Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, February 26, 2018

Finals--The Greatest Justice of All Time

As I wrote about a few weeks ago, I have seen a lot of GOAT talk recently, which got me thinking about who is the greatest Supreme Court Justice of all time.  We have been running a poll here on the blog, and thank you to everyone who participated.  

Chief Justice John Marshall was the clear winner in the pre-1900 category, with 68% of the vote.  His nearest competitor, Justice Joseph Story, had only 36% of the vote. For the 1900-1950 Court, Justice Oliver Wendell Holmes won a resounding 60% of the vote, with Justice Robert Jackson coming in second with 28% of the vote.

It was the modern, post-1950 Court where things got interesting. The surprising winner was Justice Antonin Scalia, with 64% of the vote.  Chief Justice William Rehnquist came in second at 36% of the vote, with Justice Hugo Black coming in third at 32% of the vote.

Since we had such clear winners in each category, I decided to do a runoff between the top three.  The survey is below.  Please pick just one answer.

 

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February 26, 2018 | Permalink | Comments (0)

Saturday, February 24, 2018

Writer's Block and Productivity: The Lawyer's Edition

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For most of us, the dreaded part of legal writing is, well, the writing. Staring at that empty white page. Fighting through the repressive voice in our head that whispers things like: “Better not make any mistakes! Better figure out something good to say! Better finish before the filing deadline!”

Quite a few problems can clog up your legal writing flow. You may suffer from decisional paralysis, where you can't decide what writing task to do next. You might contract the always-viral procrastination, where you can't get started in the first place. Maybe multi-tasking-itus sets in, and you feel so overwhelmed that you start switching back and forth between projects like a frightened squirrel. 

Worry not, because there are proven treatments for all that ails you. These will make it easier not only to start your writing projects, but to finish them, too. 

The first one is magic—a tool backed by tons of science, and one that I’ve used with struggling writers for years. Get a process. It turns out that Mark Twain was ahead of his time: “The secret of getting ahead is getting started. The secret of getting started is breaking your complex overwhelming tasks into small manageable tasks, and then starting on the first one.”

The simple act of following a step-by-step drafting process will smooth out many of your productivity problems. You’ll no longer waste time and energy deciding what to do next. You’ll stave off procrastination because the writing process will feel manageable. And you'll better focus—and produce better results—by tackling one component of your draft at a time. With a good process in place, writing becomes like walking: one step after another. 

Here’s a sample process many writers find helpful:

  1. Take a half a sheet of paper and write down the main questions that your document must answer and your precise goals for the piece. This will anchor you in the next steps.
  1. Summarize the main facts that you think matter to the document—in bullet points. This list will change as you research and get drafting, but starting with a simple set of important facts will narrow the field when you start researching, which is often the trickiest step.
  1. Get a high-level understanding of the law and write out some bullets points for these, too. Keep them organized around the questions you write down earlier. You may already have a sense of the legal principles you care about (say, you are drafting a response to the legal points raised by the other side). But before getting into the weeds of legal research it always helps to orient, or reorient, to the legal big picture. Otherwise, you're liable to scurry down rabbit holes with little payoff.
  1. With a better sense of what facts matters under the rules you've researched, return to your facts and see if there are any new ones to add to your list.
  1. With your updated list of key facts, exhaustively research the rules, one at a time. This step can be broken down into a few steps as well—like searching mandatory authority, then persuasive authority; writing down a list of key case citations that you will use on each point, etc.
  1. Then when you’ve got your research tackled, you probably want an outlining step of some sort, including steps to make sure that you consider all the counter-arguments to each of your points.
  1. Then you should add some actual drafting steps, like a rough first draft of each issue.
  1. Finally, you need several editing steps (see the article here for tips on those).

Maybe this is not the process for you. And I admit that 8 steps seems like a lot at first. But I dare you to come up with a step-by-step writing process and give it a try on your next document. If you are like many others, you will instantly feel relief. Who knows, you might even start looking forward to that blank page.

While a process is often the silver bullet for productivity problems, there are several other ideas to try.

Focusing tricks can do wonders. For example, once you have an idea of your document’s theme, try writing it on a post-it and sticking it next to your computer screen as you edit. Same for the main goals of your document. This will help keep you focused on what matters. 

