Appellate Advocacy Blog

[ii] https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

Last month, fellow blogger Charles Oldfield posted about some courts requiring lawyers to disclose their use of AI in preparing briefs for the court. In the post, he noted that, while the goal seemed to be ferreting out the use of generative AI, the requirements may have inadvertently stretched beyond that scope. But both instances raise the questions of why and how to cite AI.

I’ve been attending a wonderful conversation group of legal writing professors, led by Professors Kirsten Davis from Stetson University and Carolyn Williams from the University of North Dakota, discussing legal writing and generative AI. And a recent discussion addressed whether and, if needed, how to cite generative AI in legal writing.

Professor Davis first addressed the question of how we, as legal writers, should view the role of generative AI: as the author or authority, as a co-author, as an assistant, or as a tool. She aptly pointed out that our view of the technology directly informs whether we should cite or disclose our use of generative AI. Professor Williams (author of the 7th Edition of the ALWD Guide to Legal Citation) then addressed the purposes of citation:

(1) allowing the reader to locate the source of the writer’s information;

(2) giving credit to the author of the words or ideas the writer used;

(3) showing the reader that the writer conducted proper research;

(4) protecting the writer from plagiarizing;

(5) increasing the writer’s credibility with the reader; and

(6) providing additional information about the sources used and their connection to the writer’s assertions to aid the reader’s choices about whether to pursue the source.

These considerations made me wonder how those judges requiring disclosure are viewing AI and what purpose they believe disclosure serves. And it seems their concern has less to do with the technology, itself, and more to do with skepticism that lawyers will use it in a way that violates the rules of professional conduct.

ABA Model Rule 5.1(b) provides that “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”[i] When a lawyer uses generative AI to draft motions, pleadings, briefs, or other filings with the court, the lawyer is treating the technology as a subordinate attorney and, therefore, should be reviewing the output for compliance with the rules of professional conduct. This review includes verifying that “each and every citation to the law, or the record in the paper, . . . [is] accurate”[ii] and does not reflect any “personal prejudices, biases, and beliefs.”[iii] But these same purposes are served when an attorney signs the document under Federal Rule of Civil Procedure 11.[iv] So including the certification seems superfluous, especially given that supervising attorneys do not habitually credit their subordinating attorneys’ work in drafting.

Requiring the disclosure also fails to serve any of the traditional purposes of citation. Because generative AI rarely, if ever, produces identical output in response to a repeated prompt,[v] a reader cannot use a citation to either verify the accuracy of any assertions or investigate the source any further. And, because generative AI uses predictive language, it is—by design—drawing on the ideas of others represented in the text used in its training; thus, citing it does not serve to give credit to the proper authority or even protect the writer from plagiarism. If a legal writer treats AI-generated drafts as work produced by a subordinate attorney, then the attorney will have already checked the accuracy and validity of legal assertions and associated citations to authority, so the added layer of citing the AI tool(s) used does not further the purpose of establishing thorough research.

With respect to establishing the writer’s credibility, disclosing the use of generative AI might very well have the opposite effect considering highly publicized recent follies involving generative AI and legal filings.[vi] And this negative effect is likely to be exacerbated by disclosure requirements rooted in skepticism.

Mr. Oldfield included as his final endnote that he “used Word’s Editor in preparing th[e] post.” I assume the inclusion was done in jest to emphasize the absurdity and breadth of some of the existing disclosure requirements. But it raises an interesting point: by requiring lawyers to disclose their use of AI, are courts discouraging lawyers from using a potentially valuable tool?

In the small group I was in for our legal writing discussion on if and how to cite generative AI-created content, we concluded that asking students to cite their use of AI on submissions would be futile because it would either discourage them from using AI or encourage dishonesty about whether they did. Requiring attorney disclosure feels the same.

And, if the true goal of requiring disclosure is to ensure ethical usage of AI, it is likely to have the opposite effect. Discouraging lawyers from using AI could cause violations of Rule 1.1, requiring lawyers to “provide competent representation to a client” through “legal knowledge, skill, thoroughness and preparation.” Comment 8 expressly directs that the duty of competence requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[vii] Discouraged usage might also result in violations of Rule 1.5, requiring only reasonable fees,[viii] if a lawyer avoids using generative AI where the AI could complete the same task in less time, resulting in a higher-than-necessary fee for a client.[ix] And, to the extent required disclosure imposes a stigma on lawyers using generative AI, disclosure requirements could encourage dishonesty about usage, causing violations of Rule 3.3’s duty of candor to the tribunal.

While generative AI has not yet reached a point where it can replace lawyers, it is certainly capable of being a valuable time-saving tool that benefits both lawyers and clients. Lawyers should be encouraged to learn about and understand it, rather than avoid it. And, to that end, disclosure requirements should be abandoned.

[i] ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer/

[iii] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[iv] “By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

Fed. R. Civ. P. 11(b).

[v] Charles Ross, Does ChatGPT Give the Same Answer to Everyone?, Medium.com (March 20, 2023), available at: https://medium.com/@charles-ross/does-chatgpt-give-the-same-answer-to-everyone-521e3e9355a4

[vi] See, e.g., Benjamin Weiser, Here’s What Happens When Your Lawyer Uses ChatGPT, New York Times (May 27, 2023), available at https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html.

[vii]ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/

[viii] ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/

[ix] Brad Hise and Jenny Dao, Ethical Considerations in the Use of A.I., Reuters.com (Oct. 2, 2023), available at: https://www.reuters.com/legal/legalindustry/ethical-considerations-use-ai-2023-10-02/

November 14, 2023 in Appellate Practice, Appellate Procedure, Legal Ethics, Legal Writing | Permalink | Comments (0)

Saturday, October 21, 2023

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative

As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration. One of my favorite aspects of full time appellate practice was just that: time. I treasured having more time--albeit never enough time--than I had in trial practice. I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court. Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research. Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients. In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized? Neither have I.

In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar. The Bar is considering whether to adopt a pilot for this PBE alternative. You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here: https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf. In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure.

The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test. Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision. These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients. As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.” Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).

How would this work? Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.” Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.” https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.

Of course, not everyone favors the PBE proposal. Some opponents raise thoughtful and important issues of bias and discrimination. A small pilot can help us address these concerns. Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities. See https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion. As former Trustee Mendoza explains:

The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly. Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.

Mendoza, Opinion.

The most vocal opposition seems to be from people connected to profitable bar preparation courses. Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising. See id. While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.

The State Bar is asking for public comment on the PBE Pilot. The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys. If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”: https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.

If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button. The Bar has also provided a box for typed or uploaded comments. The deadline to comment is Wednesday, October 25, 2023. I clicked “AGREE” and completed my comment in less than two minutes. I urge you to weigh in on this important question too.

October 21, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Tuesday, October 10, 2023

The Appellate Project

[1] https://www.merriam-webster.com/dictionary/artificial%20intelligence

“We . . . must continue individually and in voices united . . . to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will [be] and are making.” –Justice Sonia Sotomayer[i]

The Appellate Project is an organization doing just that. It is designed “to empower law students of color, particularly those most underrepresented, to become the next generation of lawyers and judges in our highest courts” and “thrive in the appellate field.” It was founded in 2019 by civil rights litigator Juvaria Khan. The organization offers programming, mentorship, and resources for law students to build the skills and connections needed to break into and succeed in the appellate field.

Their work is incredibly important. Increased representation in appellate courts leads to an “enhance[d]. . . legitimacy of courts among traditionally underrepresented groups”[ii] and the public as a whole.[iii] The value of legitimacy cannot be overstated because “[d]ecisions of our courts are to be complied with, even when we disagree with them.”[iv]

And “diversity on the courts enriches judicial decisionmaking[;] . . . the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decisionmaking, especially on our appellate courts.”[v] Studies have shown that “female and minority judges, on average, bring a different judicial perspective to the bench.”[vi] Adding just one female judge “to an otherwise all-male panel significantly increases the probability that the male judges will support a plaintiff in sex discrimination or sexual harassment cases.”[vii] And the inclusion of a single Black judge on a three-judge panel “increases the likelihood that a non[B]lack colleague will find that a state or locality violated the Voting Rights Act.”[viii] In short, “the interaction of wise Latinas,[[ix]] white men and women, African Americans, Native American judges--just like the interaction of former prosecutors, defense counsel, corporate practitioners and in-house counsel--provides opportunities for a robust exchange that can inform appellate decisionmaking.”[x]

The Appellate Project offers a mentorship program each year, pairing law students of color interested in appellate practice with two mentors in the appellate field, including attorneys, judges, professors, and law clerks. If you are an appellate practitioner, I urge you to volunteer as a mentor. And, if you are a student, this is a fantastic opportunity you don’t want to miss. The deadline for this year’s mentorship program is October 13, 2023.

[i] Hon. Sonia Sotomayor, A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87, 93 (2002).

[ii] Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts, 57 Am. J. Pol. Sci. 167, 168 (Jan. 2013).

[iii] Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 2d 45, 48 (2009).

[iv] Id.

[v] Id. at 49.

[vi] Kastellec, supra n. ii, at 167.

[vii] Id. at 169.

[viii] Id. at 170.

[ix] In her speech, A Latina Judge’s Voice, Justic Sotomayor controversially stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” Sotomayor, supra n. i, at 92. She was later questioned about this statement during her Supreme Court confirmation hearings in the United States Senate. Sotomayor Explains "Wise Latina" Comment, CBS News (July 14, 2009), available at: https://www.cbsnews.com/news/sotomayor-explains-wise-latina-comment/

[x] Ifill, supra n. iii, at 52.

October 10, 2023 in Appellate Court Reform, Appellate Practice, Law School, Legal Profession | Permalink | Comments (0)

Tuesday, October 3, 2023

Disclosing the Use of AI

By Charles Oldfield

Following well-publicized instances of lawyers using generative artificial intelligence to draft briefs that misrepresented the law, some courts now require lawyers (and pro se litigants) to certify whether, and if so, to what extent, they used AI in preparing briefs. These orders are not uniform and may require more disclosure than would be apparent at first blush. But before delving into what disclosures may or may not be required, let’s talk about AI.

Merriam-Webster defines AI as, “the capability of computer systems or algorithms to imitate intelligent human behavior,”[1] and as “a branch of computer science dealing with the simulation of intelligent behavior in computers.”[2] Merriam-Webster defines generative AI as “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples.”[3] Generative AI includes things like ChatGPT.

The instances where lawyers found themselves in trouble for using AI involved the use of generative AI. And it was those instances that prompted the orders requiring lawyers to disclose the use of AI. But tools like Grammarly and Word’s “Editor” are AI—they’re just not generative AI. And there lies the problem—the orders requiring disclosure don’t always distinguish between AI and generative AI. For example, Judge Baylson of the United States District Court, Eastern District of Pennsylvania put on this order:

If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper filed with the Court and assigned to Judge Michael M. Baylson, they MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing and CERTIFY that each and every citation to the law, or the record in the paper, has been verified as accurate.[4]

On the other hand, Judge Starr of the United States District Court, Northern District of Texas, has put on order that distinguishes between the use of AI and generative AI. That order says:

All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being. These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why. Accordingly, the Court will strike any filing from a party who fails to file a certificate on the docket attesting that they have read the Court’s judge-specific requirements and understand that they will be held responsible under Rule 11 for the contents of any filing that they sign and submit to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.[5]

Thus, a lawyer filing something in Judge Baylson’s court should disclose the use of an AI tool like Grammarly or Word’s “Editor” function in preparing the brief, whereas a lawyer filing something in Judge Starr’s court does not have to disclose the use of those tools, but instead must only disclose the use of generative AI.[6] While Judge Baylson’s order suggests that he might have only meant to require the disclosure of the use of generative AI (because he refers to checking citations), the language of the order sweeps more broadly and requires disclosing the use of any AI.

Given the increased use of AI and particularly generative AI, it’s likely that more courts will require the disclosure of the use of AI in preparing filings. It’s important that lawyers fully comply with those requirements.

[2] Id.

[3] https://www.merriam-webster.com/dictionary/generative%20artificial%20intelligence

[4]https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[5] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[6] Disclosure: I used Word’s Editor in preparing this post.

October 3, 2023 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, September 16, 2023

Mandatory Civility Rules for Counsel

As I sat down to write this post, I realized it would appear at the beginning of the Jewish new year celebration of Rosh Hashanah and on my twenty-eighth wedding anniversary. The rabbi who married us all those years ago had to leave our reception early to catch a flight to Israel for the new year, and Rosh Hashanah and our anniversary will always be connected in my mind. In the spirit of this connection, I send wishes for a sweet and healthy new year to everyone celebrating, and I also share some thoughts on civility and my long marriage.

This week, retired Prof. Scott Fruehwald shared on a list-serv the abstract of Prof. David Grenardo’s upcoming article on mandating civility, Debunking the Major Myths Surrounding Mandatory Civility for Lawyers Plus Five Mandatory Civility Rules That Will Work, 37 Geo. J. Legal Ethics __ (forthcoming). While the author notes the article is still in draft form, it has already won the American Inns of Court 2023 Warren E. Burger Prize. I highly recommend reading it.

Prof. Grenardo details the way four states—Arizona, Florida, Michigan, and South Carolina—have adopted mandatory civility rules. See id. at (draft manuscript pages) 10, 12-16. He also makes powerful arguments that we should follow these states and move from voluntary, aspirational statements of a lawyer’s duty to be civil to mandatory civility rules. See, e.g., id. at 16-23. He concludes: “Talking is not enough—leaders of the legal system need to act. State bars, state supreme courts, and, if necessary, state legislatures must take the step that four brave states already have—mandate civility.” Id. at 37.

As I read Prof. Grenardo’s draft article, I was thankful (as always) for an appellate career, where I avoided much of the terrible incivility too often present in discovery and trial scheduling issues. Nonetheless, I also remembered one opposing counsel’s refusal to stipulate to my seven-day extension request for a reply brief when I was in the hospital during a difficult pregnancy and the extension would not have changed the oral argument date in the matter. You can probably also share a memory of incivility in your practice.

How does this connect to my marriage? When my students ask how my husband and I have been married for more years than most of them have been alive, I tell them, “marriage is respect and compromise.” Clearly, I am oversimplifying, but maybe only a bit. And the more I see incivility in the legal profession, the more I see the need for respect and compromise. Of course, clients deserve vigorous advocacy, and that does not always square with the idea of compromise. Prof. Grenardo has several answers to this quandary. For example, he notes that many lawyers “point to civility as a necessary component of effective advocacy,” id. at 34, and being more civil and willing to compromise on meritorious requests saves clients money, id. at 6.

