Appellate Advocacy Blog

Justice Breyer Retires

Justice Stephen Breyer’s announced retirement has brought forth retrospectives about his legacy as a pragmatist who cared about the real-life consequences of the Supreme Court’s decisions. Among the tributes was a heartfelt statement from Chief Justice John Roberts that revealed a little-known insider secret about Breyer: Breyer treated his colleagues to a “surprisingly comprehensive collection of riddles and knock-knock jokes."

To advocates before the Court, Breyer was known for his paragraphs-long questions that worryingly ate into your time and sometimes, as the Chief Justice said upon Breyer’s retirement, contained “fanciful hypotheticals … [that] have befuddled counsel and colleagues alike.” Breyer loquacious tendencies were well-known to him and used to make self-deprecating jokes. He was fond of telling the story that, once as a Harvard law professor, he received an anonymous note from a student, who wrote, “Professor Breyer, if I had only one hour to live, I should like to spend it in your class.” Breyer then notice that the back of the note had more to say: “That’s because only in your class does one hour seem an eternity.”

Breyer’s long tenure on the Court, 27 years, included a modern record of eleven years as the junior justice. The junior justice answers the door when the justices meet in conference. Justice Antonin Scalia would regularly have someone deliver a cup of coffee to the conference at its midpoint. When that happened, Breyer would dutifully answer the door and serve Scalia the coffee. After having done the job for ten years, Breyer reported that he said to Scalia, “I’m getting pretty good at this.” He said Scalia’s answer was, “No, you aren’t.”

Eleven years of performing a task can become a habit. At the first conference after Justice Samuel Alito succeeded Breyer as the junior justice, Breyer stood during conference as soon as he heard a knock at the door. Breyer stopped in his tracks when Roberts told him, “Steve, sit down, that’s not your job anymore.”

Another task of the junior justice is membership on the Court’s cafeteria. The Washington Post’s food critic, on more than one occasion, has not only given the food a failing grade, but suggested that its fare should be declared “unconstitutional.” Justice Elena Kagan calls the assignment a form of “hazing,” intended to bring a new justice down from the heights of having acquired a plum, life-tenured job at the height of the legal profession. Justices will purposely comment on how bad the food is and then ask who is on the cafeteria committee, “as if they don’t know!” Kagan said. Nonetheless, while it was his turn on the committee, Breyer dutifully would walk around the cafeteria from time to time, asking patrons about what could be improved. His innovations while a member of the committee: a salad bar and Starbucks coffee.

Breyer wrote two of the majority opinions in cases I argued at the Court and memorably filibustered in another oral argument when my opponent ran out of things to say, taking up the dead airtime. In the most recent decision he wrote in one of my cases, it was clear to me that he corralled the fifth vote I needed to prevail by writing about a topic that was left undecided and asking for lower court guidance.[1] In the earlier one, I was on the short end of a 5-4 decision.[2] The case returned to the Court two years later on the issue of whether the Oregon Supreme Court had defied the earlier decision by restoring our victory. Oregon allowed a 97:1 punitive to compensatory damage ratio after the Supreme Court held that a defendant had a right to have a jury instruction limiting the size of the punitive damages to the harm specific to the plaintiff, rather than others. Oregon subsequently held, as we had pressed all along, that the defendant’s requested jury instruction misstated Oregon law and that there was no error in refusing to give it.

In our return to the U.S. Supreme Court, the case turned on whether this “clear and correct in all respects” rule on jury instructions was well-established and regularly applied by the state courts. Breyer asked for my opponent’s best case on the issue. When I stood up, he soon asked me the same question. I had cited thirty-two cases over a 78-year period in my brief but replied that I am happy to rely on one case that both sides cited, because it really favored my client. Breyer chuckled and revealed that he had that case in front of him. He read a sentence to me that seemed to support the other side and asked me to explain it. My answer noted that he had left off the dependent clause of the sentence, which completely changed its meaning. He agreed, saying that he voted to grant certiorari because he believed the Oregon court was giving his court the “runaround.” He added, I do not believe that anymore. It was the signal I needed that, as turned out to be the case, the Court agreed with my suggestion that the case be dismissed as improvidently granted.[3]

Courts are institutions, but institutions made up of people. Understanding those individuals who serve as judges can influence how you brief or argue a case. Justice Byron White said the arrival of a new justice creates a new Court. Unquestionably, the dynamics can change, and the experience brought to the Court by the new justice can alter the perspective of those who remain. There is no doubt that Justice Breyer changed the Court with his arrival and had an impact on his colleagues’ outlook over his tenure. For at least one advocate, he figured importantly in a significant percentage of his cases.

 

[1] Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296 (2017)

[2] Philip Morris USA v. Williams, 549 U.S. 346 (2007).

[3] Philip Morris USA Inc. v. Williams, 556 U.S. 178 (2009) (mem.).

Appellate Advocacy Blog Weekly Roundup Saturday, January 29, 2022

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• Justice Breyer announced he would retire when the Court rises for the summer recess. Justice Breyer was appointed by President Clinton in 1994. His letter of resignation is here and statements from the Supreme Court are here. SCOTUS blog and Nina Totenberg of NPR reported on his service and his legacy.  

• The Supreme Court has agreed to hear cases challenging affirmative action at Harvard and UNC. See a sampling of the many reports on the nature of the cases and what accepting review might mean for considering race in admissions: NPR, The New York Times, The Washington Post, USA Today, and Reuters.

• A webinar scheduled for January 31 will look at the 2021-22 term so far. Adam White and Jennifer Mascott will moderate the webinar hosted by the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School of George Mason University. Deepak Gupta and Hashim Mooppan are scheduled to speak.

Other News and Posts

• AppellateTwitter had a great thread (begun by Ellie Margolis) on developing theme in briefs. It has some great ideas for writers. Find it here.

   

Does Your Choice of Fonts Really Matter?

As a legal writing teacher, I emphasize to my students that pathos in legal writing is important. One aspect of pathos is using the medium to influence the reader to have a favorable view of your writing. In other words, a good legal writer wants a persuasive document to look good in addition to being written well. And part of looking good means following rules, conventions, and traditions that apply in the court to which the writing is addressed. Not everyone agrees on what makes a document look good, and one of the recent battles has been over fonts (yes, we legal writers fight over some interesting things).

Many years ago, of course, appellate advocates typed their documents on a typewriter. Typewritten documents were in either pica or elite type. There simply weren't very many choices to make about how the type would look in a document.

Then came word processing programs. The default font in the early days seemed to be Courier; after all, it looked a lot like type from a typewriter. All you needed to do was open up your word processing program and there it was. Courier felt right, it felt like security.

Courier or Courier New (with maybe a little Times New Roman thrown in) sufficed for many years. Older judges were accustomed to it; it gave them a sense of security, too. But then a new generation of judges showed up--suddenly Courier New wasn't so new anymore. Make it prettier! Make it more readable! Make it so I can read it on a tablet! Those were the clarion calls from on high.

So what font is acceptable? What font is desirable? It really all depends on who you ask, but for all intents and purposes it appears Courier and Courier New have been outlawed or at least relegated to the dust bin of antiquity where old VCR tapes and CDs now reside.

