Appellate Advocacy Blog

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

Tuesday, September 29, 2020

Good Writing is Rewriting

Douris_Man_with_wax_tablet

When I was in college, I had the opportunity to sit and talk for a bit with Ray Bradbury after he gave a lecture on writing. His first advice on writing? "Write the damn thing!" It will probably be garbage, he continued, but you need something to start with. Because, "Good writing is rewriting."

I later learned that Bradbury practiced what he preached. He had a note posted over his typewriter that just said "Don't Think!" But he also was a stickler for rewriting. When he first wrote "Something Wicked This Way Comes," the draft stood at 150,000 words. He then cut 50,000.

Recently, I was reminded of that conversation when, after learning of her passing, I re-read Justice Ruth Bader Ginsburg's interview by Bryan Garner in The Scribes Journal of Legal Writing. She was deeply influenced in her writing, she said, by one of her professors - Victor Nabokov. And Nabokov once said:

“I have rewritten — often several times — every word I have ever published. My pencils outlast their erasers.”

This training led Ginsburg to work "very hard" on every opinion she wrote, going through "innumerable drafts." Her goal was clarity, and that clarity took a great deal of work. Her oftentimes ideological opponent, and friend, Justice Antonin Scalia, agreed in his interview, admitting that he was not a naturally facile writer, and that he continued working on drafts until they took them from his hands.

I take a great deal of comfort from this exchange between Garner and Scalia:

BAG:  Do you think it’s often true that the less facile writers, the ones who really struggle with it the most and put the most effort into it, are the best writers?

AS:  I think it’s probably almost always true.

BAG:  It just looks easy.

AS:  It just looks easy. Yeah. Yes, I don’t believe in the facile writer. Maybe there’s one or two out there, but . . .

One of the greatest compliments I can be paid by a client is often accompanied by a criticism. I know I have done my job well when a client reviews a brief I have written and then expresses dismay when they see the time I spent on it, because the ultimate product makes everything seem so simple. But trust me, it just looks easy.

The picture at the top of the article is ancient. It is a painting from about 500 BC of a scribe using a wax tablet. Wax tablets had two great advantages at the time: You could write quickly on them, and you could even more quickly melt away the words you had written. The modern tablet is even faster at both tasks. Don't ever feel bound by that first draft when it can so easily be melted away and improved.

As I work on a brief this week, those reminders have helped me focus in on what matters. I am working diligently, because I am not, naturally, a facile writer. I am putting down thoughts on paper quickly, and then rewriting painstakingly.

Because, after all, good writing often requires requires a great deal of editing is re-writing rewriting.

(Image attribution: Pottery Fan: photo of Greek art created about 500 BC by Douris / CC BY-SA (https://creativecommons.org/licenses/by-sa/3.0))

September 29, 2020 in Appellate Practice, Legal Writing | Permalink | Comments (1)

Monday, September 28, 2020

Guest Post: Former Law Clerk Influence at the Supreme Court: How Personal Knowledge Gives Former Clerks an Edge

We are pleased to welcome Prof. Ryan C. Black and Prof. Ryan J. Owens for this guest post. Ryan C. Black is Professor of Political Science at Michigan State University.  Ryan J. Owens is the George C. and Carmella P. Edwards Professor of American Politics and the Director of the Tommy G. Thompson Center on Public Leadership, both at the University of Wisconsin-Madison

Recently, we published a study that examined the influence of former Supreme Court law clerks when they return to the High Court to argue cases. We sought to examine two questions: Do former clerks influence their justices? If so, why?

Like a vine that grows toward sunlight, these questions reach toward some of the most normatively important topics in a constitutional republic.  What does it mean for a judicial tribunal to decide cases neutrally? At what point do personal connections supersede legal arguments? How can a court most effectively mete out justice?

Our results show that former clerks exert a significant—though focused—influence over justices. Former clerks are more likely to obtain their own justices’ votes than otherwise identical Supreme Court advocates who never clerked. In numerical terms, an attorney who once clerked for a particular justice has a 73% chance of capturing that justice’s vote, while an otherwise identical attorney who never clerked has only a 57% chance of winning that justice’s vote. Stated otherwise, a former clerk enjoys a 16% greater probability of winning her former justice’s vote than all other attorneys.

This 16% greater probability is substantively meaningful. We suspect nearly anyone would jump at the chance to improve their odds of winning a justice’s vote at all, let alone from 57% to 73%. To place our findings in context, a previous study found that a quality argument by an attorney increased his or her chances of winning by 11%. Our results are even larger, highlighting the sizable influence of former clerks.

The importance of our finding is particularly telling if the case seems headed to a 5-4 outcome. Improving the chances of shifting a 5-4 loss to a 5-4 victory by strategically employing a former clerk seems worth the investment for firms and their clients.  The same could be said of cases where the Court median’s position is unclear. Not sure which way the swing justice will go? Call in that justice’s former clerk to argue the case. It may be the difference between victory and defeat.

Having established that clerks do in fact influence their former justices, we then examined why they enjoyed such success.

We tested a number of theories for that success. One theory argued that former clerks are simply better lawyers or have greater legal knowledge than non-clerks, and their inherent skills make them more successful. While it is true that Supreme Court clerks are indeed intelligent, it is not the case that they are inherently better lawyers than non-clerks. If that was so, all former clerks would have performed better than all non-clerks. Yet, the data did not reveal that outcome. In fact, some former clerks are just as likely to capture some justices’ votes as non-clerks. This finding also casts doubt on the theory that former clerks prevail because they enjoy process expertise. If knowing how the Court operates gives former clerks an edge, all former clerks would perform better than all non-clerks. Again, they do not. It is also possible that former clerks work at better law firms with greater resources, which helps them win. But we examined that dynamic and still found a former clerk influence that is independent of resources.

After a series of tests, we discovered that former clerk influence turns on their personalized knowledge of their justice. Clerks work closely with their justices for a full year, and during that intense time period, they learn much about their justices—how they think, what kinds of cases they like, what sorts of legal arguments work best, and similar bits of information. When they return to the Court to argue as lawyers, they can employ that personalized information to win their former justice’s vote.

Of course, it is obvious that justices have come to trust their former clerks. In other words, it could be possible that the “causal arrow” points from justice to former clerk rather than from former clerk to justice. We suspect there is something to the argument that justices trust their former clerks and thus vote for their position. Still, that alternative theory likely does not explain the 16% increase we discover. After all, justices can also come to trust the information other attorneys provide them. Clerking definitely provides someone the opportunity to gain a justice’s trust, but so too does a lifetime of litigating before that justice. In other words, if justices simply vote for those they have come to trust, one would expect them to be just as likely to vote for successful (i.e., trustworthy) repeat players who never clerked as they would their former clerks. The results, however, show that justices are still more likely to vote for their former clerks even when compared against successful repeat litigators who never clerked. Personalized information matters.

