Appellate Advocacy Blog

More than "Frenemies."

I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”

I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.

Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.

The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”

I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.

How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.

So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.

That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.

(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).

 

ChatGPT and Legal Writing

ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.[1]

The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”[2]

Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests.  Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.

What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.

1.    Law students need to learn how to think critically.

Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.

ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”[3]

That, again, is the point – and the problem.

Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.

Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.

2.    Law students need to learn how to write competently and persuasively.

It is no secret that judges and lawyers often criticize law graduates for their poor writing skills.[4] The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.

This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.

To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.

To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.

Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’[5]

Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work.  This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.

Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court.  As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.

Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.

Simply put, you cannot replace an intelligent, thinking human being.

 

[1] See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business

[2] Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.

[3] Kelly, supra note 1.

[4] See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)

[5] Kelly, supra note 1.

The Rhetoric of ChatGPT: What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

The Rhetoric of ChatGPT:  What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

I’ve been thinking about what ChatGPT might mean for the practice of appellate lawyers and their ability to be persuasive.  So, I typed this as a prompt for ChatGPT:

 I am writing a blog post for an audience of appellate lawyers. What should I tell them about the relationship between rhetoric and ChatGPT?

Here’s what ChatGPT replied:

Rhetoric is the art of using language effectively to persuade or influence an audience. In many ways, ChatGPT can be seen as an extension of this art, as it uses natural language processing to generate persuasive and compelling responses to a wide range of prompts.

One of the key advantages of using ChatGPT for rhetorical purposes is its ability to quickly generate high-quality content in a wide range of styles and formats. This can be particularly useful for appellate lawyers, who need to produce persuasive legal arguments and compelling briefs that are tailored to the specific needs of their clients.

At the same time, it's important to remember that ChatGPT is a machine learning model, and as such, it has limitations. While it can generate persuasive responses based on patterns it has learned from large volumes of text data, it cannot understand the nuances of human emotion, context, or intent in the same way that a human being can.

This means that appellate lawyers who use ChatGPT for rhetorical purposes must be careful to ensure that the responses generated by the model are appropriate and effective for their intended audience. They should also be aware that the use of ChatGPT in legal writing is still a relatively new and evolving area, and that best practices are still being developed.

Overall, ChatGPT can be a valuable tool for appellate lawyers looking to enhance their rhetorical skills and produce high-quality legal content. By using the model in conjunction with their own expertise and insights, lawyers can create persuasive and compelling arguments that effectively convey their clients' positions.

Analyzing ChatGPT’s Response

Not a bad response, generally speaking. But what has ChatGPT revealed about itself?  Here’s a brief analysis of some things we can learn about ChatGPT from this response.

            ChatGPT Might Assume Too Much About the Reader

ChatGPT starts with a correct definition of rhetoric and then asserts that ChatGPT is an extension of rhetoric because it uses natural language processing (NLP). But ChatGPT assumes the reader knows what NLP is.  (And later it assumes that the reader knows what a “language processing model” is.)   If you don’t know (I didn’t) what NLP is, here’s a quick definition sourced from IBM:

NLP combines computational linguistics—rule-based modeling of human language—with statistical, machine learning, and deep learning models. Together, these technologies enable computers to process human language in the form of text or voice data and to ‘understand’ its full meaning, complete with the speaker or writer’s intent and sentiment.

So, one thing we learn about ChatGPT from this passage is that it can wrongly assume a reader’s knowledge, something lawyers know better than to do. While we might think that better engineering of ChatGPT’s prompt would solve the problem, recall that I told ChatGPT the audience for whom I was writing. That specific detail in the prompt did not seem to make a difference in ChatGPT understanding that many members of the intended audience would have limited knowledge of the computer science terms associated with ChatGPT. 

            ChatGPT Thinks of Itself as “Art”

I’m intrigued that ChatGPT chose the term “art” when describing itself as an “extension” of rhetoric.  This characterization seems counterintuitive because ChatGPT is the product of computer, data, and language science.  Yet, ChatGPT suggests that because NLP is a human-like effort to understand the meaning of language (as the definition above reflects), ChatGPT sees itself as an “artistic” endeavor, at least regarding persuasion.  And, at least in some cases, ChatGPT has proven that to be true--there’s something that feels like artistry in ChatGPT’s responses to prompts.  (See, e.g., this poem by ChatGPT and the debate around whether ChatGPT’s poetry is “art.”)

If ChatGPT sees itself as art rather than science, then we should take it at its word and think of it as we do art and artists.  That is, as do artists, ChatGPT brings a particular perspective to its responses.  As such, ChatGPT’s response is a form of art—and only one of many responses available.  Just like painters and sculptors can interpret their objects of study differently, ChatGPT’s interpretation of data in a particular response is one of many.  Thinking of this another way, we might view ChatGPT’s responses to prompts as opinions, subject to issues of perspective, interpretation, accuracy, bias, and incompleteness.

            ChatGPT Speaks Like It Wants to Sell You Something, but Should You Buy It?

Although I asked ChatGPT to describe a relationship between two things, ChatGPT’s response feels more like a sales pitch. It makes grand, authoritative-sounding claims about ChatGPT’s value to the user.  It is confident that it can help lawyers persuade and compel by providing “high-quality content in a wide range of styles and formats.”  ChatGPT reminds us that it has “key advantages,” that it can enhance the lawyer’s persuasive skill, and that it can generate high-quality content that can be tailored to client’s needs.