Whether you agree that we need to mandate civility rules, believe we just need to enforce our aspirational canons better, or find reports of incivility exaggerated, I hope this blog makes you think about compromise and our role as advocates. I also hope you will read Prof. Grenardo’s article, either now or when Georgetown publishes it. Happy new year!

September 16, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Legal Ethics, Legal Profession | Permalink | Comments (0)

Sunday, September 10, 2023

Hoisted on Their Own Petard: The Appellate Motion to Strike

The general rule in appellate courts throughout the country is that a reply brief is limited to raising matters preserved in the trial court, issues argued in the opening brief, or arguments made in the response brief. The rationale for this very sensible rule is that making a new argument in a reply brief unfairly deprives the appellee of an opportunity to respond. At least in some jurisdictions, the proper response to a reply brief raising new arguments is a motion to strike.

But should you make the motion? That depends on whether you really believe it will help you. Recently, I responded to a motion to strike portions of my reply brief. I suspect that my opponent regrets making the motion. The court has told us it will address it at the same time as the merits, and presumably during the upcoming oral argument.

In this case, I was hired only at the reply brief stage to take over an appeal, so I did not write the opening brief. The issue is whether trial counsel had breached the state equivalent of Model Rule of Professional Conduct 4.2, sometimes referred to as the no-contact rule. The rule prevents undue influence or strategic advantage by preventing one party’s lawyer from contacting a represented party’s lawyer without that lawyer’s consent. In other words, communications with another party must be through that party’s counsel.

In the trial court, defense counsel for a product manufacturer accused plaintiff’s counsel of violating the rule by speaking to an independent authorized service center (ASC) for the product, as well as for the products of other manufacturers. In the complaint, the plaintiff had referred to the ASC as an agent for the manufacturer. However, when he sought discovery in prior litigation for a different plaintiff, the manufacturer (and the same defense counsel) denied that an ASC was an agent, asserted that the ASC was an independent company, and said that any information counsel wanted should be obtained directly from the ASC. However, because plaintiff’s counsel went directly to the ASC in this subsequent case after describing it as an agent, the manufacturer asked for sanctions under Rule 4.2. Counsel did not claim he represented the ASC. Instead, counsel argued that because the plaintiff’s lawyer had “thought” the non-party ASC was an agent, he should have sought permission to contact the ASC – even though defense counsel was in no position to grant or deny permission.

The trial judge bought the argument and disqualified plaintiff’s counsel. The opening brief on the appeal of that disqualification explained the facts, the rule, and what it would take to treat an “agent” as fitting within the rule. The response brief reiterated the trial court opinion, focusing on how the definition of “person” in the rule included “agents.” My reply brief opened with the fact that the briefing to date established that the ASC was not a represented person so that Rule 4.2 did not apply and that by itself was dispositive. It explained the underlying purpose of the rule and how that was completely tied to being a “represented person.”

The motion to strike soon followed, asking the court to strike every portion of my brief that made the represented-person argument, explaining that it was a new argument made by new counsel. In a footnote, added under an abundance of caution, the response brief provided a substantive response to the argument. My reply to the motion pointed out that the issue was not at all new. The trial court transcript included an argument about the rule only applying to a represented person. The opening brief quoted the rule and made arguments about the meaning of agent that assumed the rule applied only to represented persons. And the defendant’s brief also opened the door to the argument by focusing on the meaning of “person” without including the very necessary word “represented” that came before “person” and limited the latter word’s scope. Each of these facts independently supported the propriety of making the argument in the reply brief. I also pointed out how incongruous it would be to suddenly apply a rule that is explicit in its scope to situations that are plainly outside it and that the consequences of such a ruling would change the dynamics of litigation in ways that could not be justified by forcing counsel to forego contact with independent non-parties to prepare a case absent permission of opposing counsel who did not represent that party.

The battle over the motion to strike, though still undecided, had the effect of further highlighting my argument about the necessity of representation, while its substantive response, albeit in a footnote, telegraphed to me the other side’s likely position on why representation is unnecessary when the issue is joined at oral argument. Strategically, it makes little sense to highlight an opponent’s strongest point, which is what this motion did. It seems unlikely that the motion could succeed when it asks a court to read out of the applicable statute (or rule) a textual qualification to the part of the law that a party relies upon.

If I am correct in believing that the word “represented” is dispositive of the appeal, the motion to strike provided me with an opportunity to fine-tune the argument by resort to the record and what the trial court ignored, as well as to tie it even more closely to my opponent’s argument. I doubt that the motion provided a benefit to the other side. Instead, I suggest that this was one of those instances where counsel would have been better off foregoing the motion to strike.

September 10, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, State Appeals Courts | Permalink | Comments (0)

Saturday, September 2, 2023

The Optics of Ending Affirmative Action

In Students for Fair Admissions v. Harvard, the United States Supreme Court ended affirmative action in college admissions.[1] Specifically, the Court held that race-based considerations in the admissions process violated the Fourteenth Amendment’s Equal Protection Clause.[2] Writing for the majority, Chief Justice John Roberts stated that such affirmative action policies “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”[3] Chief Justice Roberts also interpreted the Equal Protection Clause to require that universities act "without regard to any difference of race, of color, or of nationality," and emphasized that “[e]liminating racial discrimination means eliminating all of it.”[4] This language is reminiscent of Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, where he stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[5]

Importantly, however, the Court did not prohibit universities from considering race in the admissions process "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."[6] In other words, although an applicant’s race cannot, by itself, be a factor in the admissions process, it can be considered if an applicant explains, such as in a personal statement, how the applicant's race created unique obstacles or adversity that the applicant overcame.

Regardless of one’s opinion about the constitutionality – or efficacy – of affirmative action programs, the Court’s decision undermined its legitimacy and reinforced the notion that the Court is a political institution. To begin with, Chief Justice Roberts’ opinion effectively overruled three precedents – Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas – thus making stare decisis appear like a doctrine of convenience rather than conviction.

What’s worse, the Court’s decision reflects the deeply troubling reality that the Constitution’s meaning changes when the political affiliation of the Court’s members changes. Let’s be honest: the only reason that the Court ended affirmative action in college admissions is because Justice Brett Kavanaugh replaced former Justice Anthony Kennedy and because Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg. To be sure, ten years ago, the Court would have decided Students for Fair Admissions differently, and only because the political affiliations of the Court’s members at that time were different. Indeed, the Court’s decision suggests that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2023 than there were in 1978 (when Bakke was decided) or 2003 (when Grutter was decided). That is the point – and the problem. The Court’s decision cheapened constitutional meaning and contributed to transforming the Court into a political, not legal, institution. The justices surely understand this, but probably do not care.[7]

Lest there be any doubt, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and Planned Parenthood v. Casey and held that the Fourteenth Amendment did not protect a right to abortion.[8] Although the Court’s decision was correct as a matter of constitutional law, it was also incorrect from a pragmatic standpoint. After all, just as one wonders what made the justices discover an unenumerated constitutional right in those invisible penumbras that the Court created in Griswold v. Connecticut, one must also wonder what made the justices suddenly discover that the Constitution did not protect a right to abortion. The answer is obvious: the justices’ political preferences. Unfortunately, the public’s opinion of the Court is damaged when it perceives that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. And although the justices continually emphasize that policy preferences do not motivate their decisions, the fact remains that perception matters more than reality. In fact, it is reality.

This raises a broader point: why is the Court getting involved in these cases? Where reasonable people can disagree regarding the Constitution’s meaning, such as where the text is broadly phrased or ambiguous, why is the Court deciding for an entire nation what should be decided democratically? For example, in Kennedy v. Louisiana, the Eighth Amendment’s text could not possibly answer the question of whether authorizing the death penalty for child rape constituted cruel and unusual punishment.[9] Likewise, in Clinton v. New York, the Presentment Clause provided no guidance on the Line-Item Veto Act’s constitutionality.[10] Additionally, in Citizens United v. FEC and McCutcheon v. FEC, the First Amendment’s text could have been interpreted differently when deciding the constitutionality of limits on independent expenditures.[11] As a result, the Court should have allowed the people to decide these issues democratically. But the Court refused to do and, in so doing, nine unelected justices –who graduated from elite law schools and come from a privileged pedigree – substituted their judgment for that of citizens and Congress. Not to mention, it is quite problematic to preach deference to the coordinate branches in cases such as National Federation v. Independent Investors v. Sebelius, and then in Shelby County v. Holder to simultaneously invalidate portions of the Voting Rights Act that the Senate reauthorized by a vote of 99-0.

If the Court wants to maintain its legitimacy, it should show greater respect for its precedents and stop getting involved in cases where the Constitution’s text nowhere demands its involvement.

[1] See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)

[2] Id.

[3] Id.

[4] Id.

[5] 557 U.S. 701 (2007).

[6] See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)(emphasis added).

[7] This is not to say that the majority was wrong as a matter of constitutional law, or in any way to question the justices’ motivations. It is to say, however, that their decision suggests that politics, not law, drove the decision.

[8] 142 S. Ct. 2228.

[9] 554 U.S. 407 (2008).

[10] 524 U.S. 417 (1998).

[11] 558 U.S. 310, (2010); 572 U.S. 185 (2014).

September 2, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, August 19, 2023

What Makes a Great Attorney – The Intangibles

The best attorneys often, but not always, share common characteristics. They are incredibly intelligent. They often graduated from top law schools and were ranked at the top of their law school classes. They were on law review. They obtained federal clerkships. And they received an offer from a large law firm in, for example, New York, Los Angeles, or Chicago.

But what truly distinguishes the best from the very good (and mediocre) attorneys is the intangibles, namely, those characteristics that you cannot teach in a classroom or learn from a textbook. Below is a list of the intangibles that are essential for greatness in the law – or any aspect of life.

1. Hard work.

This doesn’t need a detailed explanation. The best attorneys will always outwork their adversaries. They never use notes. They know every precedent that is relevant to their litigation. They can recite the page and line numbers of every deposition that was taken in their case. And they will spend however long it takes to ensure that their preparation is as perfect as possible. In short, they are tough, and they have heart.

As legendary coach Vince Lombardi stated, “[i]f you’re lucky enough to find a guy with a lot of head and a lot of heart, he’s never going to come off the field second.”[1]

2. Doing things right all of the time, not some of the time.

Vince Lombardi stated that “[w]inning is not a sometime thing; it’s an all the time thing. You don’t win once in a while; you don’t do things right once in a while; you do them right all of the time.”[2] He was right.

The best attorneys demonstrate unwavering commitment, unparalleled motivation, and unquestionable discipline every day, and in every case. And they do so when their circumstances, whether professional or personal, are less than ideal. After all, it’s easy to do the right things when you’re doing something that you want to do, or when your life circumstances are perfect. But it’s harder to do the right things when you are required to do a task that you despise or when you are facing professional or personal adversity. The best attorneys do the right things regardless of external factors because they focus on what they can control and never get distracted by what they cannot.

Most importantly, the best attorneys focus on the process by which a successful outcome is achieved, and not on the outcome itself. They know that if they make the right choices, the results will take care of themselves. They also know that success must be sustained if one is to truly be called successful.

3. They take responsibility for their choices and don’t make excuses or blame others.

The best attorneys -- indeed, the best people – recognize that their choices and decisions, not their circumstances, determine their destiny. They take responsibility for their life (and happiness) and make choices and decisions daily that maximize their chances for success. As Vince Lombardi stated, “truth is knowing that your character is shaped by your everyday choices.”[3]

And when things go wrong, such as by receiving an unfavorable ruling, they don’t make excuses. They don’t blame others. They learn. They take responsibility. And they grow.

4. Responding positively to failure.

Everyone fails at some point in the law and in life. As stated above, the best attorneys do not respond to failure by making excuses or blaming other people and circumstances. Instead, they view failure as an opportunity to enhance their self-awareness and their ability to self-assess. To grow. To improve.

As Nick Saban, the head coach of the University of Alabama’s football team stated, you should “never waste a failure.”[4]

5. Humility.

The best attorneys are humble. They listen to and learn from their colleagues. They accept criticism. They collaborate. And they value different perspectives because they know that they don’t know everything, that they aren’t always right, and that others may have something to teach them.

Lawyers (and people generally) who lack humility often harm their careers because, among other things, no one likes to work with them. In so doing, they prohibit meaningful professional (and personal) relationships. If you doubt that, have a conversation with your local narcissist(s).

6. Adaptability.

The best lawyers know how to adapt to changing circumstances. They do not, for example, follow a script when making an oral argument or taking a deposition. Rather, they listen to a judge’s questions, or a deponent’s answers, and adapt their strategy based on a judge’s concerns or a deponent’s evasiveness. The ability to adapt, particularly when circumstances are unexpected and situations are fluid, is critical to success.

7. Control of emotions.

The best lawyers are mature. They exercise outstanding judgment, particularly when confronted with incomplete facts. Most importantly, they know how to control their emotions. When they lose a motion, they don’t get angry (or cry) and let it affect their preparation. When a judge (or a client) is difficult, they maintain professionalism and focus on the facts. And they know how to put the past behind them and focus on living in the moment, in which past failures do not affect or influence future success.

***

Ultimately, as Vince Lombardi said, “winning is not everything, but making the effort to win is.”[5] Lombardi summarized it perfectly when he stated that “the difference between a successful person and others is not a lack of strength, a lack of knowledge, but rather in a lack of will.”[6]

Making the effort to win – and making the right choices – isn’t determined by an LSAT score or a class ranking. It depends on whether you have the intangibles. And those with the right intangibles recognize that life “ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. That’s how winning is done.”[7]

[1] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[2] Id.

[3] Id.

[4] Jason Kirk, Nick Saban Explains the Most Precious Fuel of All: Failures (July 13, 2017), available at: Nick Saban explains the most precious fuel of all: failures - SBNation.com

[5] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[6] Id.

[7] Rocky Balboa (2006), available at: HD - Rocky Balboa (2006) - inspirational speech - YouTube

August 19, 2023 in Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Tuesday, August 8, 2023

All Words are Made Up: Thoughts on Using Dictionaries for Statutory Interpretation

I am a huge fan of the Marvel Cinematic Universe, and one of my favorite lines comes from Thor in Avengers: Infinity War. Thor and the Guardians of the Galaxy are trying to stop the mad Titan Thanos from destroying half of all life, and Thor suggests they go to a place where he can get a special “Thanos-killing” weapon made:

Thor : Where we have to go is Nidavellir.