One alternative approach to examine the impact of personalized information would be to examine how justices treat lower court opinions written by their former clerks who have gone on to become judges. If the personalized information is the currency we believe it is, then we should expect that justices might be more likely to take cases decided by their former clerks, particularly when their former clerks write dissents. Those judges will know what it takes to capture their former boss’s attention. Future scholarship should investigate this dynamic.

Personal information is gold. And, if our study has anything to say about it, former clerks are swimming in it.

September 28, 2020 | Permalink | Comments (0)

Saturday, September 26, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, September 27, 2020

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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 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.

 

Justice Ruth Bader Ginsberg died on September 18 and was honored this week in Washington, D.C. She was the second woman to be appointed to the Supreme Court and served 27 years as a Justice. And, she was the first woman ever to lie in state at the US Capitol. Her legacy as a respected lawyer, jurist, and social justice icon has been detailed in countless news items and articles, including at SCOTUS Blog, which includes a series in tribute. For other tributes and coverage see The BBC, The New York Times, NPR, and The Washington Post.

 

While there is undoubtedly other appellate news this week, in honor of Justice Ginsberg, I'll leave the other news to next week. 

September 26, 2020 in United States Supreme Court | Permalink | Comments (0)

A Fairy Tale Brief Teaches Clarity and Form

Once again, we find ourselves at the end of a week full of heavy news.  While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter.  If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal:  https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf

In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear.  See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition).  The sample also helps litigants include all opening brief sections required by the California Rules of Court.

For example, the Court’s Statement of the Case provides a truly brief summary of the key facts, with no unneeded detail or argument.  In two sentences, the sample summarizes the parties’ status and introduces the important facts: 

The Three Bears filed a complaint in August 2001 alleging Goldilocks had trespassed on their property by entering their home when they were not at home, consuming a meal and falling asleep in a bed. The complaint alleged that Baby Bear had suffered physical and mental damages as a result of being frightened upon discovering Goldilocks. (CT 1-4.) 

The brief also shows proper record cites to the Clerk’s and Reporter’s Transcripts in all sections, something too often missing from briefs. 

Goldilocks SOC

The sample brief continues with a very straightforward recitation of the facts. including the fun note Baby Bear’s treating doctor was an “expert bear cub psychologist, Dr. Dramatic.”  In five paragraphs, the Court’s sample outlines the testimony from the parties, Dr. Dramatic, and a neighbor, Gloria Gardener.  For example, “Goldilocks testified she was looking for a boarding facility to take a rest, the Bears' house was very large, there was no fence to indicate this was private property, the door of the house was open and there was a mat at the front door that said ‘WELCOME.’  (RT 25-26.)”   Since Goldilocks “thought this was a commercial boarding establishment, as large amounts of food were set out as if for guests, “ she “looked for someone to ask about spending the night[,] saw several sets of chairs and beds all in different sizes (RT 27-28.),” and fell asleep.

As this image shows, the Argument section of the sample brief has three subsections, including the separate sections required in California and many jurisdictions on the standard of review and the elements of the action: 


Goldilocks arg

While the Court’s sample is not perfect, and I would remove passive voice and add more express application of the law to the underlying facts, the brief still follows a clear CRAC format.  Finally, the brief concludes briefly, as all appellate writing should.  Instead of an overly argumentative or detailed conclusion, the sample very quickly summarizes and then asks for specific relief:  “Goldilocks respectfully asks that this Court reverse the decision of the trial court and vacate the award of damages.”

Hopefully, the fairy tale context of the Court’s sample will make you smile.  But on a deeper level, the brief helps unrepresented litigants and law students with basic brief format.  The Court’s brief also reminds experienced practitioners to always check local rules and keep our briefs as straightforward and simple as possible.

September 26, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Humor, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Tuesday, September 22, 2020

Confrontation Rights and COVID-19

Suppose you are a criminal defense attorney preparing a case for trial. Opposing counsel informs you that the key eyewitness is medically vulnerable to COVID-19 and plans to seek court permission to testify remotely while wearing a mask. Does the confrontation clause prohibit such testimony, requiring in-person, maskless cross-examination to vindicate the defendant’s constitutional rights?

Several courts across the country have recently addressed this question, with surprisingly disparate results and analyses.[1] The cases remind us of just one more way that the COVID-19 pandemic places tension on both our everyday lives and our constitutional rights.

First, consider whether remote testimony is viable option that would meet the confrontation clause’s requirements. Some witnesses can testify remotely to prevent other harms; Maryland v. Craig, 497 U.S. 836 (1990) allowed young children who have been subject to significant trauma to testify remotely via one-way closed-circuit television. Craig demonstrates that the clause is not an absolute requirement for in-person testimony. Prosecutors might argue that pandemic conditions likewise justify limits on the full confrontation right such that remote testimony is sufficient. Yet Craig is likely limited to its facts, and it seems undermined by the fuller explication of the confrontation clause in Crawford v. Washington, 541 U.S. 36 (2004). Crawford was authored by Justice Scalia, who vehemently dissented in Craig, and who later suggested that remote testimony for adults might not satisfy the confrontation clause.[2] Even if the argument in favor of remote testimony is stronger today given advancements in video conferencing technology, the confrontation clause does not come with any clear “exigent circumstances” exception that might apply to pandemic conditions. And it seems likely that frequent remote testimony would not meet with Supreme Court approval if used beyond Craig’s circumstances.

But the confrontation clause still permits prosecutors to admit prior recorded testimony from outside the courtroom in some situations. Where a witness is unavailable to testify at trial, the right to confrontation can be satisfied if that witness is first subject to an in-person evidence deposition during which the defendant had the opportunity to cross-examine. The evidence deposition is admissible as evidence at trial. The “unavailability” that triggers such a procedure has included a witness’s extreme, even life-threatening, illness. A witness whose health conditions make travel and in-court testimony during a pandemic a similarly life-threatening endeavor might also be considered unavailable, such that an evidence deposition taken prior to trial is a viable option.

But what if the witness wants to wear a mask while testifying? This may present thorny confrontation problems for either in-court or evidence deposition testimony. The right to confrontation exists in part to ensure that the defendant, and potentially the jury, can observe the demeanor of the declarant to assess her credibility. Does a mask preclude that needed evaluation of one’s demeanor?