In my home state of North Carolina, the Rules of Appellate Procedure were changed a few years ago to permit only proportionally-spaced fonts with serifs. No more non-proportionally-spaced fonts (we're looking at you, Courier and Courier New). As acceptable examples, the rules mention Constantia and Century. Constantia seems like an interesting choice, but someone making the rules really must like it--a fact that should be kept in mind when writing to the rule-making body known as the North Carolina Supreme Court.

Some studies have shown that fonts with serifs are more readable, but that may not be true for reading on a computer or tablet. Not everyone agrees. In fact, courts like the appellate courts of Connecticut require Arial or Univers fonts, both of which are sans serif fonts and both of which appear to an outsider to be random choices.

The bottom line, again, is that legal writers hoping to persuade an appellate court must follow the rules. Where there are multiple possibilities to choose from, though, the question may come down to whether to use a serif font or a sans serif font. We may not be able to agree about what is best, but we can all agree that there are some fonts that are unprofessional, ugly, or easily recognized as hard to read. Just because a high-powered lawyer might make the ill-advised decision to use Comic Sans for an important letter, for instance, doesn't mean we should use it.

Me, I was always fine with Courier New. But I can roll with the times. And like every advocate, I want my audience at an appellate court to feel good (or at least not be peeved) while reading my brief. Century Schoolbook is my favorite now; if it's good enough for the Supreme Court of the United States, it must be good.

The answer to the question asked in the title for this post is yes, your choice of fonts does matter if it matters to your readers. I've adjusted, and so can you.

But don't even get me started on WordPerfect versus Word.

Court composition and advocacy

Two members of our five-member state supreme court recently announced their retirements. One of my colleagues remarked, "it's going to be a very different supreme court without those two." That got me thinking about how much court membership shapes written and oral advocacy. I decided that it affected writing somewhat, but not much, and that it had a greater effect on oral argument preparation.

I think the composition of an appellate court affects briefing only marginally--maybe 5-10%. Good legal writing and analysis are essential whoever your court members are, and it's going to appeal to them whoever they are. If there is substantial turnover in a short time, then the new members might be more open to overturning precedent that they had no hand in making, which could affect whether you ask for that. And the way you phrase an argument or what you emphasize might depend a little on who the judges/justices are. But overall, I think court composition has little impact on the written product.

It's different with oral argument. I have noticed that changes in court composition substantially affect my oral argument preparation. To be sure, there are certain indispensable aspects of preparation that do not depend on the precise audience--you're going to have to know the relevant cases, the record, and the crux of your and your opponent's positions. But I've found that with changes in court personnel come changes in my brainstorming questions and in what I emphasize at argument--maybe 25% of what I do. After appearing in front of a judge/justice a few times and reading their opinions, you get a sense of what is important to them, and what their concerns are likely to be. Is this an empathetic judge? A strict textualist judge? One with an academic bent? What do they care about? What persuades them? Those caricatured personalities are very helpful in brainstorming questions, as my inner judge/justice-so-and-so raises concerns as I review my argument. And I've found that the better I'm able to understand the judge/justice, the better conversation I'm able to have with them--and hopefully, the more persuasive I'm able to be. 

Setting aside SCOTUS practice (which is somewhat its own animal), how have changes in your appellate court personnel affected your written and oral arguments?

Chief Justice Roberts and what it means to be an “institutionalist” Supreme Court Justice.

    The term “institutionalist” is a broad label; its meaning depends upon the level of abstraction at which one describes the relevant institution. An institutionalist might seek to preserve long-standing norms within institutions (such as defending the filibuster in the Senate), or to preserve public faith in a particular government entity. On the Supreme Court, an institutionalist might seek to defend the rule of law in controversial case, or to uphold a robust and powerful conception of the judicial branch, or perhaps more narrowly to preserve the public’s faith in the Court itself as an entity worthy of public respect. Chief Justice Roberts’s jurisprudence often displays institutionalist tendencies concerned with the Court’s viability, even as he also seeks to preserve the judiciary’s independence and authority vis-à-vis coordinate branches. That tension was on display in the recent decisions over President Biden’s vaccine-or-test mandates.

    Roberts has frequently demonstrated his desire to preserve the independence of the Supreme Court, and with it the public’s faith in the Court’s ability to resolve weighty and complex legal issues. Throughout the political turmoil that marked the closing of President Trump’s term, Roberts expressed his desire to stay above the political fray and his faith in the Court to decide cases without political influence. In his 2021 year-end report on the federal judiciary, Roberts suggested that the political branches should return the favor by avoiding interference with the judiciary in the name of reforms that might weaken its status as a co-equal branch. Roberts’s jurisprudence also reflects his instinct to avoid overstepping the Court’s role in resolving politically-charged issues, most famously in his decision that preserved Obamacare to the surprise of many conservative court watchers. Roberts also speaks frequently of the need to build consensus amongst the Justices whenever possible to maintain the Court’s legitimacy in the public’s eyes.

    Roberts is thus surely an institutionalist in the sense that he seeks to preserve the Court’s capacity to resolve controversial issues in ways the public accepts. But at times that goal conflicts with institutionalism at a higher level of abstraction, which might require the Court to robustly define the law and forcefully rebuke the political branches that have, at least in Roberts’s view, overstepped constitutional bounds.

    That conflict was highlighted when the Court recently considered the Biden Administration’s vaccine-or-test mandate for large employers and its vaccine requirement for healthcare workers at facilities receiving Medicare and Medicaid funding. After hearing expedited oral arguments on whether those mandates could remain in place while ongoing legal challenges proceeded through the lower courts, the Court issued per curiam decisions that blocked the large employer mandate during the litigation while allowing the government to temporarily enforce the healthcare worker mandate. Chief Justice Roberts (as well as Justice Kavanaugh) voted to block the large employer mandate and permit the healthcare worker mandate, providing the swing votes that controlled the outcome.

    These decisions were only a preliminary stage of the legal proceedings, and technically addressed only whether Biden’s directives could be enforced while the outcome of legal challenges to them was pending. But because the decisions required the Court to consider the likelihood of the litigants’ success on the merits—and in so doing to plainly spell out their likely reasoning should the substantive legal issues return—they are likely to control the lifespan of those directives in the future.

    The decisions also highlight the tension in Roberts’s institutionalist instincts in such high-profile cases that consider the executive’s potentially expansive powers. The difference in the cases, according to the per curiam decisions, was that while Congress had not clearly authorized the Occupational Health and Safety Administration to issue the large employer mandate, it clearly delegated the Department of Health and Human Services authority to protect patients through a vaccine requirement. That distinction between the authorization of the OHSA and DHHS is razor-thin. As the dissent in the large employer mandate case noted, it is far from clear from an objective reading of their respective Congressional mandates. And the determination of the extent of Congressional authority delegated in such cases is surely a discretionary decision subject to widely varying judicial interpretations.

    While it is impossible to say definitively what motivated the votes in these cases, one plausible theory is that Roberts sought to preserve both a robust conception of the judiciary and public faith in the Supreme Court. By splitting his votes, he was able to offer some support for those concerned with the public health crisis posed by the COVID-19 pandemic while maintaining a robust role for the judiciary in setting the limits of co-equal branches’ authority. Perhaps Roberts hoped to preserve faith in the institution of the Supreme Court in the healthcare worker case while preserving a robust vision of judicial authority in the large employer case.

