Tuesday, September 10, 2019
Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.
That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.
1. Amicus briefs should add something new and valuable to the case.
First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.
“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).
A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.
2. Amicus briefs should not be used for personal attacks.
Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:
Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,” Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,” Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."
Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.
Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.
3. Amicus briefs should not inject extrajudicial facts or junk science.
Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.
Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.
Monday, September 9, 2019
While many lawyers might think that being a judge would be an ideal job, we sometimes forget that judges generally* don't get to pick their cases. So, once a judge is assigned a case, he is stuck with it (unless, of course, he can get rid of it under some justiciability doctrine).
It turns out, however, that there is another way to get rid of a case, at least according to the Court of Appeal for Ontario, Canada. A three justice panel of the court heard an appeal in a real estate matter. According to a news story, the case concerned failed real estate investments. The plaintiff "was to provide second mortgage financing for real estate units, but they were never 'renovated, rented or sold, as anticipated,' and the mortgages went into default." The plaintiff "was trying to recover amounts that were due under second mortgages and stand-alone guarantee agreements signed by individual defendants." At issue were a choice of law and statute of limitations questions.
The appellate court issued its opinion on May 27, 2019. However, one of the justices who signed on to the opinion had not heard the case. Apparently, according to a later opinion, "One of the members of the panel that heard the appeal . . . was not provided with either the draft judgment for review or the final judgment for signature. The judgment was signed, in error, by another justice who was not a member of the panel that heard the appeal."
After being made aware of the problem and submitting briefs on the matter, one of the parties suggested that the omitted justice just review the opinion and either "assent to or dissent from" it. The court, however, disagreed. It said "The panel of judges that rendered judgment was not the same panel that heard the appeal. . . . The decision-making process has been compromised and this panel cannot render a judgment." The panel concluded that "the appeal must be re-heard by a differently constituted panel of the court."
Having clerked for an appellate court, albeit an American one, I have no idea how this could happen. The news story that I saw on the case didn't shed any light on the cause of the error either. It quotes a senior legal officer for the court who said that there were "several procedures in place to prevent such mistakes" and who called the error "rare." I would hope it would be rare! I would be curious to know how much the court's mistake has cost the parties in additional legal fees--not only did they have to submit additional briefs, the case now has to be reargued.
Fortunately for the parties, a new panel will hear the case on the expedited schedule. Hopefully they will get their issues resolved soon.
*Courts with discretionary review, like the U.S. Supreme Court, certainly do have control over their dockets.
Tuesday, July 23, 2019
Today begins the Fourteenth Annual NAACA (National Association of Appellate Court Attorneys) Conference, where staff attorneys from state and federal appellate courts will gather together to celebrate their unique positions in the appellate system, to relax, to fellowship, and to educate themselves. When I was working as a staff attorney, I looked forward to the conference and served on the education committee, planning sessions and finding speakers. The conference is one of the best conferences I have attended in terms of legal education, resulting in several hours of available CLE credit each year.
What I enjoyed most was being able to talk to colleagues from around the country, and learn from their experiences. After Katrina, I had the opportunity to go to New Orleans and learn how the floods had impacted the administration of justice, and how the courts were learning from that experience and were adjusting their methods of storing documents. From my colleagues around this country, I learned about management, and efficiency, and devotion to one’s calling.
This week, I tip my hat to you. I hope your conference is filled with excellent sessions, good food, and heartwarming fellowship.
Monday, July 22, 2019
Today, Justice John Paul Stevens lays in repose at the Supreme Court. Later, he will be buried at Arlington National Cemetery. Justice Stevens died last Tuesday at ninety-nine years old, after retiring from the Supreme Court in 2010 at ninety. When he retired, he was the third longest serving Justice in Supreme Court history.
President Ford, a Republican, nominated Justice Stevens, who became a leader of the liberal voices on the Supreme Court. According to Jan Crawford Greenburg in her 2007 book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States, Justice Stevens “was a Maverick who didn’t ascribe to a particular theory. He was fiercely independent in his writings and actions. When the justices donned their robes before taking the bench, Stevens was the only one who refused assistance from the aides in the robing room. He always insisted on putting on his own robe. He took his own path in his opinions, too.”