Why might ChatGPT sound so confident?  Maybe ChatGPT’s confidence comes from the way it generates responses.  ChatGPT generates responses by examining a vast amount of data, looking for the patterns and relationships between words in the sample, and then predicting what response is appropriate for the context.  Perhaps because I told it I was writing a blog post, the texts that ChatGPT accessed for context were blogs, and because many blogs are written in a tone designed to sell something, this caused ChatGPT to adopt the same tone by predicting that I was expecting that tone in the response.

Regardless of the reason, this extra-confident tone of the response should give us a reason to scrutinize ChatGPT’s claims more carefully.  If we read closely, we see that the response doesn’t really explains what “high-quality content” means.  On one hand, commentators point out that ChatGPT cannot tell the difference between true and false information and thus can deliver inaccurate responses.  This aspect of ChatGPT, then, is not “high-quality.”  Moreover, ChatGPT’s ability to sound very confident in its responses can lure readers into believing the responses’ truth.  For lawyers, this inaccurate information expressed in a confident tone is a malpractice minefield.  For example, one would not want to rely at face value on what ChatGPT says about some point of law.  (It’s probably useful to remind those in your office who could use ChatGPT of this important point.)

On the other hand, ChatGPT arguably can offer something of high(er) quality in that it can produce a “wide variety of styles and formats.”  You can prompt ChatGPT to write in a particular style—even your own!  You can request it write content in the style and organization of a brief or a motion, and it will comply.  You can ask it to assist in correcting your grammar.  It’s pretty good at offering examples of different genres, styles, and tones of writing.  This is because it is good at providing an approximation of whatever you’ve asked it to create based upon the patterns it recognizes in the dataset.

But here’s the catch, I think, with using ChatGPT to generate “style and format” content: the user must already understand the style and structure he or she seeks in order to evaluate the quality of ChatGPT’s response.  In other words, if you don’t know already what a case caption for, say, the United States Court of Appeals for the Ninth Circuit looks like, how can you be sure ChatGPT will give you the right format for that caption?  Likewise, if you aren’t sure what a good introduction to an appellate brief looks like, how can you know if ChatGPT has given you a good one in its response?   ChatGPT would be good at giving you examples, but it can’t really tell you which one is “best” in your circumstances.

            ChatGPT Knows Its Rhetorical Limits

Even though ChatGPT is confident in its capabilities, it admits that it has limits.  Specifically, ChatGPT responds that it cannot understand emotion, context, or intent like a human does when crafting responses to persuade. This is a pretty significant admission.  To be limited in these ways is relevant to ChatGPT’s persuasive abilities; understanding emotion, content, and intent are elements of human communication that are central to rhetorical effectiveness.  So, even though ChatGPT sees itself as an “extension” of rhetoric, it is a fairly limited extension.

 ChatGPT reminds us that one of its limitations is that it generates persuasion from finding patterns in large amounts of existing data.  So, that raises the problem of “garbage in,” “garbage out.”  In other words, the quality of ChatGPT’s responses is only as good as the data it can access.  That is, if the dataset has both helpful and unhelpful patterns that inform ChatGPT’s responses, how does one know if what ChatGPT generated is something worth relying on?  The only way to know is to already have the knowledge essential to evaluating the response.

            In the End, ChatGPT is Deferential about Its Writing

ChatGPT says it is the appellate lawyer’s job to ensure what ChatGPT writes is effective for the intended audience.  It talks about itself as a “model” that can help lawyers be persuasive and reminds lawyers that the model should be used in conjunction with lawyers’ expertise and insights.  In other words, ChatGPT does not take the position that it replaces humans in the writing process—particularly where audience analysis and professional expertise is involved.  Here, ChatGPT makes a significant rhetorical move—it reminds you that the technology is only as good as its user and, even after all of its confidence above, disclaims responsibility for the usefulness of its output. Fascinating.

Some Takeaways

ChatGPT notes that it is new enough that “best practices” for using ChatGPT in legal writing are still being developed. I take this as a challenge!  Based upon ChatGPT’s rhetoric (i.e., the way it uses language to talk about itself), I’ll propose some best practices for you:

• Do not be misled by ChatGPT’s confidence. ChatGPT sounds confident and authoritative in its responses, but users should be skeptical about the legitimacy of that confidence.
• Rely on your own expertise, not ChatGPT’s. Appellate lawyers (and staff working for them) need to have an existing knowledge base to evaluate ChatGPT’s responses.  In particular, evaluating the appropriateness of the response for an audience is essential.  As with all aspects of outsourcing judgment in legal practice, outsourcing judgment to ChatGPT is dangerous.  At the very least, for appellate lawyers to use ChatGPT effectively, they will need to become familiar with prompt engineering techniques that make ChatGPT more expert in the field and thus arguably improve ChatGPT’s responses.
• Treat ChatGPT as opinionated, not authoritative. Although ChatGPT is the product of science, ChatGPT should be seen as an artistic process, generating content that is more like opinion than unassailable fact.  Treat ChatGPT as conversation partner, muse, or collaborator than can help you “play” with ideas and text.  (Check out Ian Bogost’s article insightfully concluding that “ChatGPT  . . . doesn’t understand or even compose text. It offers a way to probe text, to play with text, to mold and shape an infinity of prose across a huge variety of domains . . . into structures in which further questions can be asked and, on occasion, answered.)
• Remember that ChatGPT relies on pattern recognition, a limited mode of persuasion. ChatGPT does not have all the rhetorical capabilities of humans but can recognize patterns in data that might have persuasive impact.  Even if that pattern recognition is persuasive, users must remember to look at persuasion from all aspects of the human experience, not just in the ways that ChatGPT looks at it.
• Remember that ChatGPT does not guarantee competent writing, you do. At bottom, ChatGPT does not claim it is superior to you in writing ability but rather it remains deferential to your experience and expertise. It disclaims its ability to effectively write for your “local” audience.  No one—not even a computer—knows your clients, your arguments, and your audience better than you do.  Rely on your own judgment about competent writing.