    Roberts may not be able to have it both ways; his compromise position seems likely to compromise both of his institutionalist desires. Public faith in the Court as an objective arbiter may be undermined when the court blocks a vaccine-or-test mandate that OHSA estimates would have saved nearly 6,500 lives. At the same time, preserving the healthcare worker mandate may undermine the judiciary’s institutional authority to push back against political branches that have, in the Court’s estimation, exceeded their constitutional boundaries. By attempting to preserve both of his institutionalist instincts, Chief Justice Roberts may have failed to preserve either. His voting decision is thus accompanied by both tragic human results and severe damage to the very institutions it seeks to protect.

If it is broke

Sometimes you don’t realize how important something is until it is broken.  This has been very true in my life as I have learned to live with a broken finger on my dominant hand.  As it turns out, the only thing that is easier to do with a broken middle finger is flip someone off.  Everything else is harder. As I was writhing in agony on the floor of my garage after accidently closing my finger in the door, I anticipated some of the challenges I would face, like typing and handwriting. What I didn’t fully appreciate was how hard things like using scissors, vacuuming with the stick vacuum, and carrying grocery bags would be.

Similarly, I think that many of us failed to realize how important general civic knowledge was until it became, well, broken.  Kari C. Kelso, the public education and community outreach administrator for the Ninth Circuit, and Prof. J. Clark Kelso discuss this in their recent article Civic Education and Civil Discourse: A Role for Courts, Judges, and Lawyers, which was published in the most recent issue of The Journal of Appellate Practice and Process.

The article starts with setting up the problem:

A 2016 survey by the Annenberg Public Policy Center revealed that “[o]nly a quarter of Americans can name all three branches of government, the poorest showing on that question in a half-dozen years. . . . Nearly a third of Americans cannot name any of the three branches of government.” Commenting on this survey, Kathleen Hall Jamieson, director of the Annenberg Public Policy Center, observed that “[t]hose unfamiliar with our three branches of government can’t understand the importance of checks and balances and an independent judiciary. . . . Lack of basic civics knowledge is worrisome and an argument for an increased focus on civics education in the schools.”

Kelso and Kelso attribute the “virtual collapse in practices of civil discourse over the last several decades” to the “overall reduction in the public’s knowledge and understanding of basic principles of government and democracy.” In their article, they envision a role of judges, lawyers, courts, and educators (both law schools and K-12 schools) in helping fix the broken system of civic education.  In the article, they focus on four key democratic principles, taken from Professor Larry Diamond. That list includes:

• Regular, free, and fair elections to select the government’s leaders;
• Active participation by a substantial portion of the population;
• Protection of basic human and civil rights; and
• Respect for the rule of law, fairly and equally applied to all.

For democracy to work, “over-whelming majorities understand these essential elements and trust that these elements accurately describe how democracy is practiced in the United States.” As the Kelsos point out in their article, and as anyone who has watched the news last week knows, that isn’t the case. The lack of trust and understanding have certainly contributed to the lack of civil discourse. As the Kelsos explain:

According to the Pew Research Center’s 2018 survey, “[f]ew people say tone of political debate is ‘respectful.’ Just a quarter of Americans say ‘the tone of debate among political leaders is respectful’ is a statement that describes the country well.” The tone of political discourse is important for many reasons, but most particularly because a civil, respectful tone promotes greater understanding and trust, while an uncivil, disrespectful tone promotes misunderstandings and division.

What can be done? Well, as it turns out, Chief Justice John G. Roberts has noted at least two ways, which the Kelsos discuss in their article:

In his 2019 Year-End Annual Report, Chief Justice Roberts identified two distinct ways in which courts can contribute to improving the public’s understanding and trust in democratic principles and civil discourse. First, as he explained, “[b]y virtue of their judicial responsibilities, judges are necessarily engaged in civic education.” Second, courts have directly contributed to civics education by developing curricular materials for students, establishing judicial learning centers which serve as community forums for civic education, developing best practices for civic education, and coordinating their efforts with other organizations.

I have seen some of these efforts through our local Federal District Court and the local Federal Bar Association chapter. For any court wanting to adopt a more active role in improving civics education and civil discourse, the Kelsos’ article serves as a model and a call to action. It is one that I hope more courts take.

Disparity's Relationship to Discrimination

Anyone with a conscience (or a pulse) knows that discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity, is abhorrent and has no place in a civilized society. Indeed, inequality of opportunity and access is antithetical to the very freedom, liberty, and dignity that the Constitution requires and that every human being deserves.  

But disparate outcomes among groups do not always reflect discrimination.

In his book Discrimination and Disparities, Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution, argues persuasively that disparate outcomes are often attributable to non-discriminatory factors. Indeed, as Sowell notes, even in the absence of discrimination, disparate outcomes among groups nonetheless result, thus undermining the conclusion that disparity reflects discrimination.[1]

I.    Disparity does not equal discrimination.

Disparities among groups do not always reflect discrimination because: (1) in many contexts, the disparity is attributable to other factors; (2) disparities exist within groups for reasons unrelated to discrimination; (3) disparity still results when objective and non-discriminatory measures are used to evaluate performance; and (4) disparities exist because individuals and groups self-select into different professions and make different life choices.

    A.    In many areas, disparity cannot be attributed to discrimination.

Disparities exist everywhere. For example:

The majority of law professors identify as liberal, and conservatives comprise a distinct minority on most law school faculties.[2]

The majority of legal writing professors are female.[3]

The overwhelming majority of individuals convicted of violent crimes are men.[4]

The majority of nurses are female.[5]

The majority of professional football and basketball players are African-American.[6]

The majority of professional baseball players are white.[7]

The majority of methamphetamine users are white.[8]

Let’s analyze just a few of these examples. Do these facts suggest that the National Football League and National Basketball Association are discriminating against whites? Of course not. Do they suggest that law enforcement officers are racially biased against white methamphetamine users? No. A more plausible explanation is that whites predominantly use and sell methamphetamines. Do they suggest that law schools discriminate against conservative faculty candidates? According to one study, the answer might be yes.[9] And this illustrates the broader point: academics, courts, and policymakers should distinguish between those instances where disparity results from discrimination and those where it does not. In other words, they should use empirical data to exclude other possible causes of disparate outcomes rather than assuming that such outcomes reflect discrimination.

Put simply, identifying a disparity in a particular context proves nothing.

    B.    Disparities exist within groups based on cultural and other factors unrelated to discrimination.

The disparity narrative disregards the fact that disparate outcomes occur within groups. For example, a study of individuals with an IQ in the top 1% discovered widely disparate levels of achievement within this group.[10] What did social scientists identify as the reason for the disparity?

The quality of a person’s family upbringing.

