Tuesday, October 29, 2019
No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.
When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts. Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before. In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.
Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.
It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases. The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.
One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.
This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.
 Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).
 See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).
 See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).
 Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.
 See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).
October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Tuesday, October 8, 2019
The United States Supreme Court is under attack on a variety of fronts. Public confidence is declining and coverage in the press is largely negative. Information regarding deliberations, once considered confidential, is freely leaked. And senators write amicus briefs openly threatening court packing legislation if the Court does not rule a certain way.
One of the critiques concerning the Court is that the justices seem to be above the same rules that guide other judges. This is, in fact, true. There is no code of ethics for the United States Supreme Court. And for good reasons.
Chief Justice Roberts presides over an office known as the Judicial Conference of the United States, which worked with the ABA to create and promulgate the Code of Conduct for Federal Judges in 1973 and continues to revise and update those rules. The code applies to all U.S. circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, and magistrate judges. Conspicuously missing from that list are "United States Supreme Court Justices."
This lack of an ethical code means that some of the conduct recently criticized - leaks concerning confidential deliberations, criticism of political candidates, speeches at partisan legal organizations, and charitable fundraising efforts, to name a few - is not governed by the same rules that would apply to other federal judges. As a result, there have been several legislative efforts to impose a code of ethics on the Court.
Justice Roberts addressed this issue in his 2011 Year-End Report on the Federal Judiciary. Justice Reports revealed that the members of the Court do, in fact, consult the Code in assessing their ethical obligations. Just as the Code "provides guidance" to lower judges, it informs their actions. And, while there are separation of power issues that might be raised in objection, the Court also voluntarily complies with other legislative enactments, such as financial reporting requirements and limitations on gifting and outside income.
This reference to separation of powers is an important one. According to Article 3, Section 1 of the Constitution, Supreme Court Justices serve as long as they exhibit "good behavior," and under Article 2, Section 4, they face impeachment and removal only for "treason, bribery, or other high crimes and misdemeanors."
This separation from political control creates a problem with binding ethical rules for the Justices. Would legislation imposing such rules violate the separation of power doctrine? Who would determine the constitutionality of such an imposition if not the Supreme Court itself? Would authorizing the Judicial Conference, instead, to make ethical rules that are binding on the Supreme Court violate the Constitutional provision mandating that the Supreme Court is to remain "supreme" over all other courts, since the Conference is primarily composed of judges from lower federal courts? And what power would Congress have to enforce any legislation it tried to pass if the Supreme Court did not comply?
These are all extremely difficult questions that, so far, have been dodged by voluntary compliance with the legislation that has been passed. It seems unlikely that any legislation imposing a set of ethical rules on the Court (and there have been bills introduced since the 1970s to do so) will pass, given these obstacles.
That does not mean that the Supreme Court operates above the law. It just means that the justices operate under their oaths of office to fairly and impartially administer the law as the supreme and final arbiter of that law. As Justice Roberts noted in his year-end report, "at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic."
Without venturing too deeply into legal history*, this usage of the Code as a form of moral guidance is not new. The original canons were promulgated in 1908 by the ABA in reaction to the charge by President Roosevelt in a 1905 Harvard commencement speech that there be a public requirement that "all men of means, and especially the men of vast fortunes, ... set up an example to their less fortunate brethren, by paying scrupulous heed not only to the letter but to the spirit of the laws, and by acknowledging in their heartiest fashion the moral obligations which cannot be expressed in law, but which stand back of and above all laws." Specifically, Roosevelt's critique of lawyers as "hired cunning" more interested in commercialism than justice struck a strong progressive chord a the time, and resulted in the eventual adoption of the broader canons that governed the profession for so many years in much broader moral strokes than the Code that eventually replaced them.
The Court's usage of the Code, then, as a starting moral guidepost is in keeping with history. The Court has also indicated that it may be considering adopting its own Code in response to recent criticism. This, too, would be in keeping in history and our new populism. But if there is to be some more binding form of ethical guidance, it likely will have to come from the Court itself.
* For more reading on the history of the 1908 Canons see James M. Altman, Considering the A.B.A.'s 1908 Canons of Ethics, 71 Fordham L. Rev. 2395 (2003).
(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Tuesday, October 1, 2019
Teaching legal writing to first year law students can be humbling. Though the students are unfailingly enthusiastic and extremely trusting of my alleged expertise, occasionally an innocent question exposes just how little I really know about the law. One discussion that humbled me recently concerned the weight of authority. The concepts seem straightforward enough, and once students begin researching independently, they become keenly aware of the need to sort the seemingly infinite cases they can find by the weight they will carry for a hypothetical judge. But my students’ eyebrows rose when they learned that some court decisions, though readily available in a variety of online fora, are “unpublished,” and thus cannot be relied upon by advocates in future cases. And sadly, a legal writing professor assuring them “that’s just the way it is” provided cold comfort for 1Ls. So I wanted to take some time to think through just what does, or does not, justify keeping some decisions “unpublished” in the Google era.
Appellate Courts have long relied upon unpublished decisions in a significant number of cases, with estimates suggesting that over 80% of federal appellate court decisions are unpublished. Unpublished decisions are designed to serve several straightforward goals. First, limiting the number of published opinions should simplify the legal research process for litigants; the fewer potentially relevant cases lawyers must sift through, the easier (and cheaper) litigation becomes. Second, limiting the number of published opinions should render appellate court judging more efficient. Judges can focus their energy on perfecting their opinions in the most complex cases on their dockets, while clerks can compose most of the details in the majority of unpublished decisions of the court.
But these justifications are less compelling today, when nearly every document produced in appellate courts is readily available online. Even if litigators follow the letter of local rules against citation of unpublished decisions, they will often refer to the reasoning present in an unpublished decision to buttress their arguments. They may even be tempted to directly quote from an unpublished decision, then simply drop a footnote to acknowledge that the decision has no precedential value. The proliferation of unpublished decisions thus seems not to simplify the research process for litigants. Both parties feel obligated to sift through unpublished authorities to avoid yielding some advantage to their opponent. The distinction between published and unpublished decisions can even make the litigation process more complex. It forces litigants to first scour traditional and non-traditional resources to obtain digital copies of the supposedly “unpublished” decisions raising similar issues, then to assess the degree to which they should rely upon those decisions in their briefs. The reliance question is especially troublesome in appellate courts where the parties will not learn which panel of judges will hear the case, and thus cannot assess the unique views of the panel about arguments based upon unpublished decisions until well after the written briefs have been filed.