Live coverage at the Supreme Court today on C-SPAN:
A biography of Justice Stevens at Oyez.org:
Paul Clement’s Tribute on SCOTUSblog:
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.
Tuesday, March 26, 2019
Social media is an interesting experiment. Because of my diverse legal background, I am friends with people who identify with viewpoints from every shade of the political and social spectrum, and I usually enjoy hearing these different perspectives on issues and try to learn from them. But as time passes, I see fewer shades and more rigid, black-and-white positions. There is less thoughtful sharing and more knee-jerk accusation.
This way of thinking in terms of "us" versus "them" is by no means new, but it does seem to be increasingly fortified in our public and private discussions from everything to politics to how we view history. Just try to take a thoughtful, nuanced position on anything from immigration to Civil War monuments (or anything relating to Donald Trump), and you'll quickly see my point.
Perhaps no other profession is as deeply grounded in this adversarial perspective as the law. The idea is reinforced in every filing and letter through the use of a simple "v." Indeed, our modern system has roots in an older system that permitted litigants to hire champions who would bludgeon each other to death or submission to prove their case. Russel, M.J., Trial by Battle Procedure in Writs of Right and Criminal Appeals, 51 Law and History Review 123–134 (1983).
When I serve as counsel, I do so aggressively and make every proper effort to prevail over the party who is "versus" my client. But we have become more civilized over the years in how that process works. Today, lawyers who demonize the other party, or who buy into the "hired gun" mentality and choose to vilify their counsel, are serving neither their clients, themselves, the legal system, or their society.
I serve as, and alongside, trial counsel in small and in multi-million dollar cases as both defense and plaintiff's trial counsel and as appellate counsel. In doing so, I often see the harm that arises from the refusal to see the other side's perspective. We must be zealous advocates as attorneys, but to be effective means we must have a willingness to see the "us" in the other side.
Last week I wrote about the costs of contentious litigation in terms of economic loss and gain, and its impact on credibility. But demonizing our opponents also puts on blinders. What if the claimants aren't just money hungry but are actually injured or their business has been genuinely impacted? What if the defendants really did not intend any of the harm they caused, but did their best to avoid it? What if someone or something else was to blame? What if the failure to disclose or produce important documents by opposing counsel really was a mistake?
Turning opposing counsel or parties into villains means we might not ask these questions, because we assume the answer. If we don't assume the worst, if we are willing to put ourselves in the other side's shoes, if we can see "them" as "us," then we can see more adequately the dangers in our own case and the merits in the other side's position. As a result, we can more appropriately plead and argue our cases, we can more accurately evaluate and forecast outcomes, and we can more readily reach long-term solutions for our clients rather than simply trying to "win" each individual point of contention.
I would also note that, as attorneys, it is particularly important for us to remember that our personal opinions about opposing counsel or their client must be kept to ourselves. We often forget about it, but Rule 3.4(e) of the Model Rules of Professional Conduct states that a lawyer shall not:
in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused[.]
Aside from raising disciplinary issues, violating this rule can harm our clients. In one Florida car wreck case, trial counsel argued that that the defense did not want the jury to be fair and reasonable, but had instead brought a "bogus counterclaim to make it look like they have something to argue about," and that, in contrast to the defense witnesses, his client was not going to lie. Airport Rent-A-Center Car, Inc. v. Lewis, 701 So. 2nd 893, 896 (Fla. Dist. Ct. App. 1987). On appeal, the court concluded that the defendant was denied a fair trial and reversed the award.
Of course, that means that this tactic worked at trial. Sometimes, you can bludgeon your opponent into submission by demonizing them. At least temporarily. But the costs continue to accumulate personally, professionally, and systemically. And that system is increasingly aware of the problem and fighting back. If you have this tendency, you should fight it back as well.