What are your thoughts?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

When Your Opponent’s Brief is a Headscratcher

 “I’m glad you have to write the reply brief, not me.” That’s the whole email I received from a prominent appellate advocate who had written an amicus brief supporting my position after he had read opposing counsel’s brief. The difficulty he alluded to was not because the responsive brief was so stellar that I would be hard pressed to formulate winning counterarguments. Instead, it was because the brief was such a head-scratcher. We weren’t just ships passing in the night; we were sailing in different oceans.

When that’s the case, writing a reply brief can be extraordinarily difficult. It is far easier to argue with an opponent who engages you than one that seems to have dropped in from another case altogether. A well-researched and disciplined brief provides a better foil than one that lacks a theme or anything solid to refute.

More typically in a reply brief, one can argue that one set of precedents is more relevant than another, that key cases were misconstrued by your opponent and the court below, or that the issue presented is one of first impression, requiring a new rule. Yet, when the opposing brief states seemingly valid propositions that relate to the case but not to the issue presented, it is tempting to say that the brief fails in every way to address the appellants’ arguments and that those arguments remain valid and should be adopted by the Court. And, there is certainly good reason to make sure the court understands why the arguments made by your opponent lack relevancy.

Yet, underlying the propositions of law proffered by my opponent were assumptions, sometimes unexpressed, that clarify why that brief provides no useful guidance to a court. In my brief, I labeled them fallacies that constituted an act of misdirection. I ran through six separate fallacies that knocked the legs out from under those arguments – at least, to me, they powerfully served that purpose.

For example, my opponent argued that a rule of civil procedure cannot alter substantive law. We know that that is a correct statement of law. Federal law, 28 U.S.C. § 2072(b), denies civil rules from abridging, enlarging, or modifying any substantive right. Having made the valid point, then opposing counsel did little to connect that to the rule at issue. He asked the court to assume that my argument would make the rule substantive. And, my reply demonstrated that following the proper procedure implements the underlying substantive law, rather than changes it.

Similarly, he recited the holding of a case I cited, as though that holding is the sum total of the analysis, because our case did not fit that holding. Yet, my brief suggested that the type of analysis employed in the case supported the analysis appropriate to the issue. While dicta of the type I relied upon does not formulate binding precedent, it was from the U.S. Supreme Court and therefore takes on a heightened character. As the Sixth Circuit put it recently, “Supreme Court dicta is persuasive and cannot be ignored by lower courts for no good reason.” Cunningham v. Shoop, 23 F.4th 636, 659 (6th Cir.), cert. denied, 143 S. Ct. 37 (2022).

It is also tempting to ignore, for good reason, a brief you believe fails to advance your opponent’s case. Prudence, however, requires that you make clear to the court that your version of the case is the one that it should entertain.

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Centers for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Rethinking First Amendment Jurisprudence

The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.

But shouldn’t there be a limit?

Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?

The answer to both questions is yes.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.
• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
• Should people be allowed to depict horrific acts of animal cruelty? No.
• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.

Such speech should be banned everywhere and in any circumstance for three reasons.

First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.

Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever.  Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.

Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection.[1] Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.

Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.[2] In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God  Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.[3]

These decisions were wrong.

The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.

 

[1] 413 U.S. 15 (1973); 395 U.S. 444 (1969).

[2] 485 U.S. 46 (1988).

[3] 562 U.S. 443 (2011).

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

Concrete Economics on the Supreme Court

The Supreme Court has recently offered strikingly similar answers to two seemingly disparate questions. The first concerns Article III standing to bring a case in federal court: What does it mean to show a “concrete and particularized injury in fact” that would, in part, support standing? The second concerns precedent: What does it mean for citizens to “rely” on precedents so that those prior decisions deserve stare decisis protection? The Court’s answers to each of these questions uses similar reasoning to amplify economic interests that are easy to identify and measure. Taken together, these seemingly unrelated jurisprudential developments also have an important real-world effect: they help ensure that our legal system provides the greatest level of protection possible for clear, monetary concerns, relegating more intangible individual rights to a second-class status.

Start with the Courts recent jurisprudence on Article III standing, which includes, as one of its elements, a requirement that plaintiff’s suffer a concrete and particularized injury in fact.[1] Recent Supreme Court analyses have heightened this concreteness hurdle to enter federal courts. In Spokeo v. Robins, the Court suggested that Congress cannot create concrete injuries by fiat simply by including a statutory damages remedy in legislation.[2] Five years later in Transunion LLC v. Ramirez, the Court again noted that an injury does not become concrete simply because Congress creates a statutory cause of action to redress it—although such Congressional action might be instructive.[3] The Court emphasized that it would only resolve “‘a real controversy with real impact on real persons.’”[4] In effect, these decisions emphasize the need for plaintiffs to come to the courthouse with an injury that can easily be measured, typically in real dollars and cents, before filing suit.