Furthermore, the promised efficiency gains for appellate court judges seem far-fetched in the digital era. Judges are fully aware that unpublished decisions are just as readily available for the legal community to review, and criticize, as published ones. Judges must therefore exercise the same care in crafting those decisions as published opinions. Furthermore, the choice to qualify a decision as unpublished often signals the author’s lack of confidence in the outcome. It seemingly invites higher courts to closely examine, and perhaps overrule, those decisions.
Perhaps all is not lost, though, for unpublished decisions if the rules that set out their use are modified to coincide with a different goal: streamlining litigation where some issues are so clear that no written decision is required. For example, perhaps appellate court rules could allow judges to enter a partial summary remand order addressing specific, clear errors, then retain jurisdiction in case any appellate issues remain viable following the remand. This would allow the court to explain that some issues are obvious enough to be addressed without a published decision, but retain jurisdiction to address more complex issues that may remain. Courts could also avoid issuing even an unpublished decision where the only issue raised is simple. Perhaps where error is clear, a per curiam order remanding without opinion at all is appropriate, both to quickly resolve the litigation and to avoid creating quasi-precedent that future litigants must research. Courts would need to avoid over-reliance on that method so that the reasons for their decisions are consistently publicized to litigants and the public, but the promise of streamlined litigation in many cases may be worth the risk.
In lieu of those dramatic shifts, appellate courts could adopt a more subtle change to the rules for citing unpublished decisions. Appellate courts could expressly permit occasional citations to an unpublished decision, such as in cases where “no published opinion would serve as well to illustrate the argument of the parties.” Such a rule admittedly introduces a difficult standard for litigants and courts. But perhaps such candid acknowledgement that every decision is “published” in the Google era is worthwhile.
 “From 2000 to 2008, more than 81% of all opinions issued by the federal appellate courts were unpublished.” Aaron S. Bayer, Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal, Aug. 24, 2009 (citing Judicial Business of the United States Courts: Annual Report of the Director, tbl. S3 (2000-2008)).
Tuesday, April 30, 2019
In my last article I commented briefly on the political history of the selection and number of justices on the Supreme Court of the United States. As I was writing that piece, a committee was taking testimony in the Texas legislature on a bill attempting to change the Texas judicial selection process. While federal judicial selection is largely a set process, the method of selection of state judges is an experiment in democracy that continues to change today.
Prior to the mid-1800s, most states selected their judges in a way that mirrored the federal system – gubernatorial appointment with legislative confirmation - with a minority of states using direct legislative selection. The Jacksonian era saw a renewed concern with accountability and public participation, and this led to rapid change. In 1832, Mississippi became the first state to switch to a popular election for judges. After a few years of observation, New York and several other states followed suit. By 1861, 24 of the 34 states used the new election system.
There have been several experiments since. Nonpartisan elections were used by 12 states in 1927. Since 1940, over thirty states have adopted some form a system of appointments (either solely gubernatorial or gubernatorial selection from a merits-based nomination system, which is called the “Missouri plan”) with nonpartisan retention elections. Today, only ten states use some kind of partisan election process to select their high court justices, and only five states rely solely on partisan elections.
My home state of Texas is one of them. In the most recent election cycle, for reasons that political wonks can (and do) argue about endlessly, this resulted in a seismic shift on the bench. 35% of all intermediate appellate justices were replaced. One-fourth of all trial judges, at all levels, were also replaced. Four of the largest state appeals courts flipped along partisan lines. By one count, over 700 years of judicial experience were removed from the bench.
The response has been a re-evaluation of the method the State uses for judicial selection. Official committees have been formed to re-evaluate judicial selection and qualification, and there has been vigorous debate over the pros and cons of each system.
The hearing on HB 4504, proposing a new judicial appointment and retention vote system (similar to the "Missouri plan"), covered the gambit of options and perils. Chief Justice Nathan Hecht framed the discussion in terms of the inherent conflict between impartiality and accountability. To be truly impartial, judges must be free of outside influence. At the same time, there must be some accountability for their stewardship of power. But if a judge rules contrary to popular opinion in order to remain impartial, yet is subject to removal through election by that same population, this balance is imperiled.
Calling partisan election an “utter failure,” Hecht opined that partisan election often means there is no true accountability for judges, since the focus is on partisan affiliation rather than performance. He also warned against the risk to impartiality in such a system:
If you want judges who rule in favor of the Republicans or Democrats, in favor of the left or the right, in favor of the establishment or the outsiders, in favor of the rich or the poor, then we should keep partisan judicial elections. But be clear - today, tomorrow, or the day after, the powerful will win that struggle.
Former Chief Justice Wallace Jefferson, the first African American member of the Supreme Court of Texas, while supporting the system, acknowledged that any system needs to increase diversity on the bench, and briefly discussed the impact of implicit biases based on different life experience. Former Chief Justice Tom Philips also supported the bill, asserting that for the vast majority of judges, the partisan label is meaningless, because they seek to serve the people and follow the law. Partisan labels, however, serve to undermine faith in their decision-making. Other practitioners spoke out against partisan elections because the cost in terms of the loss of judicial experience is too high when those elections result in sweeps, and because the system prevents some well-qualified candidates from ever running.
Speaking against the bill, Judge Eric Moyé, a longtime Dallas District Court judge, started with a reference to the importance of local government and local citizen control. Noting that judges are the most direct contact most citizens have with government, Moyé expressed his concern than any appointment process would bypass citizen control. Gloria Leal from the Mexican American Bar Association also testified against the bill, noting that 39% of the Texas population was Hispanic, a proportion that was not reflected on the bench (by my quick calculation of data from the Texas Office of Court Administration published on September 1, 2018, about 17% of the bench is Hispanic), and that popular election was the best way to reach a bench composition that matched the population.