Fortunately, masks do not fully preclude credibility assessment by defendants and jurors. Observers can still assess a masked witness’s demeanor by noting her body language, eye contact, and tone of voice. Indeed, courts have permitted testimony under conditions that only partially limit observers’ views of the witnesses face, such as testimony from behind a partial veil that does not cover the eyes and provides an opaque view of the witness’s lip movements.[3] Masks with clear windows over the lips, permitting observers to see the speakers mouth while talking, are readily available. Thus, even if jurors can detect lies based upon live witnesses’ demeanors—a dubious proposition in its own right—the experience can be replicated through a mask. Thus, it is likely that courts can work around confrontation clause concerns, even in pandemic conditions, to ensure that the criminal justice system continues to function.

 

[1] See, e.g., Puerto Rico v. Rosario, 2020 WL 5238749 (P.R. Sup. Ct.); People v. Jemison, No. 157812, slip op. (Mich. June 22, 2020); United States v. Donzinger, 2020 WL 5152162 (S.D.N.Y.); United States v. Casher, 2020 WL 3270541 (D. Mont.).

[2] Richard D. Friedman, Remote Testimony and the Coronavirus, http://confrontationright.blogspot.com/2020/05/remote-testimony-and-coronavirus-crisis.html, May 4, 2020 (noting that Scalia argued against a proposed federal rule of criminal procedure that would have allowed for remote testimony in some cases).

[3] Eugene Volokh, Does Letting Witness Testify Wearing Partial Veil Violate the Confrontation Clause?, https://reason.com/2019/06/10/does-letting-witness-testify-wearing-partial-veil-violate-the-confrontation-clause/, June 10, 2019.

September 22, 2020 | Permalink | Comments (0)

Sunday, September 20, 2020

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College: An Analysis of the Future of Affirmative Action

I.    Background

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the plaintiff, an organization that opposes affirmative action, filed suit against Harvard University in the United States District Court for the District of Massachusetts, alleging that Harvard’s affirmative action program unconstitutionally discriminated against Asian-American applicants.[1] In September 2019, U.S. District Court Judge Allison Burroughs rejected the Plaintiff’s claim, holding that Harvard’s affirmative action program neither engaged in racial balancing (quotas) nor placed an undue emphasis on an applicant’s race in the admissions process.[2] Accordingly, although Harvard considered race as part of its holistic admissions process, its process did not discriminate impermissibly based on race and thus passed constitutional muster.[3] Subsequently, Students for Fair Admissions, Inc. appealed to the First Circuit Court of Appeals, arguing that Harvard’s admissions process imposed a de facto “racial penalty” on Asian-American applicants.

On September 16, 2020, the First Circuit heard oral arguments and the three-member panel appeared skeptical of the appellant’s arguments.[4]  Judge Sandra Lynch, for example, stated that “[y]our argument seems to come down to ‘Harvard must admit based only on academic rating and may not consider anything else,’” an argument that would contravene the United States Supreme Court’s jurisprudence holding that race may be considered as part of a holistic admissions process.[5] The oral argument suggests that the First Circuit is likely to uphold the district court’s decision, but that will almost certainly not be the end of the story. The Supreme Court will likely grant certiorari to consider the permissible contours of affirmative action programs and the extent to which colleges and universities may consider race in the admissions process.

II.    Analysis of Affirmative Action Jurisprudence

The United States Supreme Court’s jurisprudence regarding affirmative action provides a reasonably justifiable basis upon which to uphold the constitutionality of affirmative action programs.

To begin with, in Regents of the University of California v. Bakke, the Court held that the value in promoting educational diversity was sufficiently compelling to justify the use of race in the admissions process.[6] Indeed, few could gainsay that diversity confers a substantial benefit upon universities, students, and the community. A diverse student body exposes students to various perspectives, enables students to interact with others from different backgrounds and experiences, and facilitates an awareness of the obstacles and adversity that many minorities have overcome. As Judge Burroughs emphasized, “students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents,” and, as such, “race-conscious admissions programs have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning.”[7]

Importantly, however, the Court in Bakke emphasized – and rightly so – that a university’s admissions process must be narrowly tailored to ensure a holistic and individualized consideration of every applicant, such that race cannot the sole or even predominant factor in the admissions process.[8] And in Gratz v. Bollinger, the Court reaffirmed this principle, invalidating the University of Michigan’s undergraduate admissions policy because it automatically awarded twenty points toward admission for minority applicants (100 points were required for admission, with a perfect score on the SAT earning twelve points).[9] This approach permitted precisely what Bakke prohibited – an excessive emphasis on race in the admissions process.

Conversely, in Grutter v. Bollinger, the Court upheld the University of Michigan Law School’s affirmative action program, holding that, although the law school’s admissions process favored underrepresented minority groups, the admissions process was sufficiently holistic to ensure an individualized consideration of every applicant.[10] Additionally, the Court held that the law school’s objective of obtaining a “critical mass” of minority students was sufficiently tailored to further the interest in achieving a diverse student body.[11] The “critical mass” rationale makes sense; one could hardly argue that the benefits of diversity are achieved if the percentage of diverse students are so minuscule

Finally, in Fisher v. University of Texas, the Court upheld the University of Texas’s affirmative action program, although its decision brought uncertainty, rather than clarity, to the Court’s affirmative action jurisprudence.[12] In Fisher, the University of Texas automatically admitted all high school students throughout Texas who graduated in the top 10% of their high school class.[13] Although this policy created substantial diversity among the University of Texas’s incoming classes, the university nonetheless included race as a factor in its holistic admissions process, which was reserved for students who did not graduate in the top 10% of their class.[14] A white applicant who had been denied admission through the holistic process sued the University of Texas, arguing in part that, because the university already achieved substantial diversity through the top 10% program, the use of race in its holistic process was not sufficiently narrowly tailored.[15]

The Court rejected this argument, holding that the university’s rationale for its diversity-related goals, which included the elimination of stereotypes, cross-racial understanding, and preparing students for a diverse workforce, were sufficiently measurable to enable judicial review, and that the university’s determination that the top 10% program was insufficient to ensure adequate diversity was entitled to substantial deference.[16] On this basis, the Court upheld the university’s affirmative action program, although the Court’s decision, which failed to apply strict scrutiny (as had been the case in Bakke, Gratz, and Grutter), lacked a meaningful analysis of whether the university’s admissions process was appropriately tailored to ensure an individualized consideration of applicants outside of the top 10% program.[17] Simply put, Fisher muddied the waters and brought confusion, rather than clarity, to the Court’s affirmative action jurisprudence, particularly regarding the legal standards governing the constitutional of affirmative action policies.