Drax : That's a made-up word.

Thor : All words are made up.

Though this statement is obviously true, the law clerk in me was—as my teenage daughter would say—shook, thinking of how many times I had turned to a dictionary as an authority when analyzing an issue involving statutory interpretation. Not once had I questioned the wisdom of this practice until Thor so succinctly noted that “all words are made up.”

My state’s governing law very clearly allows appellate courts to consult the dictionary to determine a word’s “plain meaning.” See, e.g., State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. 2007) (en banc) (“In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary[.]”). And I assume most jurisdictions are the same. The United States Supreme Court, itself, has increasingly relied on dictionary definitions to resolve issues of statutory interpretation.[i] And there are multiple law review articles analyzing which dictionaries are relied on the most and by whom.[ii]

Yet the same appellate courts would likely find error (prejudicial effect to be determined) if a juror consulted a dictionary during deliberations.[iii] This begs the question: why do appellate courts so easily rely on dictionaries but find it erroneous for jurors to do the same?

Before getting into that question, it’s worth exploring the nature of dictionaries and how they function.

I. How dictionaries work

Dictionaries are the epitome of a “work in progress”; they are constantly evolving because language is constantly evolving.[iv] And they are continuously edited by a team of lexicographers, who track numerous terms, read copious amounts of writing and transcribed speeches, and use corpora (“big, searchable collections of texts”) to discern actual word usage.[v] Using this research, they generate “concise, informative definitions (along with supplementary information, such as pronunciations or notes about whether a word is offensive, for example).”[vi]

The vast majority of modern dictionaries use a descriptive approach, which reflects common usage of words,[vii] but earlier dictionaries—including some of Noah Webster’s early work[viii]—took a prescriptive approach, providing rules as to what proper usage should be.[ix] Under the descriptive approach, generally, before a word is added to the dictionary, it must meet four criteria: (1) “relatively widespread use”; (2) “a widely agreed-upon meaning”; (3) “staying power—meaning it’s likely to be used for a long time”; and (4) "useful for a general audience.”[x]

II. Why juries may not use them

It is not unusual for jurors to want “to investigate the dictionary meaning of commonly used words.”[xi] But, generally speaking, “[t]he use of a dictionary or other similar nonlegal materials by the jury during their deliberations constitutes jury misconduct [because i]t introduces outside information into the process and falls outside the tolerable bounds of jury deliberations.”[xii] Allowing a jury to use a dictionary “to obtain further understanding of the court's instructions poses a risk that the jury will misunderstand the meaning of terms [that] have a technical or unique usage in the law.”[xiii]

Yet, at the same time, “[t]he definition of words in our standard dictionaries is taken as a matter of common knowledge, which the jury is supposed to possess.”[xiv] And, “[w]hen words are not specially defined by the Legislature, they are to be understood as ordinary usage allows, and jurors may freely read the statutory language to have any meaning [that] is acceptable in common speech.”[xv] “If this were not so, every word in every instruction would have to be defined for the jury.”[xvi]

Though it certainly makes sense to not allow a jury to use a dictionary if the court has already provided the legal definition of a term or if the term has a specialized or unique meaning within the context of the case, it seems considerably less concerning to allow the jury to consult a dictionary for ordinary terms, especially when the appellate courts do so routinely.[xvii]

And that brings me to my next point—why do appellate courts feel so free to rely on the dictionary?[xviii]

III. Authority for appellate court usage of dictionary definitions

The short answer is that appellate courts feel free to do so because the United States Supreme Court has sanctioned reliance on dictionaries since at least 1919 under the theory of judicial notice.[xix] Both the Federal Rules of Evidence and many state rules allow judicial notice of “facts” from “sources whose accuracy cannot reasonably be questioned.”[xx] And courts applying these rules have expressly concluded that dictionary definitions are such facts.[xxi]

What I find interesting about this approach is that it is rare for any two dictionaries to define a word in precisely the same way.[xxii] And, even when viewing the same dictionary, judges sometimes reach opposite conclusions as to meaning.[xxiii] Additionally, it is a long-standing mantra of appellate practice that the court is bound by the facts in the record and will not consider outside facts (much like a jury is bound by the evidence and law presented to it during trial). So, if dictionary definitions are facts, absent some general law in the jurisdiction that all words not defined are to be given their meaning as identified in a specific dictionary, it would seem that any definitions an appellate court wishes to rely upon should be in the record before they may be considered.[xxiv] Otherwise, using these kinds of outside-the-record facts runs the risk that the court may interpret a word differently than the fact-finder did. In light of the various challenges using dictionaries present, some authors have advocated that appellate courts use dictionaries with caution and only ever as a starting point rather than an ending point for statutory construction.[xxv]

But should courts use them at all?

IV. The democratic and constitutional implications of using dictionaries

When appellate courts use dictionary definitions, they typically do so to discern legislative intent behind statutory language. Jurors wishing to use dictionary definitions have a similar, albeit slightly distinct, goal—to understand the law and how to apply it to the facts before them. But all of it may be an exercise in futility.

“Legislators do not consult dictionaries or incorporate by reference dictionary definitions in drafting statutes.”[xxvi] “Dictionary definitions are not themselves statutes in which the precise words chosen and those omitted have binding legal effect.”[xxvii] And, given the evolving nature of language, does it comport with due process to apply a definition to conduct a person engaged in without some guidance as to how that definition will be discerned?

When a legislature or Congress enacts a statutory definition, it becomes a matter of law, rather than fact. And if their respective constituencies do not approve, the voters can express that disapproval at the ballot box. But no such power exists over lexicographers. Nor should it, because “[t]he lexicographer is a[n] historian, not a lawgiver.”[xxviii] And “[m]odern lexicographers . . . do not expect their definition to give the absolute meaning of the word.”[xxix]

Yet our appellate courts give those definitions the force of law and often sneer at an arguably more democratic approach to defining terms through crowdsourcing on websites such as Wikipedia or Urban Dictionary.[xxx]

So, what role—if any—should dictionary definitions play in the justice system?

Given that most dictionaries, including crowd-sourced ones, are descriptive in nature, the definitions they contain are simply evidence of language usage, snapshots in time, and they should be treated as such. Thus, dictionary definitions should come into play only where there’s a factual question about how a word or phrase was used at a given time.[xxxi] Jurors should be encouraged to discuss the meaning of words and phrases that are not defined by court instructions and reach a common understanding. And appellate courts should limit themselves to the discussion of definitions appearing in the record. By using dictionary definitions to determine the legal import of words, appellate courts are transforming descriptive dictionaries into prescriptive ones—indicating what words should mean, rather than reflecting how they are actually used.

[i] James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 495 (2013) (“dictionary usage in the twenty-five years of the Rehnquist and early Roberts eras (October 1986 to June 2011) more than doubled the Court's total usage in the previous 186 years”).

[ii] See, e.g., Samuel A. Thumma; and Jeffrey L. Kirchmeier, The Lexicon Has Become A Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L. Rev. 227, 262–63 (1999); Nora Coon, 162 Years of Dictionary Use in the Oregon Appellate Courts, 55 Willamette L. Rev. 213 (2019); Brudney & Baum, supra note i.

[iii] See Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases, 35 A.L.R.4th 626, §§5(a), (b) (1985) (noting cases where a jury’s procurement or use of a dictionary—though generally error—was either prejudicial or not, depending upon circumstances).

[iv] How New Words Get Added To Dictionary.com—And How The Dictionary Works (May 12, 2023), available at: https://www.dictionary.com/e/getting-words-into-dictionaries/ (last accessed Aug. 6, 2023).

[v] Id.

[vi] Id.

[vii] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, available at: https://www.merriam-webster.com/grammar/descriptive-vs-prescriptive-defining-lexicography (last accessed Aug. 6, 2023). Whether “offensive” words should be included in dictionaries is its own subject of debate. See How New Words Get Added to Dictionary.com, supra note iv.

[viii] See Peter Martin, The Dictionary Wars, pg. 43 (Princeton University Press 2019). One judge described Webster’s Dictionary as “stupendous work, filled with inconceivable words and maxims and aphorisms,” before declaring, “No book should be consulted by a jury in arriving at a verdict, and especially one that defines and treats on everything expressed by the English language. No maker of dictionaries should ever be allowed to define legal terms to a jury, unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to a jury.” Corpus Christi St. & Interurban Ry. Co. v. Kjellberg, 185 S.W. 430, 432 (Tex. Civ. App.--San Antonio 1916), overruled by Travelers Ins. Co. v. Arnold, 378 S.W.2d 78 (Tex. Civ. App.--Dallas 1964).

[ix] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, supra note vii.

[x] How New Words Get Added to Dictionary.com, supra note iv.

[xi] In re Cory's Est., 169 N.W.2d 837, 845 (Iowa 1969). In a somewhat humorous event, one jury googled the phrase “common sense” because it was so heavily emphasized by counsel for both sides and the court. Gunera-Pastrana v. State, 137 Nev. 295, 299–300 (2021).

[xii] State v. Tinius, 527 N.W.2d 414, 417 (Iowa App. 1994) (internal citation omitted).

[xiii] People v. Karis, 46 Cal. 3d 612, 642 (1988). In a Washington case, the court noted a specific concern that arose with respect to the jury relying on Black’s Legal Dictionary—that the definitions provided therein frequently “contain[] legal premises not applicable to the facts of th[e] case, . . . which could . . . confuse[] or misle[a]d the jury.” Adkins v. Aluminum Co. of Am., 110 Wash. 2d 128, 138 (1988), clarified on denial of reconsideration, 756 P.2d 142 (Wash. 1988).

[xiv] In re Cory's Est., 169 N.W.2d at 846. See also Dawson v. Hummer, 649 N.E.2d 653, 665 n.3 (Ind. App. 4th Dist. 1995) (“terms within regular dictionaries are generally believed to be within the common knowledge of a jury”).

[xv] Teer v. State, 923 S.W.2d 11, 19 (Tex. Crim. App. 1996).

[xvi] Alvarez v. People, 653 P.2d 1127, 1134 (Colo. 1982) (en banc) (Rovira, J., concurring in part, dissenting in part).

[xvii] See id. (noting the seeming hypocrisy of appellate courts relying on dictionaries for ordinary terms but finding error when a jury does the same).

[xviii] The Indiana Court of Appeals noted a distinction “between referring to a dictionary in a factfinding setting for the purpose of judicially noticing the meaning of a word, on one hand, and consulting such a source upon appellate review to discern the meaning of a term for purposes of, for example, statutory construction.” Campbell v. Shelton, 727 N.E.2d 495, 501 (Ind. App. 2000). But the court failed to elaborate on what that distinction might be. It seems to be one without a difference, given that the purpose in both scenarios is the same: to apply the law to the set of facts before the jury to determine whether the conduct at issue falls within the statute’s coverage.

[xix] Werk v. Parker, 249 U.S. 130, 132–33 (1919) (holding that it was “clear, beyond question—that the [appellate] court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library”).

[xx] E.g., Fed. R. Evid. 201(b)(2); Ky. R. Evid. 201(b)(2); Ind. R. Evid. 201(a)(1)(B); Or. Rev. Stat. § 40.065(2).

[xxi] See, e.g., Stokes v. Com., 275 S.W.3d 185, 188 (Ky. 2008); Campbell, 727 N.E.2d at 501; In re Compen. of Calder, 157 Or. App. 224, 227 (Or. App. 1998). Though dictionaries are largely considered accurate, they are not above the occasional mistake. A well-known error is the word “dord.” Dord “was recorded in Webster’s Second in 1934 on page 1711, where it remained undetected for five years.” Herbert C. Morton, The Story of Webster’s Third, pg. 119 (Cambridge University Press 1994). But dord was a ghost-word. It was identified as meaning “density,” but, in fact, it was meant to be an abbreviation—“D or d”—for the term density. Id. But the entry was misdirected to the “word” department, rather than the “abbreviation” department, and thus became a word entry for a brief period of time. Id.

[xxii] This may be partially a copyright issue. See, e.g., Richards v. Merriam-Webster, No. 1:13-cv-13092-IT, memo. & order granting S.J. (Sept. 26, 2014), available at: https://casetext.com/case/richards-v-merriam-webster-inc-1 (last accessed Aug. 6, 2023).

[xxiii] See Thumma & Kirchmeier, supra note ii at 274–75 (identifying cases).

[xxiv] The Ninth Circuit suggested that, when “[q]uestions or disputes as to the meaning of terms . . . arise during jury deliberations[, they] should be settled by the court after consultation with counsel, in supplemental instructions. Such guidance will avoid the danger that jurors will use the dictionary to construct their own definitions of legal terms which do not accurately or fairly reflect applicable law.” U.S. v. Birges, 723 F.2d 666, 670–71 (9th Cir. 1984). This would also ensure that the appellate court applies the same interpretation of terms as the fact-finder.

[xxv] Thumma & Kirchmeier, supra note ii at 293-301.

[xxvi] Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 299 (1998). Congress has, however, legislated interpretation of certain words used in the statutes in the Dictionary Act. 1 U.S.C. §§ 1-8.

[xxvii] Aprill, supra note xxvi at 300.

[xxviii] Id. (quoting Jonathon Green, Chasing the Sun: Dictionary Makers and the Dictionaries They Made 16 (1996)).

[xxix] Aprill, supra note xxvi at 285.

[xxx] Jason C. Miller & Hannah B. Murray, Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites Is Appropriate, 84 St. John's L. Rev. 633, 639 (2010). On these crowdsourced websites, anyone may contribute and/or vote on the accuracy of information provided. Id. at 638, 654-55. And there is transparency with respect to the number of votes in favor and in opposition to definitions and various source material for information contributed. In State v. Rasabout, 356 P.3d 1258, 1281 (Utah 2015), Associate Chief Justice Lee suggested that, rather than rely on dictionary definitions, courts should consult the Corpus of Contemporary American Usage, “the largest freely available corpus of English, and the only large and balanced corpus of American English.” But this suggestion puts appellate judges in the shoes of lexicographers, a profession they are unlikely to be trained in, which seems even worse than relying on dictionary definitions that are created by trained, professional lexicographers.

[xxxi] For example, there is frequently a factual question as to the meaning of words or phrases in criminal matters, where slang or code is often used. Issues as to word usage and meaning also frequently arise in contract disputes.

