Appellate Advocacy Blog

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

Sunday, December 31, 2023

Worth a Read

As the year ends, developments at the Supreme Court – the revelations about judicial behavior that resulted in the adoption of a Code of Conduct and anticipation about what appears to be a momentous term – have dominated the world of appellate advocacy.

A few weeks ago, the New York Times published two fascinating pieces focused on the Court and its actions in Dobbs,[1] the 2022 decision that overturned Roe v. Wade.[2] One article, a revealing behind-the-scenes report on the acceptance and development of Dobbs, describes maneuvering undertaken by different justices to either accept or reject the case, including a calculation that delay will make the result more acceptable and a change of position on granting the petition. The article also covers the process of developing the opinion that leaked but remained largely intact when officially issued. The inside baseball described should interest any appellate advocate.

The second, a column by the inestimable Linda Greenhouse, discusses how Dobbs showed that the late Justice O’Connor erred in believing that judicial decisions are largely reactive and reflect an emerging social consensus. The op-ed also previews soon-to-be-published research about how the Supreme Court undermined its own reputation and authority by moving so far out of the mainstream in the same opinion. Both articles are well worth a read.

In many ways, the issues currently surrounding the Supreme Court do not have analogues among other courts, and the institutional concerns described in both pieces do not affect many of the decisions of even the Supreme Court. To be sure, some of the public’s flagging confidence and respect for the Court is a function of the ethics issues that have swirled around the Court, as well as growing public support for judicial term limits. Still, nothing dominates the public discussions like reactions to unpopular decisions.

What happens at the Supreme Court, unlike what happens in Las Vegas, does not stay there. It plainly affects the public view of the judiciary more generally. Recent surveys conducted on behalf of the National Center for State Courts show that the Supreme Court’s plunging public reputation has dragged down public confidence in all courts. The unfortunate result, though, is that discontent with the Court only fuels the current disrespect for the rule of law and our ability to function as a representative democracy at a time when democracy itself is threatened.

As officers of the court and as counsel familiar with the principles that undergird our system, we have an obligation to work to repair some of the damage done. Let’s dedicate ourselves with the approach of a new year to finding ways to restore respect and confidence in the rule of law.

 

[1] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

[2] 410 U.S. 113 (1973).

December 31, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Monday, December 25, 2023

A Big Christmas Present for Skills Professors?

Merry Christmas and Happy Holidays from the Appellate Advocacy Blog.

The Council of the ABA's Section of Legal Education and Admissions to the Bar may be giving skills faculty at law schools a late Christmas present.  The Council is considering revisions to Standard 405 that would provide more job protections for skills professors. In short, the changes would require law schools to offer skills faculty tenure-like job protections. You can read a memo on the changes here. The Council is accepting comments on the revisions until January 8, 2024. Instructions for submitting comments are in the memo.

Overall, I am pleased with the changes, but as I explain in my comments to the Council, I don't think that the changes go far enough. Having left a tenure-track job for a job with clinical tenure, I have seen firsthand how clinical tenure can promote inequities at law schools. 

I encourage those interested in these issues to review the proposal and consider submitting a comment. My comments are below.

***

Dear Chair McCormack:

I am writing in support of the Council’s proposed revisions to Standard 405. While I do not think that the revisions go far enough, they represent a positive step in the right direction. As I will discuss further below, this step is consistent with other changes to the ABA Standards that recognize the value of legal writing and skills education.

I am writing this letter in my personal capacity. It represents my views and not those of the University of Arizona or the James E. Rogers College of Law. My views have naturally been informed by my decade-plus in legal academia—first as a tenure-track professor at Regent University School of Law and currently as a faculty member with continuing status (clinical tenure) at the University of Arizona James E. Rogers College of Law.

As a professor I have taught both skills and doctrinal courses, including Constitutional Law I & II, Federal Courts, Appellate Advocacy, and the first semester 1L writing course. My comments to the Council are based in part on a book chapter[1] I wrote about how I incorporate skills education into my doctrinal classes.  My comments will cover the importance of skills education, how the revisions are consistent with past Standards changes on legal skills education, and how the revisions don’t go far enough.