Research also shows that self-talk impacts our productivity. For example, procrastination self-talk can reinforce that a task is unpleasant and that we don’t have control—for example, telling yourself “I must finish this or else…” Changing that self-talk to: “I choose to write” or “I want to write” can flip your writing switch.

One recent study backs this up. Participants were put into two groups: one was encouraged by the researchers to exercise, the other was told to write down for themselves that they would exercise. Only 35% of the encouraged-group exercised at least once per a week during the study. But, incredibly, 91% of participants exercised at least once per week when they wrote down their own motivational self-talk.

Finally, consider trying a few offbeat productivity hacks:

  • The Pomodoro technique: the much-acclaimed productivity hack. You work for 25-minute increments, broken up by short breaks. You don’t allow yourself to vary from your task during each 25-minute stint. You keep track of your breaks on paper. Tons of people—lawyers included—swear by Pomodoro.
  • Public-accountability: also known as public-shaming. By telling someone else when you plan to finish a writing project, perhaps a friend or, better yet, a boss—you can keep yourself to deadlines or risk shame. Even a Facebook post asking your friends to keep you accountable can help.
  • First Things First: prioritize your most important tasks first. Pareto's principle supports this productivity hack, which posits that 20% of our effort produces 80% of the results. This means that prioritizing tasks—perhaps for us writers, outlining let’s say—is more likely to produce results than wasting hours on less important tasks, like reading through stacks of similar cases.
  • Minimizing distractions is a popular one. These range from the simple, like putting away your smart phone while working, to the sophisticated—like installing site blockers that will keep your screens tuned to your work. StayFocused is a great one. 
  • Productive Procrastination: have two or three projects going at one time, so if you get sick of one, you can jump over to the other.
  • The Eisenhower matrix: this classic approach has you create a matrix. In one box are the tasks that are urgent and important (tasks you will do immediately); then there is a box of important, but not urgent (tasks you will schedule to do later); then urgent, but not important (tasks you will delegate to someone else); and finally, neither urgent nor important (tasks that you will eliminate).
  • Use technology: like templates with pre-filled procedural standards. I discussed loads of tech tricks here.
  • A less mainstream idea to try: rituals. Wade Boggs, former baseball player for the Boston Red Sox, woke up at the same time each day, ate chicken before each game, took exactly 117 ground balls in practice, took batting practice at 5:17, and ran sprints at 7:17. As weird as it sounds, rituals are powerful cognitive tools. In multiple experiments, people following rituals performed better at cognitive tasks. So why not create your own writing rituals? Perhaps by writing in the same place each day. Or always outlining with a lucky pen! 
  • Finally, you can try writing with a cocktail. In new studies, a drink or two was shown to significantly spur your creativity and ease the stress of tackling tough tasks. In word association games, for example, participants were more able to go outside of the predictable answers, drawing connections where they might not otherwise.

Really, the act of trying something new often makes writing more palatable. And fun! 

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

February 24, 2018 | Permalink | Comments (0)

Thursday, February 22, 2018

In Your Brief, Be Brief

In your brief, be brief. Very quippy that advice, isn't it? Yes, and it's easier said than done. In order to write persuasive briefs, remember an important rule from oral argument. Get your point out right away, and never assume your reader will spend as much time on your brief that you will.

As a writer, your job is to bring added value to the product. Make it easy to read, coherent, and comprehensive. In order to accomplish these goals, you'll do your research, make your outlines, revise your drafts, and edit with a red pen. If you've done your job well, your reader will breeze through without a hitch.

This principle applies across the board in litigation: assume you will get very little time at that status conference, at that argument, on that call, at that hearing, or at that trial. But the best trial lawyers realize that such principle does not only apply to oral advocacy.  In your writing, assume that your reader is distracted, busy, and simply will not spend much time on what you write.

All legal readers are busy. Mostly we think of readers we want to impress as including judges, their clerks, managing attorneys, and of course law professors. (In contrast, we want opposing counsel to go weak in the knees). These people generally have much more to do than there is time to do it. They have the experience to know right away if a brief is well written just from an initial glance at a few key places: usually the Table of Contents that provides a wonderful place to outline your case, and then most frequently to a summary section - an Introduction, or Summary of the Argument. These readers have incorporated a first review of these sections because they have become very accustomed to approaching new information by gaining an understanding of the big picture. If your presentation doesn't follow the expected order of information, it will frustrate your reader. No need to make their job any harder.

