nostalgic traditionalism,” a sense that today’s jurisprudence is out of control and a return to earlier times, with “sturdier and sweeter models of social life than the decadent ways into which we have fallen,” is much needed.[5] Whether arguing for interpretations consistent with the original intent or original meaning of constitutional text, originalists place great stock in the wisdom of the text’s authors, which was captured at moments in time characterized by widespread injustices and inequalities that significantly weaken the moral attractiveness of that interpretive method.[6] Such theories also suggest that historical analysis yields concrete, rule-like results; in fact, history is filled with meandering narratives, unclear meanings, and unexpected twists and turns.[7]

Living constitutionalist theories are sometimes guilty of similar nostalgic thinking. Again, selective historical memory is the culprit. Living constitutionalism can be fancifully optimistic about judicial eras that expanded the protections for civil liberties, without rightful deference to the role of legislative redress for perceived social injustices, or the social upheaval caused by drastic changes issued through judicial fiat. 

Nostalgia can be heartwarming. Deployed carefully, nostalgia can highlight our missteps as we strive to ascend to a better future. In both the political and judicial realms, though, we should all carefully consider its role in our rhetoric. Nostalgia that is premised upon unduly rosy and inaccurate conceptions of the past is a dangerous, powerful emotion. It oversimplifies the messy truth of history; it presents a painless, simple solution that will surely fail to resolve complex, painful problems.[8] We should all be wary of such nostalgic arguments, whether they arise in courtrooms or around the Thanksgiving dinner table.

 

[1] Neel Burton, The Meaning of Nostalgia, Psychology Today, Nov. 27, 2014, https://www.psychologytoday.com/us/blog/hide-and-seek/201411/the-meaning-nostalgia.

[2] “Longing for our own past is referred to as personal nostalgia, and preferring a distant era is termed historical nostalgia.” Krystine Bacho, Nostalgia Can Be a Useful Psychological Tool—Or a Destructive One, Inverse, June 6, 2017, https://www.inverse.com/article/32591-nostalgia-psychological-tool-helpful-harmful.

[3] Burton, The Meaning of Nostalgia.

[4] Id.

[5] Robert W. Gordon, Originalism and Nostalgic Traditionalism, in Taming the Past: Essays on Law in History and History in Law 361, 365 (2017).

[6] Id. at 372 (arguing that when the Constitution was adopted, the government “supported command over slaves, wives, indentured servants, household servants, servants in husbandry, apprentices, paupers, and children,” and claiming that “[o]riginalism as popular nostalgia necessarily hazes over such details”).

[7] Id. at 368.

[8] Id. at 379 (“[I]t’s also a useful enterprise for judges—like historians and politicians and everybody else—to check their impulses to ancestor-worship by recalling what is most alien, repellent, and unusable about them.”).

Elections have consequences for the bench

**See correction to Illinois**

Elections certainly have significant consequences for the federal bench, as the newly elected president will fill vacancies that occur throughout the country. But, in many states, there are elections for state court positions.  So, how did the state courts fair in the 2020 election?  Thanks to ballotpedia.com for great information.

Alabama--Alabama elected two persons to the state supreme court in partisan elections. Both are Republicans, and both were already serving terms on the Court and ran unopposed.

Alaska--Retained a justice for a nonpartisan position.

Arizona--Retained three justices.

Arkansas--Barbara Womack Webb won a seat on the state supreme court. Although the race is non-partisan, she is the wife of the state GOP chair.

Colorado--Retained two justices.

Florida--Retained one justice.

Georgia--Two justices were reelected to the court in non-partisan races, although have Republican ties.

Idaho--Two justice won reelection in non-partisan races (both had been appointed by the Republican governor).

Illinois--One Democrat and one Republican won seats in a partisan election. Thank you to the reader who notified me that an earlier version of this blog that said a justice was retained was incorrect. In fact, Justice Kilbride lost his retention election, becoming the first Illinois justice to do so.

Indiana--Retained one justice.

Iowa--Retained four justices.

Kansas--Retained one justice.