The Importance of Skills Education

Legal writing is one of the few skills taught in law school that all attorneys perform. According to a 2011–2012 study of newly licensed attorneys by the National Conference of Bar Examiners, 100% of surveyed attorneys reported that that they engaged in the skill of “written communication.”[2] In fact, of the 98 knowledge domains, 36 skills and abilities, 43 general tasks, and 13 specific practice area tasks that the study asked attorneys to rate as “significant . . . to [their] performance as a newly licensed attorney,” “written communication” had the highest significance rating and was the only item that 100% of attorneys said that they performed.[3]  The other highest rated items, both in significance and percentage performing, all fell into the skills domain. They represent skills taught in legal writing courses—“paying attention to details,” “listening,” “oral communication,” “professionalism,” “using office technologies,” “critical reading and comprehension,” “synthesizing facts and law,” and “legal reasoning.”[4]

Anecdotally, when I talk to judges and other legal employers, they often emphasize that they want to hire graduates with strong research and writing skills. These employers know that they can teach the substance to new hires, but teaching the skills of writing and research are time-consuming and difficult.

Given the importance of legal writing as a skill that law students must learn, it makes sense to offer tenure-like job protections to legal writing faculty. It seems counterproductive to treat educators who teach one of the most important skills students learn in law school as second-class citizens. It sends the wrong message to our students (and other faculty) about the importance of skills education. 

Further, offering more job protections, and the resulting higher salaries, to skills faculty will help law schools recruit and retain better skills professors, which will only improve the quality of legal writing and skills education.

The Revisions are Consistent with Past Changes Recognizing the Importance of Skills Education

Since the early 1980s, the ABA has slowly revised the Standards to recognize the importance of skills education. As I explained in my book chapter (apologies for the long block quote):[5]

In the early 1970s, as part of a major reform to the standards for approving law schools,[6] the ABA required that law schools teach, as part of their core curriculum, “‘the duties and responsibilities of the legal profession’” and “‘professional skills, such as counselling, the drafting of legal documents and materials, and trial and appellate advocacy.’”[7] In 1981, the ABA added the requirement that law schools “offer to all students at least one rigorous writing experience,” in addition to “instruction in professional skills.”[8]

Eight years later, the ABA Council of the Section of Legal Education and Admissions to the Bar created a task force to study the “gap” between law schools and the legal profession.[9] Part of the task force’s work included examining what “skills” and “values” attorneys needed “to assume professional responsibility for handling a legal matter.”[10] In surveying newly licensed attorneys and their employers on this point, the task force found that “oral and written communication skills” were some of the most important skills for lawyers to possess.[11] It also found that while those surveyed thought that these skills could be taught in law schools, they also thought that law schools were doing a poor job teaching them.[12] For example, 77 percent of newly licensed Chicago attorneys thought that oral communication could be taught in law school, but only 39 percent thought sufficient attention was given to teaching it.[13] Similarly, 91 percent thought that written communication could be taught in law school, but only 55 percent thought that law schools devoted sufficient attention to teaching it.[14]

The task force published its report, known as the MacCrate report after its chairperson Robert MacCrate, in July 1992. The report included a statement of skills and values that “are desirable for practitioners to have.”[15] While the task force recognized that law school graduates may not acquire all of the skills in law school,[16] it saw the statement as something that could assist law schools in curricular development, including “[r]evisions of conventional courses and teaching methods to more systematically integrate the study of skills and values with the study of substantive law and theory.”[17] Among the ten skills identified by the report as “fundamental lawyering skills” were problem solving, legal analysis and reasoning, factual investigation, communication, and recognizing and resolving ethical dilemmas.[18]

Despite its lofty goals, a 1995 survey of legal writing program directors indicated that the report did not significantly impact their programs.[19] The 1996 ABA standards, however, did see two changes to Standard 302 that seemed to flow from the MacCrate Report. The first change stated that law schools must offer “an educational program designed to provide its graduates with basic competence in legal analysis and reasoning, legal research, problem solving, and oral and written communication.”[20] The second change directed law schools to “offer live-client or other real-life practice experiences” that “might be accomplished through clinics or externships” but need not be offered to all students.[21]

. . . .

The 2001–2002 ABA Standards did make some significant changes to the teaching of lawyering skills—changes that impacted my law school experience. First, rather than simply requiring that law schools offer a writing experience and skills instruction, the standards were amended to require that students receive:

(1) Instruction in the substantive law, values and skills (including legal analysis and reasoning, legal research, problem solving and oral and written communication) generally regarded as necessary to effective and responsible participation in the legal profession; and

(2) Substantial legal writing instruction, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year.[22]

 . . . .