Notwithstanding, the Court’s decisions have established several broad principles that provide some guidance regarding the constitutionality of affirmative action policies. First, the interest in achieving a diverse student is undoubtedly compelling, particularly given that it exposes students to different perspectives, facilitates relationships with students of various backgrounds, and, as Judge Burroughs stated, this creates a “diverse atmosphere that fosters learning.”[18] Second, the requirement that universities assess applicants holistically – and thus ensure an individualized consideration of every applicant – at least theoretically ensures that race will not be a predominant or, worse, deciding factor in admissions decisions. Third, it makes sense that courts would be reluctant to interfere in the internal policymaking decisions of universities absent evidence, as in Gratz, that admissions committees are preferencing minority applicants to such as degree  (and thus discriminating against applicants of other races) that renders race, at least in some circumstances, dispositive in admissions decisions. Perhaps for that reason, as Justice Anthony Kennedy stated in Fisher v. University of Texas, universities are entitled to substantial deference in designing affirmative action program 

Opponents of affirmative action, however, offer several arguments that are worthy of consideration. First, the consideration of race to any degree whatsoever is arguably contrary to the fundamental guarantee of equality and equal protection under the law. This argument, however, ignores the fact that for most of this country’s history, universities did consider affirmative action in the admissions process – to the detriment of minority applicants, particularly African Americans. Thus, the notion that we should embrace a color-blind admissions process – in the wake of, for example, segregation and Jim Crow – is untenable and unfair.

Second, opponents may assert the argument that the Court’s attempt to ensure a holistic and individualized admissions process is unrealistic because universities’ contention that race is only one factor in the admissions process is disingenuous. Put simply, in many instances, race is the sole determining factor in whether an applicant is admitted.  To assess this argument, scholars would need to examine the grade-point averages and SAT (or ACT) scores of applicants admitted under universities’ affirmative action programs. If the scores of admitted minority applicants were substantially (not marginally) lower than those of non-minority applicants, one could reasonably argue that race was a predominant, if not determinative, factor. If that were indeed the case, then scholars must examine the percentage of minority applicants that were admitted with lower grade point averages and SAT (or ACT) scores compared to non-minority applicants with similar scores. If such analysis revealed a substantial disparity in the percentage of admitted minority and non-minority applicants, one could make a prima facie case that race was the deciding factor. That would lead to the conclusion that the Court in Bakker refused to countenance: the excessive emphasis on race in the admissions process.

Third, some scholars have argued that affirmative action policies harm minority applicants by admitting such applicants to colleges where they will struggle to succeed academically.[19] Without detailed admissions data from universities and data regarding the academic performance and employment outcomes of minority students, this argument is difficult to assess.

What is certain, however, is that the Court’s decisions, particularly after Fisher, has failed to delineate a workable line between policies that will survive constitutional scrutiny and those that will not. As a result, the law concerning affirmative action remains unstable and unpredictable, resulting in a case-by-case approach that provides insufficient guidance to university administrators. That should change.

III.    Conclusion – The Future of Affirmative Action

Affirmative action policies at universities are likely here to stay for the foreseeable future, and for good reason. Diversity enhances the educational experience for all students and provides underrepresented groups with access to educational opportunities [20]that, for too long, have been wrongfully denied. But affirmative action alone is not sufficient. And there is some merit, based on relevant data, that affirmative action hurts the very groups that there are designed to benefit.[21]

Rather, legislators, policymakers, and scholars should address the root cause of the problem, namely, educational inequality at the grade and high school levels, which results from poverty and affects children of all races. Indeed, after the Supreme Court’s decision in San Antonio School District v. Rodriguez, where the Court held that a school district’s financing system could be based on local property taxes, educational inequality was an inevitable result.  Specifically, the quality of education (and educational resources) in grade and high schools differed substantially, if not alarmingly, depending on whether a community was affluent or poor. For example, the difference between an education at Beverly Hills High School and an education at Crenshaw High School in Los Angeles was like the difference between night and day.

It should come as no surprise, therefore, that students at Crenshaw High School, or other high schools in impoverished communities, lacked many educational resources, such as access to academic support services, extracurricular activities, and SAT or ACT tutoring services. It should also come as no surprise that the standardized test scores of applicants from impoverished communities, which are disproportionately minority, are substantially lower than those of students in affluent communities, which are disproportionately white.[22]  The upshot is that students from impoverished communities, regardless of race, are less prepared for the rigors of university academics than their more affluent peers.

Consequently, although affirmative action policies rightfully increase the diversity of student bodies and enhance access to education, they do not address the fact that students from disadvantaged or marginalized backgrounds often perform poorly in college, have higher dropout rates, and substandard employment outcomes.[23]

Given this reality, affirmative action policies, however well-intentioned, and as Sanders’ mismatch theory suggests, are not sufficient. Rather, universities should adopt and implement mandatory ‘bridge’ programs and mentorship programs for all students, regardless of race, who reside in poor communities and whose standardized test scores and grade point averages suggest that they may struggle to succeed academically. The goal would be to provide students from non-traditional or marginalized backgrounds with the preparation and support necessary to maximize their likelihood of achieving success in college, employment, and life. Such programs could occur in the summer before a student’s freshman year, be four or eight weeks in length, and focus on skills such as writing, analytical thinking skills, and life skills to facilitate the adjustment to university life. Additionally, each student who is considered “at risk” should be provided with faculty and student mentors who provide support to each student throughout the entirety of their undergraduate career.

Put simply, the debate regarding affirmative action misses the point. To truly benefit the groups that affirmative action targets, universities should focus on race and poverty as the driving forces undergirding educational inequality. In so doing, universities should implement programs that help to bridge the preparation and achievement gap, and that maximize the likelihood that students from traditionally disadvantaged backgrounds will succeed academically and, ultimately, prosper economically.

***

*This article was co-authored with Daria Brown, an undergraduate student and aspiring law student at Georgia College and State University in Milledgeville, Georgia. Daria edited and drafted a portion of the article, and provided helpful insights regarding affirmative action policy.

[1] See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf

[2] See id.

[3] Harvard Gazette, Judge Upholds Harvard’s Admissions Policy (Oct. 1, 2019), available at: https://news.harvard.edu/gazette/story/2020/09/appeals-court-panel-hears-oral-arguments-in-harvard-admissions-case/

[4] See id.