How do we address this in our writing? We should write our advocacy writings in layers, summarizing the main points as quickly as we can in early layers and building on the layers in the document.This means in a typical trial court brief, we should exploit thoroughly the first advocacy layer of a table of contents. A frightening number of lawyers think tables of contents matter little. They are wrong. I have spoken to far too many judges and clerks who admit that before an argument all they had time to review were the tables of contents of the briefs, or, sometimes, just the table of contents of the reply brief. Your table of contents should be a true, focused summary of argument. If done well, all the reader has to know is your table of contents in order to know your entire argument (if not the nuances of it or the entire story of the case).

Then build from there next approaching an introduction or summary. One irony of producing good legal writing is that you cannot write a good summary until you've written a good discussion or argument, so these tasks must come last in the final draft stage. However, your reader will view the last thing you wrote first. If you've made your process systematic, it will be reflected in your writing, and ultimately produce a solid product that is easy to read.

Even if it were true that your reader isn't already very pressed for time, there is every reason to work hard on your brief so your reader doesn't have to. It goes to the subliminal persuasive value of the case. Alleviating obstacles to understanding the case, and removing frustration from the reader's efforts, will put you on the reader's good side, if not also give your reader another reason to praise your reasoning. 

February 22, 2018 in Appellate Advocacy | Permalink | Comments (0)

Friday, February 16, 2018

Appellate Advocacy Blog Weekly Roundup February 16, 2018

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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 Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court Opinions and News:

CNN has reported that the Court will be meeting today, February 16, 2018, to decide whether to review a lower court’s decision that blocked President Trump's effort to end DACA. Click HERE for the report.

 

Known to her fans as the Notorious RBG, Justice Ruth Bader Ginsburg is, arguably, the most popular and, probably, the most outspoken of the current justices. Recently, Justice Ginsburg caused a stir on Twitter when she hinted at not liking some of her colleagues during a CNN interview. Justice Ginsburg’s comment, however, was only a small part of an, otherwise, interesting and thought-provoking interview that included a discussion of the #MeToo movement, sexism, politics, the attacks on the judiciary, and other topics.  You can listen to the interview HERE. Additionally, a conversation Justice Ginsburg had with National Constitution Center President and CEO Jeffrey Rosen can be viewed at this LINK.  

 

On February 28, 2018, the Supreme Court will hear oral arguments in Minnesota Voters Alliance v. Mansky, a case that challenges a Minnesota law that prohibits political apparel in polling places. Many states have laws restricting electioneering near polling places, and the United States Supreme Court upheld those restrictions in Burson v. Freeman. Minnesota, along with nine other states, not only restrict written campaign materials at polling places, but also place restrictions on the type of political apparel a person can wear to the polls. The plaintiffs in Minnesota Voters Alliance v. Mansky argue that Minnesota’s law violates the First Amendment because it is facially over broad. The briefs for the case and various articles about it can be found HERE. The Economist has this report.

 

The usually quiet Justice Clarence Thomas shared his thoughts on the current state of judicial confirmations. According, to Justice Thomas, the confirmation process has become a spectacle that may deter “good people” from government service. Bloomberg has this report. Additionally, the Law Library of Congress and the Supreme Court Fellows Program presented a conversation with  Justice  Thomas that can be viewed HERE

 

Federal Appellate Court Opinions and News:

The United States Court of Appeals for the Fourth Circuit ruled that President Trump's latest travel ban most likely violates the Constitution’s Establishment Clause. The Court's decision can be found HERE. The New York Times has this report

 

President Trump has nominated  Joel Carson  to the U.S. Court of Appeals for the Tenth Circuit and former Hawaii Attorney General Mark Bennett to the the Ninth Circuit Court of Appeals. A list of current judicial nominations can be found  HERE

 

There is a noticeable lack of diversity among President Trump's 87 judicial nominees. According to this report in USA Today, "[a]mong [President] Trump's first 87 judicial nominees, only one is African American and one is Hispanic. Five are Asian Americans. Eighty are white." 

 

In Perez v. City of Roseville, the U.S. Court of Appeals for the Ninth Circuit held that adultery is constitutionally protected conduct. The Court stated that Lawrence v. Texas, "makes clear that the State may not stigmatize private sexual conduct simply because the majority has 'traditionally viewed a particular practice,' such as extramarital sex, 'as immoral.'" The Court's full opinion can be found HERE.  