In the fifteen [now nearly nineteen] years since I graduated from law school, surveys of law students and recent graduates continue to recognize the importance of lawyering skills education and call for law schools to do a better job in teaching lawyering skills. The 2007 Carnegie Report Educating Lawyers called for law schools to adopt an “integrated curriculum” that included “legal doctrine and analysis,” lawyering skills, and professional identity.[23] This suggestion likely stemmed in part from student suggestions “that writing should be ‘more integrated into courses on doctrine’ in order to speed up [their] learning of legal reasoning.”[24] . . .

Despite the importance of these skills, the perception among practicing lawyers is that law schools still are not doing sufficiently teaching lawyering skills. A 2014 survey by BARBRI revealed that only 23 percent of practicing attorneys “believe recent law school graduates possess sufficient practice skills.”[25] While the ABA standards now require students to complete at least six credit hours of experiential learning to graduate,[26] there is still a need, as the Carnegie Report recognized, for an integrated curriculum in law schools that incorporates skills learning into the doctrinal classroom.

This lengthy history shows the Council’s support for skills education—support that is also demonstrated by the Council’s consideration of expanding the number of experiential credits students must earn to graduate. It also shows the importance of not just standalone skills courses, but also incorporating skills into the doctrinal classroom. 

Unfortunately, affording skills faculty a lesser status makes some doctrinal colleagues unwilling to listen to our suggestions for incorporating writing into the doctrinal classroom (or other suggestions for that matter). I recall discussing pedagogical methods in a committee meeting with tenured colleagues and having my suggestions dismissed because legal writing is just different. Ironically, the suggestions came from the doctrinal classes I taught, not my writing course. Sadly, this type of treatment is common.

Formal recognition from the Council and the ABA as a whole that skills faculty deserve tenure-like protections will help eliminate the status-based stratifications that have formed in legal academia. I hope that the result will be more collaboration and an overall better educational experience for our students.

The Revisions Do Not Go Far Enough

 While I appreciate the value of incremental change, and I recognize that law and legal education change at a snail’s pace, the revisions do not go far enough. I encourage the Council to consider requiring law schools to offer complete parity between doctrinal and skills faculty. While tenure-like protections are a good starting point, serving in a clinical tenure position for the past six years has shown me the flaws in a bifurcated system.

First, at many law schools skills faculty perform the same tasks as tenure-track faculty. We teach doctrinal classes, we conduct research, we write books and scholarly articles, we serve on college and university committees, we supervise student notes, and we present at conferences. Many of us are, in fact, national experts in our fields. To use a common adage, if it walks like a duck and talks like a duck, shouldn’t we call it a duck?

Second, while clinical tenure does provide job protections, it also promotes inequalities that negatively affect women and minorities. The University of Arizona offers a type of clinical tenure called continuing status. At the University as a whole, 57.5% of the faculty who hold continuing status or are on the continuing status track are women.[27] This is compared to the 33.3% of women who hold tenure and the 50.9% of women who are tenure-track. The racial disparities are also significant for some categories:

Race/Ethnicity

Continuing or continuing eligible faculty

Tenured faculty

Tenure-track faculty

American Indian or Alaska Native

3.3%

1.2%

1.5%

Asian

2.3%

13%

15.7%

Black or African American

1.4%

1.9%

3%

Hispanic or Latinx

19.2%

7.2%

10.1%

At the College of Law, 13 out of 23 tenure-track faculty are women (excluding faculty that also hold an administrative designation).  On the continuing status side, 21 out of 31 faculty are women.  The racial disparities are not present at the College of Law, with 10 tenure-track faculty and 13 continuing faculty identifying as minorities.

These distinctions between tracks are important, since the mean salary for tenure-track faculty at the College of Law is $190,503, while the mean for continuing status faculty is $119,198. The differential at the University is not as stark, but still present, with the mean salary for tenure-track faculty at $144,315 and continuing status faculty at $106,906.

Thus, while I do strongly support job protections for skills faculty, I encourage the Council to consider if these changes will give skills faculty the full recognition that they deserve, or will it continue to perpetuate disparities that often negatively affect women and minorities.  I would encourage the Council to be a leader on this issue and require schools to offer tenure to skills professors, or, at a minimum, require that the tenure-like positions offer similar compensatory prerequisites.

Thank you for the work that you have done and your consideration of my comments. I look forward to following the Council’s actions on this matter.

Warmly,

Tessa L. Dysart

Assistant Director of Legal Writing

Clinical Professor of Law

 

[1] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181 (Tammy Pettinato Oltz ed. 2021).

[2] Susan M. Case, The NCBE Job Analysis: A Study of the Newly Licensed Lawyer, B. Examiner, March 2013, at 52–56.