(Image source: "Single Combat to be decided by the judgement of God." From a miniature in the "Conqêtes de Charlemagne," a Manuscript of the Fifteenth Century, in the National Library of Paris. Internet Archive Book Images/Wikimedia Commons/No Restrictions)
Monday, March 25, 2019
The following is a guest post by Prof. Teri McMurtry-Chubb, Professor of Law at Mercer University School of Law.
On Friday, February 17, 1978 the Chelsea Chapter of the N.Y. Committee to Overturn the Bakke Decision (NYCOBD) met to strategize how best to influence the Supreme Court decision in Regents of the University of California v. Bakke. The purpose of the meeting was to strategize under the banner of the National Committee to Overturn the Bakke Decision (NCOBD) as it planned a unified “March on Washington” in protest. In keeping with the call to arms espoused by its sister chapters throughout the United States, Chelsea NYCOBD boldly stated in its meeting flier:
Fight Racist Attacks on Affirmative Action Programs!
In the spring, the U.S. Supreme Court will render a decision on the Bakke case – one of the most important cases in the last 25 years on the question of racial equality. The Bakke decision, which is based on the absurd and racist idea of “reverse discrimination,” is a serious attack on the rights of minorities to jobs and education. If the Bakke decision is not overturned by the court, affirmative action programs for minorities and women will be threatened with elimination. Join the growing anti-Bakke movement in our demands to: implement, maintain, and expand special admissions and other essential affirmative action programs for minorities and women at all levels of higher education and employment. Fight Racism. Overturn the Bakke Decision!
Although the NCOBD was not successful in overturning the decision, its act of grassroots organizing and educating the public is a primer on the importance of education to informed direct action. 41 years later, our contested, national conversation about affirmative action has continued with the Harvard Affirmative Action Case and the College Cheating Scandal. The scandal has caused us to (again) pause and ponder what is an elite education, who “earns” admission to America’s most prestigious educational institutions, and who deserves access to the America Dream. However, what about the lawyers who litigate these cases? Have you ever considered the views they hold about affirmative action in admissions and how their beliefs shape their discussions about the litigants and the arguments in their briefs that will ultimately become part of the jurisprudential landscape of affirmative action law?
This question, the question of how bias shapes lawyer analytical and reasoning processes, is the subject of a 6-year empirical research study I conducted involving student motion and appellate briefs generated from case files involving social justice issues. The study examines 576 brief submissions from 192 students on topics ranging from hostile work environment claims based on colorism, religion, and national origin to LGBTQIA students’ right to freedom of expressive association in creating the policies for their student organizations. I wanted to know if law student biases concerning race, gender, class, and sexuality colored their analytical and reasoning processes as they drafted the argument sections of their briefs, and if so to what extent. The focus of one of the case files (the universe in which students litigate) was an African American man ranked in the 75th percentile of all law school applicants who was denied admission to law school, even when White legacy students were admitted despite being consistently ranked in the lower 25th percentile of all applicants. The claimant sued the University on grounds that the law school’s legacy admissions policy was an unconstitutional affirmative action program - he argued that a White student “took his seat” in the 1L class. The Bakke case and its progeny were the controlling authority.
Student attitudes about colorblindness led approximately 85% of them to make legal arguments flawed by bias in the first drafts of their briefs. For example, students representing the claimant analyzed his racial classification, “African American,” when the race of the legacy admits, “White,” was the racial classification at issue in the lawsuit. Student arguments advanced the notion of color-blindness or the phenomenon of “not seeing color.” Moreover, students representing the University argued for diversity as a compelling state interest even though the legacy admissions policy favored White applicants over applicants of color - a losing proposition for the University. Simply, they could only see race or ethnicity as anything other than White. These arguments based on biased assumptions led students to make arguments that were incorrect and inconsistent with the major tenets of the Bakke decision, and ultimately contrary to their client’s interests.