[5] Id.

[6] 438 U.S. 265 (1978).

[7] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.

[8] See Bakke, 438 U.S. 265.

[9] 539 U.S. 244 (2003).

[10] 539 U.S. 306.

[11]  See id.

[12] 136 S. Ct. 2198 (2016).

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.

[19] See, e.g., Richard Sander and Stuart Taylor, Jr., Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic Books, 2012).

[20] 411 U.S. 1 (1973).

[21] See Richard Sander and Stuart Taylor, Jr., The Painful Truth About Affirmative Action: Why Racial Preferences in College Admissions Hurt Minority Students – and Shroud the Education System in Dishonesty, (Oct. 2, 2012), available at: https://www.theatlantic.com/national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/; Elizabeth Slattery, How Affirmative Action At Colleges Helps Minority Students (Dec. 2, 2015), available at: https://www.heritage.org/courts/commentary/how-affirmative-action-colleges-hurts-minority-students

[22]  See Abigail Hess, Rich Students Get Better SAT Scores – Here’s Why (Oct. 3, 2019), available at:  https://www.cnbc.com/2019/10/03/rich-students-get-better-sat-scores-heres-why.html

[23] See Slattery, supra note 21.

September 20, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession | Permalink | Comments (0)

Wednesday, September 16, 2020

SCOTUS will hear October arguments by telephone

image from images.unsplash.com

As the first Monday in October approaches, one thing is now settled: the New Normal will, for now, remain the New Normal. The Supreme Court announced today that it will hear oral arguments scheduled for the October session via telephone conference. This decision was, as the Court's Public Information Office says, prompted by public health guidance. But there's a certain symmetry to it: the ten matters set for the October session were originally scheduled to be argued last spring. And now they will, according to the Court, be argued under the same format as last spring's post-COVID arguments. The justices and counsel will participate remotes. And the Court will adhere to the process it implemented in May: the justices will ask questions seratim in order of seniority. It also will continue to provide a live audio feed to a media pool.

Regardless of whether one loves or hates SCOTUS's format for telephonic argument—and, as Amy Howe explains, reaction has been decidedly mixed—two things are beyond question: the dynamic is different in interesting and potentially relevatory ways. And the live feed has made oral arguments in high profile cases more accessible to the public. As I discussed here last May, telephonic arguments have prompted some interesting and insightful scholarly reactions. That has continued: in June, the New York Times published this piece by Professors Leah Litman and Tonja Jacobi, and Adam Feldman of EmpiricalSCOTUS and SCOTUSblog drilled deeply into the data here and here. We will have ten more sets of argument through which to study the stilted, Chief-managed thing that is SCOTUS by phone. And those stilted exchanges will be more immediately accessible to and more immediately access by the public. As the Reporters Committee for Freedom of the Press explained in a letter to the Court today, the highest profile cases heard last May drew about 50,000 live listeners and nearly 500,000 same-day streamers. These numbers beat the usual by ... I mean, come on: 50,000 and 500,000 folks, respectively. It would be swell to see the Court continue to stream audio of oral arguments live. Even when it doesn't feature the flushing of an Article III commode

September 16, 2020 | Permalink | Comments (0)

Monday, September 14, 2020

Guest Post: Casting our rod. Announcing the Lady Justice: Women of the Court Podcast

We are thrilled to feature this guest post by Justice Rhonda Wood of the Arkansas Supreme Court

I (Justice Rhonda Wood[1], Arkansas Supreme Court) am perhaps a little too excited about the new podcast starting on Constitution Day with three of my friends, Justice Eva Guzman[2] (Supreme Court of Texas), Justice Beth Walker[3] (West Virginia Supreme Court of Appeals), and Chief Justice Bridget McCormack[4] (Michigan Supreme Court).  These women are so smart and kind, and I am honored to work with them.

While on the bench all of us have been adamant supporters of civic and legal education. Several of us have worked together on these types of projects. However, the first time the four of us collectively came together was this Spring. Early in the pandemic, educators needed on-line materials and I asked the others if they would record a Zoom video-interview about the judiciary with my granddaughter Blakeley.[5] We did it, and it spurred our desire to keep working on more civic education projects together. You have heard the saying that its better to give than to receive. That is how we feel. The four of us find that when we do educational outreach, we grow personally and professionally.

All of us believe judges have a role in furthering judicial education. We are all on twitter (#appellatetwitter) and find value in using social media to break barriers. So often, the public perceives judges as distant, dare I say stodgy, and the judge’s role in government is misunderstood. We plan to change this.

Through our new Lady Justice: Women of the Court Podcast, we believe we have found a way to reach the public directly and offer insight into state supreme courts, the judiciary as whole, and our role as justices. I think the podcast is one that lawyers will value, but the general public will understand. I also hope that, because we are four women, we can encourage young girls and women to consider the legal profession. Before now, every adjective that describes us: women, state court, and justices, was missing from the podcast arena.

In our first episode, released on Constitution Day, we discuss and compare our various state constitutions. To be honest, we were so fascinated with each other’s constitutions that we secretly wanted to chat much longer than would be reasonable for a podcast.  

In our second episode, we will let our listeners get to know us better and discuss our backgrounds and experiences reaching our current positions. I think after this episode, you will realize why I think so highly of my fellow justices. We also have plans for an upcoming Appellate Court 101 episode. On each episode, one of the justices will lead the discussion. We would also love to hear ideas for episodes from our listeners. The podcast is available on iTunesSpotifyStitcherPodbean, and in other podcasting apps. It can also be found at: www.arcourts.gov/ladyjustice

 

[1] https://www.arcourts.gov/courts/supreme-court/justices/justice-rhonda-wood-position-7

[2] http://www.txcourts.gov/supreme/about-the-court/justices/justice-eva-guzman.aspx

[3] http://www.courtswv.gov/supreme-court/current-justices/justice-walker.html

[4] https://courts.michigan.gov/Courts/MichiganSupremeCourt/justices/Pages/Chief-Justice-Bridget-Mary-McCormack.aspx

[5] https://www.youtube.com/watch?v=NAuJ9NfpPa8

September 14, 2020 in Appellate Advocacy, Appellate Justice, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Saturday, September 12, 2020

Common Word Mix-ups!

8 Common Creative Writing Mistakes | Writing Forward

Even the best legal writers have that one word (or two) they always misuse. Which is it for you? It's probably not the they/they're/their debacle. Most of us have that one down. But for whatever reason, several others pop up all the time in briefs, motions, and other documents. No matter who wrote them. 