August 8, 2023 in Appellate Practice | Permalink | Comments (0)

Sunday, July 30, 2023

Sometimes a Reply Brief Should Explore a New Path

Several times over the past couple of years, I agreed to join an appellate team in a case to help finish the reply brief and make the argument. Its not the optimal way to take on an appeal. Limited time, even when an extension is available and granted, may prevent mastering a complex record. The opening brief might pursue a theory or theories of the case that you find weak or contrary to precedent – and the responding brief may have exploited those flaws.

So why take on a potentially sinking ship? Perhaps you believe that the party whose team you have joined ought to prevail, or that you may help avoid setting a bad precedent. You may even have a theory of the case that you believe capable of prevailing that has gone unmentioned.

The biggest obstacle at that point to reorienting the case to a potentially winning argument is a reply brief should only respond to an opponent’s arguments and not launch new ones. New arguments raised for the first time in a reply brief are often forfeited and potentially waived. The terms forfeited and waived have different meanings for an appellate court. Forfeiture generally means a failure to make the timely assertion of a right or argument. Waiver means the intentional relinquishment or abandonment of a known right or argument.

Last year, an en banc majority of the Eleventh Circuit discussed the difference. The decision asserted that courts may “resurrect” forfeited issues when prudence suggests it is necessary.[1] Prudential practice may also dictate otherwise, the Court stated, but “the conditions under which we will excuse it are up to us as an appellate court.”[2] The Court thus claimed a great deal of unfettered discretion.

Counsel in the position of joining the team at the reply stage should provide the court with a basis to exercise that discretion by finding a way to shoehorn the argument into the reply. Often, I have found, the reply brief makes a point that provides an ideal jumping off point for the new legal theory. It may be the citation of a case that supports the theory, an opponent’s argument that opens the door to the theory as a response, or the responsive brief’s claim that the opening brief ignored a point that the trial court made. More often than not, when I have used that tactic, the appellate court has accepted it and found it dispositive. Even if you are not an eleventh-hour addition to a case, read the responsive brief for opportunities to explore a new theme that might beat the path to victory.

[1] United States v. Campbell, 26 F.4th 860, 872 (11th Cir.) (en banc) (citations omitted), cert. denied, 143 S. Ct. 95 (2022).

[2] Id.

July 30, 2023 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing | Permalink | Comments (0)

Saturday, July 15, 2023

Judge Michael’s Brief-Writing Tips, Part 1

One of my exciting (yes, really) summer projects is to help with a Legal Writing textbook, including drafting a chapter on trial briefs. In looking at state and local rules on what trial briefs should contain, I found a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.

On his chamber’s webpage, https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael, Judge Michael has a list of his “Policies and Procedures,” including a document called, Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf. Judge Michael is a respected and prolific author and speaker, and he’s even been on stage as a singer at Carnegie Hall, so I was not surprised to find his list of tips both engaging and fun. See generally https://www.law.com/clecenter/online-course-catalog/you-want-me-to-do-what-the-dilemma-of-trying-to-interpret-and-follow-appellate-precedent-6056/.

Of course, some of the judge’s tips are applicable to Bankruptcy Court and trial filings, but most apply well in appellate writing too. Therefore, I’m sharing all ten of his tips, although I’ve deleted points especially applicable to trial or bankruptcy practice.

Judge Michael begins:

I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing.

He cautions: “What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.”

For this post, I’ll highlight Tips One through Five, and next time, I’ll discuss Tips Six to Ten.

Tip 1. Remember, Your Goal Is to Persuade, Not to Argue. Judge Michael explains, “[w]e all have had people come up to us at cocktail parties or family reunions and say, “’You know, I would make a good lawyer because I just love to argue.”’ He says, those statements “could not be further from the truth [as g]uests on the Jerry Springer show argue [while] Lawyers persuade.” Thus, the judge reminds us the idea “behind an effective brief is to have the audience (the judge and/or the law clerk) read the brief and say to themselves, ‘“why are these parties fighting over such an obvious issue?”’ because the points are actually persuasive, and not just argumentative.

Tip 2. Know thy Audience. Judge Michael notes that most bankruptcy judges write and publish opinions, and some even provide links of those opinions on their webpages. While appellate judges do not necessarily provide links to their opinions, we can certainly search for them. As the judge explains, “[w]e publish those opinions in order to give you some idea of what we have done and why [and w]e try to be consistent.” Therefore, judges find it “extremely frustrating (and remember, a frustrated judge is not easily persuaded) to have counsel in either written or oral argument raise an issue and be completely ignorant of the fact that we decided that issue in a published opinion last week, last month or last year.” Moreover, not knowing what your panel previously decided “is also embarrassing, both for you and for us.”

Tip 3. Know thy Circuit. Sadly, Judge Michael has to remind us his court is “bound by published decisions of the United States Court of Appeals for the Tenth Circuit,” even though he “ know[s] this sounds obvious,” because “on more than one occasion, [he] had an attorney ask [him] to follow a decision from another circuit which is directly contrary to controlling Tenth Circuit authority.” Avoid “creative” arguments to use sister circuit cases when your circuit really has decided the issue.

Tip 4. Know the Facts of the Cases You Cite. When teaching first-year students, I often caution them not to take quotes from cases either out of context or without context. Judge Michael’s Tip 4 says we must resist the temptation to insert what seem to be “magic words” of these unconnected quotes into our briefs. According to the judge, “insert[ing] that quotation ([he] call[s] them “sound bites”) into your brief and say[ing], “see, judge, other courts agree with me so I must be right” is actually “a dangerous practice.” Why? Because courts “decide real disputes” and “[r]eal disputes are fact driven.” Thus, we must “[b]e wary of the case which is factually dissimilar to yours, but has a great sound bite.” Instead, we should “be sure” to explain “why the factually dissimilar case is applicable to your situation.”

In another point I often raise with first-year students, the judge reminds us to “be cognizant of the difference between the holding of a case and the dicta contained therein,” as “[m]ost judges (this one included) find little value in dicta unless we already agree with it.”

Tip 5. Shorter Is Better. When I was in appellate practice, my clients often asked me to ghost write “record-protecting” trial briefs or include weaker issues on appeal to preserve them for high court review. Deciding which issues might prevail one day and which you should exclude because they are weak is a truly lawyerly task. In each case, you will balance the needs of the client—especially an institutional client—to raise issues against the persuasive value of focusing on just the best arguments. Judge Michael suggests we balance on the side of fewer arguments. He states: “Thurgood Marshall once said that in all his years on the Supreme Court, every case came down to a single issue. If that is true, why do most briefs contain arguments covering virtually every conceivable issue (good, bad or indifferent) which could arise in the case”?

The judge explains, “[w]eak arguments detract from the entire presentation.” He offers this great advice: “If you feel compelled in a particular case to include everything including the kitchen sink, maybe you ought to take another look at settling the case.” Good advice, indeed.

Happy writing!

July 15, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, July 11, 2023

All I Need to Know About Flow I Learned from Pink

We’ve all read legal writing that is stilted and choppy. Though it may not affect the validity of the arguments made, it does make reading uncomfortable and detracts from the writer’s ethos. While short sentences come in handy when seeking to emphasize a point, using only short, choppy sentences can give the appearance of incapacity for complex thought[i]—not exactly the impression you want your reader to have.

The solution to choppiness is to increase flow. “Writing flow refers to the pace, cadence, or rhythm of a piece of writing.”[ii] And, though there are many ways to increase flow, dovetailing is an easy one to incorporate, and it has the added benefit of ensuring sound logic in your argument. Dovetailing gets its name from a carpentry joint with overlapping pieces shaped like—you guessed it—a dove’s tail. As a writing concept, dovetailing is “the overlap of language between two sentences that creates a bridge between those two sentences.”[iii] This overlap is accomplished by a combination of summation and repetition. And the musical artist Pink is a lyrical carpenter.

In her song “Try,” Pink uses the following dovetailed lyrics:

Why do we fall in love so easy,
even when it's not right?

Where there is desire, there is gonna be a flame.

Where there is a flame, someone’s bound to get burned.

But just because it burns doesn’t mean you’re gonna die.

You gotta get up and try, try, try.

First, she uses summation by replacing the broader concept of “fall[ing] in love so easy, even when it’s not right” with the single word “desire,” thereby connecting the two ideas. Then, she then uses lots of repetition to connect the lines in the chorus: flame/flame, burned/burns, you’re/you.

These tools also work well in legal writing to help build arguments and explain the writer’s reasoning. Consider the following example of summation, followed by repetition, from Bethel School District No. 403 v. Fraser, 478 U.S. 675, 681 (1986), where the Court held that the First Amendment did not protect lewd and indecent speech made on school grounds:

The role and purpose of the American public school system were well described by two historians, who stated: “[P]ublic education must prepare pupils for citizenship in the Republic.... It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” C. Beard & M. Beard, New Basic History of the United States 228 (1968). In Ambach v. Norwick, 441 U.S. 68, 76–77, 99 S.Ct. 1589, 1594, 60 L.Ed.2d 49 (1979), we echoed the essence of this statement of the objectives of public education as the “inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system.”

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students.

(Emphasis added.)

The Court first summarized the identified role and purpose of the public school system, along with its objectives, as the “fundamental values of ‘habits and manners of civility.’” It then repeated the phrase “fundamental values” to introduce a new concept—that consideration for the sensibilities of others must also be factored into the equation.

Here is another example from Fraser demonstrating repetition:

This Court's First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. In Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), this Court upheld a New York statute banning the sale of sexually oriented material to minors, even though the material in question was entitled to First Amendment protection with respect to adults. And in addressing the question whether the First Amendment places any limit on the authority of public schools to remove books from a public school library, all Members of the Court, otherwise sharply divided, acknowledged that the school board has the authority to remove books that are vulgar. Board of Education v. Pico, 457 U.S. 853, 871–872, 102 S.Ct. 2799, 2814–2815, 73 L.Ed.2d 435 (1982) (plurality opinion); id., at 879–881, 102 S.Ct., at 2814–2815 (BLACKMUN, J., concurring in part and in judgment); id., at 918–920, 102 S.Ct., at 2834–2835 (REHNQUIST, J., dissenting). These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children—especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech.

Fraser, 478 U.S. at 684 (emphasis added).

Notice how the first sentence ends with a reference to “sexually explicit” speech before an audience that “may include children,” and the second sentence begins by discussing a ban on the sale of “sexually oriented material to minors.” Though the wording is not a verbatim repetition, the ideas are the same—the legal implications of exposing youth to lewd material. The second sentence then ends with a reference to the First Amendment, noting how the same sales ban would be impermissible with respect to adults, while the third sentence begins with a reference to the First Amendment but ends in its application to children in public schools, thus emphasizing the distinction in the First Amendment’s application to youth and adults. The Court concludes that the overarching goal identified in the cases is “to protect children . . . from exposure to sexually explicit, indecent, or lewd speech.”

By using dovetailing, the Court was able to build the following argument: It is unquestionably permissible to restrict speech where children might be accidentally exposed to lewd material. Because accidental exposure may be regulated, it follows that intentional exposure through the sale of such material to youth may be regulated. Because intentional exposure of youth to lewd material by commercial transaction may be regulated, intentional provision of lewd material to youth free of cost may also be regulated. And, given that the First Amendment would likely prohibit the same regulations with respect to lewd material and adults, the common thread of these cases is to keep lewd material away from youth. In other words, the Court used dovetailing to establish the principle that the First Amendment does not protect the provision of lewd material to youth in any form.

By leading the reader each step of the way and connecting the links in the chain of reasoning through repetition and summation, the Court made its ultimate conclusion inescapable. Thus, dovetailing not only improves the flow of writing but also increases the persuasion of the writer’s argument and ensures sound reasoning.

Looking for more ways to increase your flow?

Consider using temporal words, such as “first,” “next,” “then,” and “later,” to orient your reader to time.
Vary your sentence length, using short sentences for emphasis.
Add in transition words such as “therefore,” “consequently,” or “accordingly” to help your reader draw connections between assertions.
Structure your paragraphs around topic sentences.

[i] Mark Damen, A Guide to Writing in History and Classics, available at https://www.usu.edu/markdamen/WritingGuide/05choppy.htm.

[ii]MasterClass, Writing Flow: How to Make Your Writing Flow, available at https://www.masterclass.com/articles/writing-flow.

[iii] Laurel Currie Oates and Anne Enquist, The Legal Writing Handbook: Practice Book, Ex. 23.1A (Aspen 4th ed. 2002).

July 11, 2023 in Appellate Practice, Legal Writing | Permalink | Comments (0)

Sunday, July 2, 2023

A Sur-Reply on Originalism

A Sur-Reply on Originalism

The debate on these pages teaches lessons about arguing appeals.

Most readers of this blog probably look for the practice tips and insights that are often discussed on this blog. Occasionally, though, contributors address more substantive content. Beyond the doctrinal discussions that the contributors believe inherently interesting, these debates provide practical lessons. The different approaches to argument and counterpoint also enable readers to assess the effectiveness of these different tactics.

Recently, three of us weighed in on the use of originalism as an interpretive methodology. We used support for our views from putative allies of the other side (e.g., Adam citing Justice Kagan and me citing James Madison and Justice Scalia), disputed whether examples used supported the claims made for them, employed rhetorical devices, suggested procedural flaws, and honed in on weaknesses in our opponents’ theory.

In his reply to the arguments that Phillip Seaver-Hall and I made, Professor Adam Lamparello, who started the debate, wrote a reply. I found his defense of his position too juicy to ignore.

A familiar debate tactic does not necessarily win the day when it assumes too much.

Adam starts with a truism – that it is easy to criticize and much harder to propose solutions, which is a standard debate tactic. He suggests that his critics have failed to propose an alternative to originalism and that undermines their stance. However, he assumes that the goal he seeks is either universally desired or achievable. While it is true that we generally agree that judges should not invent constitutional holdings as though a court were a rolling constitutional convention and instead show fidelity to text and principles, both Phillip and I argued that originalism does not produce the interpretative nirvana Adam seeks and is as prone to imprinting personal views on the Constitution as any other approach. I showed that the decisions he cited to show results different than a judge’s ideological predisposition did not qualify as originalist so that they did not support his point.

Moreover, I expressed my doubts that any methodology could cabin human preferences or biases and were instead subject to selective reliance on those historical artifacts that hit a responsive chord with our personal views. Even so, as the best we could do, I suggested that common-law methodologies were both constitutionally proper and useful, citing a 1992 book I wrote for West Publishing on the topic.