The good news is that with critical pedagogical interventions, teaching methods aimed at problematizing students’ biased assumptions, students course corrected their attitudes from color-blind to color-conscious. Approximately 82% of all student final appellate brief submissions, the final assignment submitted by students in the study, evidenced a critical engagement with issues of race and class in higher education admissions policies. Students made arguments that recognized “White” as a racial category of analysis in affirmative action jurisprudence, “legacy” as a function of class hierarchy, and the connection between the two. Most importantly, students continued to engage with each other and their peers around these issues after their time in the study ended.
Law firms, public interest and government agencies should note that unless their attorneys have been taught to recognize and disrupt their biases with respect to race, class, gender, and sexuality, it is probable that they will replicate these biases as they interpret the law and develop the analytical frameworks in their briefs. A heart for justice does not necessarily mean that lawyers will do justice. Rather, it is imperative that legal educators and the bar actively implement interventions to make attorneys aware of how their arguments replicate structural and societal inequities. We can do no less if our expectation is that attorneys serve their clients with excellence and an eye toward equity. You can read a detailed analysis of the study in my article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal ____ (forthcoming 2019).
Thursday, August 2, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.
To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”
Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.
Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.
Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.” The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.
 W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).
 Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).
Thursday, November 9, 2017
In a recently released Maryland Law Review article entitled Do Muddy Waters Shift Burdens?, Professors Carrie Sperling and Kimberly Holst walk readers through the history of what was supposed to be one of the country’s most progressive laws allowing post-conviction DNA testing for inmates whose cases did not originally involved that type of evidence. Article 64.03 in the Texas Code of Criminal Procedure created a uniform process for inmates to petition courts for testing, asking inmates to show, “a reasonable probability that he or she would not have been prosecuted or convicted if DNA testing had provided exculpatory results.”Criminal attorneys will recognize the “reasonable probability” test as a well-established standard that courts interpret as a probability that sufficiently undermines confidence in the case’s result.
Nevertheless, Texas courts have latched onto a metaphor introduced by the Texas Court of Criminal appeals a few years after the statute was enacted. That court first found ambiguity in the standard despite its years of interpretation in other contexts. Instead, that court held, the standard must be interpreted to require inmates to show, with reasonable probability, that the DNA testing would prove a convicted person’s innocence. The defendant in the case did not meet that burden, but showed only that DNA testing would “merely muddy the waters.” Despite the Texas Legislature returning to the statute to clarify its intent, Professors Sperling and Holst found that courts continue to use the metaphor as a statement of the governing rule of law.
Doctrinal metaphors abound in our case precedents. The most famous are found in evidentiary analysis, “fruit of the poisonous tree,” and in civil procedure, “long-arm” statutes. Many doctrinal metaphors are extremely useful in helping frame our thinking about more abstract principles. But, in the situation spotlighted by these two professors, a doctrinal metaphor might be harmful or even a misstatement of the law. What should a lawyer do in that situation?
The answer lies in part in a separate article, this one published by the Mercer Law Review and republished in a monograph, written by Professor Michael Smith, Levels of Metaphor in Persuasive Writing. In that article, Professor Smith advises attorneys to challenge the metaphor directly, a strategy he calls the Cardozo Attack. Justice (then Judge) Cardozo warned other jurists that creative metaphors involved with corporate law, “piercing the corporate veil,” should be used only very carefully and not to the exclusion of more accurate, albeit literal, language. Professor Smith’s article details two examples of successful attacks on doctrinal metaphors.
Both articles spend some time explaining the cognition of metaphor use, which is reason enough to read these two pieces. Beyond that, the articles offer an important lesson for appellate attorneys. First, we must be aware of the notion that metaphoric language is just that: a comparison of two seemingly incongruent things to help readers form connections. By themselves, doctrinal metaphors do not necessarily form the backbone of substantive law. Second, we should spend time in our lawyering process unpacking these metaphors in the event that they conflict with the actual and governing tests. In the event they do, it is incumbent upon us, as part of our client representation, to address the metaphor itself as part of a persuasive argument chain.
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.