 

Appellate Job Postings:

The State of Oregon is looking for an Assistant Attorney General to work in its Appellate Division. Click HERE to apply. 

February 16, 2018 | Permalink | Comments (0)

Thursday, February 15, 2018

Thinking Thursday: Lincoln would have owned Twitter

Presidents’ Weekend is upon us. Ten score and nine years ago, one of our most eloquent American writers was born. Per Professor Julie Oseid, it’s hard to pin down President Lincoln’s prowess to just one attribute. He was adept at many skills, “including alliteration, rhyme, contrast, balance, and metaphor.” (From her new book, Communicators-in-Chief) In her chapter on Lincoln, however, Oseid focuses on his ability to express a great deal in an economy of words. He developed that style during his 25 years as a trial attorney riding circuit. Collecting his legal writing became a quest for historians, and as a result Lincoln is now the most documented lawyer that we may ever have. You can see some of the work of The Lincoln Legal Papers project online. Oseid summarizes Lincoln’s strategy as not to waste arguments or words, but to use “just the necessary number of those words for essential matters.”

So many of our presidents are known for their rhetorical style that Oseid is able to build a body of work about the takeaways that we, as legal writers, can learn from our bygone leaders. Essays have appeared in Volumes 6, 7, 8, 9, and 10 of Legal Communication & Rhetoric: JALWD. Her new book brings together the rhetorical lessons from these five presidents and does so in a way that is very readable in the gestalt.

Lincoln with pen and paper

Lincoln worked hard for his brevity, pondering and editing mercilessly. He was driven by a need for universal comprehension—something every trial lawyer learns to do. His famous second inaugural address was delivered in six minutes. In 701 words he developed a timeless message of reconciliation—and 505 of the words he used were only one syllable long. His notes of his speech showed emphasis on five words, all verbs.

I asked Professor Oseid, and she agreed that Lincoln would have used Twitter masterfully and eloquently. It is interesting to pause for a few minutes and wonder how he would have used the medium. From what we know of his other writings, I strongly believe that he would have lifted it up, and us up in the process. Lincoln keenly understood that intelligent and powerful communications do not depend on vocabulary, but on conveying a theme with precision and organization.

As I celebrate my favorite presidents this weekend, I will be thinking about those legal writing lessons I can learn from them.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

February 15, 2018 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Tuesday, February 13, 2018

2018 Justice Donald L. Corbin Appellate Symposium

In March, the Pulaski County Bar Foundation will be hosting the First Annual Justice Donald L. Corbin Appellate Symposium.  Justice Donald L. Corbin, a Marine Corps veteran, was a long-standing member of the Arkansas judiciary and served both on the state's intermediate appellate court and supreme court.  He passed away in late 2016.

The symposium will feature feature several noted speakers, including Roberta Kaplan, Dean Erwin Chemerinsky, and Judge Morris Sheppard Arnold.  I will also be presenting.

The event will be held at the University of Arkansas Little Rock Bowen School of Law.  You can see all of the details and register here.

February 13, 2018 in Appellate Advocacy, Appellate Practice | Permalink | Comments (0)

Monday, February 12, 2018

Greatest Justice of All Time

As I posted about last week, recent national and international sporting events have sparked talk on the greatest athletes of all time.  This talk got me thinking--who is the greatest Supreme Court Justice of all time?  Because there are so many greats to choose from, I developed a little poll, divided by time period.  Before we narrow it down to the top 6, I thought it might be nice to get one more week of preliminary voting.

Please vote for 2 justices in each time period.  The survey is below.

 

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February 12, 2018 | Permalink | Comments (0)

Saturday, February 10, 2018

Evidence-based legal writing: Is it possible?

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Feel a sore throat coming on? Better go to the doctor. But will it help? If you haven't yet read the many articles explaining how medical practices are often backed by zero evidence that they work, spoiler warning.

A 2013 study published in the Mayo Clinic Proceedings reviewed 100's of journal articles testing clinical practices across the nation. The result? "146 studies []proved or strongly suggested that a current standard practice either had no benefit at all or was inferior to the practice it replaced." An example included telling breast-cancer survivors to stop lifting weights, when in reality, this exercise alleviates symptoms. Dive down this rabbit hole and you might start wondering why we even bother going to the hospital when we're sick. 