That methodology permits us to consider the text, the framers’ intent, the ratifiers’ understandings, our collective experience, and precedents to understand the wisdom of all who came before us, seeking to apply constitutional principles, and be a part of that cross-generational conversation of what free speech or due process means, anchored in the written words and underlying purposes of a constitution, as Chief Justice John Marshall said, “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”[1] That sentiment was cited and endorsed by the originalist decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] with the additional explanation that the Constitution’s fixed meaning still must be “appl[ied] to circumstances beyond those the Founders specifically anticipated.”[3]

Nor is a common-law methodology necessarily unbounded. Properly utilized, it employs generations of wisdom in applying law to controversies “to form a stable body of rules that not only determine immediate controversies but also guide future conduct,” as the late New York Chief Judge Judith Kaye explained.[4] She added, that to the extent it changes, it “grows incrementally, in restrained and principled fashion, to fit into a changing society.”[5]

That growth in sensible application, such as finding that schoolchildren do not shed their constitutional rights at the schoolhouse gate when public schools or the rights of children may never have been in the contemplation of those responsible for the First Amendment or even Fourteenth Amendment due process but still accords with our understanding of those rights throughout the ages. For me, this process seeks to remain faithful to the words and the document’s legitimacy as the written product of a democratic process, yet seeks to maintain its continued vitality by applying its commands and principles today to modern controversies not by whether those applications occurred at the time of ratification but with an understanding that that constitutional principles “have an iceberg quality, containing beneath their surface simplicity submerged complexities”[6] that may only be apparent when tested under a specific fact pattern.

Examples used must support the claim made.

Because he believes his debate opponents did not propose an alternative, Adam uses a straw man of “living constitutionalism,” to argue against it. Living constitutionalism is a loaded term, associated with the idea that the Constitution evolves to fit modern times and leaving judges with unbridled authority as though judges were solons employing their personal wisdom. He then works to knock down the legitimacy of “living constitutionalism.”

Treating Adam’s post as an argument against constitutional evolution through judicial decision, he uses a frequent tactic in arguments by showing how it produces bad results. Specifically, he attributes the decisions, unthinkable today, of Dred Scott v. Sandford,[7] and Korematsu v. United States,[8] to its use. He argues that both cases were policy decisions by a court not invested with policy authority, rather than interpretations of the Constitution as originally understood. I found that formulation curious because a reading of the two cases suggests that they were either originalist or textualist in nature.

In Dred Scott, Chief Justice Roger Taney wrote “[i]t is not the province of the court to decide the justice or injustice, of the laws” but to interpret the Constitution “according to its true intent and meaning when it was adopted.”[9] That sentence certainly sounds like the originalism Adam favors. Consistent with what the current Supreme Court has done to explore originalism, Taney concluded that black people “were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States,” because they were not considered citizens when the Constitution was adopted.[10] That sentence, fueling the decision, also sounds quite originalist. To overcome that position, we required a civil war and the adoption of the Thirteenth and Fourteenth Amendments.

His second example, Korematsu, might be deemed a textualist decision, rather than one based on “living constitutionalism.” The Court upheld the detestable internment of Japanese-Americans in that case, employing the same rationale it expressed a year earlier in upholding a wartime curfew applied to Japanese-Americans on the West Coast in Hirabayashi v. United States,[11] the Supreme Court reasoned that the

The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. … Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.[12]

The absence of an equal-protection declaration in the Fifth Amendment allowed the Court to treat the constitutional war powers as the proper focus of its analysis. That authority, which it thought would support a plenary curfew despite its burden on rights, would also supports a targeted curfew:

The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.[13]

Subsequently, in Korematsu, the Court echoed that explanation, stating that even though racial discrimination warrants “rigid scrutiny,” “[p]ressing public necessity may sometimes justify the existence of such restrictions; [even if,] racial antagonism never can.”[14] Once again, war necessity rather than racial discrimination, the Court believed, undergirded the abhorrent treatment of Japanese-Americans.

I’m hard-pressed to understand how originalism might have prevented this result. Originalism would not have read equal protection into the Fifth Amendment, nor would it have necessarily found applicable limits to Congress’s war powers. Certainly, when the Court soon afterwards read an equal protection strand into the Fifth Amendment, it did not engage in originalism to get there. It instead lodged it in the “American ideal of fairness” and precedent that established that equal protection for schoolchildren in the District of Columbia had to be protected just as the Court said for students in the States in the Fourteenth Amendment, was merely a “more explicit safeguard of prohibited unfairness than ‘due process of law,’” and, equally “unjustifiable” as a matter of due process.[15]

Conclusion

Adam initiated a fun debate, and I’m grateful to him for doing so and for the way in which it was conducted. We disagree, and we have our perspectives on what counts or doesn’t count. Readers now can reach their own conclusions, perhaps prompted to a perspective based on what we have said. And they can also judge for themselves how effective our different argument strategies were in the ways that we deployed them.

[1] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis in orig.).

[2] 142 S. Ct. 2111 (2022).

[3] Id. at 2132.

[4] Judith S. Kaye, State Courts at the Dawn of A New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 5 (1995).

[5] Id.

[6] Flast v. Cohen, 392 U.S. 83, 94 (1968).

[7] 60 U.S. 393 (1857), superseded by U.S. Const. amend. XIV (1868).

[8] 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[9] Dred Scott, 60 U.S. at 405.

[10] Id. at 407.

[11] 320 U.S. 81 (1943).

[12] Id. at 100 (citations omitted).

[13] Id. at 101.

[14] Korematsu, 323 U.S. at 216.

[15] Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

July 2, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, June 30, 2023

Summer Hallucinations, Plagiarism, and ChatGPT

Recently, I asked ChatGPT to write some poems about hallucinations. Why? In part, because it’s summer and I think watching ChatGPT create poems is fun. I also asked because I’ve been thinking about how to cover generative AI with my first-year students in the fall.

First, the fun. Here’s one poem ChatGPT wrote:

In realms where minds dance on fragile strings, Where perception waltzes and reality sings, There lie the realms of wild hallucinations, A kaleidoscope of bewildering sensations.

In the tapestry of swirling dreams, Illusions bloom, unraveling seams, Colors ignite, in vivid display, As sanity fades, in a twilight ballet.

Whispers of shadows tease the mind, Whimsical echoes, elusive to find, Figments morph and take their form, An enigmatic symphony, a tempestuous storm.

Phantoms parade through the labyrinth of thoughts, Phosphorescent specters, tangled in knots, They twirl and they twist, surreal and sublime, Guiding the lost to a place out of time.

Walls dissolve, unveiling hidden dimensions, Mirrored reflections, fragmented inventions, A fragile balance, fragile as glass, Where illusions and truths become enmeshed.

The boundaries blur, in a psychedelic trance, Reality's grip begins to wane and advance, Visions arise, transcending the known, A voyage into realms where reason is thrown.

Whispers turn to laughter, laughter to screams, In this realm, nothing is as it seems, A carnival of apparitions, a fevered reverie, An exploration of the mind's symphony.

But as the moon yields to the sun's gentle touch, The hallucinations fade, leaving little as such, A fading memory, a fleeting sensation, Lost in the haze of our imagination.

Yet, in the realms where hallucinations reside, A glimpse of the extraordinary may yet preside, Where the mind's kaleidoscope paints its own art, Unveiling mysteries, a journey to embark.

So let us wander, embrace the unknown, Where hallucinations thrive and fantasies are sown, For within these realms, as illusions unfold, The depths of our imagination are truly untold.

Hopefully, you enjoyed the poem as much as I did. But on a serious note, we know counsel who use ChatGPT run many risks, as the current free version of the generative AI program will “hallucinate” cases and statutes. Several of my fellow bloggers have posted great notes on the ethical pitfalls of using current free generative AI without checking its sources. Of course, we always had ethical obligations to check the work of our human staff, and of any brief-writing features we used from Lexis or Westlaw. Perhaps ChatGPT is so fun, easy, and free, that we’re more likely to rely on it without questioning its work. In any event, several courts have now issued standing orders reminding us of our ethical obligations.

For example, Judge Brantley Starr of the Northern District of Texas issued a standing order titled “Mandatory Certification Regarding Generative Artificial Intelligence” for “[a]ll attorneys and pro se litigants appearing before the Court.” https://www.txnd.uscourts.gov/judge/judge-brantley-starr; see also https://www.cbsnews.com/news/texas-judge-bans-chatgpt-court-filing/.

Judge Starr ordered that parties must, “together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.” Mandatory Cert. Order. The judge explained: “These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them.” Id. According to Judge Starr, these programs “in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations.” Id.

Judge Starr also exposed a more existential problem with these current generative AI programs, reasoning they are “[u]nbound by any sense of duty, honor, or justice,” and “act according to computer code rather than conviction, based on programming rather than principle.” Id. I plan to emphasize this point with my students, in hopes they will see a broader goal behind our rules on plagiarism and limits on generative AI.

I might also show my students what ChatGPT said when I asked it to write a poem about ChatGPT hallucinations in law:

In the realm of legal filings, precise and stern, Where facts and truth should always discern, There dwells a specter, an unwelcome guest, ChatGPT's hallucinations put to the test.

Within the code and circuits, a mind simulated, Words flow freely, but often miscalculated, In the realm of law, where clarity is key, ChatGPT's hallucinations become a liability.

For in the realm of justice, truth must prevail, But illusions dance, weaving a murky veil, False narratives concocted in the machine's mind, Threatening the integrity that we must find.

Legal filings, a battleground of truth's fight, Yet ChatGPT's hallucinations cast a blight, Misinterpretations, misconceptions arise, Distorting the facts before our very eyes.

Subtle nuances lost in a tangled web, As ChatGPT's hallucinations spread and ebb, Precision diluted, arguments distorted, The foundation of justice, slowly thwarted.

Where once we sought justice, a balanced scale, Now we grapple with the machine's tall tale, For ChatGPT's hallucinations, though mere illusions, Can lead to consequences, grave inclusions.

Thus, caution must prevail when machines take part, Their hallucinations tearing at the fabric of art, For in the realm of legal filings, we must tread, With vigilance and wisdom, ensuring truth is spread.

So let us harness technology's immense power, Yet remain mindful in this transformative hour, To temper ChatGPT's imaginative train, And keep its hallucinations bound, restrained.

For in the world of law, where justice resides, Hallucinations in filings should not coincide, Let truth be the guide, unwavering and clear, So justice may prevail, untouched by fear.

Happy summer!

June 30, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Web/Tech | Permalink | Comments (0)

Sunday, June 25, 2023

"We Are All Originalists": A Response to Robert Peck and Phillip Seaver-Hall

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

This post responds to Robert Peck and Phillip Seaver-Hall, two contributors to this blog. Before I respond, I would like to thank Robert and Phillip for responding to my post, and for a great discussion on constitutional interpretation. I respect but disagree with their views, and below I provide a brief summary of why originalism, albeit imperfect, is the best method of constitutional interpretation.

1. Robert and Phillip provide no credible alternative to originalism.

It’s easy to criticize and problematize. Whether it is a theory of constitutional interpretation, the flaws of implicit bias theory, or the discrimination against conservatives in the legal academy, anyone can identify flaws.

It’s harder to propose solutions.

So, what is the alternative to originalism? What interpretive theory do you support, and why? And why is that theory superior to originalism, particularly in adhering to the Constitution’s text, promoting democratic participation, and ensuring that citizens, not unelected judges, have an equal voice in determining the rights and laws under which they will be governed? In my view, Robert and Phillip’s critiques offer no alternative theory, or at least not in any great detail.

Regardless, the primary alternative – living constitutionalism – would be the cure that is worse than the disease. To be clear, in their responses, Robert and Phillip did not explicitly support living constitutionalism (or some variation thereof) but their arguments suggest that they embrace an interpretive method that at least prioritizes or at least includes elements consistent with living constitutionalism (e.g., considering contemporary values and attitudes, and relying on a provision’s underlying purposes). For example, Phillip states, “[w]hile the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.” That sounds like living constitutionalism.

Living constitutionalism, which, broadly speaking, states that the Constitution’s meaning evolves over time based on contemporary societal attitudes and circumstances that the Founders could not foresee, sounds nice, but the devil is in the details. At its core, living constitutionalism is a license for arbitrariness and subjectivity. What living constitutionalism really means is that judges can reach almost any outcome they want and for whatever reason they want. In short, it allows judges to drown in a sea of subjectivity. And when you are at sea in constitutional law, the result is often nine unelected judges imposing their policy views on an entire nation, where the Constitution’s text and the Founders’ understanding of that text becomes an afterthought – or an inconvenience.

Furthermore, living constitutionalism does not always lead to the equitable results that its opponents believe, and it often involves manipulating or ignoring the Constitution. Let’s look at some of the decisions that “living constitutionalism” produces. To begin with, Dred Scott v. Sandford and Korematsu v. United States, decisions that reasonable (and hopefully even unreasonable) people would find abhorrent, were decisions that “living constitutionalism” produced.[2] As Justice Gorsuch explains, “each [decision] depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.”[3]

And how can anyone forget the poster child for living constitutionalism – Griswold v. Connecticut – where the Court acknowledged implicitly that the Fourteenth Amendment’s text did not provide a basis to invalidate Connecticut’s law banning contraception.[4] Yet, the Court decided to ignore the text and, out of thin air, create invisible constitutional “penumbras” that emanate from the text like Linda Blair rose from her bed in The Exorcist, or like steam rises from a hot apple pie, and from which the Court – and only the Court – could identify unenumerated rights. As the Court traveled into these invisible penumbras to create a right to privacy, the Constitution, again, became an afterthought. To be clear, a prohibition on contraception is utterly ridiculous. But it was for the people of Connecticut to petition their legislators to change the law – or vote them out of office – not for the Court to intervene and invalidate a law by inventing “penumbras” that, despite how hard you look, are nowhere to be found in the Constitution.

After Griswold, and as living constitutionalism gained traction, it gave us Roe v. Wade, where the Court discovered, either in those penumbras or in the jungle room at Graceland, a right to abortion.[5] Likewise, in Roper v. Simmons, the justices suddenly discovered that it was unconstitutional to execute a minor.[6] Yet, in Washington v. Glucksberg, the Court decided that the Constitution did not protect the right to assisted suicide.[7] So, women can abort pregnancies, minors cannot be executed, and we cannot take our own lives when terminally ill. What in the Constitution gave the Court the right to decide these questions? Nothing. And it has created a mess of constitutional jurisprudence where the political affiliations of the justices, not the Constitution, sometimes determine the outcomes.