Likewise, income disparities exist within racial groups for reasons that discrimination cannot explain. Sowell explains as follows:

[I]n 2012 the US poverty rate for Jamaicans was reported as 14.8 percent, Ethiopians 19.7 percent, and Nigerians 12.8 percent. All the rates were significantly lower than the rate of 28 percent for blacks as a whole.[11]

Additionally, “these three ancestry groups had significantly lower rates of poverty and higher median incomes than the Hispanic population.” Sowell further states:

How were these people of color, often without the benefit of growing up in America, able to clear the “barriers” of a discriminatory “system” far better than other people of color? Culture unquestionably plays a role in income and poverty disparities, even in situations comparing people of color where “discrimination” can be ruled out.”[12]

Furthermore, regarding income inequality, “examining the average age differences among different demographics can explain away a portion of the income inequality that intellectuals proclaim exists due to discrimination.”[13] Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”[14]

In other words, not all – or even most – disparities are reducible to racism

    C.    When objective and non-discriminatory measures are used, disparate outcomes still result.

In many instances where objective and non-discriminatory measures are used to evaluate performance, disparity still results. For example, from 2001 to 2012, the home run leader in the American League had a Hispanic surname.[15] From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry.[16] In 2012, sixty-eight of the top 100 marathon runners were Kenyan. The best-selling brands of beer are made by people of German ancestry.[17] And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.[18]

Does this mean that the NFL is discriminating against African American kickers? Of course not.

    D.    Disparities result because individuals self-select into different professions.

Within and among groups, disparities result because individuals self-select into different professions and, more broadly, make different life choices.[19] As Sowell explains:

There are many decisions wholly within the discretion of those concerned, where discrimination by others is not a factor—the choice of television programs to watch, opinions to express to poll takers, or the age at which to marry, for example. All these show pronounced patterns that differ from group to group.[20]

To be sure, “[a]mong the many reasons for gross disparities in many fields, and at different income levels, is that human beings differ in what they want to do, quite aside from any differences in what they are capable of doing, or what others permit them to do.”[21] 

Simply put, in many instances, disparate outcomes have nothing to do with discrimination.

II.    The solution – use empirical data to exclude non-discriminatory causes of disparity.

As stated above, discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity is reprehensible. But that doesn’t mean that disparate outcomes always reflect discrimination.

As Sowell notes, some disparities result from non-discriminatory factors and thus have no relationship to inequality or injustice. As such, scholars and policymakers should avoid assuming that disparity reflects discrimination. Instead, they should rely on empirical data to exclude other causal factors, thus more firmly supporting their arguments. In so doing, scholars will likely discover that some disparities reflect discrimination and some do not. This is the first step toward embracing an intellectually honest and fact-driven approach to solving the problems affecting the United States and to improving the nation’s discourse on matters of public policy.

[1] See Thomas Sowell, Discrimination and Disparities (Basic Books, 2019), available at: Amazon.com: Discrimination and Disparities: 9781541645639: Sowell, Thomas: Books; see also Coleman Hughes, The Empirical Problems With Systemic Racism, available at: Coleman Hughes: The Empirical Problems with Systemic Racism - YouTube

[2] See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)

[3] See Legal Writing Professor Demographics and Statistics [2022]: Number Of Legal Writing Professors In The US (zippia.com)

[4] See Gender and Crime, Differences between Male and Female Offending Patterns, available at: Gender and Crime - Differences Between Male And Female Offending Patterns - Categories, Women, Crimes, and Arrests - JRank Articles

[5] See Registered Nurse Demographics and Statistics (2022), available at:  Registered Nurse Demographics and Statistics [2022]: Number Of Registered Nurses In The US (zippia.com)

[6] See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista

[7]  See Professional  Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics [2022]: Number Of Professional Baseball Players In The US (zippia.com)

[8] trends of meth use by ethnicity and gender by www.drug-rehabs.org

[9] See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. ILL. L. REV. ONLINE 178, 179 (2020) (emphasis added)

[10] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

[11] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[12] See id.

[13] See id.

[14] See id.

[15] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[16] See id.

[17] See id.

[18] See id.

[19] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[20] See id.

[21] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[22] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

Arguing in the Age of COVID

    As the pandemic became undeniable and understandings of its infectious nature grew, most courts adjusted to remote arguments, and many trial courts experimented with Zoom juries. In March 2020, I had a live argument in another state. My family, concerned about my well-being, loaded me up with trial-sized hand sanitizer, KN95 masks, and nitrile powder gloves. I recall feeling reassured when my departure airport was empty, only to discover that my connecting airport was a madhouse of largely unmasked travelers. Once in the courtroom, the presiding judge asked everyone to keep social distances, especially from the bench, as well as announced that the courthouse was being closed to the public indefinitely as soon as my oral argument concluded – something that made me wonder whether that decision was a day too late.

            Two months later, I had another oral argument that required a flight and hotel room to attend. Again, well-equipped to do everything that the latest medical advice suggested, I went. The judge immediately advised the attorneys to take off their masks, suggesting that we should have nothing to worry about from co-counsel seated at the table with us. And rather than chance getting on the bad side of the judge, we dutifully complied.

            Most of my arguments since then have taken place in my study at home through Zoom. During one argument before a Seventh Circuit panel, despite taping a sign to my door that alerted my family that I was arguing a case and that no one should enter, I heard the door open. I wondered who could have missed the sign, but remained focused on the judges in the on-screen tiles and my answers to their questions. Only after the argument was over and I had disconnected from the court, did I turn around to see that the door was left open. Turning further, I spotted the culprit – one of our dogs had opened the door and quietly come into the room, hopping up onto her favorite chair to watch the argument. I had not spotted her over my right shoulder but felt sure that the judges had. I wondered whether I may have won some points for her complete silence, knowing that the judges were likely to be understanding about the circumstances of arguments in the age of COVID. At least I did not have to assure them that I was not a cat.

            In another instance, when New Orleans was particularly hard hit, I contacted opposing counsel, who also would have had to travel, about seeing if we could petition the Fifth Circuit about changing the scheduled in-court argument to Zoom. The court kindly accommodated us.

            Today, weariness over remote arguments has set in. In fact, in a recent filing opposing a Zoom trial, defense counsel in a case pending in federal court in California cited “Zoom fatigue” as one reason to grant a continuance to a time when a live trial might be held.[1]

            The availability of vaccines and boosters appears to have convinced many, perhaps prematurely given the spread of the Omicron variant, that the time to appear in person has arrived once again, even if some appellate courts have recently reversed engines and notified counsel that remote arguments will replace their scheduled live arguments over the next few months. I recently had one argument postponed a month because opposing counsel tested positive shortly before the scheduled argument.

            While I have discussed in an earlier post some advice about arguing remotely, the basics of preparation, whether live or remote, remains the same. For most arguments, months have passed since the briefing ended. Counsel needs to review everything in the case: Transcripts, arguments, supporting and conflicting authority. In one U.S. Supreme Court argument I had when no justice had any trial experience, I was asked by a justice just how one of these cases is tried in that particular state. As a purely appellate lawyer, I was an inexperienced at trial as the justices were. Moreover, I was neither admitted in the state from which the case came nor had ever witnessed any of the trial. I said that, based on the transcript, I could only describe how this case was tried and then proceeded to do so. The justices’ fascination with trial meant that it was the longest period I had during oral argument in that case without an interrupting question. The point is that preparation must be comprehensive, even about matters that do not affect the outcome.