Meanwhile, as I have argued, the Court’s treatment of stare decisis in the landmark abortion rights case Dobbs v. Jackson Women’s Health Organization used similar language to signal the Justice’s willingness to overturn a broader swath of the Court’s prior decisions. According to Justice Alito’s majority opinion in Dobbs,  stare decisis only protects reliance interests that arise “where advance planning of great precision is most obviously a necessity”—not reliance interests that come from the kind of “unplanned activity” that may lead to an abortion.[5] Alito also claimed that stare decisis protects only “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’”[6] Courts simply cannot measure, and thus cannot protect, more intangible forms of reliance that involve the organization of intimate relationships and decisions about a woman’s position in her family and community.[7] Though this language appears content-neutral, Alito's approach to stare decisis significantly weakens precedents that protect intangible individual rights. Few citizens make contractual arrangements or economic plans based upon such precedents, and thus those precedents seems less viable in the long term.

Taken together, these trends prioritize economic interests over a number of other important interests that the legal system previously seemed to protect. Many social interests or individual rights are not the subject of economic agreements. And under the Court’s approach to both standing and stare decisis, those rights are less worthy of legal protection, on that basis alone. Put another way, if a legal interest is difficult to quantify economically, it is hardly a legal interest at all.

Without garnering much public notice, these joint emphases on concreteness create new barriers for the protection of individual rights in federal courts. They are perhaps an even greater threat to individual rights than a decision that forthrightly admits it is designed to curb those rights.

 

[1] See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 461, 472 (1982); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

[2] 578 U.S. 330, 339-40 (2016); Richard L. Heppner Jr., Statutory Damages and Standing After Spokeo v. Robins, 9 ConLawNOW 125, 125 (2018).

[3] 141 S. Ct. 2190, 2204-05 (2021).

[4] Id. at 2203 (quoting Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring)).

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

What is Your Best Case?

“What is your best case?”

That’s a question that many an appellate judge asks during oral argument.

Sometimes, there is an obvious answer: Smith v. Jones holds that the very inaction of the defendant in this case constitutes a breach of duty that warrants liability. Or, Johnson v. Williams holds that  it is not a violation of the statute to engage in the conduct the plaintiff alleges that my client undertook.

Other times, however, the caselaw might appear ambiguous, even if it is not. In one case I argued, Justice Breyer asked first my opponent and then me for our best case on whether the underlying state law was well-established and regularly applied. My opponent cited a case that stated the law somewhat loosely, which allowed him to claim that the law was not clear and thus not established. When I stood at the podium, I mentioned that my brief cited 39 cases over a 78-year period, but that I was happy to rely on one case that both sides cited because I believed it actually favored my argument.

The choice proved a good one. Justice Breyer had also flagged the case and had the opinion in front of him, no doubt because both sides had relied upon it. He asked me to explain a sentence that he read, which he said seemed to cut against my stance. It was the passage that my opponent had also cited in his brief, so I was very familiar with it. I responded that the sentence cited also had a dependent clause that the justice had not read aloud and that the qualification it made changed the entire meaning of the sentence. Justice Breyer chuckled and admitted that he agreed. Some three-and-a-half months later, we prevailed.

Certainly, that type of preparation and anticipation is needed when advocates are challenged by potentially clashing precedent. But what happens when there are no directly on-point cases and your argument is constructed from the logical implications of multiple cases that build upon one another? That is, no single case stands for the proposition you are advocating, but that several separate precedential propositions lead inexorably to your result?

It is important to make clear that a single case does not answer the question when that’s the case. Still, you must explain that the answer to the question presented becomes clear from looking at several cases. Precedent number one holds that the relevant constitutional test is a historical one. Precedent number two demonstrates that common practices prior to 1791, the year the Bill of Rights was ratified, satisfy historic conceptions of due process. Precedent number three is a historic practice indistinguishable from the issue before the court. Therefore, these precedents establish a roadmap that should demonstrate that the practice now before the court is consistent with due process. The deductive reasoning used to tie the precedents into a coherent legal theory becomes the product of multiple precedents and makes the best-case inquiry too simplistic to resolve the dispute.

What if, instead, the mandatory historical inquiry works against your position? It then becomes necessary to demonstrate that our constitutional conceptions are not frozen in time, but establish larger principles that can applied to situations unimagined at the time. Thus, we apply the concept of free speech to radio, television, and the Internet, even if the authors of the First Amendment could not have imagined these mediums. A best case, then, might consist of cases where a court has imagined the principle and applied it analogically.

In the end, a best case may exist – or it may a best case may actually be a series of cases.

“Read Everything” Is Good Advice at Any Stage of a Case or a Lawyer’s Career

Happy 2023.  I hope the new year is going well for all of you.  As I began moving my students from objective office memos to the joy of appellate brief writing this month, I used a slide titled:  “Read Everything.”  My advice to students was to always read every part of the record, and then read all the relevant case law, and then read everything again.  Thanks to a Northern District of Illinois December 30, 2022 Order in Outley v. City of Chicago, where then District Judge Gary Feinerman dismissed a discrimination case, publicly sanctioned plaintiff’s counsel, and referred counsel for possible discipline, I now have an extreme example of what happens when counsel does not read court documents, among other things.  You can read the order here:  Dec. 30 opinion.