[3] Id.

[4] Id.

[5] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181, 183–86 (Tammy Pettinato Oltz ed. 2021).

[6] ABA Standards and Rules of Procedure for Approval of Law Schools, intro. at vi (2013-14) (Am. Bar Ass’n amended 2017–18).

[7]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1978) (Am. Bar Ass’n amended 2017–18); see also Maccrate Report, supra note 1, at 233.

[8]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1981) (Am. Bar Ass’n amended 2017–18).

[9] MacCrate Report, supra note 1, at xi.

[10] Id.

[11] Id. at 380.

[12] Id. at 381.

[13] Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. Legal Educ. 469, 481 tbl.5 (1993).

[14] Id.

[15] MacCrate Report, supra note 1, at 123.

[16] Id. at 125.

[17] Id. at 128.

[18] Id. at 138-140.

[19] Lucia Ann Shilecchia, Legal Skills Training in the First Year of Law School: Research? Writing? Analysis? Or More?, 100 Dick. L. Rev. 245, 261-62 (1996).

[20] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1996) (Am. Bar Ass’n amended 2017–18).

[21] Id.

[22] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (2001–02) (Am. Bar Ass’n amended 2017–18); see also Kenneth D. Chestek, MacCrate (in)Action: The Case for Enhancing the Upper-Level Writing Requirement in Law Schools, 78 U. Colo. L. Rev. 115, 121–22 (2007) (discussing the changes in the 2001 amendment).

[23] William M. Sullivan et al., Educating Lawyers: Summary 8 (2007).

[24] William M. Sullivan et al., Educating Lawyers 104 (2007). In sharing this paper at a faculty workshop at the University of Arizona James E. Rogers College of Law, some of my colleagues noted that formerly, legal writing was taught as part of doctrinal classes and not as a standalone class. While I do think writing should be incorporated into the doctrinal classroom, I do not think that this incorporation should supplant existing first- and second-year legal writing courses, which teach the foundational aspects of legal writing to students.

[25] 2014 State of The Legal Field Survey, Barbri Group, https://www.thebarbrigroup.com/2014-state-of-the-legal-field-survey/ (last visited July 7, 2019).

[26] ABA Standards and Rules of Procedure for Approval of Law Schools § 303 (2014–15) (Am. Bar Ass’n amended 2017–18).

[27] The data contained in this letter was provided to me by the University of Arizona University Analytics & Institutional Research Department.

December 25, 2023 in Appellate Advocacy, Current Affairs, Law School, Legal Writing | Permalink | Comments (0)

Saturday, December 23, 2023

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!  

We have reached the fourth Saturday of December, the last possible day for me to post my monthly “Saturday” blog.  For the last four Saturdays, I have diligently worked to find time to write something sharp and fun on appeals and the end of the year.  But like so many of you, I found my time consumed with grading, other pressing work, kids home from college, and holiday obligations.

In my effort to post something meaningful and enjoyable, I started several essays discussing how trying to manage a December schedule as a parent and professional is like writing an appellate brief.  These posts were so cute in my mind, drawing all sorts of neat comparisons between making filing deadlines for multi-issue briefs and triumphing after nightly holiday events.  I also started some great (again, only in my mind) comparisons of Lexis+ AI and gift shopping for colleagues and family.  But just as I would start writing, a last-minute emergency or holiday engagement would take my time.  Alas, this will not be the nifty post connecting appellate writing and holiday stress that I had imagined.

Instead, I have realized my struggle to be fresh, creative, relevant, and thoughtful in a holiday blog while also trying to sleep during the holidays—even a little—just might not be possible for me this year.  Therefore, my gift to you this season is a poem on appeals and holidays ChatGPT helped me draft.  Hopefully, this makes you smile as we welcome more generative AI into our teaching and practice in 2024.  I plan to spend a fair amount of time next semester talking with my students about letting generative AI assist them while always “thinking like lawyers” and checking chatbots’ work.  I might even try to connect some of these lessons to holiday shopping and family time. 

Holidays and Appeals

In the court of appeal’s courtroom's hallowed halls we stand, A season of justice, a legal command.

Holidays approach, a festive cheer, Yet in the legal realm, the briefing schedule draws near.

Gavels echo, a rhythmic song, As our appeals dance along.

Beneath the twinkling lights of the law, Hope and reason, like ornaments, draw.

In the silent night, briefs are penned, Arguments woven, like wreaths descend.

Lawyers gather, minds ablaze, To navigate through the appellate legal maze.