How can a doctor treat patients based on nothing more than gut intuition and that "it's always been done that way"? For one, tradition: we have always treated a sickness with that practice. For another, researchers theorize that physicians may prescribe treatments because they are "bio-plausible,” in other words, they intuitively seem like they should work. For example, a cardiologist might insert a stint in a narrowed artery—even if studies show that the type of narrowing can’t be helped with a stint—because inserting a stint into a clog is common sense. 

These problems of practicing from the gut and tradition are even worse for us lawyers. The practice of law, particularly legal writing, is rife with formalisms and conventions—many lacking not only evidentiary support, but any logical basis whatsoever. Why do we include in our motions paragraphs of useless drivel about every procedural event that has ever occurred in the life-cycle of the case? Why do we write a treatise about the summary judgment standard in our motions, knowing not even the law clerk will read it? Why do we call out the other side for petty mistakes when all evidence suggests that this just makes us less sympathetic to the judge?

One reason is probably the same as it is for doctors: intuition. And like doctors, sometimes there is good reason to ignore our intuition as lawyers. Like when the other side makes a silly argument and our intuition says: "that is so wrong, I must respond to it." If an argument is so wrong, you probably should not be wasting the judge’s time with it. Cognitive science tells us that you are usually better off sticking to what matters. 

Also like doctors, we lawyers are creatures of tradition. But unlike medicine, there are few mechanisms in the legal system to tell us when we are doing things wrong. You can draft a bad brief and still get paid by your client. Heck, you can draft a bad brief and still win your case. Neither the judge nor your client is likely to call you out for writing problems. Indeed, we aren’t a great profession at giving feedback in the first place. Lawyers usually comment on others' writing only if it's really bad or really good. And as far recognizing problems that need to change on our own, that is always tough. As Warren Buffet said, "What the human being is best at doing is interpreting all new information so that their prior conclusions remain intact.” 

Granted, it's harder to empirically test which legal arguments work better than others, or whether the oxford comma is all that important in a brief. But consider that persuading through legal writing can be at least some part science. Thanks to phenomenal research within the legal writing community (and otherwise), we are learning more about how humans process complex information. We are learning more about what writing works. 

Joe Kimble, one of the leading legal-writing minds out there, has a great article collecting some of the best studies on point—backing up plain language writing practices like using simpler sentences and active voice.

Similar evidence-based work has been around for decades, and the science is only improving. A great example is a phenomenal book (by two fantastic legal writing professors) applying cognitive science to legal writing, backing up a number of writing practices like chunking information. Another, by Jean Sternlight and Jennifer K. Robbennolt, applies psychology to various aspects of legal practice, including legal writing. And this does not begin to touch on all of the exciting work being done to identify writing and persuasion practices that work. 

Even without the empirical evidence, you can be better about teasing out what works rather than blindly following intuition and tradition. For one, pay careful attention to feedback from others. 

Two types of feedback may be particularly helpful. First, ask your editor to pick only one or two big problems in your document—things you do repeatedly. By focusing your editor on just a couple things, they will pay closer attention (and give you something manageable to work on fixing). Second, ask for feedback on readability, not just suggestions for how to change your writing. This will prevent you from rotely accepting changes, and instead, forces you to learn to fix the problems yourself. Finally, be thoughtful about when and where you ask for feedback. Save it for writing that you put some real work into—and make sure you ask at a time when your editor isn’t too busy.

You can also gather evidence about which practices work by writing more, and in different venues. Say, a blog post. You might find it easier to get feedback and speaking to non-legal audiences will improve your ability to connect with others. Another sign that a practice works is if fantastic writers use it. So steal practices from the good writers in your life. 

Take the time to get more eyes on your work, ask for more feedback, and pay attention to what works—you will start to parse the practices that work from those that don’t. Above all, at least question why you use the writing practices that you do.  