In short, the testimony largely fell along the lines of the tension recognized by Justice Hecht – impartiality versus accountability. This balance was one of the many areas that Hamilton and Jefferson (as well as Madison) disagreed upon, with Hamilton arguing for a truly independent judiciary in Federalist 78, while Jefferson was primarily concerned that the judiciary remain accountable to the people through elections. Over the years, the various states have experimented with numerous ways to maintain that balance.
As an appellate practitioner who appears in different jurisdictions, I can say that by-and-large, these various systems get it right. The professionalism and integrity of our judges is, in fact, remarkable, given the various selection processes and pressures to which they find themselves subjected. This continued discussion, though, is important to ensuring that this remains the case. Only so long as the judiciary remains both impartial and accountable, through whatever procedures and safeguards we can refine, can we ensure a healthy system with judges who are qualified and willing to serve.
(Image credit: Thomas Nast’s cartoon “Princip-als, Not Men – A Lawyer Pleading for his “Client,” Harper’s Weekly, August 7, 1875, showing Nast’s fear that wealth was influencing the bench in its decisions regarding Tammany Hall. The sign on the bar is a quote from King Lear: “Plate sin with gold, and the strong lance of justice hurtless breaks. Arm it in rags, a pigmy’s straw doth pierce it.”).
Tuesday, April 16, 2019
Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.
I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.
First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.
This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.
This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.
After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.
That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.
In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.
The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.
In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.
There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.
Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.
Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.
(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)
Monday, April 1, 2019
If you weren't a fan before "On the Basis of Sex" was released in December 2018, or before the RBG documentary came out in May 2018, or before My Own Words was published in October 2016, by now we all know how Ruth Bader Ginsburg did it. As explained here, she started from zero, when the Supreme Court had never invalidated any type of sex-based law, and had rejected every challenge to laws treating men and women differently. "By carving out incremental spaces for women (and men), over time Ginsburg established a bedrock of precedent that legal minds still reference in the fight for equality." One case at a time, she managed to change the court's perspective on sex discrimination: "Ginsburg’s precedents were compounding, as she helped American law move toward a world in which gender was no excuse for treating people differently."
A dear friend and colleague who works exclusively in the juvenile court system here in Missouri recently asked me to join her on her quest to follow the RBG Method in termination of parental rights cases. I thought well, Justice Ginsburg was once upon a time an attorney with a strategy. Here's the plan; apply it as you see fit.
I. Identify a current law, the prevailing interpretation of which you want to change.
Termination of Parental Rights in Missouri is purely statutory. The statute itself is long, complicated, and detailed. One of the following grounds for termination without consent of the parent must be proved by "clear, cogent and convincing evidence": (1) abandonment; (2) abuse or neglect; (3) the child has been under the jurisdiction of the juvenile court for at least one year, and the conditions which led to the assumption of jurisdiction still persist; (4) the parent is guilty of a felony violation in which the child or any other child in the family was a victim; (5) the child was conceived as a result of rape; or (6) the parent is unfit to be a party to the "parent-child relationship." Each of these grounds requires a showing of specific facts and circumstances that constitute "clear, cogent and convincing evidence." Second, the statute requires proof by a preponderance of the evidence that termination is "in the best interests of the child." Given this level of detail and box-checking involved, your average bear might think that TPR cases leave little room for judicial discretion, and require strict and literal compliance with the statute.
But in 2016, the Jackson County, Missouri Family Court developed a problem. In the years 2010 through 2015, an average of 138 new termination of parental rights cases were filed. In 2016, that number jumped to 449, because "in the Fall of 2015, the Juvenile Officer identified a number of cases with a goal of TPR lacking a petition for termination. A special work plan was constructed and these cases were filed in 2016, resulting in an unusually high number of TPR petitions filed." In 2017, 369 new TPR cases were filed, down by 80 from the prior year, but still over 2.5 times the average of the six years prior to 2016. In August 2016, the Family Court Division of Jackson County issued an administrative order implementing a case management system for TPR cases, "to create a more efficient, predictable system in order to achieve more timely case dispositions, reduced waiting times and more meaningful appearances for litigants, attorneys, and the Court, thereby promoting the timely administration of justice." The new system requires that a Permanency Hearing take place within 12 months of the child coming under the court's jurisdiction, where the court may determine whether the Children's Division provided a compelling reason that a TPR petition is not in the best interests of the child. A post-permanency plan review hearing must be held no later than six months after the Permanency Hearing, and if the court determines that the permanency plan is termination of parental rights, the court "shall order the Juvenile Officer or Children's Division to file a Petition for Termination of Parental Rights" within 90 days. Then, the case must be docketed no later than 30 days after the TPR Petition is filed; and the court may appoint an attorney to a party who is financially unable to hire an attorney. If TPR is contested, the case will be scheduled "for final trial/disposition within nine months after the case is transferred. . . ." No continuances shall be granted "except for compelling cause."
The end result of this new efficient case management system, according to my colleague, is a TPR Factory. Cases are rushed through the court system, and Judgments more often than not terminate parents' rights, but without proof of grounds by "clear and convincing evidence," and without proof by a preponderance of the evidence that termination of a parent's rights is in the best interests of the child. So, how to fix it?
II. Find a case with really good facts that emphasize the inherent merit in your argument, and bring them to the appellate court's attention.
If a parent has abandoned a child, that parent may repent his or her abandonment, which is determined by a parent's intent, which in turn is decided by the court's review of "actual or attempted exercise of parental rights and performance of parental duties following the abandonment." However, I have yet to find any recent TPR cases, where the court examined the parent's behavior both prior to and after the filing of the TPR Petition, and determined that the parent's rights should not be terminated because the parent has "repented his or her abandonment." Rather, the trial courts appear to consider behavior that occurred after the Petition was filed as "token" efforts, and view "after the fact" correspondences between the parent and child "with great hesitancy." My colleague seeks to change this interpretation of the statute, which she believes permits courts to terminate parents' rights without clear, cogent, and convincing evidence.