The best way I've found to cut down on these is to set aside some time to review your writing and keep track of your common pitfalls—then remind yourself to check for them during your editing stage. It can be as simple as writing down a few of them on a post-it. You can easily start retraining your brain to use the wright words (see what I did there?) with a little bit of effort. 

Here are some mishaps I see all the time from lawyers and law students alike: 

Phrasal verbs trip many folks up. People forget that there's often a different form for words used as a verb instead of a noun or adjective.

Take "setup" and "login." I see these misused all the time. 

When you're using them as a noun or adjective, these are a single word: 

"I love your computer setup." 

"The setup time is great." 

"I need to get my login from IT." 

"Do you have your login information?" 

When you're using these as a verb, they become a phrasal verb and need to separate: 

"I need to set up my computer." 

"I need to log in to the firm's platform first." 

Another doozy: Words that have started to take on new meanings in popular usage but haven't quite transitioned yet for many audiences. 

First, some background. You'll hear grammar police correcting folks for misusing words like utilize: "Don't you know utilize means to use something different from how it was intended?" And look,  I'm not a fan of utilize ("use" is shorter and simpler). But we are probably at the point that using utilize instead of use isn't a grammar mistake. Because utilize has taken on a broader meaning for the vast majority of readers.

And so like all words, it's meaning has evolved. 

The meaning of words is always in flux. Before I was a lawyer and law professor, I studied linguistics. And as cool as language is, for legal writers, its purpose is communication and persuasion. And if your audience understands what you're communicating because a word has firmly taken on a new common meaning, in my view, the choice becomes one of style, not correctness. I will leave the prescriptivism vs. descriptivism debate to others. But I hope we can all agree that as legal writers, we write for function, not theory. 

All that said, if a word hasn't firmly taken on the meaning you intend, tread with care. Because you need to connect with readers and build credibility. And if they judge you for what they perceive as a misused word, you should probably avoid it. 

This is most common with word meanings that haven't yet crossed that threshold into common usage. Here are some examples: 

Adverse means detrimental—not averse. So "I am adverse to that" will trip up plenty of readers, even if millions of people use the word to mean "I dislike it" or "I'm against it." 

Begs the question means to assume what the statement should be proving—it does not mean generally raising a question. 

Bemused means bewildered, not slightly amused. 

Criteria is the plural; criterion the singular.

Dichotomy refers to two alternatively that are mutually exclusive, not just a difference or set of two.  

Enormity means extreme evil. Yup, I misuse this one all the time, too. 

Fortuitous means coincidental not lucky or fortunute. 

Hone means to sharpen not to home in on. This is another I always have to catch myself on. 

Hung means suspended, not hanged (a way of killing). 

Literally means in fact (not the very different figuratively). 

Nonplussed means stunned—not bored. 

Practicable means that something is easy to put into practice or make a practice—just just practical. 

Proscribe means to condemn, not to prescribe

Reticent means shy, not merely reluctant. 

Simplistic means naive or too simple—not just simple. 

Untenable means indefensible and not unbearable.

Many of these flux words are hiding in our writing. And I will leave it to you to decide when you're comfortable departing from the old and embracing a new, common usage. Just know that, if you're on the fence, your readers might be too. So it may be safer to go with the traditional meaning until it's obvious you're in the clear. 

How about some words that have firmly changed their usage and are safe to use now, even for purposes other than they were originally intended? Data and agenda. Both of these started out as plural count nouns. So before, you would need to say: "This datum supports the argument, but many of the other data refute it." These days, it's all data. I've seen countless lawyers, judges, and other legal writers use it both ways. 

Another example that is probably over the acceptable threshold: Verbal. Technically, this word means to put into language form, not oral. But we've probably all accepted the word as meaning oral or spoken by now. 

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

September 12, 2020 | Permalink | Comments (0)

Grammar School Passive Voice Rules Still Matter

Every year, I ask my students to read a variety of articles on the use of language, especially passive voice.  For the last few years, I’ve included a 2015 New York Times opinion piece on how Texas history books use passive voice to hide the acts of pre-Civil War enslavers and make slavery sound less horrific than it was.  See Ellen Bresler Rockmore, How Texas Teaches History, New York Times (Oct. 21, 2015); see also Dana Goldstein, American history textbooks can differ across the country, in ways that are shaded by partisan politics, New York Times (Jan. 12, 2020)(explaining Texas has started to improve its discussion of enslaved people in its history books).

This year, several students assumed the Texas history article was new, given its timeliness for our national conversations on bias and race, and I realized the author’s points on passive voice really are timeless.  Legal Writing teachers like me suggest removing passive voice because it muddies meaning and takes more words to say less.  Passive voice either removes the actor from the sentence entirely, like “the car was driven,” or obscures the action unnecessarily, such as “the car was driven by Al.”  But as we try to be ever more conscious of bias and strive for neutral language, we should also remove passive for substantive reasons. 

As Rockmore explains, we stress good writing for clarity.  She notes:  “Whenever possible, use human subjects, not abstract nouns; use active verbs, not passive” and do not “write, ‘Torture was used,’ because that sentence obscures who was torturing whom.”  Rockmore, How Texas Teaches History.  Yet in the Texas textbooks she analyzed, the editors “employ all the principles of good, strong, clear writing when talking about the ‘upside’ of slavery,” but “when writing about the brutality of slavery, the writers use all the tricks of obfuscation.”  Id.  For example, “Some slaves reported that their masters treated them kindly,” but “Whippings, brandings, and even worse torture were all part of American slavery.” Id.  Rockmore asks, “where are the [enslavers] who were actually doing the whipping and branding and torturing? And where are the slaves who were whipped, branded and tortured? They are nowhere to be found in the sentence.”  Id.  As one more example, Rockmore notes how the sentence “Families were often broken apart when a family member was sold to another owner,” hides the enslavers.  Id.

As you read these sentences, hopefully you rewrote them in your mind to include the enslavers (without using the word, “owners,” please).  We should all do the same with our own appellate documents, even when our use of passive is less insidious.  We’ll save words for more content, and we’ll communicate more clearly.

Unless you want to hide the actor for positive reasons, like in some criminal defense situations, listen to your grammar school (and Legal Writing) teachers, and avoid passive voice.  