Amidst the carols and joyous sounds, Legal battles on hallowed standard of review grounds.

A respite sought, an enforcement reprieve, In the holidays, justice we believe.

The scales of justice, like gifts exchanged, In opening and reply brief wrappings, fairness arranged.

Briefcases filled with legal might, As holiday spirits take their flight.

Jingles of high court precedent in the air, A legal dance, a record laid bare.

A yuletide plea, a solemn quest, To find justice, in holidays dressed.

Ornaments of statutes, hung with care, As legal appeals fill the festive air.

Holidays and justice, hand in hand, A legal season, a legal stand.

In the echoes of a reviewing courtroom's call, May fairness and merriment reign for all.

 

December 23, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Humor, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Wednesday, December 20, 2023

Contrast and legal writing

Contrast gets and keeps attention. Our senses tell us this. Our vision is contrast-based; if all the world were made of purple cloth, we wouldn't see anything--not even the purple. If all sounds were the same pitch and frequency, we might as well not hear anything. If we had to touch naught but the same texture, we probably wouldn't feel anything. If we had to eat the same flavors and textures all the time, it would be extremely dull at best. 

This craving for contrast extends to what we read. This contrast can manifest in several ways, but I highlight only a few here.

1. Contrasting terms. Justice Barrett showed this in her recent (and very brief) opinion in Acheson Hotels, LLC v. Laufer, 22-429. "[M]ootness is easy and standing is hard"; "Though Laufer's case is dead, the circuit split is very much alive."; "[W]e should settle the issue now rather than repeating the work later." Easy/hard, dead/alive, now/later give a pleasant sense of contrast and closure, and have a pleasing, back-and-forth cadence of sound as well as of concept. 

2. Contrasting sentence length.

A. Using long sentences to set up short ones. With this technique, the shorter sentence acts as a summary of the concepts in the longer ones. For example, Justice Holmes in his dissent in Abrams v. United States (1919): But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--the best of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of the Constitution. It is an experiment, as all life is an experiment."

B. Using short sentences to set up long ones. The short sentences build momentum that highlights the long-form explanation. This one from G.K. Chesterton's The Tyranny of Bad Journalism (1917): "The point about the Press is that it is not what it is called. It is not the 'popular Press.' It is not the public Press. It is not an organ of public opinion. It is a conspiracy of a very few millionaires, all sufficiently similar in type to agree on the limits of what this great nation (to which we belong) may know about itself and it friends and enemies." Notice here how he also uses the contrast of "it is not..it is" and "friends and enemies." These things can be layered.

Judge Bibas also did this very well in Trump for President v. Secretary Commonwealth of Pennsylvania (3d Cir. 2020): "Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters  cure those defects. Those are all issues of state law, not ones that we can hear." He sets up his thesis with a set of tersely stated premises, which makes his point more forceful. 

C. Contrasting syntax. If you want to make an idea stand out, then change up your syntax a bit. The usual English construction is subject-verb-object. But you can change that up (if you do it in the right way) without any change in meaning. Chief Justice Roberts often does this. For example, in Trump v. Vance: " Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity." The delay of the subject is unexpected, grabs attention, and puts the focus on something other than the actor. 

There are many ways to add contrast to your writing. Practice these techniques and use them purposefully, and watch your writing come to life. 

December 20, 2023 | Permalink | Comments (0)

Saturday, December 9, 2023

Do We Need a Supreme Court? The Case for Limited Judicial Review

The United States Supreme Court should stop deciding cases involving ambiguous constitutional provisions where reasonable people can differ regarding the meaning of those provisions. In such instances, the Court should defer to the legislature and thus only decide cases that involve clear violations of the Constitution. Otherwise, the Court – as it has done for years – will involve itself in deciding important issues that should be left to democratic choice.

When the Court decides cases where constitutional provisions are ambiguous (and subject to different interpretations), nine unelected and life-tenured judges impose law and policy on an entire nation, often based on nothing more than their policy preferences or the political affiliation of the justices’ current members. If you doubt that, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and returned to the states the question of abortion’s legality.[1] What exactly changed from Roe to Dobbs? The justices’ political affiliations and policy preferences, as Justices Brett Kavanaugh and Amy Coney Barrett (conservative jurists) replaced Justices Anthony Kennedy and Ruth Bader Ginsburg (moderate and liberal jurists, respectively). After Dobbs, it appears that constitutional meaning doesn’t mean anything at all; rather it depends on whether a majority of the Court’s members, at any given time, are liberal or conservative. That reality, which Dobbs underscored, is a recipe for undermining democracy and politicizing the Court, which undermines its institutional legitimacy. If anyone questions how political the Court has become, look no further than the Senate’s confirmation hearings, which beginning with Robert Bork have more closely resembled an episode of Jersey Shore than a meaningful discussion of a nominee’s record and character.