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

February 10, 2018 in Law School, Legal Profession, Legal Writing | Permalink | Comments (3)

Friday, February 9, 2018

Appellate Advocacy Blog Weekly Roundup February 9, 2018

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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 Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Supreme Court Opinions and News:

The topic of gerrymandering considers to be on the radar of the Supreme Court.  As the Washington Post reports, opponents of gerrymandering keep winning in the lower courts, but aren't seeing any immediate impact.  While challenges to gerrymandering have been successful in federal courts in Texas, North Carolina, and Wisconsin, and while those lower courts have ordered new voting districts be drawn and in place for the 2018 elections, the Supreme Court has "stopped them all."  The Supreme Court has taken gerrymandering cases on its docket, and has stayed several lower court orders, and it is likely that districts won't be redrawn before the 2018 elections.  For more, see this Wall Street Journal article about the challenge to Pennsylvania's districts.

In United States v. Microsoft Corp., the Supreme Court will address whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. 2703 by making disclosure in the United States of electronic communications within that provider's control, even if those materials are stored abroad.  The case presents an interesting intersection of "[o]ld laws, new technology, and national borders."  At SCOTUSBlog, Amy Howe wrote about the case this week and how the Stored Communications Act, passed in 1986, was likely passed without Congress ever considering the core issue of the case.  As technology continues to evolve, application of older communications laws becomes increasingly challenging.

Federal Appellate Court Opinions and News:

Late last year, allegations of inappropriate sexual comments or behavior were raised against former 9th Circuit Court of Appeals Judge Alex Kozinski.  Kozinski retired soon thereafter, but the chief judge of the 9th Circuit initiated a complaint against Kozinski under the Judicial Conduct and Disability Act and asked the Judicial Council to investigate. This week, it was reported that the Judicial Council has determined that it lacks authority to conduct such an investigation because of Kozinski's retirement.  The Council indicated that it was requesting that it was "requesting that its order be forwarded 'to any relevant congressional committee for their information' and to all other judicial councils."

Practice Tips and Pointers:

Bryan Garner recently published an article in the ABAJournal titled, "Writing vs. Good Writing: Make the languorous doldrums of reading disappear." In the article, he explores the importance of making a conscious effort to write so that the product does not bore the reader.

 

Appellate Job Postings:

In case you missed it, #AppellateTwitter's Chief Judge Stephen Dillard of the Court of Appeals of Georgia noted on Twitter earlier this week that "there is still time to apply for a summer internship in [his] chambers."

February 9, 2018 | Permalink | Comments (0)

Thursday, February 8, 2018

Justice Ginsburg Reminds Us To Be Bold, But Not To Take Ourselves Too Seriously

The Notorious RGB is on tour. In person, she's a tiny little lady, with a tiny little voice, but out on the road she draws crowds like any other rock star. And at eighty-four, she is going strong. She says she will keep going as long as she can "do the job full steam." She even has a movie coming out documenting her life. It's entitled "RBG." She's a big deal. Not many others get to go by just their initials and everyone still knows who they're talking about.

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(Justice Ginsburg at NYU recently. This picture was too good not to share.)

Justice Ginsburg was recently profiled in the New York Times with tales of her latest adventures, but what she said about her criticism of Roe v. Wade many years ago, prompted me to think about my own day job - teaching law students how to advocate. In a lecture she delivered at NYU shortly before she joined the Supreme Court, Ginsburg

criticized Roe v. Wade, the 1973 decision establishing a constitutional right to abortion.

The Supreme Court had moved too fast, Justice Ginsburg wrote at the time. It would have sufficed, she wrote, to strike down the extreme Texas law at issue in the case and then proceeded in measured steps in later cases to consider other abortion restrictions.

The trend in state legislatures in the early 1970s, she wrote, was toward more liberal abortion laws. The categorical Roe decision, she wrote, gave rise to “a well-organized and vocal right-to-life movement” that “succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

Her analysis is contested, as Justice Ginsburg acknowledged on Monday. “I know that there are many people who disagree with me on this subject,” she said.

This statement is so insightful for how I want my students to think about advocacy. Law schools are smack in the middle of moot court season right now, and many of us are running to practices after class or during our lunch breaks. Inevitably, always one critique for the student mooters is, "We are the Supreme Court. We can do anything we want. What should we do? Make that argument." Students are frequently stuck on precedent and making analogous arguments to lower court opinions. It takes some nudging to get them into the mindset to make them contemplate what really is the right decision for the court to make. Have the lower courts found the right reasoning, or have they gotten it wrong? Now is the time to tell the Supreme Court how to rule and why.