September 12, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, September 11, 2020

Appellate Advocacy Blog Weekly Roundup Friday, September 11, 2020

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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 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

As the Court prepares to begin the 2020-2021 term next month, various groups and scholars are previewing the major cases expected to be heard:

  • Georgetown Law’s Supreme Court Institute will hold its annual press briefing on the major cases to be heard. The event will be held remotely on September 22 and will be available to the public via livestream on the Georgetown Law Facebook page.

  • The Pacific Legal Foundation and National Review Institute will preview high-profile cases. The event will be held via webinar on October 2, register here.

  • Amy Howe of Howe on the Court, is looking at the interesting petitions set to be reviewed during the September 29 “long conference” where the Court meets privately to consider pending petitions. The first of the series is here.

Federal Appellate Court Opinions and News

The Eleventh Circuit overturned a lower court ruling concerning the 2018 Florida Constitutional amendment that granted the right to vote to former felons who have completed their sentences. The dispute came down to the definition of what it meant to complete the sentence. The Eleventh circuit upheld the interpretation of the law that includes fines, fees, and restitution as part of the sentence. The lower court had held that that interpretation constituted an unconstitutional “poll tax.” This ruling rejected that characterization and determined that fines, fees, and restitution are “penalties, not taxes,” holding that “[b]ecause court costs and fees are legitimate parts of a criminal sentence — that is, part of the debt to society that felons must pay for their crimes — there is no basis to regard them as a tax.” See the ruling and reports from Bloomberg News, CNN,  The Orlando Sentinel, and Reuters.

Other

While many courts continue to hold proceedings remotely, some courts are resuming in-person appearances; safety is a high priority.  See reports from NPR looking at New York City and from The Associated Press covering New Hampshire and a release from the Administrative Office of the US Courts. 

September 11, 2020 in Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 8, 2020

Requests for Extension of Time on Appeal and the Standards of Appellate Practice

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On January 1st, 2020, while on vacation with my family, I was pushed by a passing speadboat into a concealed piece of broken pipe while snorkeling, resulting in a quick trip to the emergency room and 18 stitches. At least I got my bad luck out of the way, I consoled myself, and the rest of 2020 would be better. Right?

I thought about that naivete while I was writing a motion for extension of time in an appeal yesterday. I sought the extension because, the week the clerk certified the record to the court, I was caring for my mother and eventually admitting her to the hospital. The next week, one of my partners at work tested positive for Covid-19, and we had to unexpectedly extend and tighten our work-from-home rules. This week, my wife is going to have surgery. And while I am trying to care for everyone and help my children with school, while keeping up with work, I am hobbling around on a broken foot that is not healing as it should. 

Fortunately, the court I am preparing this appeal in has adopted a code of appellate practice, in this case, the Texas Standards for Appellate Conduct. Adopted in 1999, Texas was the first jurisdiction to adopt such standards specifically for its appellate practitioners. Since then, several courts have adopted similar standards and expect those practicing in the courts to follow them.

In many ways, these standards codify a practice of civility that has traditionally been followed by those who practice regularly in appellate courts. And while the standards are not mandatory, and cannot provide a basis for sanctions, following them is expected and deviation is strongly disfavored.

Being gracious with requested extensions is addressed twice in the standards. First, Standard 10 of a "Lawyer's Duties to Clients," requires that "Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client's lawful objectives. A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel." And again, Standard 2 of a "Lawyers' Duties to Lawyers," states that "Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel."

These two rules are based on different stated principles. First, that the lawyer's duties to the client must be placed in the context of the system in which they work, which also involves duties owed to the courts and opposing counsel. And second, that only if opposing counsel treat each other with dignity and respect can the effectiveness and integrity of the system be preserved.

Some refer to these rules of comity as part of "the golden rule" You should treat opposing counsel as you would wish to be treated. By including this instruction in the section referencing client duties, and by requiring that the standards be given to clients, the rule is placed in the proper context and explained before any accommodations are sought.

If these general principles are not enough to convince you to act fairly with opposing counsel, then the potential loss of credibility should. Courts do not appreciate it when opposing counsel oppose reasonable requests for extension of time. As the Ninth Circuit explained, "Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).

If there is some reasonable basis for the extension, then it will likely be granted. Opposing such a request not only makes you look unreasonable, but can create a stigma for you to carry around the next time you appear in that court.

Coronavirus, murder hornets, ransomware attacks, fires, rioting, and whatever comes next have already made this an extraordinarily difficult year. Indeed, the practice of law is difficult even in the best of times. A bit of grace is always appreciated, even in good years, and is doubly appreciated now. Not just by opposing counsel, but also by the Courts.

(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908)

 

 

September 8, 2020 in Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Sunday, September 6, 2020

Jamison v. McClendon -- A Missed Opportunity

In Jamison v. McLendon, District Judge Carlton Reeves drafted a powerfully written and compelling opinion that highlighted a law enforcement officer’s egregious – and unconstitutional – treatment of a suspect in violation of the Fourth Amendment.[1]  

Then, Judge Reeves let the officer off the hook.

Specifically, Judge Reeves held that the qualified immunity doctrine shielded the officer from liability. That conclusion was wrong.

By way of background, in Jamison, a law enforcement officer stopped the plaintiff (Jamison) for an alleged license plate tag violation.[2] The officer believed that Jamison had illegal items in his car, although this belief was not based on any facts whatsoever.[3] Nevertheless, and based on a mere hunch, the officer repeatedly pressured Jamison for almost two hours to consent to a search of his car, including pleading with Jamison five times before he relented and permitted the search.[4] To make matters worse, before obtaining consent, the officer allegedly “placed his hand into the car … patted the inside of the passenger door,” and “moved his arm further into the car … while patting it with his hand.”[5]

Jamison sued the officer and alleged, among other things, that the officer’s conduct violated the Fourth Amendment. Judge Reeves ruled, albeit reluctantly, that the qualified immunity doctrine shielded the officer from liability. Specifically, and despite highlighting the officer’s egregious conduct, which certainly violated the Fourth Amendment, Judge Reeves held that the officer’s conduct did not violate “clearly established law” and thus applied the qualified immunity doctrine. In so doing, Judge Reeves vociferously criticized the qualified immunity doctrine (and relevant precedent), arguing that it had become tantamount to absolute immunity. Ironically, Judge Reeves’s decision afforded the qualified immunity doctrine precisely the absolutism he eschewed – and for no good reason.

To be clear, Judge Reeves is an outstanding writer and his opinion is a textbook example of how to draft a persuasive legal narrative. Law students – and lawyers – would benefit from reading Judge Reeves’s opinion.