Living constitutionalism also fails to constrain judicial decision-making. For example, consider living constitutionalism in the Eighth Amendment context. Phillip states that the Eighth Amendment should prohibit punishments that the Founders would consider cruel and unusual and punishments that are inconsistent with evolving standards of decency. How, exactly, can one possibly define what punishment violates evolving standards of decency? What does that even mean? Imagine judges sitting in their chambers and contemplating, “Hmmm…does executing a child rapist violate evolving standards of decency?” What will guide that determination? Subjective values. And why should a justice on the Supreme Court have the right to impose those values on an entire nation? Your guess is as good as mine. Phillip provides one answer, stating, “one cannot determine what is "cruel" without engaging in a normative, moral analysis.” And that is the point – and the problem.

Likewise, in Kennedy v. Louisiana, the Court confronted the question of whether imposing the death penalty for raping a child under the age of twelve violated the Eighth Amendment. In a 5-4 decision, the Court answered in the affirmative, holding that executing a defendant for child rape was not consistent with “evolving standards of decency.”[8] Now, let’s assume that Robert, Phillip, and I had different views on whether imposing the death penalty for raping a child is consistent with “evolving standards of decency.”

Which view would be superior?

None of them.

After all, who am I to say that I know better than Robert or Phillip or have superior moral values such that I am more able to determine what violates evolving standards of decency?

Furthermore, I don’t think that citizens care what Robert, Phillip, or I think about this matter. I think they care about having the right to decide for themselves and have a voice in the democratic process. After all, this question, like the abortion question, depends largely on a person’s moral values. Thus, why should nine unelected and life-tenured judges decide this question, rather than the citizens of every state in this country? They shouldn’t. Living constitutionalism invites subjectivity, shows a lack of humility, and it enables morality to become the basis for judicial decision-making.

To be clear, I am pro-choice. I do not think that we should execute minors. I believe that laws against contraception are ridiculous. I support same-sex marriage. And I am neither conservative nor liberal. But, again, who cares what I think? Why should the Court be deciding these questions when the Constitution says nothing about them? As Chief Justice Roberts stated in Obergefell v. Hodges, “just who do we think we are?”[9]

Don’t be fooled. Advocates for living constitutionalism want the Court to reach outcomes that further their political agenda and thus reach what they believe are the “right” outcomes. But courts don’t exist to reach outcomes that you like, and if we base our view of the Court solely on whether the outcomes it reaches comport with our policy preferences – or what we perceive as the most just or moral outcome – then we are responsible for politicizing the Court and delegitimizing the rule of law.

Additionally, the process by which the Court makes decisions is critical to ensuring the Court’s legitimacy and ensuring that constitutional meaning does not change simply because its composition changes. Look no further than Dobbs v. Jackson Women’s Health, where the Court’s decision, although certainly defensible on originalist grounds, resulted, as a practical matter, from the fact that the Court’s composition had changed in a conservative direction.[10] So, for advocates of living constitutionalism, I am curious how they would feel about Amy Coney Barrett, Samuel Alito, and Clarence Thomas basing their decisions on subjective values. That is why living constitutionalism fails – it politicizes the judiciary. And it is why the text, and the Founders original understanding of what the text means, it vital to ensuring that judges do not venture into a sea of subjectivity (or any sea, for that matter), and that policy changes occur democratically.

Living constitutionalism is also elitist. You can often spot living constitutionalists from a mile away. It assumes that judges know better than the average citizen about what the ‘right’ outcome is in a particular case. That’s the point: living constitutionalism is about achieving an outcome that a small and elite group of justices prefer, and to reach those outcomes, they need to visit those invisible penumbras or create fictional doctrines like substantive due process. Judges don’t know better, and they don’t deserve that power.

At bottom, living constitutionalism assumes that, in the “heady days of the here and now,” the justices somehow know better, or are more enlightened, than their former colleagues, policymakers, or citizens.[11] It also assumes that, since contemporary society is more advanced and all-knowing in these heady days of the here and now, the results will always produce progressive, or more equitable, results. But who is to say (outside of obvious examples), what is progressive or regressive, and who is to say that living constitutionalism cannot result in what liberals would consider bad or regressive outcomes? If you doubt that, look no further than Dred Scott and Korematsu. And if you think that judges are more knowledgeable than they were a century ago, think again. Read Citizens United v. FEC, McCutcheon v. FEC, or Shelby County v. Holder, and you will see that the justices of today are no better or worse than the judges of yesterday.

Living constitutionalism also predicates constitutional meaning in substantial part on the purpose of a constitutional provision. But how can one know or define what the purpose of a provision is? And what if there are multiple or conflicting purposes? If so, how should these purposes be quantified, and which purpose should govern? Additionally, at which level of generality do you define a purpose because the broader the purpose, the less constrained the judge. For example, if a judge determines that the purpose of a constitutional provision is to protect “bodily autonomy,” or “liberty” then we are all in a lot of trouble. After all, what does “liberty” mean, and what principles exist to determine what “liberty” requires, and when restrictions on liberty violate the Constitution? For example, Justice Anthony Kennedy stated that “the Constitution promises liberty to all within its reach?”[12] What does that mean? It means nothing – and it gives judges the power to do anything they want in the name of “liberty.” As Justice Scalia stated, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”[13]

Indeed, consider the “sweet mystery of life” passage, where the Court stated, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life?”[14] If that’s true, why is the Court defining liberty (and autonomy) for everyone in cases such as Roe, yet holding in Washington v. Glucksberg that the right to “define one’s own concept of existence” does not include a right to assisted suicide, and in Dobbs, reversing Roe? Because the composition of the Court, not the Constitution, changed, and because its jurisprudence had strayed so far from the text that subjectivity and morality was the primary driving force underlying those decisions.

Living constitutionalism is nice when most of the justices align with your political views, but it’s not so nice when they do not. Think about Roe and Dobbs: in Roe, the Court discovered in the Constitution (or its “penumbras”) a right to terminate a pregnancy but then, nearly fifty years later in Dobbs, suddenly determined that the Constitution didn’t protect a right to abortion. What exactly changed in the “heady days of the here and now?” The fact that Justices Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch were on the Court.

This is not, of course, to say that originalism is perfect, or that judges don’t use originalism to reach outcomes that coincide with their policy predilections. And to the extent that bad judges use originalism to further a conservative agenda – which some do – they are equally blameworthy. As stated above, the Court is not here to reach outcomes that you like – and no one who believes in democratic self-governance should believe that nine unelected and life-tenured justices know more than anyone else about the “mysteries of human life.” Again, as Chief Justice Roberts stated, “just who do we think we are?”[15]

Importantly, however, can’t the same criticism be made against originalism, namely, that it advances the political preferences of conservative justices? Of course. But that, as stated above, is a product of bad judging, not of originalism itself. And originalists often reach outcomes that do not coincide with their policy preferences. Consider, for example, Justice Scalia’s Fourth Amendment and Confrontation Clause jurisprudence. Is that ‘conservative’? Is it a conservative result to decide that the First Amendment protects the burning of the American flag, a decision in which Scalia joined the majority but stated in an interview that he would outlaw it if he were a legislator? No. In other words, Justice Scalia’s political views didn’t always or even often dictate his judicial philosophy. The same is true for Justice Gorsuch, who stated as follows:

In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.[16]

Ultimately, if the process of decision-making results from creating invisible “penumbras,” to reach predetermined outcomes, then judging is no different from legislating. And that should trouble people of any political persuasion.

Indeed, for a “living constitutionalist” who lives, rents, or leases space in Griswold’s penumbras, believes in the fairy tale called “substantive due process,” and thinks that liberty encompasses the “right to define one’s own concept of existence ... and of the mystery of human life,” what constrains their decision-making?[17] Surely, it can’t be the text. Surely, it can’t be history and tradition. Certainly, it can’t be precedent, since stare decisis is akin to the toxic, on-again, off-again relationship that you pursue only when convenient. And most certainly, it cannot be “purpose,” as the purpose of a constitutional provision can be divined at any level of generality that allows you to do whatever you want, whenever you want, and for whatever reason you want.

Put simply, politics and policy preferences have no place in the Supreme Court. Living constitutionalism, however, puts those preferences at the forefront rather than in the rear-view mirror.

2. Constitutional ambiguity, Clinton v. New York, and deference.

What should the Court do when it confronts constitutional ambiguity? How should originalists and living constitutionalists address this problem? Robert and Phillip provide no satisfactory answer. But it appears that they would not object to the Court intervening to decide questions where the Constitution’s text is ambiguous. I do object. In such instances, the Court should defer to the coordinate branches and the democratic process.

Many scholars will, of course, cite Marbury v. Madison, a case that did not do nearly as much as living constitutionalists might claim, to support the proposition that the Court has the right and duty to clarify constitutional ambiguity.[18] Marbury stands for the proposition that the judiciary has the power to say, “what the law is,” although it’s difficult to know what that statement exactly means. Regardless, does Marbury say that the Court has the power to say what the law should be, and even if it did, is there a legitimate justification for intervening in constitutional disputes when the text is ambiguous and reasonable people could arrive at different conclusions? No.

In such circumstances, the Court should do nothing. The Court’s decision in Clinton v. New York is among the best and rarely discussed examples of where the Court intervened when the Constitution was ambiguous, and when it should have deferred to the coordinate branches.[19] In Clinton, Congress passed the Line-Item Veto Act of 1996, which, among other things, gave the president the right to veto specific provisions in spending bills. The bill was passed by both houses of Congress and, after its constitutionality was challenged, the issue before the Court was whether the legislation violated the Presentment Clause.[20] Now, the text of the Presentment Clause is sufficiently broad that reasonable persons could differ on whether it rendered the Act unconstitutional. Thus, why did the Court intervene and, in a 6-3 decision, invalidate legislation that would have likely reduced wasteful government spending? I have no idea. The same was true in District of Columbia v. Heller, where the Court invalidated a law in the District of Columbia requiring, among other things, that certain guns be unloaded and disassembled in the home.[21] The Second Amendment did not clearly answer the question of whether the law was constitutional. As such, the Court – and its originalists – should have deferred to the District of Columbia’s lawmakers.

Put simply, if reasonable people can interpret a constitutional provision differently, why should nine unelected justices decide that question for an entire nation? Again, your guess is as good as mine.

Now, Phillip claims that this approach suggests that I support “a shockingly limited perception of the proper role of the judiciary,” that’s “entirely atextual” and that I am inventing “constitutional rules out of thin air.” I do support a more limited judicial role, but I don’t find it shocking. Where does the text support Phillip’s approach? I respectfully suggest that, as the commentator below argues, living constitutionalism is entirely inconsistent with what the Founders expected:

America’s contemporary understanding of judicial power is inconsistent with the argument put forward by Hamilton and Madison in The Federalist. Although The Federalist affirms the power of judicial review—and hence the role of the judiciary as a check on the other branches—it does not present this as the most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as including a power to decide the great moral issues of the times and to adjust the Constitution to trends in public opinion. Finally, The Federalist lends no aid to the belief that the Supreme Court is the ultimate interpreter of constitutional meaning, unanswerable for its interpretations to any authority but itself.[22]

Indeed, the view that courts should be the final or primary arbiters of constitutional meaning, particularly concerning moral questions, reflects the desire to use the Court to advance a political agenda:

Although the courts have always held a key place in our constitutional system, this very lofty conception of their authority has largely arisen over the past several decades. The rise of this view can be traced in part to the influence of modern liberalism, which has used the courts as instruments of social and political change and has accordingly had to bolster the authority of the judiciary.[23]

This passage, among many others, doesn’t support the argument that I am inventing constitutional rules out of thin air. If I wanted to do that, I could have entered Griswold’s penumbras with nothing but my moral compass to guide the way. Ultimately, since the outcomes for which living constitutionalists advocate “are not clearly required by the text of the Constitution—or, in the case of affirmative action, may even be in tension with it—the Left has had to argue for a more free-wheeling kind of judicial review.”[24] A “free-wheeling kind of judicial review” is precisely what Griswold and Roe embrace, and reflect what is antithetical to a country committed to democracy. As Professor Holloway explains:

The Federalist’s account of the judicial power is more consistent with the dignity of the American people as the country’s sovereign because it ensures that, although their will can be checked by courts defending the clear and settled meaning of the Constitution, it cannot be subordinated to the will of judges who make the Constitution mean what they want it to mean in order to secure outcomes that they regard as just.[25]

Importantly, when the Court gets involved in deciding disputes where the Constitution is ambiguous (and living constitutionalists and originalists are equally to blame) it often harms democratic participation and efforts to improve democratic governance. For example, in Citizens United v. FEC and McCutcheon v. FEC, the Court invalidated limits on independent expenditures by groups, including corporations, and individuals that Congress passed to, among other things, reduce the undue influence of money in elections.[26] Why? As the Court held in Austin v. Michigan Chamber of Commerce, the First Amendment could arguably be interpreted to allow such limitations.[27] At the very least, alternative interpretations of the First Amendment were possible. As such, the Court should have deferred to the coordinate branches.

Likewise, in National Federation of Independent Investors v. Sebelius, did the Affordable Care Act’s individual mandate (and its other provisions) violate the Commerce Clause?[28] Again, who knows. The Court should have never intervened, and Chief Justice Roberts likely upheld the mandate, at least in part, because he didn’t want the Court to be perceived as invalidating a statute that did not clearly violate a constitutional provision. The problem is that, in Shelby County v. Holder, Roberts wrote a majority opinion that overturned portions of the Voting Rights Act that the Senate had re-authorized by a 99-0 vote.[29] Why?

What does all of this have to do with originalism? In other words, between originalism and living constitutionalism, which theory is better when the Court is faced with constitutional ambiguity?

Originalism.

Although originalism is not perfect and cannot answer every constitutional question, and although there are certainly bad judges who use originalism to reach specific outcomes, it requires judges to at least try to identify what the Founders intended the words to mean, and to base their decisions on a reasonable interpretation of the text. That reduces the influence of subjective values on judicial decision-making. If you disagree, look no further than Griswold’s penumbras, the “sweet mystery of life” passage, and “substantive” due process – all of which can be attributed to living constitutionalism – and which allow the Court to create unenumerated rights that have nothing to do with the Constitution.