V. W. spent many years in active drug addiction, and did not deny that she had previously abandoned her child, who was taken into custody at birth when he tested positive for illegal substances. After the child was taken into custody, V.W. never provided any financial support for the child, and the court entered a no-contact order. After the TPR petition was filed, V.W. found out she was pregnant again, and decided that to turn her life around. Over the next two years, V.W. participated in every service offered to her, stopped using drugs, moved into a halfway house, finished her education, got a job working in the addiction field, and gave birth to and parented the second child. No witnesses at trial recommended termination regarding the first child; but her rights were terminated regardless. On appeal, the Court of Appeals found among other things, V.W. had not repented her abandonment, because the evidence showed only "short-term improvements" which occurred after the filing of the termination petition.
We lost that one.
III. Find a case with even better facts and try again.
J.C. had not participated in the case when his child first came under the juvenile court's jurisdiction. He became involved in the case five months before the TPR Petition was filed. Per the social services plan, J.C. attended and completed a batterer's intervention course, paid child support, and visited the child regularly. He found employment and an appropriate place to live, and again no witnesses testified that his rights should have been terminated. Nevertheless, the court found that because "almost all of the father's actions that might lend some support to a finding that he has repented his earlier abandonment of the child have come after" the petition was filed; these actions deserved “little weight." The trial court terminated J.C.'s rights.
We filed the brief in that appeal last month. Hopefully, maybe this time with slightly different facts--the main difference in this case being the father's payment of child support and visits with the child--the court of appeals will see the worthiness of our argument that a parent's efforts to repent abandonment after the Petition is filed, should not be automatically viewed as token efforts deserving of little weight in a court's decision to terminate a parent's rights. Interestingly, my colleague was chatting with an appellate judge recently, who told her that he just didn't see very many TPR appeals.
What that tells me, is that a court's traditional understanding of a legal issue will change only if someone challenges the validity of that traditional understanding. We know that the Supreme Court just hadn't considered that gender-based discrimination was wrong, so one case at a time, Ruth Bader Ginsburg methodically changed that thinking. We may not be arguing in front of the Supreme Court, but here in this pond, my fellow fish and I are working towards the appellate court's coming around to the idea that perhaps there is something wrong with the way this state determines whether and when parents should lose their parental rights.
The viewpoint is perhaps idealistic, but the goal feels possibly reachable. Tally-ho.
Thursday, October 25, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”
Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”
To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.
Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”
Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”
Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.
Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”
Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”
I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.
Special thanks to Alison Doyle for her help with this blog post.
October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Thursday, May 10, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
The big news this week in field of law and typography was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.
But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.
Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones. In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.
Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead. You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.
And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.
So, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?
 Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).
 There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.
May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)
Tuesday, December 19, 2017
Sexual harassment claims reached the federal judiciary when Judge Alex Kozinski was accused of sexual misconduct a few weeks ago. He has since resigned. As Tessa wrote here yesterday, one thing that kept some clerks from coming forward to report this misconduct was the policy of strict confidentiality that clerks must uphold while in chambers with their judges. Some judges, like Kozinski, may further rigidly enforce this pact as well, making it very difficult for clerks or other judicial employees to make reports.
In a section of the clerk handbook that proclaimed “law clerks owe judges complete confidentiality as to case-related matters,” two boldfaced sentences were added:
“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”
Concurrently, a signature campaign has been circulated to former law clerks and others urging for clarification on the confidentiality rules. It seems at least with regard to the Handbook, the amendment above may be sufficient to ensure judicial personnel feel comfortable making reports. The letter is due to be delivered on Thursday, December 21, 2017, to "Third Circuit Judge Anthony Scirica, chair of the Judicial Conference’s Committee on Judicial Conduct and Disability, Judge Jeremy Fogel, director of the Federal Judicial Center, James Duff, director of the Administrative Office of the U.S. Courts, and Chief Justice John Roberts Jr. in his capacity as presiding officer of the Judicial Conference." The United States Supreme Court is not governed by the Judicial Conference, and the letter makes no recommendations to the Court.
The letter can be found here and will remain open for signature.
Monday, July 17, 2017
According to Law360, Seventh Circuit Judge Richard Posner (age 78), advocated for mandatory judicial retirement ages in a recent interview published by Slate. Judge Posner suggested setting the retirement age at around 80 years old, saying "[t]here are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians." Currently, Justice Kennedy is 80 years old (he turns 81 in just a few days--happy birthday Justice Kennedy), and Justice Ginsburg is 84.
The notion of a mandatory judicial retirement age is not new. In fact, many states have such rules, although most states set the age at 70. The problem with a federal judicial retirement age is that Article III of the Constitution states judges "shall hold their Offices during good Behaviour," which has been read to confer life tenure on federal judges. Article III, however, is not an obstacle for Judge Posner who, according to the article, reads the clause "as simply meaning judges can be fired at any age for bad performance."
Interestingly, there have been efforts to increase state mandatory judicial retirement ages in recent years, due in part to the fact that life expectancies are increasing. These efforts, however, have largely been rejected by voters in the past. In fact, Oregon voters recently rejected an effort to remove the mandatory judicial retirement age of 75. On the other hand, last year Pennsylvania voters, by a rather narrow margin, approved an increase in the mandatory retirement age from 70 to 75.
Friday, November 11, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Presidential Election and the Courts:
The Presidential election dominated news this week, in blogs, online news sites, and Twitter. As a result, the biggest discussion point this week regarding appellate practice was the variety of thoughts about how Donald Trump's election will impact the courts -- the Supreme Court and other federal courts.
Here at the Appellate Advocacy Blog, Tessa posted on the topic in a post on Monday: The Election and the Courts. But that discussion ramped up even more starting midweek, after the election and Donald Trump's victory. Discussions of how the Supreme Court is likely to change under a Trump presidency made headlines at The Economist, Bloomberg, the New York Times, NPR, and other sites. A list of the potential candidates from which Trump might pick a replacement for Justice Scalia (and other potential vacancies) is on the Trump/Pence website. The National Law Journal expanded the discussion to remind us of the 52 nominees for open federal court seats already put forth by President Obama but not acted on.