The point Justice Ginsburg makes is also prescient considering our current political discourse. How do we move good policies forward? Is having a court declare the rule a good path, despite a lag in public opinion? Or do we forge ahead having faith that public opinion will fall in line? We can see through history that unpopular decisions have eventually become the norm, but acceptance of many of these opinions has rarely been immediate. RBG may be right, perhaps sometimes the Court should move slower. But the value is in thinking through the ramifications of both action and patience.

These are the kinds of questions I want my students to wrestle with, so that they can become good advocates, but also good stewards of the profession. Lawyers hold the future of the law in their hands, and nurturing it is a task not to be taken lightly. I am glad Justice Ginsburg reminds us to think outside the judicial box.

February 8, 2018 in United States Supreme Court | Permalink | Comments (0)

Monday, February 5, 2018

Greatest Supreme Court Justice of All Time

With the Super Bowl just behind us (and the Olympics just before us), we are likely to hear on the news about how certain athletes are the GOAT--Greatest of All Time.  The greatest quarterback, the greatest downhill skier (note, we rarely hear about the greatest curler or the greatest long snapper).  We Americans love to rank!  Just recently, CBS News posted the 2017 ranking of presidents, from worst to best.

All this talk of GOAT got me thinking--who is the greatest Supreme Court Justice of all time? And what criteria do you use to decide?  If, for example, we were going to pick the greatest judge of all time based on name alone it would be an easy endeavor.  We have great choices, like Judge Learned Hand, Judge Henry Friendly, or Judge John Wisdom.  But, if we are going to look at other criteria, how do we decide?

There are a few existing lists out there.  Prof. Jonathan Turley has a 2009 list posted on Historynet that identifies the 9 greatest Supreme Court Justices based on their ability "to rise above conventional thinking and prejudices and epitomize what constitutes the right stuff on the Supreme Court." Prof. Bernard Schwartz's 1995 article identifies the 10 greatest justices, with 4 honorable mentions.  In his article, Prof. Schwartz recognizes and embraces the obvious subjectivity in creating such a list.  Finally, Prof. Cass Sunstein has a list of the greatest justices of all time, focusing on historical significance and legal ability, and Prof. Will Baude has critiqued that list.

Adopting the approach of Prof. Schwartz and recognizing the subjectivity inherent in any "greatest" list, I would like to have a blog vote on the greatest Supreme Court Justice of all time.  I have divided the top contenders by time period.  There are three time periods and the survey should let you pick two in each time period.  I have included some justices who have also written terrible opinions, but I saw them on some of the lists mentioned above.  Feel free to comment on any justices that you think should be included in a future vote. Next week we will try for a runoff between the top 6 and any other top contenders from the comments.

 

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February 5, 2018 | Permalink | Comments (0)

Friday, February 2, 2018

Appellate Advocacy Blog Weekly Roundup February 2, 2018

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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 Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court Opinions and News:

Justice Ruth Bader Ginsburg skipped President Trump’s State of the Union address, but people should not read too much into her absence.  While Justice Ginsburg has been vocal about her opinions of President Trump, her absence at the State of the Union address was because of a scheduling conflict. Besides, a justice’s absence is not unusual and does not necessarily reflect the justice’s political views. Richard Wolf at USA Today explains it all in this article.

 

Federal Appellate Court Opinions and News:

Since Gideon v. Wainwright, the right of an indigent defendant in a criminal trial to have the assistance of court-appointed counsel has been a fundamental right essential to a fair trial. According to the Ninth Circuit Court of Appeals, however, the right to a court-appointed attorney does not extend to immigration proceedings for accompanied minors. The Court’s ruling is “narrow in scope” and “ does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer.”  While the Court expressed sympathy for the accompanied minor’s situation, the Court found that the law did not allow it to grant the minor the requested relief.  Click HERE to read the Court’s opinion. Dan Levine for Reuters has this report.

 

The U.S. Court of Appeals for the District of Columbia Circuit put a damper on President Trump’s effort to easy consumer protection regulations when it upheld the constitutionality of the Consumer Financial Protection Bureau’s structure. The Court held that “CFPB’s authority is not of such character that removal protection of its Director necessarily interferes with the President’s Article II duty or prerogative. “ The Court’s ruling can be found HERE. Bloomberg has this report.