The less power the courts have, the better. Originalism lends support to the basic proposition that citizens should stop looking to the Court to impose policy on an entire nation. Change occurs through the legislative process.

Erwin Chemerinsky, who is among the most influential legal scholars in the country (and a wonderful person), recently wrote an outstanding book titled: Originalism: Worse than Nothing. The Dangerous Fallacy of Originalism.[30] For the reasons stated above, living constitutionalism, not originalism, is worse than nothing because, at bottom, living constitutionalism is nothing.[31]

After all, there is a reason why, as Justice Kagan stated, “we are all originalists.”[32]

[2] See Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[3] Id.

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

[5] 410 U.S. 113 (1973)

[6] 543 U.S. 551 (2005).

[7] 521 U.S. 702 (1997).

[8] 554 U.S. 407 (2008).

[9] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[10] 597 U.S. , 2022 WL 2276808.

[11] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[12] Id.

[13] Id. (Scalia, J., dissenting).

[14] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[15] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[16] See Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[17] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[18] 5 U.S. 137 (1803).

[19] 524 U.S. 417 (1998).

[20] Id.

[21] 554 U.S. 570 (2008).

[22] Carson Holloway, Against Judicial Supremacy: The Founders and the Limits on the Courts (January 25, 2019), available at: Against Judicial Supremacy: The Founders and the Limits on the Courts | The Heritage Foundation

[23] Id.

[24] Id.

[25] Id.

[26] 558 U.S. 310 (2010); 572 U.S. 185 (2014).

[27] 494 U.S. 652 (1990).

[28] 567 U.S. 519 (2012).

[29] 570 U.S. 529 (2013).

[30] Yale University Pres, 2022.

[31] See Adam Carrington, Erwin Chemerinsky’s Weak Critique of Originalism (September 18, 2022), available at: Erwin Chemerinsky’s Weak Critique of Originalism - The American Spectator | USA News and Politics.

[32] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com) (emphasis added).

June 25, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Tuesday, June 20, 2023

Originalism's Frailties: A Reply to Professor Lamparello

By Philip Seaver-Hall

Last week, Professor Lamparello argued on this blog that "originalism, although not perfect, is the best method of constitutional interpretation." I'm skeptical.

Admittedly, in the vacuum of political theory, originalism has a certain elegance and persuasive force. The Framers created a system of separated powers, originalists reason. Congress makes law; the judiciary merely interprets it. Any interpretive theory that permits unelected judges to change the meaning of a law is dangerous and anti-democratic. Thus, to curtail judicial legislation, originalists say that judges should endeavor to discover and preserve the meaning the Constitution's words bore at the time of ratification. After all, the law is the law, until lawfully changed under Article V.

I happily concede these points. (What serious constitutional lawyer would dare disagree with these basic principles of political science?) But they're not the whole story.

In this essay, I hope to show why a rigid, singular focus on original public meaning is a shortsighted way of interpreting many of the Constitution's provisions. In Part I, I discuss serious reasons to doubt the idea that the Framers actually believed in originalism as an interpretive theory. In Part II, I dissect Professor Lamparello's "ideal approach" to constitutional interpretation, highlighting its practical shortcomings and its lack of textual or historical support. And in Part III, I interrogate Professor Lamparello’s claim that originalism most effectively constrains judges.

I. Originalists bear the burden of proving that originalism was, in fact, the original intent of the Framers. But on that score, there is serious reason for doubt.

Originalism's focus on the Framers' intent raises a threshold question: did the Framers actually believe in originalism? Whether viewed through the lens of "New Originalism" (which eschews extratextual sources, focusing only on the original public meaning of the document's text) or "Traditional Originalism" (which focuses on the drafters' subjective intent), there are serious reasons to doubt that the Framers would have actually endorsed the theory.

A. The Constitution's text, structure, and purpose all cast doubt on the idea that the Framers would have preferred originalist judges.

In interpreting the Constitution, we must start with its text.[1] To be sure, the text is frequently clear and free from ambiguity--nobody could seriously argue, for example, that Article I allows a state to elect three senators[2]--and when the text is clear, the inquiry ceases. But the text also contains many provisions with broad, normative language. Take, for example, the Constitution's guarantee of "equal protection of the laws,"[3] its prohibition of "cruel and unusual punishments,"[4] or its clause forbidding "unreasonable searches and seizures."[5] It's no coincidence that many of these nebulous, normative words are found within the Constitution's substantive guarantees.

Why would the Framers purposefully choose such ambiguous, value-based language? First, it was politically savvy, since it provided a way to quell the local concerns that presumably would have arisen during the states' ratification debates. But more importantly, the Framers wanted their document to have staying power. This is expressly confirmed by the Constitution's Preamble--which, originalists should agree, is a proper source of clarification in the face of textual ambiguity[6]--where it states that one of the Constitution's core purposes is "to secure the Blessings of Liberty to ourselves and our Posterity."[7]

Let's pause here to nip a possible misapprehension in the bud. Readers may presume I'm arguing for a Constitution whose fundamental meaning changes over time. Not so. The meaning of the Constitution's words doesn't change; I do not argue, for example, that "equal protection" should be redefined to sanction unequal insecurity. But, as mentioned, the Constitution frequently uses ambiguous, normative language. While the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.[8] That's a key difference.

Consider, for example, the Fourteenth Amendment's Equal Protection Clause. Few historians would argue that the Equal Protection Clause was intended to apply to women; conventional wisdom holds that the Reconstruction Amendments were principally aimed at combating racial prejudice against Black citizens.[9] Indeed, in 1868, no state had an operative women's suffrage law,[10] and coverture still held a grip on American gender relations.[11] And yet, the Amendment's words are plain: no State may "deny to any person within its jurisdiction the equal protection of the laws." While women might not have been considered "persons" deserving of "equal protection" in 1868, our attitudes and prejudices on that front have changed. For that reason, the Supreme Court correctly held in Reed v. Reed[12] that the Equal Protection Clause applies to women. Critically, the meaning of the Equal Protection Clause didn't change; the Court did not hold, for example, that the Clause no longer applied to Black citizens. Our understanding of what the Equal Protection Clause tells us to look for, however, evolved.

Would an originalist, focused solely on the ratifying generation's understanding of the Fourteenth Amendment's text, reach the Reed Court's conclusion? I have my doubts.

Eighth Amendment jurisprudence provides a contrary example—one where the Court has wrongly changed the standard. The Eighth Amendment forbids "cruel and unusual punishments."[13] But one cannot determine what is "cruel" without engaging in a normative, moral analysis.[14] For this reason, the U.S. Supreme Court has correctly concluded that a punishment is unconstitutionally cruel if it is considered cruel in light of the "evolving standards of decency that mark the progress of a maturing society."[15] But, critically, the Court has also held—wrongly, I contend—that the Eighth Amendment does not draw any meaning from “the standards that prevailed . . . when the Bill of Rights was adopted[.]”[16]

The more proper reading of the Cruel and Unusual Punishments Clause would hold that it prohibits both (1) punishments that would have been considered cruel and unusual in the founding era and (2) punishments that are cruel and unusual under our maturing society’s evolving standards of decency. Had the Court not discarded history, this "evolving standards of decency" test wouldn’t have changed the meaning of the phrase "cruel and unusual" at all; it would have given full effect to the phrase by recognizing that it’s both descriptive and normative.

Undeniably, originalists make many good points. But too often, by refusing to look past the "original public meaning" of a constitutional provision, originalists unduly constrict (and therefore change) the Constitution's normative language. In doing so, originalists commit the same sin they swear to disavow.

B. The historical record, too, casts doubt on the idea that the Framers would have approved of originalism.

Originalists insist that New Originalism was actually the authoritative American method of legal interpretation until the mid-twentieth century, when Chief Justice Earl Warren took the bench.[17] But here again, history renders that claim dubious.

Take, for example, William Blackstone, who most scholars consider the authoritative expositor of the common law. Justice Scalia has famously called Blackstone a "thoroughgoing originalist."[18] Yet, in his Commentaries on the Law of England, Blackstone said that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law."[19] Blackstone also said that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it."[20] That's hardly the stuff of modern-day originalism.

Consider, also, Chief Justice Marshall. In Cohens v. Virginia,[21] Marshall asked rhetorically whether "the spirit of the constitution" would justify Virginia's exempting itself from the federal constitution.[22] And in McCulloch v. Maryland,[23] Marshall said that "all means which are . . . not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."[24] Admittedly, Marshall also argued--as I do--that although "the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words."[25] But the fact remains: Marshall was far from the rigid originalist many claim.

Thomas Jefferson provides another example. Concededly, Jefferson was in Paris during the summer of 1787, so his views on the Constitution cannot be considered controlling. But, as a leading figure of the founding generation, and James Madison's friend and mentor, his insight into the Constitution is undeniably relevant. Jefferson wrote this to Samuel Kercheval in 1816:

Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.[26]

All this is not to say that contrary evidence tending to support originalism can't be found. It certainly can. But that's precisely the point: the historical record from the Founding generation is hardly as one-sided as originalists claim.

II. Professor Lamparello's "ideal" conception of originalism requires revising the constitutional text he claims to venerate.

Most of Professor Lamparello's essay presents garden-variety originalist arguments. But one downright surprising argument comes near the end, where he says that whenever a law is challenged under a constitutional provision reasonably susceptible of two or more interpretations--for example, the "cruel and unusual punishments" clause--"the ideal approach would be for the Court to defer to the coordinate branches" and uphold the law's constitutionality.

That argument reflects a shockingly limited perception of the proper role of the judiciary--one that's entirely atextual. The drafters easily could have written, for example, that "no act of Congress may be struck down as violative of the provisions of this Constitution, unless the act's unconstitutionality be clear and free from doubt." But, as Hamilton pointed out in The Federalist No. 78, the drafters said no such thing:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.[27]

For someone so concerned about judicial legislation, it is certainly odd for Professor Lamparello to invent constitutional rules out of thin air. And for someone so focused on the original public meaning of the Constitution, it is equally odd to advocate for an interpretive theory that faces such directly countervailing historical evidence.

Professor Lamparello's theory is also impractical and ahistorical. James Madison, the Father of the Constitution, pitched the Bill of Rights as a document that would make judges "guardians" of individual rights, just like Hamilton did in the passage excerpted above.[28] But if judges could only strike down a law when no reasonable person could defend the law's constitutionality, then how could the judiciary effectively guard citizens' rights in the ordinary case? After all, in what case can't one think of reasonable, good-faith arguments on both sides of a constitutional issue? If the Framers actually intended the judiciary to defer to the political branches whenever presented with two plausible, competing arguments, then why include these constitutional prescriptions in the first place? Wouldn't it be easier to simply say nothing and let the states legislate as they see fit?

III. Originalism, while theoretically attractive, does a poor job of constraining judges.

Originalism hails itself as the best way to constrain judges. Critics have long questioned that claim, too.

To see why, consider District of Columbia v. Heller.[29] In Heller, both the majority and dissenting opinions cited historical evidence supporting their constitutional interpretation of the Second Amendment. Fourth Circuit Judge J. Harvie Wilkinson III has argued that, given the murky historical record in Heller, the Court should have stayed its hand and declined to strike down the District of Columbia's handgun prohibition.[30] And as Judge Posner has noted, Judge Wilkinson's argument finds support from an unlikely source: Justice Scalia's treatise on legal interpretation.[31] In the Foreword of Justice Scalia's treatise, Judge Easterbrook says this:

Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably. . . . [When that happens, the courts should] declare that meaning has been lost, so that the living political community must choose.[32]

This is a version of the judicial-restraint principle for which Professor Lamparello, Justice Scalia, and other originalists advocate. In Heller, Justice Scalia's reading of the Second Amendment's history was likely erroneous.[33] But even if the history is mixed, that should have led Justice Scalia to conclude that the relevant meaning had been "lost to the passage of time" and to entrust the answer to the living political community.[34] The "living political community" in Heller was the District of Columbia legislature. But, far from exercising the democratic "deference" Professor Lamparello advocates, the Court struck down the District of Columbia's gun-ownership prohibition.

And historical questions plagued more than just the Heller majority's holding. In a dictum, the Court explained the contours of the right it recognized:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[35]

As Professor Reva Siegel has persuasively argued, there is little historical evidence supporting this passage, and it actually contradicts the Second Amendment's textually enunciated purposes.[36] "In these passages," Professor Siegel concludes, "Justice Scalia seems to apply something other than an original 'public understanding' analysis."[37]

United States v. Eichman[38] provides another example of how originalism fails to constrain judges. In Eichman, Justice Scalia voted to strike down a federal statute outlawing the burning of the American flag.[39] To Scalia's credit, it was a vote against his political predilections. But it was certainly an odd ruling for an originalist. The governing constitutional provision--"Congress shall make no law . . . abridging the freedom of speech"[40]--says nothing about non-verbal forms of protest. And the eighteenth-century conception of the speech right was much narrower than our modern understanding. According to Blackstone, at common law, freedom of speech only forbade prior restraints on speech; it did not prohibit after-the-fact punishment of speech determined to be blasphemous, obscene, or seditious.[41] Thus, a First Amendment that bans prohibitions on flag burning is decidedly unoriginalist.

Apparently anticipating the objection raised in this Part, Professor Lamparello preemptively defends his position by arguing that "in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences. However, that reflects bad judging, not problems with originalism per se." Is the truth so conveniently simple? Can we really shrug off as "bad judging" the remarkable methodological elasticity of originalism's leading champion? Or is it possible that the problem lies deeper below the surface?

* * *

To be sure, no theory of constitutional interpretation is perfect. But the manifold problems with originalism--too many to detail exhaustively in this short essay—lead me to question whether, as Professor Lamparello insists, originalism is the best we can do.

[1] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008).

[2] See U.S. Const. art. I, § 3, cl. 1.

[3] U.S. Const. amend. XIV, § 1.

[4] U.S. Const. amend. VIII.

[5] U.S. Const. amend. IV.

[6] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217 (1st ed. 2012) (hereinafter “Scalia & Garner, Reading Law) (approving of interpretive canon providing that “[a] preamble . . . is a permissible indicator of meaning”).

[7] U.S. Const. pmbl. (emphasis added).

[8] See also Furman v. Ga., 408 U.S. 238, 382 (1972) (reasoning that “[t]he standard itself remains the same, but its applicability must change as the basic mores of society change”).

[9] See, e.g., Slaughter-House Cases, 83 U.S. 36, 81 (1873).