First reported by Law360, the order in Outley made news for what now-retired Judge Feinerman called “the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.”  Order at 2; see Andrew Strickler, “Poorest” Atty Performance Triggers Ethics Referral (Jan. 3, 2023), https://www.law360.com/pulse/articles/1561714/-poorest-atty-performance-triggers-ethics-referral.  In a forty-one page order, the court carefully detailed plaintiff’s counsel’s many transgressions, including what the court characterized as extensive efforts to continue trial, repeated “intemperate” statements to the court like complaints of “get[ting] ripped a new butthole,” and interestingly, a long record of prior sanctions for the same type of antics in state and federal cases in Illinois.  See Order at 3-20, 39-41.

Judge Feinerman’s order covers many instances of what he found to be attorney misconduct, which “went beyond clumsy lawyering.”  Order at 33.  As the order explains, plaintiff, by himself and through counsel, tried to file motions long after deadlines, made the “series of intemperate remarks” during pretrial proceedings and in motions, repeatedly violated the court’s orders in opening statement to the jury, and testified on direct examination to matters excluded by the court and claims dismissed.  Order at 3-20, 39-41.

As examples of various misconduct, the court explained:  “On August 31—four weeks after the extended motion in limine” deadline “and over four weeks after [plaintiff’s counsel] told Defendants’ counsel that Outley would not be filing motions in limine”—Outley “moved for leave to file instanter twenty motions in limine.”  Order at 3.  Moreover, “[c]orrespondence between opposing counsel as well as [plaintiff’s attorney’s] own statements make clear that [plaintiff’s attorney] knowingly and intentionally abandoned the parties’ plan to collaborate on a final pretrial order,” showing counsel’s  “abdication of her responsibilities as counsel.”  Order at 3-4. 

For this piece, I want to highlight the impact of counsel’s admitted failure to read the court’s order on motions in limine and the defendants’ declarations.  See generally Debra Cassens Weiss, Lawyer “turned in the poorest performance” he has seen in 12 years on bench, former federal judge says, ABA Journal (Jan. 5, 2023), https://www.abajournal.com/web/article/federal-judge-says-lawyer-turned-in-the-poorest-performance-he-has-seen-on-12-years-on-bench (providing a complete discussion of all key parts of the district court’s order).  In response to defendants’ motions to exclude some of plaintiff’s evidence, the court “issued an order on Defendants’ motions in limine on September 16,” which “granted in part and denied in part those motions.”  Order at 9.  Although “Outley attached the court’s September 16 order to the emergency injunction motion he filed on September 22” and other motions, “Outley’s September 22 motions revealed that [plaintiff’s counsel] had not read the court’s September 16 in limine order.”  Order at 10.  In pretrial and trial proceedings, plaintiff’s counsel regularly acted as if the court had granted all of defendants’ exclusion requests “in block.”  Order at 10.

In the September 22 motions, Outley claimed:

Honorable Judge Feinerman[] did not explain why he never took Mr. Outley’s timely Response to Defendants’ MILs [in limine motions] under consideration. He ruled straight for the granting of Defendants’ MILs., in block, without ever mentioning Mr. Outley’s Response. . . . [T]he Court never translated its thinking [on Defendants’ Motion in limine No. 13] into a ruling, instead with one swift move the Court later issued a ruling granting Defendants’ MILs in block effectively overruling its prior thinking.

But, “[a]s the September 16 in limine order made perfectly clear, the court acknowledged and considered Outley’s timely response to Defendants’ motions in limine, and it did not grant Defendants’ motions in limine ’in block.’”  Order at 10. 

Additionally, counsel made no timely objection to arguably late declarations filed by the defense, admitting she received them on September 13, 15, and 22, but did not read any of them before September 22, despite a September 23 trial date.  Order at 11-12.  Once trial began, on September 23, “the court warned” plaintiff’s attorney “at a sidebar that she was ‘going beyond what this case is about,’” and only “[a]t that time,” did counsel “claim[] that she had not yet seen the court’s September 16 in limine order . . .—this despite her having attached the order to a motion she filed the previous day.”  Order at 12. 

Perhaps this admitted failure to read led counsel to “repeatedly transgress[] the bounds of appropriate zealous advocacy in addressing the court,” see Order at 36, including through a

motion for declaratory relief against the judge and a judicial notice motion, both based in part on an assumption the court had granted the in limine motions in full, see Order at 5-6, 24.  On the record in court and in filings, counsel often complained her client received unfair treatment, making comments like:  “[I]t would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.”  Order at 6.  The district court found these comments and motions were “to circumvent the court’s pretrial rulings without waiting to pursue an appeal” and to delay trial, all based in part on failure to read.  Order at 5-6, 24.

Despite her allegations like, “a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed,” in the end, counsel admitted she was simply not ready for trial.  Order at 3, 4-5.   In her own words, “I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it.”  Order at 3.  The court concluded:  “Those words, spoken by [plaintiff’s counsel] the day before [causing] the mistrial, were completely on point.”  Id.

As the court summarized:  “It would be a substantial understatement to say that things did not go smoothly.”  Order at 2.   Had counsel read the court’s in limine ruling, perhaps she could have given her client--who the court noted had “a winnable case” depending on who the jury believed--his day in court.  See Order at 5. 