            The Supreme Court produces a Guide for Counsel arguing before that court. In it, it relates an anecdote about a commercial free speech case in which counsel, representing a beer company, was asked, “What is the difference between beer and ale?” The inquiry had no substantive effect on the case, but the justice received a knowledgeable answer. As the guide states, counsel “knew the business of his client, and it showed.”[2]

            With comprehensive preparation, counsel can be prepared for an unexpected question that may not go to the merits of the case but enhance credibility – and be well prepared when a scheduled argument switches from live to remote and vice versa.

 

[1] Counsel cited “How to Combat Zoom Fatigue,” Harvard Business Review (April 29, 2020); and “‘Zoom Fatigue’ Is Real. Here’s Why You’re Feeling It, And What You Can Do About It,” News@Northwestern, (May 11, 2020).

[2] Clerk, Supreme Court of the United States, Guide for Counsel, at 7 (Oct. Term 2021).

Unconventional Writing Tips

The best writers know when to break the rules. They know when to forget everything they learned in legal writing and disregard conventional grammar and style rules. Simply put, they know when to be unique and original. Below are ten unconventional writing tips that can enhance the quality and persuasive value of a brief (or any type of writing) and highlight your authentic voice as a writer.

1.    Don’t write.

The best way to write an excellent brief, story, or script is to not write at all. Yes, you heard that correctly. Stay away from your computer. Avoid the temptation to write a revolting and blood-pressure-raising first draft simply because you want to “get something on paper.” That “something” will be the equivalent of nothing. Instead, spend time reading great writing.

Most importantly, think before you write. Brainstorm. Carry a small notepad with you and, among other things, write down ideas as they come to you and create an outline of your legal arguments. In so doing, be sure to reflect on your arguments and the likely counterarguments you will face. And remember that excellent thinking leads to excellent writing.

2.    Don’t let anyone read your first draft – or your final draft.

Some people believe that, after spending many hours on, for example, writing and rewriting an appellate brief, they cannot “see the forest for the trees” and need a set of “fresh eyes” to critique their work. The best writers know that this belief is often mistaken. Allowing others to review your writing can often do more harm than good; many suggested revisions reflect differences in style, not quality.

Additionally, many comments will be irrelevant or unhelpful, such as “did you cite the correct cases and check to make sure that they are still good law?” or “are there other counterarguments that you should consider?”

Yeah, whatever. Go away.

Others will offer annoying comments, such as “you should consider using the Oxford comma, and I also saw areas where maybe an em dash would have been appropriate” or “sentences should generally be no longer than twenty-five words but on page twenty, one of your sentences had twenty-seven words,” or “at least for me when I see a sentence with the passive voice, I hit the delete button immediately,”

Yes, and your comments about my writing have just been deleted.

The worst are the ones who offer ambiguous comments, such as “have you thought of restructuring the argument section?” or “in some instances, I thought your arguments were repetitive, but I could see where that might be effective,” or “in my opinion, the question presented doesn’t work because it seemed a bit wordy to me. But if you like it, keep it.”

None of this is helpful. If anything, it could cause you to overthink and doubt yourself. Worse, it could cause you to make changes that worsen your brief and weaken your voice.[1]

The moral of the story is that sometimes, too many cooks will spoil the broth. But if, for whatever reason, you must have someone review your writing, make sure you choose the reviewer carefully. In so doing, remember that one aspect of great writing is developing your unique style and voice as a writer, and not letting that style be compromised by others.

3. “Write drunk. Edit sober.”[2]

To be clear, this does not mean that you should consume a handle of Tito’s vodka when writing a first draft (a couple of glasses of Duckhorn sauvignon blanc should suffice). Rather, it means that you should be in a mindset where you can think freely and creatively without inhibition or reservation, and where you can coherently and concisely communicate your ideas.

If you aren’t in this mindset, your first draft may be gobbledygook. It may turn some people to stone. It may evoke images of the burning gym in the 1976 movie Carrie after Carrie finished exacting her revenge at the prom. And it may require you to delete everything on your computer screen and write another first draft. That may make you open that handle of Tito’s vodka, which is not advisable.

4.    Invent words.

Don’t be constrained by dictionaries. And don’t confine yourself to conventional or boring words. Rather, invent words – most commonly eponyms – that convey important ideas.

Think Obamacare.

Think Bushisms.

Think Californication.

What do these words do? The enhance the persuasive value of your argument. Indeed, a single invented word can implicitly convey arguments that so many attorneys feel the need to express explicitly. Think about it: when you hear Bushisms, it immediately brings to mind words that the former president invented, such as strategery. We all know the point that makes.

5.    Sometimes, throw IRAC/CRAC in the proverbial garbage.

In law school, particularly legal writing classes, students are taught to use the IRAC/CRAC (or CREAC) structure when drafting a brief. This is excellent advice and certainly helpful in many contexts.

Sometimes, however, the IRAC/CRAC formula can be, well, too formulaic. And it can undermine the persuasiveness of your legal analysis. This is particularly true where the facts are favorable to you and suggest strongly a ruling in your favor.

Consider the following examples of an introductory statement in a brief in a case where a defendant shot and killed another person with an AR-15 after the person, who was one foot shorter than the defendant, shoved the defendant and immediately thereafter began walking away. The defendant claimed that he was acting in self-defense.

Based on the relevant law and facts, the defendant’s self-defense claim lacks merit. It is well settled that a self-defense claim requires defendants to demonstrate that they subjectively believed that they were in fear of imminent grave bodily harm or death. Additionally, that belief must be objectively reasonable, meaning that a reasonable person would have feared that grave bodily harm or death was imminent. As such, disproportionate responses to a fear of harm do not constitute self-defense. Lastly, the claim of imperfect self-defense is not recognized in this jurisdiction. In this case, the defendant cannot…

Blah, blah, blah.

Why should a court have to endure this paragraph when: (1) the law of self-defense is well-settled in this jurisdiction, and (2) the facts show indisputably that the self-defense claim is utter nonsense? It shouldn’t. Blame CRAC. Then toss it out the window, get to the point, and write this:

The defendant is 6’7”. The victim was 5’7”. The victim shoved the defendant to the ground and immediately walked away, posing no direct or indirect threat to the defendant. The defendant could have – and should have – walked away too. Instead, the defendant decided to retaliate against the victim. Not by contacting law enforcement. Not by shoving the victim. Not by punching the victim. But by retrieving a semi-automatic weapon – an AR-15 – and shooting the victim twice in the head, killing him instantly. Now, the defendant claims that he was acting in self-defense. But that defense requires the defendant to show that the deadly force he used was objectively reasonable – and thus proportionate – to a threat of grave bodily harm or death. That threat never existed – except when the defendant decided to kill the victim with an AR-15. End of story.

Of course, this isn’t a perfect example, but you get the point. Sometimes, start with the facts. Then, include a very brief statement of the law. In some instances, it is more persuasive than adhering to a conventional formula.