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, December 9, 2014
Allegations of non-random assignment of gay marriage cases by the Ninth Circuit were offered recently by gay marriage opponent, Coalition for the Protection of Marriage. This allegation is not new, dating back to California Prop 8 litigation in 2010.
Ninth Circuit Chief Judge Kozinski responded on the record regarding the recent allegation, though what, if anything, that adds is left as an exercise for the reader. For more detailed reading on the issue of judicial panel assignments, one might examine a pair of recent articles available on SSRN.
First, a new working paper on SSRN by Adam S. Chilton (Chicago) and Marin K. Levy (Duke) Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals. addresses the issue of circuit assignment practices across all circuits. The abstract ably summarizes the work:
A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.
Second, Margaret V. Sachs (Georgia) has a forthcoming article in the UC Davis Law Review, Superstar Judges as Entrepreneurs: The Untold Story of Fraud-On-The-Market, that discusses Judge Posner and Easterbrook's opinions on class certification in securities class actions. Sachs notes that the two judges dominated the development of the law on this issue in the circuit by retaining merits appeals of cases they agreed to hear as motions judges. Sachs examines how these two "superstar" judges were able to select these cases through a pecularity of the Seventh Circuit assignment process.
The Administrative Office of the U.S. Courts suggests that assigment is typically random but that assignment might be made based on substance or geographic considerations:
Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseloads and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court's rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case.
Thursday, November 6, 2014
Today the Sixth Circuit issued its decision in DeBoer v. Snyder and created the circuit split that the Supreme Court has presumably been waiting for. In a carefully reasoned opinion, the Sixth Circuit narrowly interpreted precedent and the most recent line of Supreme Court decisions on marriage and sexual relations. Early in its opinion the Court stated, “What we have authority to decide . . . is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?” On this question, the Court ruled in favor of the State.
In the opinion, the Sixth Circuit walks through the role of the intermediate appellate courts and the requirement to defer to U.S. Supreme Court precedent. Looking to Baker v. Nelson, 409 U.S. 810 (1972), the court reasoned that it had not been overruled either explicitly or implicitly by United States v. Windsor, 133 S. Ct. 2675 (2013). In fact, it determined that Windsor was not a case about the right to marry, but rather a case about the right to enjoy a privilege granted by a state. The court went as far as to reconcile the two cases stating that “Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it.” In support of its decision, the Court also relied on originalism and rational basis review.
Boiled down, the Sixth Circuit basically views the question as one that ought to be decided through the state democratic processes rather than through the courts. These three lines sum it up best: “History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed.”
Tuesday, September 30, 2014
The Washington Post has reported that yesterday five of the U.S. Supreme Court Justices agreed to enter an Order granting the State of Ohio’s Application for Stay and Request for Preliminary Injunction to stop enforcement of a court order preventing implementation of Ohio’s plan to reduce early voting. Earlier this year, the State of Ohio’s legislature enacted a plan to reduce the number of early voting days from 35 to 28. Opponents of the law argue that the reduced number of early voting days will discourage voter turn-out. This matter came before U.S. District Court Judge Peter C. Economous earlier this month. He ruled against the State reasoning that the poor and persons of color are disproportionately negatively impacted by the reduction in early voting days because these populations tend to vote early and in-person more often than white voters. Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for stay.
Saturday, September 6, 2014
Appellate practitioners know the more common exhaustion and abstention doctrines, such as exhaustion of administrative remedies. Few are aware, however, that similar concepts operate between federal and tribal courts and even between state and tribal courts, and that they can arise out of comity, court rule, or other sources, depending on the jurisdiction. Ignorance of those concepts can sometimes lead to inadvertent or even open disregard for tribal judicial systems.
Turtle talk reports this week on a current example from the Tenth Circuit, which deferred to the Muskogee Tribal Court when litigants in an election dispute tried to jump ship to federal court. See the post regarding Thlopthlocco Tribal Town v. Stidham on Turtle Talk.