The ABA Journal contacted Outley’s counsel, but she “did not immediately respond” to a voicemail message or an email.  Cassens Weiss, supra.

Here’s to careful reading in 2023.

Appellate Advocacy Blog Weekly Roundup Friday, January 13

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

U.S. Supreme Court News:

• The Court has yet to release any opinions from cases argued this term.  Although the Court is four months into its current term, it has provided a record-setting silence with regard to opinions in argued cases. Bloomberg discussed the delay in opinions and compared it to prior terms HERE.
• The Court this week denied an application to vacate a stay in a case involving a New York law that restricts the possession of firearms in specific public locations.  The trial court issued a preliminary injunction in the case, and the Second Circuit Court of Appeals issued a stay that kept the law in effect pending litigation on the merits of the challenge to the law.  The Court's order, issued without opinion and without dissent, allows the stay to remain (and thus, the law) to remain in effect.  The order is HERE.
• Senate Democrats are poised to push for new ethical standards for the Court after the Court faced increased scrutiny over the last year concerning such matters as financial interest in pending cases, the leak of draft opinions, and other apparent conflicts of interest.  More can be found HERE.
• A helpful summary of pending criminal law and procedure cases before the Court was posted by Joel Johnson at the ABA this week.  You can review the summary HERE.

Federal Appellate Court News:

• The United States Court of Appeals for the Federal Circuit heard arguments this week in a case where Apple, Google, and Intel are seeking to revive challenges to a U.S. Patent and Trademark Office policy about contesting the validity of patents before administrative judges.  More can be found HERE.
• A federal appeals court in D.C. heard arguments this week in a case challenging portions of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA), a 2018 law passed to crack down on online advertising viewed as facilitating prostitution.  The appellate court panel expressed skepticism about the constitutionality of language in FOSTA-SESTA that makes it a crime to operate a computer service with the intent to promote prostitution.  More can be found HERE.

State Appellate Court News:

• The New Mexico Supreme Court heard arguments this week in a venue dispute in a lawsuit concerning whether wind leases overlapping with grazing leases can impact a rancher's ability to raise cattle on state trust land in New Mexico.  Right now the question is really about where the arguments over the leases will take place, but the substantive issues to be addressed down the road will determine whether state law and lease contracts may allow for wind energy to be developed on land that ranchers are already leasing.  More can be found HERE.

Appellate Practice Tips:

• Three Harvard Law advocates recently shared their tips and tales of their times arguing before the United States Supreme Court in an article at Harvard Law Today.  The article includes recollections from Paul Clement, former U.S. Solicitor General and partner at Clement & Murphy in D.C.; Jessica Ring Amunson, partner at Jenner & Block in D.C.; and Deepak Gupta, lecturer at Harvard and founding principal of Gupta Wessler PLLC.  The article can be found HERE.

Appellate Jobs:

• The Illinois Appellate Court, Third District, is hiring an appellate court law clerk.  Details can be found HERE.

Who Serves on the Bench Matters

As lawyers and appellate advocates, we trust that the rule of law will prevail – that there will be consequences for breaching contracts, for negligence that injures another person, and for violating constitutionally guaranteed rights. We trust that judges will  be impartial and apply the law within a range of accepted conclusions that may not always be right but with an error rate that maintains confidence in the justice system. We believe that the law should not differ because of who serves on the bench because all who do must adhere to the rule of law. And yet, we know that who serves often will make all the difference.

We engage in ideologically tinged battles over who serves on the bench, regardless of whether the path to a judgeship is through appointment or election. Appellate advocates tailor their arguments to the judges who hear a case, combing their past opinions and other writings for clues that might trigger a favorable response for their client or issue. Some judges have expertise on the subject of the appeal, while others do not. Some have staked out positions on the appellate issue that makes the appellate task easier or even insuperable. Some utilize a methodology or a hierarchy of interests that signal the approach a wise advocate should take. A one-time dissenting view can now fit within the mainstream of legal thinking so that it provides a new handle on addressing an issue. That is why advocates are well-advised to know their audiences.

Court memberships shift, and the likely result from a court can shift with it. In an end-of-the-year decision from the Ohio Supreme Court, the justices’ own awareness of that shift was on display. In full disclosure, I was the winning advocate in the case and had the opportunity to watch it play out. By virtue of the mandatory retirement requirements of the state, the chief justice was due to step down from the court on December 31. I argued the case, which challenged the constitutionality of a state statute both facially and as applied, in late March. The decision, striking the law as applied, was written by the chief justice for a 4-3 majority and issued December 16. One dissenter appended a paragraph to the decision complaining of a departure from what he called the “regular and orderly internal rules of operation and practice,” because the majority insisted on issuing the decision so that the current court, rather than its successor, would rule on any motion for reconsideration.[1] He added his apology to the “citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects” because his “time on this case was aberrantly and improperly limited.”[2]

That paragraph became the focus of the motion for reconsideration filed just within the deadline on the evening of December 27. It seemed apparent that both the majority and the dissenter were well aware of the consequences of pushing reconsideration off to the new year and the new court. The majority sought to assure that a reconsideration motion would come before the same court that decided the case; the dissenter sought to push the case to the new term where he believed a different membership would reach a different result and his dissent could become the decision of the court.