6.    If it sounds good to the ear, write it and keep it.

When drafting a brief, a book, or a movie script, the worst thing that you can do is adhere unquestionably to formulaic writing or comply rigidly with strict grammar and style rules such as:

Don’t use passive voice.

Don’t end sentences with a preposition.

Don’t mix verb tenses.

This approach essentially turns you into a robot, not a writer. It means you aren’t thinking creatively based on the specific facts of your case – or thinking at all. This is not to say, of course, that grammar and style rules don’t matter. In many instances, they enhance the quality and the readability of your brief. The most important rules, however, are these:

Use common sense.

Trust your judgment.

Rely on your instincts.

After all, you want the reader to see you as a relatable and likable human being and, sometimes, that means breaking the rules. But how do you know when to break the rules? It’s simple: if it sounds good to the ear, write it and keep it.  Be sure, however, that what you hear – and write – is grammatically correct.

7.    Get a little nasty sometimes.

People like those who aren’t afraid to be edgy. To be witty. To be controversial. That type of writing shows that you are authentic – and that’s a great quality to have as a writer and person. Put simply, your writing should reflect your passion and your conviction.

To be sure, getting a little nasty doesn’t mean being an unprofessional jerk. But it does mean calling out bullshit when you see it. It does mean forcefully attacking arguments (not adversaries) in a raw and unapologetic manner.

Imagine, for example, that you are representing a defendant accused of murdering his wife. The evidence is largely circumstantial and based on the testimony of two eyewitnesses. On the eve of closing arguments, the prosecution discloses to you a document summarizing a DNA test that was performed on blood found on the murder weapon six weeks before the trial started. The DNA did not match the defendant’s DNA. You immediately move for a mistrial but the court denies it after the prosecution claims that the document had been lost and was found only an hour before it was disclosed to the defense. Your client is convicted and sentenced to life in prison. You appeal.

In your appellate brief, you should dispense with the niceties and professional courtesies, and call out the bullshit.  Consider the following:

Once again, we have a prosecutor who, at the eleventh hour of a murder trial, claims the equivalent of a student alleging that ‘the dog ate my homework.’ Specifically, the prosecution stated that it somehow “lost” evidence that exonerated my client, only to “find” it after the defense had rested its case and just before the jury began deliberations. The prosecution’s excuse is about as authentic as the tooth fairy and reflects a brazen disregard for the facts, the law, and my client’s life. In short, it’s bullshit. The result is that an innocent man is in prison, and if the conviction is affirmed, this court will essentially be saying that the dog did eat the student’s homework.

Yes, this paragraph is quite strong and, some would argue, over the top. Who cares? Stop worrying so much about how the reader will react – and what the reader might prefer – and focus on expressing your authentic voice.

After all, the prosecution’s behavior suggests strongly that misconduct occurred and that an innocent man is in prison for the rest of his life. How would most people, including the defendant and his family, react to such unethical behavior? They’d be furious. Your writing should, within reason, reflect the rightful indignation that should result from that injustice.

8.    Don’t edit too much.

Some writers just can’t stop editing. They just can’t stop rethinking, rewriting, and revising their work. Most of us have encountered these types. They say things like, “Do you think we can make an argument that cease has a slightly different meaning than desist?” or “This sentence is twenty-six words and sentences should only be twenty-five words, so what word should I take out?” or “I decided to delete the revisions to the revisions to the revisions because I don’t think they convey the point clearly” or “The Supreme Court case I cited about the summary judgment standard was from four years ago. We need to find a more recent case.”

These people are so annoying and truly don’t see the forest for the trees.

The problem with excessive editing is that it rarely improves to any substantial degree the quality of a brief. Rather, it often reflects a lawyer’s insecurities and addiction to perfection, which results in devoting every possible second before a deadline to editing. It’s a waste of time. What’s more, excessive revisions can weaken the authenticity and passion of your writing.

Accordingly, don’t overthink or overwrite. Trust in yourself. Let your authentic voice and passion show and remember that the reader isn’t focused on whether your sentence is twenty-five or twenty-six words. The reader is focused on the substance and persuasiveness of your arguments.

9.    Write like a human being.

Readers form perceptions of both the quality of writing and the writer. For that reason, it’s critical to write in a style that shows you to be credible, likable, and relatable. What are some ways that you do that?

Be conversational.

Be humorous (in appropriate circumstances).

Be straightforward.

In other words, lighten up on the formalities and resist the temptation to portray yourself as a master of the verbal section on the SAT. Do not, for example, write statements like “It is axiomatic that the First Amendment protects the right to free speech.”

Huh? Have you ever heard anyone use the word axiomatic during a conversation?

Imagine if you were on a date and your date said, “It is axiomatic that we have a great connection.” Um, that would be weird. And the connection would probably be gone.

People don’t talk like that. You shouldn’t write like that.

Justice Elena Kagan is a perfect example of what it means to speak and write like a human being. Kagan’s opinions display a conversational, authentic, and relatable tone that connects with the reader. Consider the following passage from one of Kagan’s opinions:

Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility that you mostly get to control - of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.[3]

The key here is “me too.” It relates and develops a connection to the reader. And few can forget one of Kagan’s humorous responses during her confirmation hearing. In response to the question of where she was on Christmas day, she replied “You know, like all Jews, I was probably at a Chinese restaurant.”[4] The questioner’s response? “Great answer.”[5]

Indeed, it was.

10.    Ask questions.

Don’t be afraid to ask questions in your brief; doing so can enhance your argument’s narrative force. For example, in Obergefell v. Hodges, Chief Justice John Roberts dissented from the Court’s decision holding that the Fourteenth Amendment’s Due Process Clause encompassed a right to same-sex marriage.[6] In so doing, Roberts wrote as follows:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”… As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”[7]

Roberts’ question at the end underscores his point that the Court’s decision was predicated on the justices’ policy preferences, and not on the Constitution.

So, again, don’t be afraid to ask questions or be different in other respects. Excellent writing isn’t always about checking all the boxes to ensure that you’ve followed all the rules. It’s about telling the best possible story. It’s about writing with your heart and your authentic voice. Sometimes, that means making your own rules.

 

[1] Also, remember that most people who read your writing are cognizant of your effort and investment in your work. Thus, they will likely be reluctant to offer a blunt and candid assessment of your writing for fear of hurting you.

[2] Joe Berkowitz, “Write Drunk. Edit Sober. According to Science, Ernest Hemingway Was Actually Right (Jan. 4, 2017), available at: “Write Drunk. Edit Sober.” According To Science, Ernest Hemingway Was (fastcompany.com). (Note: This quote has been wrongfully attributed to Hemingway. It was said by Peter De Vries).

[3]  Laura K. Ray, Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, 89 Ind. L. J. 1, 3 (2014), available at: Doctrinal Conversation: Justice Kagan's Supreme Court Opinions (indiana.edu)

[4] Id. at 1.

[5] Id.

[6] 576 U.S. 644 (2015).