The praise afforded to Judge Reeves’s opinion, however, should stop there.  Specifically, the qualified immunity doctrine did not require Judge Reeves to reach this most unjust result because the officer’s conduct unquestionably violated Jamison’s Fourth Amendment rights. As Professor Orin Kerr explained, “the Fourth Amendment law of searching a car is a clearly established bright-line rule,” and “[b]ecause it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.”[6] Professor Kerr further stated as follows:

My sense … is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern.  But there's no plausible argument I am aware of that any of those justifications could apply.  To use the Fifth Circuit's language in Mack, this was ‘a random search of a vehicle where none of the above justifications apply.’[7]

For these reasons, if Judge Reeves felt so appalled at the officer’s behavior – as any reasonable person would be – he should have held that the qualified immunity doctrine did not apply.

More broadly, Judge Reeves’s criticism of the qualified immunity doctrine is questionable. The doctrine is not necessarily the problem; rather, the courts’ interpretation of that doctrine, which has, as a practical matter, created near-absolute immunity for law enforcement officers, is where the problem lies. But in Jamison, the relevant precedent did not compel the result Judge Reeves reached because, as Professor Kerr stated, the officer’s conduct “did violate clearly established law.”[8]  Indeed, the opinion is quite ironic. On one hand, Judge Reeves criticized the qualified immunity doctrine for, among other things, being tantamount to absolute immunity. On the other hand, Judge Reeves applied the doctrine in a manner that arguably afforded the very absolute immunity he eschewed, despite conduct by a law enforcement officer that unquestionably violated the suspect’s Fourth Amendment rights – and clearly established law.  The idea that Judge Reeves’s hands were tied, and that he was forced to reach a conclusion that so profoundly contravened his beliefs, is unpersuasive. The decision was the legal equivalent of a self-fulfilling prophecy. After all, if the conduct Judge Reeves criticized so vociferously was not, in his view, sufficient to invoke the qualified immunity doctrine, what is?  

Thus, although Judge Reeves’s opinion should be praised as an example of outstanding legal writing, it should be criticized for the reasoning upon which it was predicated. As a practical matter, Judge Reeves’s decision deprived an individual, who suffered an egregious violation of his Fourth Amendment rights, of a well-deserved legal remedy. As Professor Kerr stated, “[i]t seems to me that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.”[9]

Ultimately, as the saying goes, “be the change you want to see in the world.” Judge Reeves stated in his opinion, “[l]et us waste no time in righting this wrong.”[10] But then Judge Reeves did the very thing he cautioned against by refusing to right a constitutional wrong. 

Judge Reeves – and courts across the country – should interpret the doctrine to mean what it says – immunity is qualified, not absolute.

 

[1] Jamison v. McLendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020) (the opinion is also available at: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf)

[2] See Orin Kerr, Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? (Aug. 6, 2020), available at: https://reason.com/2020/08/06/did-judge-reeves-reach-the-correct-result-in-jamison-v-mcclendon/?amp

[3] See id.

[4] See id.

[5] Id.

[6] Id.

[7] Id. (internal citation omitted) (emphasis in original).

[8] Id. (emphasis in original).

[9] Id.

[10] Jamison v. McLendon, 2020 WL 4497723, at *29.

September 6, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, September 5, 2020

Appellate Advocacy Blog Weekly Roundup September 4

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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 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 News and Opinions:

The Administrative Office of U.S. Courts announced in a news release last week that four new U.S. Supreme Court Fellows are set to begin their fellowships for the 2020-21 term, starting in September and working virtually during the COVID-19 crisis.

Federal Appellate Court News and Opinions:

The Vetting Room, a blog dedicated to discussing judicial nominations, featured a post last week discussing state appellate court judges that could be likely candidates for nomination to the U.S. Circuit Courts of Appeal if President Trump wins a second term in this fall's election. The blog formerly discussed current U.S. District Court judges who were likely candidates under a second Trump term in a previous post and likely candidates under a Biden presidency in a separate post.

Perhaps the biggest news from the federal appellate courts last week was the ruling by the U.S. Court of Appeals for the D.C. Circuit holding that the U.S. District Court can move forward with questioning the attempt of the Justice Department to dismiss charges against Michael Flynn.  Howard Bashman at How Appealing collected a plethora of links to various sources reporting on the story.

 

Appellate Practice Tips:

Last week, #AppellateTwitter member Rafi Melkonian posted a Twitter thread in which he discussed two days of Zoom oral arguments.  Lots of great thoughts and personal experiences that should be read and considered by any advocate preparing for a "virtual" oral argument.

September 5, 2020 | Permalink | Comments (0)

Tuesday, September 1, 2020

Book Review - Classical English Style

 

Classical English Style, by Ward Farnsworth, is another must-have for the library of an appellate advocate. Farnsworth, who is Dean and John Jeffers Research Chair in Law at the University of Texas School of Law, has written an engaging, easy to read guide to English style that adds to his works on persuasion and rhetoric.[1] The text includes examples, mostly from the eighteenth and nineteenth centuries from well-known stylists such as Abraham Lincoln and Frederick Douglas. It also includes examples from Shakespeare and the Bible alongside more modern examples from Franklin Roosevelt and Churchill.

Farnsworth begins, where we all must: Simplicity. “There are two ways to say almost anything in English: with little words or big ones.” The book discusses how the English language developed from words with Germanic or Saxon roots and words with French or Latin roots. Saxon words tend to be shorter and more direct and thus, should be preferred by writers. He provides a list to demonstrate:

CES
Next, the author discusses word choice and rhetorical devices such as metonym and hyperbole and how to use those devices to great effect. He then turns to sentence structure and length and provides examples of the effective use of variation to engage and persuade. A discussion of passive voice includes examples of its effective use.

The final third or so of the text discusses rhetorical devices such as anacoluthon—a technique to challenge readers to think more deeply or to represent stream-of-conscious thought; rhetorical instruction and announcement; and cadence.

One thing the text lacks is annotations to the examples. While the text often discussed the use of techniques in the examples, it would have been helpful to visually highlight the use of different techniques in a few of the examples in each section to draw the reader’s attention to the technique. This is a small quibble, and perhaps reflects more on this author’s shortcomings than on the text.

Classical English Style will help improve both written and oral advocacy; Farnsworth writes in a clear concise style—himself a model of classic English style.

 

[1] Ward Farnsworth, Classical English Rhetoric (2016); Ward Farnsworth, Classical English Metaphor (2010).

 

September 1, 2020 in Appellate Advocacy, Appellate Practice, Books, Legal Writing, Oral Argument, Rhetoric | Permalink | Comments (0)