Taking no chances, I filed my opposition to reconsideration within hours of the motion’s filing so awaiting opposition would not provide an excuse to delay a ruling. On December 29, reconsideration was denied.

The episode demonstrates what we know as advocates: who sits on the bench makes a difference. It also confirms another thing we know – judges are as acutely aware of that as anyone else.

 

[1] Brandt v. Pompa, 2022-Ohio-4525, ¶ 132 reconsideration denied, 2022-Ohio-4786 (Fisher, J., dissenting).

[2] Id.

2022 Top Legal Terms Include “Complicit Bias,” “False Narrative,” and “Nuclear Option,” According to Burton’s Legal Thesaurus

Happy December!  Whether you are scrambling to finish grading, like me, or wishing for a holiday with no emergency writs or motions, I hope you are enjoying the many lists of odd and interesting things lawyers did in 2022.  Recently, I saw the newest edition of Burton’s Legal Thesaurus, the Fortieth Anniversary/Sixth Edition, and the editors have added some intriguing new terms as top legal phrases in 2022.

For example:  “Attorneys were busy discussing ‘complicit bias,’ arguing about ‘lawfare’ and discussing the ‘great reshuffle’ this past year, according to Burton's Legal Thesaurus, which released its list of 2022's top new legal terms.”  Karp, “Meme Stock,” “Quiet Quitting” Among Top New Legal Terms, Law360 (Dec. 13, 2022).   “Complicit bias” means “community complicity in sustaining institutional bias and harassment in the workplace.”  See Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017) (credited with creating this new term). 

Other neat new terms include “False Narrative” and “Nuclear Option.”  “False narrative” is a noun, according to Burton’s, and unsurprisingly means:  “a contrived story, artifice,” and “distortion of truth.”  Burton’s confirms the political root of “nuclear option,” defining it as a noun meaning “abolish the filibuster, change in voting, change to majority vote for passage in the US Senate,” or “drastic action, extreme action.”  In a recent Sixth Circuit case showing one way lawyers are using the term, the court found no abuse of discretion where the district court “allowed [a party] to introduce its [opponents'] threats to stop shipping parts into evidence and to compare those threats to a ‘nuclear option.’”  Stackpole Int'l Engineered Prods. v. Angstrom Auto. Grp., LLC, 52 F.4th 274, 284-85 (6th Cir. 2022).

Burton’s contains over 3,000 pages of definitions, but Debra Cassens Weiss summarized some other new items from Burton’s 2022 Top Ten list, including:  “‘Lawfare,’ meaning the use of legal proceedings to damage an adversary; [t]he ‘Great Reshuffle’ a variation of ‘Great Resignation,’ referring to people leaving jobs; [and] ‘Movement law,’ an approach to legal scholarships that works with social movements, rather than simply studying them.”  Cassens Weiss, 'Complicit bias' and 'lawfare' among top new legal terms in 2022, ABA Journal (Dec. 14, 2022).  Cassens Weiss also explained:  “Margaret Wu, a legal writing professor at the University of California at Berkely School of Law, is chair of the Select Committee on Terminology of Burton’s Legal Thesaurus,” and “Wu told Law360 . . . ongoing effects of the COVID-19 pandemic, “sea changes” at the Supreme Court, diversity and equity initiatives and technology” influenced this year’s terms. 

In its pitch for Burton’s Sixth Edition, LexisNexis explains:  “As Justice William O. Douglas penned in his 1979 foreword to Burton’s Legal Thesaurus, ‘[t]he root of all language is individual word. Often, it is the use of a specific word or term upon which a case or controversy may hinge. It is through the use of such a tool as the Legal Thesaurus that one may find the precise term to fit the nuances of a particular situation.’”   Whatever resources you use to find perfect words this month, I wish you happy writing and happy holidays.

Western Justice Center Gives Ninth Circuit Senior Judge Dorothy Nelson a Lifetime Achievement Award

Many years ago, I was a lucky law clerk working for a wonderful judge at the Ninth Circuit’s  Pasadena courthouse.  One early morning, as I was admiring the flowers growing at the entrance to the gorgeous courthouse, I saw Judge Dorothy Nelson tending to the roses.  She took a moment to chat with me about the roses and litigation, and I have always remembered her kindness and wit.  During my year in Pasadena, I became friendly with Judge Nelson’s law clerks, and learned how much they admired her work for justice and dispute resolution.  See generally Selma Moidel Smith, Oral History of Judge Dorothy Nelson (1988) (interesting interview of Judge Nelson for the Ninth Circuit Historical Society).

Therefore, I was not surprised to see the Ninth Circuit’s recent press release announcing that the Western Justice Center (WJC) honored Judge Nelson “for her vision and dedication in founding the center and decades of visionary work in conflict resolution.”  October 23, 2022 Press Release.  The WJC works to “find innovative ways to handle conflict” by using alternative dispute resolution techniques in and beyond the court system.  The WJC especially focuses on “development of conflict resolution skills and capacity of youth, educators, schools and community partners,” and has trained over “1,000 students, educators and volunteers with the conflict resolution skills they need to transform” schools and “impact . . . youth across” the Los Angeles area.  Id.

As the press release explained, Judge Nelson believes “[e]ighty-five percent of cases could be mediated,” saving the time and money of traditional litigation.   She explained she “want[s] to bring people together, in a collaborative, unifying system,” and she “find[s] there are a lot of people open to that.”  Id.  