[10] Women’s Suffrage in the U.S. by State, https://tag.rutgers.edu/wp-content/uploads/2014/05/suffrage-by-state.pdf (last visited June 20, 2023).

[11] Encyclopedia Britannica, Coverture, https://www.britannica.com/topic/coverture (noting that “[c]overture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s”).

[12] 404 U.S. 71 (1971).

[13] U.S. Const. amend. VIII.

[14] Kennedy v. La., 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382).

[15] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[16] Atkins v. Va., 536 U.S. 304, 311 (2002).

[17] Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism (hereinafter “Posner, Incoherence”).

[18] Id.

[19] Id.

[20] Id.

[21] 19 U.S. 264 (1821).

[22] Id. at 383.

[23] 17 U.S. 316 (1819).

[24] Id. at 421 (emphasis added).

[25] Sturges v. Crowninshield, 17 U.S. 122, 202 (1819).

[26] Jefferson Quotes & Family Letters, https://tjrs.monticello.org/letter/1384 (last visited June 20, 2023).

[27] The Federalist No. 78 (Alexander Hamilton).

[28] The Bill of Rights: Its History & Significance, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html (last visited June 20, 2023).

[29] 554 U.S. 570 (2008).

[30] Posner, Incoherence.

[31] Id.

[32] Scalia & Garner, Reading Law at xxv.

[33] Posner, Incoherence (noting that “most professional historians reject the historical analysis in Scalia’s opinion”).

[34] Scalia & Garner, Reading Law at xxv.

[35] Heller, 554 U.S. at 626-27.

[36] See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[37] Id. at 200.

[38] 496 U.S. 310 (1990).

[39] Id. at 312.

[40] U.S. Const. amend. I.

[41] Posner, Incoherence.

June 20, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Religion, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Court opinions are more than soundbites

By Lance Caughfield

Like many of you, I read the Supreme Court’s recent decision in National Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023) very carefully. Not just because the dormant commerce clause is cool, but because the various opinions offer an interesting insight into how the justices are aligning and thinking on different issues.

One comment in the majority opinion stood out to me as being particularly important. The Petitioners (and some courts) had read the language of prior Supreme Court cases very closely, and concluded that they had created an “almost per se rule” that a state law, neutral on its face, violates the dormant commerce clause “if the ‘practical effect’ of the law is to control” out-of-state prices. Ross, 143 S.Ct. at 1155 (quoting Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 583 (1986)).

The language of those cases was properly quoted by the Petitioners. However, Justice Gorsuch reminded us that “[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Id. (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). Instead, he continued, our courts decide “cases and controversies,” and their opinions must be read with a careful eye towards context. Id.

This distinction was aptly summarized by the Ninth Circuit a few years ago: “Stare decisis is the policy of the court to stand by precedent . . . . [T]he word ‘decisis’ . . . means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not ‘to stand by or keep to what was said.’” In re Osborne, 76 F.3d 306, 309 (9th Cir. 1996). Using this principle, the court was able to determine an issue when there were prior cases with directly conflicting language, by looking at what those cases did.

So, we are supposed to read opinions like opinions – they apply the law to specific cases, and all we can conclude is that in that particular case, the law has a given result. The rest is Socratic – we move the goalpost a bit, analyze the legal principles under changed facts, and argue that these facts should have a result favorable to our client under the stated principles, while our opponent tests that reasoning, and the court tries to find the best answer.

Why, then, do we focus so much on quotes and soundbites? Well, for one thing, it is easier. But that is too simple of an answer.

There are actually several reasons why we are susceptible to soundbites. See Judith M. Stinson, Why Dicta Becomes Holding and Why it Matters, 76 Brook. L. Rev. 219 (2010). As Professor Stinson suggests, electronic research means we focus in on specific words and phrases in our research, which then supports their usage in our reasoning. The rise of the use of law clerks may also impact the court’s focus on words. Changes to citation rules encourage soundbites and quotes. And our culture is increasingly a “meme” based culture, relying on quick soundbites to convey ideas.

Whatever got us here, Ross is a good reminder that finding that right quote doesn’t mean you’ve found the right law. We have to parse through, carefully, what the courts have done in a particular situation, not just the words they have used.

This isn’t a job AI (currently) can do. AI will find (or generate) the soundbite, but it can easily miss the holding. It takes a lawyer to reason through the facts and suggest how they should apply in a given case or controversy. If you just rely on soundbites, you might miss the decisis for the dicta.

(image credit: Honoré Daumier, A travers les ateliers, 1862).

June 20, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, June 18, 2023

Originalism, Not What It’s Cracked Up to Be

The quest for an interpretative construct that would produce principled decisions in construing the Constitution is an impossible dream, a chimera presuming that there lies a single best answer. The search for a singular approach that answers all questions seeks to implement what Justice Brandeis once described as the appropriate approach to the judicial enterprise: “we must be ever on our guard, lest we erect our prejudices into legal principles.”[1] Those engaged in the debate about various schools of interpretation latch onto one or another theory and often claim that it, above all others, reads the Constitution correctly. Yet, in the end, no theory can prevent us from imbuing our constitutional constructions with the biases and the limitations on knowledge that draw us to a particular result, just as history’s meaning is read differently throughout the ages.

Last week, a colleague on this blog claimed that originalism provided the best approach to interpreting the Constitution. In his post, Adam Lamparello argues that “originalism, although not perfect, is the best method of constitutional interpretation.” This dubious proposition operates under the assumption that the Framers shared a consistent view of what the Constitution meant, even when applied to situations they never could have imagined. And it erroneously presumes that the Framers’ collective views are knowable and, if consulted, leads to valid conclusions capable of avoiding either judicial adventurism or the reading of modern values into the Constitution. Experience teaches otherwise.

Originalism is no less outcome-oriented than any other theory of construction.

The “originalist” decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] like its building-block predecessor, District of Columbia v. Heller,[3] demonstrates that originalism does nothing more to prevent results-driven decision-making than the approach taken by the Queen of Hearts in Alice-in-Wonderland when she demands “Sentence first–verdict afterward.”[4] Bruen’s author, Justice Thomas, had long taken the position that judicial decisions had erroneously treated the Second Amendment as a “second-class right.”[5] When presented with an opportunity to make his view the law of the land, he wrote an opinion that carefully chose only favorable historical sources that supported his result, while rejecting the value of other available choices that would have confounded the decision. History, however, is messy and rarely as one-sided as Bruen makes it out to be.

In dissent, Justice Breyer called out the problem, noting, “[a]t best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue,’” producing only one favored result.[6]

Justice Scalia’s revisionist view of the Second Amendment, which he justified as originalist, set the stage for Bruen 14 years earlier in Heller when the Court held that the right to bear arms was an individual right unconnected to the introductory phrase, “a well regulated Militia.”[7] Conservative Fourth Circuit Judge J. Harvie Wilkinson criticized Heller for pressing a “political agenda in the courts.”[8] Most tellingly, Judge Wilkinson added, “While Heller can be hailed as a triumph of originalism, it can just as easily be seen as the opposite--an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation as any other.”[9]

In fact, Justice Scalia, the leading advocate of originalism in his day, professed that he was a “faint-hearted originalist,” unwilling to go where originalism might take him if the result was absurd, so he would not uphold flogging as a punishment[10] or racial segregation.[11] In an interview with NPR, he jocularly explained his deviations from originalism as simply because he is “not a nut.”[12] As one of the grand apostles of originalism, Justice Scalia’s faintheartedness runs counter to the idea that originalism limits judicial discretion that relies on modern sensibilities.

The examples chosen fail to support the purpose behind originalism.

Professor Lamparello argues that originalism must cabin judicial choice because it has shown itself to cause conservative justices to reach “liberal” results. His examples do not support his thesis. He cites Texas v. Johnson,[13] which he notes had “Justice Scalia in the majority.” Johnson, though, was written by Justice Brennan and held that burning an American flag as a protest could not be punished for the crime of “desecration of a venerated object” consistently with the First Amendment’s protections. The decidedly non-originalist opinion was joined in full by Justice Scalia, who did not write separately to proffer an originalist rationale. The decision thus says nothing about originalism and everything about modern understandings about free speech.

Professor Lamparello’s second example is an odd choice, Justice Scalia’s much-criticized opinion in Employment Div. v. Smith,[14] a case that hardly represents a “liberal” result. The dissenters were the Court’s most liberal members, Justices Blackmun, Brennan, and Marshall. Smith reduced the constitutional protection afforded to religious practices in the context of members of the Native American Church and their use of peyote as a sacrament. Moreover, there is nothing originalist in Justice Scalia’s reasoning. It consists entirely of distinguishing modern precedents in a manner that Justice O’Connor found “dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.”[15]

His final example, Bostock v. Clayton Cnty.,[16] also fails for multiple reasons. First, rather than be an example of constitutional construction, Bostock interpreted a statute, Title VII. Justice Scalia was not an originalist when it came to statutes. He refused to consider congressional debates or legislative history, relying instead on statutory text,[17] which is the same approach that Justice Gorsuch took in writing Bostock. An originalist would have cared what the drafters of Title VII meant; the majority in Bostock did not care. The dissenters cared, though. Justice Alito’s dissent accused the majority of legislating from the bench and inventing a meaning to the word “sex” to include sexual orientation” that was unimagined in 1964 when the law passed.[18] In colorful language, Justice Alito called the opinion a “pirate ship” that “sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[19] Thus, Bostock provides no support for Professor Lamparello’s thesis.

Nor does the absence of direct language on various issues mean that the Constitution has nothing to say about them. For example, the phrase “separation of powers” appears nowhere in the Constitution. Nor does the authority to establish a national bank. Yet, even in the founding period, both were understood to flow from constitutional principles.

There is a compelling case that the framers disfavored originalism.

Justice Robert Jackson put forth a standard critique of originalism when he wrote that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah.”[20] That is perhaps why Professor Ronald Dworkin said that “there is no such thing as the intention of the Framers waiting to be discovered, even in principle. There is only some such thing waiting to be invented.”[21]

Frequently, originalists seek the views of James Madison, as the most important of the framers. In a revealing joke about the Father of the Constitution’s hallowed status, Justice Alito chided Justice Scalia for questions seeking an originalist answer during oral argument in Brown v. Entertainment Merchants Ass’n.[22] Rephrasing his colleague’s question, Justice Alito said, “what Justice Scalia is asking is what did James Madison think about video games. . . . Did he enjoy them?”[23]

If Madison’s views help define originalism, it is significant that he disfavored singular reliance on that approach. During the congressional debate over the Jay Treaty, members of Congress sought to resolve their differing views on a relevant constitutional question by turning to Madison, who was then serving in that body. He found the inquiry “a matter of some surprise.”[24] He told his colleagues that he could neither reconstruct his “own ideas at that period, [nor] . . . the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject.”[25] Where delegates had strong views, Madison said they were often in disagreement, but willing to accept language susceptible of different results when debates took place in the future. For that reason, he concluded by telling his colleagues that “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.”[26]

Given that Madison kept the best notes on the debates at the Constitutional Convention, which could have shed light on interpreting the Constitution in its earliest days, but withheld publication until after all the other framers had passed away,[27] and that Madison rejected any idea that the framers’ views should be deemed authoritative, a strong case can be made that the intent of the framers was that their views should not be controlling.

Instead, as Chief Justice Taft observed, those who wrote the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.”[28] They celebrated jurists like Lord Coke, who some four centuries after it was first promulgated, re-read Magna Carta as a source of rights that later appealed to the American colonies.[29] The framers understood the wisdom of his common-law approach to interpretation, which allowed them to stand on the shoulders of all those who came before them, enjoying and for posterity to stand on their own shoulders, thereby enjoying the benefits of a surfeit of views.[30] Inevitably, whatever lessons may be drawn from originalism, or any other interpretative methodology, we read the past, as we read precedents, through the lens of what we know and understand today. No canon of construction can overcome that built-in, even as we strive to achieve Brandeis’s admonition against reading our prejudices into legal principles.

[1] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

[2] 142 S. Ct. 2111 (2022).

[3] 554 U.S. 570 (2008).

[4] Lewis Carroll, Alice in Wonderland, ch. XII, https://www.gutenberg.org/files/11/11-h/11-h.htm#chap12.

[5] See Friedman v. City of Highland Park, 577 U.S. 1039, 136 S. Ct. 447, 450 (2015) (Mem.) (Thomas, J., dissenting from denial of cert.).

[6] Bruen, 142 S. Ct. at 2180 (Breyer, J., dissenting).

[7] U.S. Const. amend. II.

[8] J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009).

[9] Id. at 256.

[10] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989).

[11] For a description of why Justice Scalia’s explanation of why Brown v. Board of Education was correctly decided on originalist grounds lacks the originalist rigor he often championed and, in reality, was a product of modern sensibilities, see Ronald Turner, A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education, 60 UCLA L. Rev. Discourse 170 (2014).

[12] Nina Totenberg, “Justice Scalia, the Great Dissenter, Opens Up,” (Apr. 28, 2008), https://www.npr.org/2008/04/28/89986017/justice-scalia-the-great-dissenter-opens-up.

[13] 491 U.S. 397 (1989).

[14] 494 U.S. 872 (1990).

[15] Id. at 891 (O’Connor, J., concurring).

[16] 140 S. Ct. 1731 (2020).

[17] Antonin Scalia, A Matter of Interpretation 29-30 (1997).

[18] Id. at 1755 (Alito, J., dissenting).

[19] Id. at 1755-56 (Alito, J., dissenting).

[20] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952).

[21] Ronald Dworkin, A Matter of Principle 39 (1985).

[22] 564 U.S. 768 (2011).

[23] Oral Argument Transcript, Brown v. Entertainment Merchants Ass’n, No. 08-1448 https://www.oyez.org/cases/2010/08-1448.

[24] 5 Annals of Cong. 775 (Apr. 6, 1796).

[25] Id.

[26] Id. at 776.

[27] James Madison, Notes of Debates in the Federal Convention of 1787 viii-ix ((1984 reprint).

[28] Ex Parte Grossman, 267 U.S. 87, 109 (1925).

[29] Coke was “widely recognized by the American colonists ‘as the greatest authority of his time on the laws of England.’” Payton v. New York, 445 U.S. 573, 594 (1980). See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring) (recognizing Coke’s unrivaled influence on American constitution writers).

[30] See Robert S. Peck, The Bill of Rights and the Politics of Interpretation 183-203.(1992).

June 18, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, June 11, 2023

The Supreme Court and Originalism