Appellate Judges Education Institute:
The 2016 Appellate Judges Education Institute Summit begins today in Philadelphia. The annual summit provides a variety of educational opportunities specifically designed for appellate judges, lawyers, and staff attorneys. When I worked for the Nebraska Court of Appeals, I was fortunate enough to attend the summit one year, and it is without a doubt one of the best appellate-specific educational opportunities there is.
If you are an appellate practice person -- lawyer, judge, casual fan -- you are likely already aware of the Twitter hashtag #AppellateTwitter. It's continuing to grow, and is a source of some really great Twitter users, posts, and practice tips and discussion. Jason Steed (@5thCircAppeals) recently indicated an interest in creating some #AppellateTwitter swag -- starting with coffee mugs. And he's following through on it. He posted on Twitter this week how you can order your own #AppellateTwitter coffee mug, paying through Paypal. Sign me up.
Thursday, September 15, 2016
Do we really need the United States Supreme Court to be fully staffed with nine justices? Eric Segall at The Daily Beast says, "No." This answer is a direct affront to the traditional idea that having an uneven number of justices is good for cleanly resolving disputes. Avoiding a tie is the most important thing. Or is it?
The legal outcome when justices vote 4-4 on an issue is simply that the result from the court below stands, and no precedent is made. The case ends for the parties involved, but the effect of the ruling also remains restricted to that jurisdiction. In a day and age when politics seem to cloud every serious issue or casual conversation, this is certainly a new way to think about the operational power of the Court.
Segall says the benefits to leaving the Court with only eight seats filled would be that no one political party could have too much influence over the outcome of controversial cases. Historically, the Court has been criticized for leaning too far one way or the other. In doing so, the Court, which is ideally a non-political entity, since justices are not elected, might be able to maintain or regain some of the aura of a disinterested neutral body.
But leaving the Court in this status really only addresses our current highly politicized process, and assumes that half the Court will always be conservative and the other half liberal. The Court can still shift to having a majority of conservative or liberal leaning justices even if the total number of justices remains at eight. Of course, other political ideologies may also come to dominate as well.
Further, while 4-4 decisions put the brakes on creating law that could be too partisan leaning, extended periods of deadlocked opinions could also do more harm than good. The Supreme Court should be able to break ties in order to unify disparate approaches amongst the lower courts. Allowing 4-4 "sides" to continue could perpetuate the perceived political nature of the Court. This would ultimately only serve to fuel the existing divisiveness in the population and the erosion of public trust in our judicial system.
Wednesday, July 13, 2016
This week Supreme Court Justice Ruth Bader Ginsburg drew criticism for her negative public remarks about Republican presidential nominee, Donald Trump. In three separate forums, Justice Ginsburg made remarks about not wanting Trump to become president and saying he has a big ego. The New York Times Editorial Board chastised Justice Ginsburg for speaking out and listed the instances:
In the New York Times: “I can’t imagine what the country would be — with Donald Trump as our president,” joking that if her husband were alive, he might have said, “It’s time for us to move to New Zealand.”
In an interview with the AP: “I don’t want to think about that possibility [a Trump victory], but if it should be, then everything is up for grabs.”
And with CNN: Trump was “a faker,” who “has no consistency about him.” In that interview, with CNN, she added: “He says whatever comes into his head at the moment. He really has an ego.”
Not at all unexpectedly, Donald Trump responded via Twitter by questioning Justice Ginsburg’s competence and ending with a curt command - "resign!"
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!
Commenters have noted that Supreme Court justices are not held to the Code of Conduct as are other federal judges which states that judges should refrain from political activity. Judges should not "make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office . . . ." But Justices are subject to 28 U.S. Code § 455 which requires a judge to disqualify himself in any proceeding "where his impartiality might reasonably be questioned." Further, a judge should disqualify himself if “he has a personal bias or prejudice concerning a party . . . .”
Even Justice Ginsburg supporters have agreed that statements like this do put her in a precarious position should a replay of Bush v. Gore become necessary in this election cycle, or for any number of President Trump policy contests that are likely to come before the Court, if the volume of challenges is anything like those President Obama has faced. Further, even under a President Clinton, Justice Ginsburg's decisions may be perceived to be biased in favor of Hillary. Either way, her opinions could draw even more criticisms based on bias, with the evidence being provided by Justice Ginsburg's own words.
Others see no problem with Justice Ginsburg remarks:
Former Ginsburg law clerk Lori Alvino McGill, partner at Wilkinson Walsh + Eskovitz in D.C., defended the justice’s remarks.
“The Justice is human like the rest of us, and an American citizen,” McGill said. “That she uttered out loud some of her personal fears about a potential Trump administration does not cast doubt on her ability to be impartial, should a hypothetical ‘Bush v. Gore’-type case arise and come to the court.”
McGill added, “Any case that comes to the court concerning Trump v. Clinton would not be a referendum on who is the better candidate. It would present a legal question for the court to decide, and I have no doubt that Justice Ginsburg would faithfully execute her duty to decide that question without regard to whether she would give Mr. Trump her vote.”
In theory, it is possible that a judge may hold political views and still provide a judgment in accordance with the law. But, as humans, we inevitably, and probably unfortunately, instantly look for bias in controversial opinions. Lately, it doesn't even seem that a person’s opinion may be considered without an immediate allegation of bias - a personal attack upon that person’s character. This phenomenon has contributed to an increasingly polarized political environment, so much so that productive discussions become more rare every day.
Certainly it is true that judges are human too and invariably will hold personal political opinions. However the accepted norm has been that judges will refrain from stating such opinions in an overtly public way in order to maintain the appearance of impartiality. Perhaps the appearance of impartiality is just a lie we have come to accept as the norm, even though we value impartiality itself. When we hear such a pointed statement come from such a prominent Supreme Court Justice, it is something unusual and may cause us to reconsider the norm.
Would we be better off if our judges freely shared their political views? Would that be better for transparency within the judiciary or would it lead to greater distrust of the judicial system? What are the advantages or disadvantages of abandoning the long held tradition of judges refraining from entering the political arena?