For these and other reasons, the Court should not decide cases (i.e., it should deny certiorari), particularly those involving important social and political issues, when the Constitution provides no clear answer to the question presented. Indeed, the Court’s track record of deciding such cases has been deeply troubling. For example, in Citizens United v. FEC, the Court, by a 5-4 margin, invalidated a statute that restricted independent expenditures by corporations, labor unions, and other entities, and was intended to limit the deleterious and corruptive effect of money in federal elections.[2] Neither the text nor the original purpose of the First Amendment provided clear guidance on the statute’s constitutionality and reasonable people could – and did – disagree on its constitutionality. Why, therefore, did the Court get involved? And why, when the Court did get involved, did it issue a decision that all but ensured that money would continue to corrupt the political process? Your guess is as good as mine.

Likewise, in Clinton v. New York, the Court held by a 6-3 margin that the Line-Item Veto Act, which gave the president the authority, subject to congressional override, to veto certain portions of spending bills.[3] The Act, which was passed on a bipartisan basis, sought to reduce wasteful government spending, and thus promote fiscal responsibility. The Court, however, invalidated the Act, holding that it violated the Constitution’s Presentment Clause, even though the Presentment Clause is so broadly worded that it could arguably be interpreted in different ways. Yet, the Court got involved and invalidated the Act, which hindered Congress’s attempt to reduce wasteful government spending. The reason, again, is anyone’s guess.

To make matters worse, in Griswold v. Connecticut, the Court invented constitutional doctrine out of thin air to invalidate a Connecticut law that banned contraception.[4] Although the law was ridiculous, there was no language in the Constitution that could support invalidating the law. Instead of deferring the legislature, however, the Court held that the Constitution’s text contained invisible “penumbras,” which give life and substance to the text, and from which the justices – and the justices alone – could create unenumerated constitutional rights. Based on this reasoning, the Court created an unenumerated right to privacy under the Fourteenth Amendment’s Due Process Clause even though the text of that clause could not possibly support creating this right. After Griswold, the Court showed no hesitation in “discovering” additional unenumerated rights in its invisible “penumbras,” such as the right to abortion in Roe, which the Court deemed, without any support in the text whatsoever, encompassed within the “right” to privacy. It should come as no surprise that Roe eventually met its demise in Dobbs; when Dobbs was decided, there were more conservative than liberal justices on the Court. That’s the problem with unwarranted judicial intervention and with creating rights out of thin air – it turns law into politics.

Additionally, in Snyder v. Phelps, the Court by an 8-1 margin held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a funeral honoring a soldier who had been killed in Iraq and hold signs stating, among other things, “God Hates Fags” and “Thank God for 9/11.”[5] As Justice Alito emphasized in his dissent, this degrading and demeaning speech had no social value whatsoever and contributed nothing to the marketplace of ideas. Furthermore, nothing in the text or the original purpose of the First Amendment compelled this result. Yet, the Court decided to intervene and reached an outcome that was as abhorrent as the speech it protected.

Similarly, in Kennedy v. Louisiana, the Court held by a 5-4 margin that imposing the death penalty on a convicted child rapist violated the Eighth Amendment’s guarantee against cruel and unusual punishment.[6] What exactly in the Eighth Amendment’s text or based on its original purpose supported this result? Absolutely nothing. But that did not stop the Court from prohibiting legislatures nationwide from authorizing a punishment that many viewed as appropriate for such a heinous crime.

And, of course, one cannot forget the Court’s holding in Students for Fair Admissions v. Harvard, where the Court, approximately forty-five years after Regents of the University of California v. Bakke was decided, suddenly discovered that affirmative action was unconstitutional.[7] Regardless of one’s views on affirmative action, it cannot be reasonably disputed that, like in Dobbs, the only reason that affirmative action met its demise was because the newest justices were appointed by a Republican president. Students for Fair Admissions also highlights the problem with “living constitutionalism”: you never know whether the Constitution will “evolve” a liberal or conservative direction.