 

In a 56-42 vote, the Senate confirmed Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals. The confirmation of Stras was not without controversy, however. Stras was the first judicial nominee in 30 years to be confirmed without “blue slips” from both of his state’s Senators.  In this report, Kevin Freking at Associated Press explains the history of the “blue slip” and how it has been used.

 

State Court News:

The California Third District Court of Appeals showed that it is hip to the lingo the kids are using these days. Tinder, a popular dating app that allows users to “swipe right” for people they like and “swipe left” for people they don’t, was sued for age discrimination because it charged people in their 20s $9.99 for the app’s premium service, but charged people 30 or older $19.99.  In reversing the lower court’s dismissal of the lawsuit, Judge Currey wrote, “Because nothing in the complaint suggests there is a strong public policy that justifies the alleged discriminatory pricing, the trial court erred in sustaining the demurrer. Accordingly, we swipe left, and reverse.” It seems that Judge Currey knows how to throw shade.  The Court’s full opinion can be found HERE.

 

Circuit Court Judge Rosemarie Aquilina has skyrocketed to fame for comments she made when sentencing  Larry Nassar, the former gymnastics doctor convicted of multiple sexual assaults, to 40-175 years in prison.  Some people have praised Judge Aquilina for her comments, while some People believe her comments exceeded the bounds of proper judicial conduct. Now, it is being reported that Judge Aquilina may be considering a run for Michigan’s Supreme Court. Although Judge Aquilina has not decided if she will run for Michigan’s highest court, some people think her handling of the Nassar case makes her an ideal candidate. Jonathan Oosting has this report.

 

The Illinois Supreme Court has found that it is unconstitutional to prohibit an individual from carrying or possessing a firearm within 1000 feet of a public park. The Court held that the law could create a “chilling effect” on the Second Amendment right to bear arms because “[i]nnocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone.” The Court was not persuaded by the State’s arguments because the State did not present any “specific data or other meaningful evidence” establishing a direct correlation showing that a 1000-foot firearm ban around a public park protects children. Click HERE for the Court’s opinion. The Chicago Tribune has this report.

February 2, 2018 | Permalink | Comments (0)

Thursday, February 1, 2018

Thinking Thursday: St Brigid's Day and our writing process

Today is St. Brigid’s Day, celebrating propagation and creativity (primarily of women, but let’s interpret this broadly). As professional writers whose jobs entail creativity in problem-solving, it is a good day to stop and audit our own methods of propagating our acts of creativity, namely those of writing. The more we understand how we work as writers, the better we will write.

Professor Pam Jenoff—a Rutgers colleague as well as a New York Times Bestseller author—offers practitioners a way to do this in her short and quite readable article in Legal Communication & Rhetoric’s volume 10, The Self-Assessed Writer. In the article she imports tried-and-true methods from fiction-writing, re-imagined to help the legal writer. To improve our writing and our willingness to write, Professor Jenoff recommends we take a little time to express our work styles, optimized environments, and preferred tasks. Her suggestions for doing this exercise are simple to digest and complete. A few pages into the article she offers us a questionnaire that asks us to think about our most productive writing atmosphere. She also asks us to be honest about our task-preferences in the form of writing challenges and strengths.

I have taken this assessment and asked my students to do the same. In doing so, I have come to terms with the actual what and when of my writing successes, which are somewhat different than what I wish I could report are the what and when. I am great at the re-organizing and revising stages of the writing process and will happily work on that for hours on end with only a few breaks. A lengthy first draft will exhaust me, and to get through, I need to work on it in smaller chunks than I do a revising project. When I take mid-session breaks I know that I need to walk to process the information in my head, and I know that I need a notebook in hand or a voice recorder app at the ready, because I will forget every productive thought I had if I don't preserve it during the walk. I also know that I need two screens and therefore a desktop setup for the first-draft process. Research on one side, draft on the other. I need the same as I reorganize because I find it easier to cut and paste into a new document. If I am in later revising stages, a one-screen laptop works fine. This blog entry was written using the two-screen method. If I wrote it on my laptop you would be reading it as Thinking Saturday. 

The point Professor Jenoff makes isn’t that we can always have what we want in our writing milieu. Instead, it’s to understand what is optimal. The further we move from the optimal, the harder our writing process becomes. Conversely, our productivity and the quality of our product increases as we pay ourselves first with an optimized writing process.

Happy St. Brigid’s Day.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

February 1, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)