Tuesday, April 14, 2015
As Michael Wein of the Maryland Appellate Blog reports in some detail, the Maryland Rules Committee has responded to increased media publication of its "unreported decisions" by proposing to: 1) have the court publish the opinions itself and 2) deny the opinions not only precedential authority but also persuasive authority. Further, any attempt to cite an unreported decision may be met with a sanction of striking an entire brief or filing. The rule, as written, would apply also to other jurisdictions' decisions, leading Michael Wein to incisively ask, "So a case can be citable as full precedential or persuasive authority in another state or federal court, yet, when it hits the Maryland border, it suddenly ceases to exist?"
The rule would put Maryland rules at odds with the federal Fourth Circuit practice, which not only permits citation to its unpublished opinions but acknowledges that a such an opinion might have precedential value. The rule would also put Maryland at odds with the trend in state and federal courts toward greater publication, citation, and acceptance of the precedential value of unpublished opinions.
Enacting or maintaining a citation ban that attempts to deny even persuasive value of an appellate opinion ignores the shared experience and reasoning that led to Federal Rule of Appellate Procedure 32.1, which prospectively permits citation to all opinions, however designated, in the federal circuits. When attorneys in your state are telling you that they want to read these opinions to the extent that someone seeks them out and bears the costs of publication, it should be a signal that these opinions do have value for predicting the outcomes of future litigation and the reasoning that was once persuasive on the court will likely be so again. Unless it thinks members of the Maryland Bar are seeking out these opinions to supplement their leisure reading, the Maryland Rules Committee should recognize that no matter how the court labels them, appellate opinions have have a predictive and persuasive value.
Thursday, April 2, 2015
Matthew Stiegler's CA3blog dug into the new AO Court Statistics and found that when it comes to issuing published opinions, the Third Circuit doesn't publish very many of them. It publishes the fewest published opinions of any circuit, and finds itself among the high-volume circuits in terms of the percentage of unpublished opinions. Matthew suggests that judicial vacancy is the the likely reason for the Third Circuit's recent spike in its unpublished opinion rate to 92.3%. That seems accurate, though the Third has been hovering in the high-80s for a while now. Judicial vacancy may have pushed them up to the low-90s where the high-volume circuits are.
I hope that Matthew and others watching their particular circuits of interest continue to report on those courts' publication practices. Seven circuits now publish fewer than ten percent of their opinions.
Thursday, March 19, 2015
The federal appellate courts are currently considering a change to Federal Rule of Appellate Procedure 32(a)(7)(B) that would reduce the word-limit of principal appellate briefs from 14,000 to 12,500. Law blogs, especially those of an appellate bent, have reported on this as comments rolled in over the last several weeks. This blog is far behind on mentioning it, and even now, I don't have a strong opinion on the proposal. But it seemed worth mentioning that the issue has reached the general public in the form of a Wall Street Journal article.
Oddly, what stood out to me in this article was this bit:
Michael Gans, clerk of the Eighth U.S. Circuit Court of Appeals in St. Louis, who oversaw the word-count study, says the process couldn’t have been more painstaking. It was carried out by a high-school graduate who interned at his office and spent a recent summer in a cubicle counting every single word of 200 printed-out briefs that served as the sample. “I felt sorry for her, but that’s what she did all summer,” Mr. Gans said. “She still wants to go to law school.”
Perhaps optical character recognition software could have been used?
hat tip to reader: Professor Jennifer Romig
Wednesday, March 11, 2015
The Administrative Office of the U.S. Courts just issued its annual report, Judicial Business of the United States Courts: Annual Report of the Director 2014. It's a wealth of information on filings, dispositions, and similar details. Not surprisingly, I always skip ahead to the table on opinions filed in terminated appellate cases (Table B-12) to see what percentage of appeals are being resolved by unpublished opinions. It's up to 87.7% with the Fourth Circuit leading the way at 93.8%. Also, the decline of oral argument continues, dropping to 18.6%.
The report is an interesting snapshot of the federal courts and provides useful data for long-term court watchers. Enjoy.
Tuesday, February 10, 2015
In a post last Monday on Prawfsblawg, entitled, On Not Creating Precedent in Plumley v. Austin, Richard M. Re asks, "what’s so wrong with deliberately declining to create precedent?" By his answer, an implied "nothing" because "[d]oing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent," he seems to be asking, "what's the harm?"
There are a couple other bases for finding the practice "wrong," such as whether the practice is legitimate, constitutional, or just. But first, what's the harm in treating some circuit decisions as non-precedential? This is something I discuss in my works on the topic, especially: Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. App. Prac. & Process 61 (2009) and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. 685 (2009).
First, deliberately declining to create precedent creates fewer precedents. Fewer precedents means a less definite law. At least since the time of Lord Coke, the law has been viewed as refined by renewed applications. With each new decision, the law is broadened, narrowed, or simply reaffirmed. The common law treats each case as binding but is also concerned about the accrual of such cases and the varying facts to which the rule is applied. This the understanding of precedent of Coke, Blackstone, Kent, Marshall, Story, and Llewellyn. It's how the common law, in principle, works. Never before in common law history has a court been able, at the time of decision, to remove its holding from the body of precedent. And no matter how the court phrases its opinion, it has ultimately been up to the later court to decide whether and how earlier opinions applied.
I am partial to Karl Llewellyn's explanation: "We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping of concrete instances, the present, vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all." Karl Llewellyn, The Bramble Bush, 66-69 (1930).
The problem is not that there are too many precedents but that there are too few. Judge Posner wrote as much in The Federal Courts: Challenge and Reform, and his experience is echoed in the experiences of the federal judiciary. In a 1998 survey of federal district judges, about a third identified some area of circuit law as inconsistent or difficult to know on account of lack of binding circuit decisions on point. But even more telling than what judges say is what they do. The survey also revealed that nearly two-thirds of lawyers surveyed reviewed unpublishd opinions either generally within their practice area or in researching specific cases. During the citation ban era (1974-2006), courts and litigants frequently cited to unpublished and allegedly non-precedential opinions even in violation of the ban. They were, as Lord Coke might have described it, looking for greater refinement in the law that only comes by seeing it applied. Or as Llewellyn might have said, they saw the published, precedential grains of sand, but they wanted to see the heaps. The citation ban finally ended because it ran counter to a basic understanding of precedent shared by American lawyers and judges alike: each case has value in determining the scope of the law.