Kentucky--Elected one justice in a non-partisan election. He defeated a Democrat state representative who was running for the position.

Louisiana--Two seats were up in partisan elections. One Republican won, and for the second seat there will be a run-off between two Democrats.

Maryland--Retained three justices.

Michigan--In a 7 way race, two women won seats on the Michigan Supreme Court.  One was an incumbent and, although the race is non-partisan, both are Democrats.

Minnesota--One incumbent was reelected in a non-partisan race. He has ties to the Democrat-Farmer-Labor party.

Mississippi--Four incumbents won reelection in non-partisan races.

Missouri--One incumbent was retained.

Montana--One justice won reelection in a non-partisan race.

Nebraska--Two justices were retained.

Nevada--One justice won reelection in a non-partisan race.

New Mexico--Two Democrats won reelection to their seats in partisan races.

North Carolina--Like much of the rest of the state, some of the partisan judicial races in North Carolina are nail bitters.  Republican Paul Newby is ahead of Democrat Cheri Beasley by about 400 votes for the Chief Justice position. There will be a recount. Republicans lead in the other two races.  One was an open seat (the seat of Newby who is challenging incumbent Beasley) and won involved an incumbent Democrat losing.

North Dakota--One incumbent won in an uncontested, non-partisan election.

Ohio--In what Ballotpedia calls a non-partisan election, one Republican incumbent won her election while another lost.

Oklahoma--Five justices were retained.

Oregon--Three justices were reelected in non-partisan elections (only one was opposed).

South Dakota--One justice was retained.

Texas--Seven Republican incumbents won reelection in partisan races.

Utah--One justice was retained.

Washington--Four justices were reelected in non-partisan elections (only two ran opposed).

West Virginia--Two incumbents won reelection in non-partisan elections, while another person won a seat vacated by a retiring justice.

Wisconsin--Earlier this year, Justice Daniel Kelly lost to now-Justice Jill Karofsky. Kelly had been part of the conservative majority on the court, while Karofsky said she would be part of the liberal wing of the court.  Theoretically, the elections are non-partisan.

Wyoming--Two justices were retained.

If you have read this far, it seems like, as usual, there were no earth-shattering changes on the state supreme courts. The biggest change will be in North Carolina, if the election results don't change in a recount.

 

 

 

 

 

 

 

 

 

 

 

 

 

Appellate Advocacy Blog Weekly Roundup Friday, November 20, 2020

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

US Supreme Court Opinions and News

• The Supreme Court rejected a request to intervene in a case seeking to impose heightened Covid-19 precautions at a Texas prison. The Fifth Circuit stayed a trial court’s order that required increased safety steps at the prison that houses geriatric and vulnerable prisoners and where at least 25 inmates have already died from Covid-19. Oral argument in the Fifth Circuit to determine whether to uphold the trial court order is set for December 3.  See the order and dissents and reports from USA Today and Bloomberg.

• The Supreme Court granted certiorari in a labor rights case, Cedar Point Nursery v. Hasid, that will look at labor rights in relation to property rights. Relying on  Loretto v. Teleprompter Manhattan CATV Corp., the property owners claim a California regulation that grants union organizers access to workers on private property is a taking because it is "permanent physical occupation of [the] owner's property." Michael Dorf summarizes the issues in the case here. 

• A report available this week looks at the Supreme Court’s amicus docket and reviews the last decade’s findings. (Subscription required)

Federal Appellate Court Opinions and News

• The various attempts to challenge the 2020 presidential election dominate court news still this week. For those interested, a few sources have compiled a description of where things stand: The Guardian, The Washington Post, AP News, and The BBC.  

• The Eleventh Circuit found unconstitutional two Florida laws that banned conversion therapy for children, finding the laws violated the therapists’ right to free speech. The ruling opines that the First Amendment “does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.” The dissent recognized the compelling interest in protecting children from a “harmful therapeutic practice.” See order and report from Reuters.

• As Covid-19 cases surge across the country, courts are shutting their doors again and are cancelling juries.  See report from Bloomberg.