[7] Obergefell v. Hodges, Excerpts from the Dissenting Opinions, available at: decision_excerpts_from_dissents_obergefell_student.pdf (landmarkcases.org) (emphasis added)

Using E-Prime to Add Clarity and Save Words

    I hope you are all enjoying 2022 so far.  As you look for ways to refresh your writing in the new year, consider using E-Prime.  Christopher Wren first introduced me to E-Prime, which “’refers to a subset of English that shuns any form of the verb ‘to be.’”  See Christopher Wren, E-Prime Briefly:  A Lawyer Writes in E-Prime, Mich. Bar J. 52, http://www.michbar.org/file/barjournal/article/documents/pdf4article1187.pdf (July 2007). In other words, to write in E-Prime, a drafter should avoid most “to be” verbs.

    While removing all forms of “to be” might sound daunting, I promise you will like the resulting clear, concise writing.  For attorneys and students who struggle with word limits, tightening sentences through E-Prime will usually save words.  Moreover, E-Prime requires writers to focus on the actor without using “is” as a definition, and thus increases precision.   

    As Mark Cohen explained:  “Would you like to clarify your thinking? Construct more persuasive arguments? Improve your writing? Reduce misunderstandings? You can. Just avoid using the verb to be.”  Mark Cohen, To Be or Not to Be--Using E-Prime to Improve Thinking and Writing,  https://blogs.lawyers.com/attorney/contracts/to-be-or-not-to-be-using-e-prime-to-improve-thinking-and-writing-65489/ (Nov. 2020).   Cohen listed many examples of how E-Prime adds clarity, including by revealing the observer and forcing us to avoid “passing off our opinions as facts.”  Id. 

    Wren also provides great examples of E-Prime removing passive voice and shortening clauses.  Wren, A Lawyer Writes in E-Prime, at 52.  Here are two of Wren’s examples:

Before:   Doe’s assertion that he was prejudiced by the joint trial is without merit.

After E-Prime:  Doe’s assertion that the joint trial prejudiced him lacks merit.

Before:  Generally, an order denying a motion for reconsideration is not an appealable order where the only issues raised by the motion were disposed of by the original judgment or order.

After E-Prime:  Generally, the party moving for reconsideration may not appeal an order denying the motion if the original judgment or order disposed of the only issues raised by the motion.

Id. 

    As a legal writing professor, I especially like the way E-Prime adds clarity and removes passive voice.  Since passive voice requires “to be” verbs, students who remove those verbs will also remove passives.  Thus, I now teach my students struggling with passive writing to look for all “to be” verbs followed by other verbs in their drafts.   Students who initially did not recognize passives tell me they now write more concisely by editing out “is,” “was,” and other “be” verbs.

    In his Michigan Bar Journal article, Wren shared that moving to E-Prime was not simple, in part “[b]ecause English­language communication relies so heavily on ‘to be’ constructions, removing them from the written form struck me as requiring more time and dedication than I thought I could muster, then or in the foreseeable future.”  Id.  When Wren first told me about E-Prime, I too found the idea of rewriting so many sentences impractical.  But after letting the idea percolate for a bit, I reached the same conclusion as Wren, who explained that in the end, “E­Prime helped me improve my writing” and “made my writing clearer by forcing me to pay more attention than usual to ensuring the reader will not have to guess who did what.”  Id.

    Thus, I urge you to give E-Prime a try.  With just a bit of practice, you can employ E-Prime to remove words from and add clarity to your appellate briefs, memos, and even emails.

Book Review: The . . . Guide to Doing Well and Being Well (Lawyers, it applies to you too!)

I finished my first[1] book of the year this weekend—The Law Student’s Guide to Doing Well and Being Well by Professor Shailini Jandial George.[2]  Although it is geared toward law students, as I will explain below, it is a book that most lawyers would greatly benefit from reading. And, with the new year upon us, what better time to focus on wellness?

Let’s face it, we are part of a stressed-out profession. The result—high levels of depression and substance abuse. For most of us, the pandemic has exacerbated our stress. I have certainly seen it in my own life, especially surrounding attempts to balance caretaking duties with work.[3]  Appellate practitioners are fortunate in that they often have more day-to-day flexibility in their schedules as opposed to litigators. My husband, for example, recently moved from a litigation position to an appellate position in part because his court schedule offered little flexibility, which added to our family’s stress.[4] And while there are other books out there on lawyer stress and wellbeing, I really appreciate, and learned much from, Professor George’s recent book.

Professor George’s book tackles the wellbeing crisis among lawyers from an interesting perspective. She focuses primarily on the topic of cognitive well-being, or maximizing the potential of one’s brain, which relates to the “do well” part of the book’s title. As she explains, there is a “deep connection between brain health and wellness,” so by “doing well” we can “be well.”

Early in the book, Professor George sets up the importance of the brain as a tool of the lawyer’s trade—a image she returns to throughout the book. Just like a musician would care for her instrument, lawyers should care for their brains. Stress, distraction, poor exercise and diet, and a lack of sleep do a number on our brain. I certainly see that in my own life.[5]  Professor George devotes a chapter to each of these topics and offers self-reflection exercises and practical tips to improve our brain health.

So much of what she wrote resonated deeply with me, but let me share just a few points that especially stood out. First, I learned a lot in the chapter on focus and distractions.  Did you know that “[t]he more we us the part of our brain activated by distractions, the more we weaken the part of our brain needed for deep focus”? Or that a group of researchers compared the cognitive ability of multi-taskers and persons who “had just smoked marijuana,” and the marijuana smokers “came out on top.” Yikes. I have certainly seen my ability to focus reduced in recent years, and I do think that the constant distractions of 24/7 connectivity and social media play a role.  Professor George offers some excellent tips for improving focus and reducing distractions. One that I might put into practice more this new year is turning off distracting notifications on my computer and putting away my phone for a period of time each week to allow me to focus on some big projects both at work and at home, which with the pandemic are increasingly blended.

Second, I was struck by the connection between diet and exercise and brain health. I know that exercise and diet are good for physical health, but I never really thought about how diet and exercise impact my ability to think.[6] Professor George offers specific foods to eat (and avoid) to improve brain health. She also describes how different types of exercise impact cognitive ability and offers different types of exercise to improve different aspects problems you might be facing. Perhaps the most personally striking statement she made was to encourage her readers to find their own “internal motivation” for exercise, noting those who exercise for the “internal benefits” tend to enjoy it more and stick with it better than those who do it for a special event.[7] Now that I have hit a certain (undisclosed) age, the thought of keeping my mind and body in great shape to keep up with my active children is very important.

The last point that I want to share is the general applicability of Professor George’s book. While she did write it for law students, nearly all of it can be directly applied to lawyers, even the self-reflection exercises. It isn’t hard to take an exercise that has you look at a successful study session and apply it instead to a successful brief writing session or trial prep.  Most of the self-reflection exercises are even more general than that (for example, the reflections on sleep, exercise, and diet are very general, with only one easily deletable reference to law school). And before you try to argue that you don’t have time for a self-care book, Professor George’s book is an easy, short read. Her style is delightful and funny, and the book weighs in at only 134 pages (excluding notes and the index).