These are just a few examples of the Court’s failure to respect the constraints on its power. At times, it appears that Chief Justice Roberts, to his credit, has been concerned about this problem. In National Federation of Independent Investors v. Sebelius, for example, Roberts provided the fifth vote to uphold critical portions of the Affordable Care Act, holding that such provisions were a valid exercise of Congress’s taxing power.[8] Now, does anyone think that Chief Justice Roberts truly believed that the Act’s individual mandate was a tax rather than a penalty? Whatever one’s answer, it was clear that Justice Roberts’ decision was predicated on a desire to protect the Court’s institutional legitimacy and for the Court not to be viewed as politically motivated in its decision-making process. Chief Justice Roberts did the right thing but went wrong when, in Shelby County v. Holder, he voted to invalidate sections of the Voting Rights Act even though the Senate had reauthorized those provisions unanimously.[9] It is precisely this type of inconsistency that undermines the very legitimacy that Roberts seeks to preserve.

Ultimately, the Court’s legitimacy depends on the public believing that the justices’ decisions are based on the Constitution’s text and free from political preference or policy predilection. When the Court intervenes to decide cases where the text is ambiguous and subject to reasonably different interpretations, it often does so, as in Dobbs and Students for Fair Admissions demonstrate, for no other reason than that the justices have the votes to invalidate a law or policy that they don’t like. That is wrong, and citizens of all political persuasions should object to a Court that reserves for itself the right to decide issues that belong to the people and democratic process.

After all, consider the justices themselves. Certainly, they are honorable and incredibly accomplished people. But they are not ordinary citizens. Most of them graduated from Ivy League law schools, grew up in upper-middle class to wealthy households, attended private high schools and elite undergraduate institutions, and enjoyed immense privilege. This does not make them bad people or warrant criticism of them, but it does not make them uniquely suited to decide for an entire country issues that matter so much to (and affect) ordinary citizens. Let the people decide. Give them a voice.

Of course, some may argue that the Court has the authority to say what the law is, particularly where there are circuit splits on important constitutional and public policy issues. That argument is not convincing. First, circuit splits are fairly common, and the Court only decides a fraction of cases where such splits are present, thus allowing many splits to persist. Second, the presence of a circuit split is not always or inherently problematic. Some courts interpret statutes and constitutional provisions differently, and this may lead to varying legal and constitutional protections based on the state or region within which you live. That fact alone does not necessarily lead to injustice or inequality. Some courts, for example, may uphold certain abortion restrictions and others may not, and some courts may hold that the death penalty is unconstitutional while other courts may not. Indeed, just look to state legislatures, where laws and the rights they confer (or restrict) differ substantially. That’s called democracy and sometimes, it’s better to be divided rather than united. People have different views and where the Constitution is silent or ambiguous, those views deserve a voice over those of nine unelected and life-tenured justices.

At the end of the day, when constitutional interpretation is nothing more than a political game, it is a game not worth playing. Without limiting judicial review, we may continue to be haunted by that ghost called “substantive due process,” or those invisible penumbras that lurk in the background, just waiting to strike when enough justices believe in their existence. And be ruled by nine unelected justices who think they can somehow divine the “evolving standards of decency that mark the progress of a maturing society.”[10]

 

[1] 597 U.S. 215 (2022); 410 U.S. 113 (1973).

[2] 558 U.S. 310 (2010).

[3] 524 U.S. 417 (1998).

[4] 381 U.S. 479 (1965).

[5] 562 U.S. 433 (2011).

[6] 554 U.S. 407 (2008).

[7] 600 U.S. 181 (2023); 438 U.S. 265 (1978).

[8] 567 U.S. 519 (2012).

[9] 570 U.S. 529 (2013).

[10] Trop v. Dulles, 356 U.S. 86 (1958).

December 9, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Monday, December 4, 2023

Trial on my mind

Happy December!  Although this blog is devoted to appellate issues, I have had trial court on my mind this past week.  Why you might ask? First, my husband (also a lawyer), spent much of last week serving on a jury in Pima County Superior Court. As some readers might know, Arizona eliminated preemptory challenges a year or so ago.  The result has been that many lawyers (and even some judges) have served on juries.  I may have more to say on this blog about my husband's jury service if he agrees to an interview.

The second reason that trial court has been on my mind is that I ran across two stories that emphasis the importance of issue preservation and building a record for appeal.  The first came from a friend at NITA. She just finished interviewing Judge Randall Warner from the Maricopa Superior Court on the appellate issues you should be considering at trial. I haven't had a chance to review the whole podcast, but you can find it here.  