More applications of the principles of law to facts, such that those principles are tested and refined, improves our understanding of those principles and gives greater certainty to those seeking to conform their conduct to them. "Mistaken or sloppy precedent" can be corrected by more judicial oversight to their drafting, or should that fail, by the normal processes of the court. While conserving limited resources is important, expediency should not be our highest value. The federal judiciary, a co-equal third branch of our government is allocated a mere two-tenths of one percent of the total federal expenditures. Instead of asking our courts to do with less, we should give them the funds to do more.
Second, issuing some decisions as non-precedential creates the potential for blatantly conflicting published and unpublished opinions. A court may decide in favor of a party today but next year, on the exact same issue, decide exactly the opposite. If the earlier decision is unpublished, the later panel need not acknowledge the earlier decision or give a reason for the change. This was the case in a pair of cases in which the Dallas Area Rapid Transit authority (“DART”) received diametrically opposed decisions from the Fifth Circuit without explanation in a span of just three years. In 1999, a federal district court in the Fifth Circuit held that, “DART is a political subdivision of the state of Texas, and is therefore immune from suit under the Eleventh Amendment," which the Fifth Circuit affirmed without comment in an unpublished opinion. Anderson v. Dallas Area Rapid Transit, No. CA3:97-CV-1834-BC, 1998 U.S. App. LEXIS, 15493 (N.D. Tex. Sept. 29, 1998) aff’d Anderson v. Dallas Area Rapid Transit, 180 F.3d 265, (5th Cir. 1999) (per curiam) (unpublished), cert. denied 529 U.S. 1062 (1999).
In Anderson, and two other unpublished opinions, the Fifth Circuit held that DART was a governmental unit or instrumentality of the State of Texas entitled to qualified immunity. The law on this point seemed so clear that in Williams v. DART, the district court felt this point was "firmly established." The Fifth Circuit disagreed and rejected DART's immunity claim dismissing the unpublished opinions as "neither binding nor persuasive," but failing to give any reason for the different treatment. Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 261 (5th Cir. (Tex.) 2001). This decision drew a strong dissent noting that this kind of unreasoned about-face exposed a flaw in the concept of non-precedential opinions.
A conflict like this between two precedential opinions would be resolved by the second panel distinguishing the present matter from the prior one, or if that proved impossible, by an open declaration of conflict followed by a resolution by the court en banc. Which leads to a third category of harm non-precedential opinions cause.
Third, issuing some decisions as non-precedential increases the likelihood of intra-circuit conflict. Such conflict was especially acute in the citation ban era, because a litigant perceiving a conflict in a circuit's unpublished opinions was prohibited by rule from raising it with the court. For example, in the wake of the U.S. Supreme Court's ruling in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), an ambiguity arose about how to treat a defendant convicted of illegal entry following deportation. Over a two-and-a-half-year period, twenty Ninth Circuit panels ruled on this issue and split three different ways (most remanding for resentencing, some remanding for amendment of the original judgment, and a few foisting the responsibility for determining the proper course of action on the district court). The split continued for over two years, with identically situated defendants receiving different answers from the Circuit. The ongoing intra-circuit conflict was revealed only when a panel in United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000) ordered a litigant to violate the Circuit's non-citation rule and provide a list of these unpublished opinions.
A circuit that does not view its unpublished opinions as binding can simply ignore those decisions for purposes of whether to hear an issue en banc. Yet, the unpublished opinion may be cited for persuasive effect (in all circuits since 2007), which merely increases the chance of creating the separate, conflicting lines of authority as in the Riveria-Sanchez scenario.
Fourth, inter-circuit conflict become more likely, too. In much the same way that intra-circuit conflict can arise undetected or unacknowledged within a circuit, such conflicts can arise between circuits. During the citation ban era, such conflicts were effectively hidden, because citation bans prevented their being raised. But even now, if the unpublished opinion is not treated as establishing the law of the circuit, it can be disregarded within its own circuit and by the other circuits. The Supreme Court takes only a tiny fraction of the cases seeking review each year. Just as with en banc panels, a case that does not establish the law of the circuit is unlikely to be the basis of an apparent conflict even if the conflict it creates is real. In that way, a conflict can exist indefinitely in a manner much like that described in Rivera-Sanchez.
Fifth, declaring some opinions non-precedential allows them to evade Supreme Court Review. As noted above, one line of authority, if present only in unpublished opinions can obscure or deemphasize the nature of the conflict. Two Justices believed that was the case in Waller v. U.S., where Justices White and O'Connor dissented from denial of cert noting that a circuit split existed if one took into account unpublished opinions. 504 U.S. 962, 964-65, 112 S. Ct. 2321 (1992) (White J. and O’Connor J., dissenting) (Mem); see also Hyman v. Rickman, 446 U.S. 989, 990-92 (1980) (Blackmun, Brennan, and Marshall, J., dissenting) (Mem) (dissenting from denial of certiorari on the grounds that the unpublished circuit opinion was in conflict with other circuits on the issue of right to appointed counsel). While the conflict was sufficient to catch individual Justices' attention, it was not sufficient to prompt Supreme Court review, similar to the result in Plumley v. Austin.
Supreme Court review is also less likely due to the signal an unpublished opinion sends. A circuit’s decision not to publish a given decision signals that that decision is routine, even when it is not. For example in United States v. Edge Broad. Co., the Fourth Circuit declared a federal statute limiting lottery advertising unconstitutional in an unpublished opinion. 956 F.2d 263 (per curiam) (4th Cir. 1993). In its reversal of that decision, the Supreme Court expressed surprise and dismay that the Circuit Court could perceive such a ruling as unworthy of publication. 509 U.S. 418, 425 n.3 (1993) (“We deem it remarkable and unusual that although the Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion.”)