Not only can the book be directly applied to practicing lawyers, but I believe that we have as much, if not more, to gain from it as law students. I did a good job practicing wellness as a law student. I find it harder now, with both work and family demands, to keep it up wellness practices.[8]

I am usually not one for New Year’s resolutions or a word to apply to one’s year, but reading Professor George’s book has made me think about adopting “self-care” as my 2022 theme. She ends her book with a final self-reflection that asks readers to come up with concrete things from the book that they can implement this day, this week, and this month. I still need to sit down and do that exercise (there is no quiet in my house on the weekends), but it is certainly something that I need to do. I know that focusing on self-care and “doing well” will make me a better professor, mom, and spouse.

I would encourage any reader who wants to “do well” and “be well” to pick up this book. In full disclosure, I received a complimentary copy to review, but the book is well worth its low sticker price. I would encourage law firms and law schools to make this book available to employees and students. It would also make an excellent text for a law school class or CLE on wellness.

 

[1] Technically, I have finished a few masterpieces like Jamberry, The Snowy Day, and Don’t Let the Pigeon Drive the Bus, but I usually leave those out of any end of the year book counts.

[2] I am also reading Ron Chernow’s Grant, which is amazing! But, at over 1000 meaty pages, it is going to take me some time to finish.

[3] I have two young children ages 3.5 and 1.5.

[4] When he applied for his new job late last year he calculated the last day he had been working but not in court. It was in June…of 2020.

[5] The number of times I have “lost” my cell phone since my 3.5 year old was born is pretty astounding.

[6] I do know the importance of sleep on my ability to think, but that is largely because my kids are still really young so good sleep is rare in our house.

[7] Good thing too. It seems like all the special events are canceled these days…

[8] Especially on the diet part—feeding four people, one of whom would live solely on dino nuggets (not on the approved food list) and yogurt, is a challenge.

2022 & The Marble Place Blog

Robert has already welcomed 2022 in his post yesterday. He provided some predictions regarding several big cases before the Supreme Court this year. Two other big cases, which address federal vaccine mandates, will be heard this Friday. I suspect we will get an expedited decision in those cases given the effective dates of the policies.

Speaking of the Supreme Court, noted Supreme Court journalist Tony Mauro has a new blog that he has aptly named The Marble Palace Blog. He recently blogged about the most recent issue of the Journal of Appellate Practice and Process, which addresses what judges can do to ameliorate the divisions in our country. Tony was one of the authors I recruited to write a preface for the issue, which I discuss here.

In his post, Tony pulls key excerpts from seven diverse pieces. Each excerpt offers a tangible step that lawyers and judges can take to address the cultural and political divisions in our country. While some of the steps would take much political capital to institute (a non-partisan nominating commission for federal judges and justices), others are simple in theory (be role models and civil, even when you disagree).

Given the hot button issues that the Court has to decide this year--guns, abortion, vaccine mandates, presidential privilege--we know that there will be ample opportunity to practice some of the steps outlined by Tony and the authors of the special issue. I hope we as lawyers (and judges for our judicial readership) take seriously our responsibility to serve as role models for our communities.

Happy New Year!

Welcome to 2022

            Writers of blog posts and newspaper columns often can’t resist predicting what the new year might bring. And, for the most part, they are bad at this harmless exercise. I don’t claim to be better at it, but found it equally enticing to try. For appellate advocates, some predictions are easy to make. They are on a schedule. The coming six months, for example, will bring some blockbuster decisions from the Supreme Court. On its agenda for decision is the future of Roe v. Wade[1] and the legal status of abortion, state authority to limit access to guns, the validity of congressional subpoenas for documents from a former president, and a potentially far-reaching decision on whether a State can deny religious-school participation in a student aid program.

            A harder undertaking for an armchair Nostradamus is predicting the outcome of those cases, even though we have some strong clues in some instances. From the arguments, it appears that Mississippi’s 15-week limit on abortions will survive constitutional challenge.[2] The Court need not overturn Roe and Planned Parenthood v. Casey[3] entirely to reach that result, even if the result may allow those prior decisions to exist more in name than in precedential value. While Chief Justice Roberts could conceivably attempt to control the opinion by assigning it to himself and take the incremental approach he often favors to make the break with Roe less abrupt, I predict he will not be able to corral enough justices to that approach. Instead, his best hope is likely to pen a controlling plurality decision. I also predict that such an approach will not quell the political firestorm that will grow out of the decision, as well as others from the term.

            It does not take a fortune-teller to know that New York’s 1911 Sullivan law will be overturned in the gun case argued in November.[4] There, a clear majority seems likely to strike it down as incompatible with the Second Amendment. A strong concurring opinion will provide a blueprint for further challenges to state regulation of firearms, but it will not command five votes. Instead, I predict that the majority decision will look somewhat like last Term’s decision in Fulton v. City of Philadelphia,[5] which held invalidated a city program that refused to make foster-care referrals to a Catholic social service agency because its religious beliefs prevented it from considering gay couples as foster parents. The decision provided no guidance for future cases, only agreement that the hypothetical discretion the city retained to make exemptions to its policy was fatal. That part of the decision was unanimous. However, a 6-3 line-up refused to go further and overturn Employment Division v. Smith.[6] I predict a similar line-up will prevail to show a split in how far the justices are willing to go on guns, at least in this case.

            Fulton will not provide a model in this Term’s religion case on student aid. In Carson v. Makin,[7] a split decision will invalidate Maine’s program of paying secondary-school tuition at a private where no public school exists but excluding religious or sectarian schools. Though the immediate decision will affect very few students, the criteria the Court adopts is likely to expand the types of claims that can be made under the rubric of religious discrimination.

            I also predict that the Court will act with unanimity in holding that former President Trump must turn over the subpoenaed documents sought by the House committee investigating the January 6 attack on the Capitol.[8] The petition stage received expedited briefing and seems likely to be granted. The case recalls United States v. Nixon,[9] in that the Court will similarly deem it critical to speak in one voice on the issue. To get there in Nixon, however, the Court recognized “a presumptive privilege for Presidential communications” that was “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”[10] It was lodging the privilege in the Constitution that was new in the decision and unnecessary to its result. I predict that an equally unnecessary discourse that adopts an expansive view of executive privilege, overcome in this case, to be articulated in the forthcoming opinion that will open the door future arguments not made or applicable to this case.

            In addition, the hot-button issue of affirmative action seems destined to add to this very important term’s agenda based on a long-pending petition.[11] Here, I predict a less diffident decision, holding it to be discriminatory in a sharply split decision. Finally, the year, even if not the current Term, is likely to also see important election law decisions, as I expect the upcoming state and congressional elections to generate an unprecedented amount of litigation.

            And, if I’m wrong on any or all of this, there’s always next year! Happy new year.

 

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] Dobbs v. Jackson Women’s Health Org., No. 19-1392 (Argued Dec. 1, 2021).

[3] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[4] New York State Rifle & Pistol Ass’n Inc. v. Bruen, No. 20-843 (Argued Nov. 3, 2021).

[5] Fulton v. City of Philadelphia, 141 S.Ct. 1868 (2021).

[6] Employment Div. v. Smith, 494 U.S. 872 (1990).

[7] Carson v. Makin, No. 20-1088 (Argued Dec. 8.2021).

[8] Trump v. Thompson, No. 21-932.

[9] United States v. Nixon, 418 U.S. 683 (1974).

[10] Id. at 708.

[11] Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199.