A few days later I ran across a LinkedIn story about an attorney (suspended attorney) representing himself who failed to provide the appellate court with the appropriate transcripts to support his arguments on appeal.  In glancing over the Utah Court of Appeals decision, he also failed to preserve issues for appeal.  The appellate court repeatedly notes how the appellant's failure to include the relevant transcripts prevents it from doing its job. Take, for example, paragraph 52:

Johnson makes several arguments against the court’s restitution order; but because there is no transcript of the restitution hearing, “we presume the regularity of the proceedings” in the restitution hearing, and the missing transcript is “presumed to support the action” of the district court. See State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (cleaned up). All we have available to us to review Johnson’s claims are the spartan hearing minutes, from which we confirm that the State provided both evidence and argument to the court. Each of Johnson’s arguments here fails because, assuming the regularity of the proceedings, the State could have presented evidence directly contradicting these arguments during the hearing. “[W]e must presume that” the evidence the State presented at trial “supports the district court’s [order]; under these circumstances, we are simply not in a position to second-guess the court’s [order].” Laker v. Caras, 2023 UT App 125, ¶ 19; see also State v. Case, 2020 UT App 81, ¶ 20, 467 P.3d 893 (“[The appellant] has not provided a record of the hearing at which the court denied his motion, so we cannot analyze the correctness of the trial court’s ruling . . . .”), cert. denied, 474 P.3d 948 (Utah 2020). Accordingly, we reject Johnson’s argument that the court exceeded its discretion in reaching its restitution award.

I commend the entire opinion to trial attorneys--it is a what NOT to do at trial and a reflection of how what happens at trial can make or break your chances to appeal.

Thanks to Cherise Bacalski for the heads up on the Utah decision and to Marsi Mangan for the heads up on the podcast.

December 4, 2023 | Permalink | Comments (0)

Sunday, December 3, 2023

The New Rules for AI-Based Research

The Fifth Circuit has published for comment the first federal appellate rule on the use of artificial intelligence (AI) in filings. It would require that the person filing “certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human” as part of the certificate of compliance.

A number of recent incidents have highlighted the danger of reliance on AI. As has been widely reported, two New York lawyers were sanctioned for using AI to draft a brief that contained seemingly valid citations precisely making the point they wanted to for the court, but turned out to be entirely made up. Recently, the Washington Post reported that a young, overextended Colorado attorney relied upon AI for a brief that also included fictious citations, was sanctioned by the court, and fired from his position at the law firm. In another instance described in the same article, a Los Angeles law firm was called out for a similar offense by opposing counsel and fined $999 by the court; it blamed a young lawyer who resigned from the firm after the fictious cases were discovered.

The Washington Post article quoted a Brown University computer scientist that what is “surprising is that [AI programs] ever produce anything remotely accurate.” The scientist, Suresh Venkatasubramanian, explained to the Post that these programs are designed to mimic conversation by developing seemingly realistic responses to whatever inquiry is submitted. It realizes that a legal brief includes citations to precedent, but does not read or synthesize the actual cases, so it creates its own.

The topic was part of the discussion with state chief justices at a National Center for State Courts meeting I was privileged to moderate just before Thanksgiving. As one chief justice expressed to me in private conversation afterwards, she was surprised that it happens at all because she could not imagine a lawyer filing a brief that relies on a case that had not been read by the attorney.

The Fifth Circuit’s proposed rule appears to make that the standard. Within the Fifth Circuit, a judge, Brantley Starr of the U.S. District Court for the Northern District of Texas, has already amended the rules for filings in his court, to require a certificate attesting that the filing contains nothing drafted by AI or that a human being checked any language drafted by AI for accuracy. The judge’s rule calls AI platforms “incredibly powerful” and useful for  and have many uses in the law for “form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument.” One thing he insists it is not useful for is legal briefs.

Judge Starr explains that, at least as currently devised, AI is “prone to hallucinations and bias.” To put it plainly, he says “they make stuff up—even quotes and citations.”

Judge Starr also worries about bias in the programming. He explains that “attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients.” Neither a computer program nor those who devised adhere to an oath. He states,”[t]hese systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth).”

The judge is prepared to be convinced otherwise. He has put out a challenge: “Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why.” Until that happens, the judge “will strike any filing from a party who fails to file a certificate” and is prepared to Rule 11 sanctions for an inaccurate filing.

These early rules proposals are likely to proliferate, particularly because online legal research systems, such as Westlaw, Lexis, and Casetext, now also offer AI-based research assistance that may blur the lines between lawyer and computer in ways that may not be predictable. Appellate practice is changing once again.

December 3, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (0)