The hiding of cases from Supreme Court review also occurs because unpublished cases tend to create a less thorough record, which itself discourages Supreme Court review. For example, in County of Los Angeles v. Kling, the Supreme Court granted cert and issued a summary reversal on a case the Ninth Circuit had decided in a brief, unpublished, non-citeable opinion. 474 U.S. 936, 937-39 (1985). Justice Marshall dissented calling the Ninth Circuit’s practice “plainly wrong” and noting, "the Court of Appeals would have been well advised to discuss the record in greater depth. One reason it failed to do so is that the members of the panel decided that the issues presented by this case did not warrant discussion in a published opinion that could be 'cited to or by the courts of this circuit, save as provided by Rule 21(c).' That decision not to publish the opinion or permit it to be cited-like the decision to promulgate a rule spawning a body of secret law-was plainly wrong."
Justice Marshall continued by chastising the Court for engaging in the same type of shortcut decision making: "The brevity of analysis in the Court of Appeals' unpublished, noncitable opinion, however, does not justify the Court's summary reversal….For, like a court of appeals that issues an opinion that may not be printed or cited, this Court then engages in decision-making without the discipline and accountability that the preparation of opinions requires."
Even when both parties agree that a Circuit decision makes new law, the status of a decision as unpublished can discourage Supreme Court review. In Family Fare, Inc. v. NLRB, both parties agreed that the Sixth Circuit had departed from its previous law in an unpublished opinion. 2006 U.S. Briefs 1536 cert. denied Family Fare, Inc. v. NLRB, 127 S. Ct. 2991 (2007). NLRB liked the change and sought publication or a Supreme Court affirmance to solidify the new interpretation. Family Fare disliked the change and viewed it as exactly the kind of surreptitious change in the law of the circuit that Justice Thomas alludes to in Plumley. Ultimately, The Supreme Court denied cert, probably in significant part because as an unpublished opinion, it was not the formally law of the circuit and did not truly represent a shift in the law. Yet, Family Fare was treated differently than prior litigants, and NLRB likely relied on the decision in future cases to show that the law had changed.
Sixth, creating an opinion on which no one can rely (and which for years no one could even cite) is an invitation to poor reasoning or even strategic, result-based reasoning. Justice Stevens expressed "that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify." Jeffrey Cole & Elaine E. Bucko, A Life Well Lived: An Interview with Justice John Paul Stevens, 32 No. 3 Litigation 8, 67 (2006).
This concern was also expressed by the late-Judge Richard Arnold and quite directly by Judge Wald of the D.C. Circuit: "I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would be dissenters go along with a result they do not like so long as it is not elevated to a precedent." The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995).
A study of asylum cases in one circuit and found considerable strategic decision making surrounding the outcomes of cases and the publication of opinions: "voting and publication are, for some judges, strategically intertwined: for example, judges may be prepared to acquiesce in decisions that run contrary to their own preferences, and to vote with the majority, as long as the decision remains unpublished, but can be driven to dissent if the majority insists upon publication" David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. Cinn. L. Rev. 117 (2005).
Finally, the system of unpublished, non-precedential opinions is harmful to both the courts and the litigants before them. It's harmful to the courts, which have been drawn into this very unjudicial exercise of prospectively dividing "worthy" cases from "unworthy" ones. For hundreds of years, a court was expected to abide by, or explain the difference from, a prior case, and a court knew that its decision created a similar obligation on later courts. Now, unmoored from that, they are engaged in a very different process. As the recent article by Adam Liptak suggests, the public concern with unpublished opinions is that a court can issue one-off rulings that it need not every follow again.
It also harms litigants, who look at prior adjudications in the form of unpublished opinions but have no assurance that they will be treated the same or that any explanation will be given for the difference. And often they are not. Individual litigants like those in the cases mentioned above and all the many similar cases they represent, have not been treated equitably or according the system most people believe exists.
But as noted at the outset of this post, these harms are the middle ground problems with non-precedential opinions. One could accept the practice in principle and have serious concerns with the manner in which it is carried out. Or, more deeply, it's fair to question what authority the federal circuits have for ex ante precedent-stripping and whether that practice is constitutional or just. But those will have to wait for other excessively long posts.
Tuesday, February 3, 2015
Just a real quick tip that in yesterday's NY Times online, Adam Liptak penned a piece about the practice of the federal courts issuing unpublished decisions and what their effect is. In the piece, Liptak quotes the Appellate Advocacy Blog's own David Cleveland on the subject, a subject David has written extensively about. The piece touches on the recent Supreme Court opinion that David wrote about last week.
The link for Liptak's article: http://www.nytimes.com/2015/02/03/us/justice-clarence-thomas-court-decisions-that-set-no-precedent.html?_r=0
Thursday, January 29, 2015
Tony Mauro has this article in The National Law Journal reporting on Justice Thomas' rebuke of the Fourth Circuit over the issuance of a lengthy unpublished opinion on an unsettled issue of law. Justice Scalia joined Thomas' dissent from denial of certiorari, finding the unpublished nature of the Fourth Circuit's decision a "disturbing aspect." Thomas explains:
The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published....It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.
Thomas noted that the Fourth Circuit opinion met at least three of the five possible causes for publication, any of which should have sufficed. The Fourth Circuit’s Local Rule 36(a) provides for publication of any opinion that establishes a rule of law in the Circuit, creates a conflict with another circuit, or is of continuing public interest. Finding that it met all of these, the two Justices express concern that it wasn't published.
The Justices' concern is well-placed but ineffectively expressed. Members of the Court occasionally take a swipe at the unpublished opinion practice or a single instance of it, usually through dissents from denial of cert or similar writings, or through off-the-bench comments. They have done so for the last forty years, chiding individual circuits or questioning the system itself. This is clearly not having any effect on the circuit's practices, though. The number of unpublished opinions remains high, and the percentage of circuit cases resolved this way remains in the mid-eighty percent range. Many of these cases meet the circuits' standards for publication but are not published. Many involve dissents, lengthy explanations or novel applications of the law, or other indicia of being a useful addition to the body of law. And that doesn't even address the notion that every decision, however similar to prior cases, adds something valuable to the law by showing application to slight variations of fact, continued adherence to the doctrine, or simply the "weight of authority."
Individual Justices have expressed dissatisfaction with the system and individual instances of it. , and they should be commended for spotting the problem and speaking out against its harm to appellate justice. But rather than having Justices individually take sporadic shots at the practice, the Court should actually examine it directly, either through one of the cert petitions on the issue or through its rule-making authority.