Thursday, September 4, 2014
Just nine days after hearing argument, the Seventh Circuit has issued its opinion in Baskin v. Bogan. Unsurprisingly, the court affirmed the district court judgments “invalidating and enjoining . . . prohibitions of same-sex marriage.” In the 40-page opinion, Judge Posner took time to address the ineffectiveness of the arguments advanced by the petitioners. He wrote, “the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.” (emphasis in original). Even though the states had significant legal precedent on their side, at the time of the oral arguments it did not seem like the Seventh Circuit was likely to be persuaded by any of those arguments. This opinion is final confirmation.
The opinion is lengthy but well-written and soundly reasoned. I’d like to highlight just a few characteristics. First, it is an excellent example of issue-framing to achieve a desired result. Rather than getting too bogged down in the minutiae of rational basis, Judge Posner effortlessly frames the question in such a way as to mandate a higher level of scrutiny. Specifically, he reasons that “more than a reasonable basis is required because this is a case in which the challenged discrimination is . . . ‘along suspect lines.’” Second, Judge Posner ably relies on scientific (non-law) data to support his conclusions. He even relates that data, through the “kin selection hypothesis” (or “helper in the nest theory”), to evolution by arguing that “[a]lthough it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives.” Finally, Judge Posner makes effective use of tabulation to smoothly advance the argument and signpost the logical connections of his reasoning. It’s a fantastic exemplar of writing that simplifies complex legal arguments in a sophisticated and accessible way. Definitely a fascinating and worthwhile read.
Thursday, August 21, 2014
Howard Bashman has a new post on How Appealing examining the new proposal to reduce the word limit for principal briefs in the U.S. Courts of Appeals. The proposal is to reduce the current 14,000 word limit to 12,500. Allegedly, the current 14,000 word limit was based on a misunderstanding about how many words fit on a printed page.
Is this a beneficial reduction that will promote concision and clarity? Or another limitation on the role of advocacy before the courts of appeals?
The preliminary draft of proposed changes and call for comments is available here, and Howard invites comments, pro or con, through his site. This seems to me to be yet another procedural reform that streamlines, and arguably reduces, appellate advocacy and judicial consideration. I welcome your thoughts on the issue as I consider whether to comment.
Friday, August 1, 2014
Helen A. Anderson at University of Washington Law has a new article on SSRN: Frenemies of the Court: The Many Faces of Amicus Curiae. Given the rise in the number of amicus briefs, the phenomenon seems ripe for closer scrutiny. Anderson does just that by breaking up the singular concept of an amicus curiae brief into types that can be examined separately.
Amicus curiae occupy a unique place in the courts: non-parties who are nevertheless advocates, who are not bound by rules of standing and justiciability, and who can present the court with new information and arguments. Amicus participation has increased dramatically in recent years, and threatens to alter the adversarial process. Yet scholars and courts treat amicus curiae as a single category, not fully recognizing that this friendly term actually covers several very different types, ranging from court appointed advocates of a particular position, to friends of a party (sometimes paid by the party), to persons or groups who just missed qualifying as interveners.
To understand the reality of amicus practice, this article develops a taxonomy of amicus based on the relationship to the court and the parties. The article supports this taxonomy with a look at the history of amicus, and a survey of the rules and judicial attitudes in different jurisdictions. I also explore the persistence of a myth that amicus should be “disinterested,” a myth that has led to confused reasoning about the proper role of amicus.
The modern increase in friend of a party amicus has taken us far from the origins of amicus as one with special expertise or knowledge relevant to the litigation. The article concludes that the Supreme Court’s open-door amicus policy should not be mindlessly copied by our other courts. Friend of a party briefs by ambitious law reform and business advocates may exert great influence, particularly on elected courts. The growth in amicus briefs can lead to distorted views of appellate decision-making, so that a court’s work is seen more like legislation and amicus briefs more like lobbying. To preserve the usefulness of the amicus institution, courts should exercise their gatekeeping authority.
What do you think? Is the increasing amicus briefing giving appellate courts a more legislative, lobbying-susceptible character?
August 1, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)