Before her nomination to the bench, Judge Nelson served as the Dean of USC’s Gould School of Law.  She was the “first woman dean of a major American law school,” where she “focused on training future lawyers in restorative justice and mediation as an alternative to litigation.”  Id.  Once she joined the Ninth Circuit, she “initiat[ed] one of the first mediation programs for a federal appellate court,” which we use in many circuits today.  See id.

As a past mediator for the Second District of the California Court of Appeal, I know mediating appeals can seem hopeless.  The parties I met with had already invested so much time, energy, and money into their cases that they often saw little reason to settle before oral argument.  However, I did help some parties reach a non-court resolution, and I often thought of Judge Nelson and the roses when I did so. 

Happy Thanksgiving!

A Focus on the Facts

Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.

In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.

The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.

The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.

The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.

 The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.

 Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.

Shortcomings in Arguing Original Public Meaning

From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public meaning” as the metric for constitutional interpretation now dominates appellate argument. Some judges even somewhat crassly pose the question: is there an originalism argument to support your position?

Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained 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 Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.

Certainly, many underlying assumptions of the society the Framers lived in no longer undergird modern society. Just as their attitudes about gender and race, land ownership and the common good influenced their attitudes about a host of issues of constitutional dimension, modern sensibilities about these topics must look at deeper meanings to understand contemporary application. Even advances in transportation, communications, and science more generally have profound implications for constitutional understandings. And, the Constitution, written in the language of the common law, is capable of sensible application unforeseen by its progenitors. Even the most faithful originalist can only see the past through the eyes of the present.

However, the revolutionary nature and adventurism of the Constitution seems missing from the debate over originalism and its application to current issues. Ideas from the Enlightenment and idealized versions of what good government means animated the effort, even if myopic about how those ideals contradicted slavery and other institutions left unaffected. Still, those who framed the Constitution and supported its instigation publicly sought two things: a government with the energy to prove Montesquieu wrong about the viability of an extended republic by enabling an experiment in self-government across vast territory and a regime capable of respecting rights grounded in ideals of liberty, justice, and equality. They imagined continuing change toward a “more perfect union,” never believing that their efforts had achieved that goal. And they imagined continuing debates on what they had wrought. As Madison stated during the debate on the Jay Treaty in the First Congress, the Framers were not of one mind about the words of the Constitution. Instead, “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 our Constitution.”

Indeed, the change of attitude he and others adopted about the authority of the federal government to charter a national bank reveals that understandings can change based on arguments and experience that demonstrate greater flexibility than some thought the words portended. Notably, on the issue of a national bank, respected constitutional framers divided on its legality from the start.

We see the same indeterminacy in the affirmative action cases before the Supreme Court tomorrow. Contradicting amicus briefs by historians explain why one side or the other should prevail. The opposing parties also invoke Brown v. Board of Education, claiming it supports them and not the other side. All of it confirms that advocacy is about argument – and no side has a monopoly on any mode of interpretation.

There is a lesson to be drawn. The appellate advocate must enter the courtroom clear-eyed, aware of the outsized role that history now plays in constitutional interpretation while cognizant of its shortcomings. The advocate must address that thirst for historical support while also understanding that other tools exist to reach a result faithful to the Constitution with an equal claim to grounding in history. Anyone who tells you only a single path exists to reach the right result misunderstands the interpretative exercise.

The New World of Constitutional Appellate Advocacy

Appellate decisions may decide a dispute between opposing parties and articulate a rule of law, but they often create new issues that can flood the courts. The Supreme Court’s newly energized reliance on history and tradition, rather than balancing tests and levels of scrutiny, has opened the door to arguments that that previously had little chance of success. And, advocates, unsurprisingly, have shown no hesitation to take up the cudgel now available to them.

Take the new attacks on gun regulations. At the end of last term, in New York St. Rifle & Pistol Ass’n v. Bruen, the Supreme Court struck down New York’s 1911 law that required proper cause or special need to obtain an unrestricted gun license. It held that the Second Amendment, no less than any other constitutional right, does not require the demonstration of a special need to justify its exercise. Instead, regulations and restrictions on guns had to fit within historical traditions. Under that approach, the 6-3 majority stated in an opinion by Justice Thomas, “sensitive places,” like courthouses and polling places, might legitimately impose restrictions on carrying firearms, but the urban character of a place could not. Public safety considerations, the opinion established, do not outweigh the constitutionally recognized right.

As predictably as night follows day, other gun regulations came under attack as inconsistent with historical traditions. Courts have now struck down a variety of gun regulations. For example, in Firearms Policy Coalition, Inc. v. McCraw, a Texas law prohibited persons under twenty-one from carrying a gun off their premises except in limited situations. The district court, which stayed its decision pending appeal, held that the “Second Amendment’s text, as informed by Founding-Era history and tradition, . . . protects [18-to-20-year-olds] against this prohibition.” The court reasoned that the Second Amendment included no textual age restriction, the historical analogues that Texas produced to meet its burden to uphold the law lacked the necessary specificity, and that examples from the 19^th century failed because they were not from the founding era.

A federal law that restricted handgun purchases to those under indictment for crimes that involve at least one year of imprisonment suffered a similar fate when a federal judge found insufficient evidence that it “aligns with this Nation’s historical tradition.” In United States v. Quiroz, the court acknowledged “valid public policy and safety concerns,” but found the Bruen’s historical tradition analysis swept those aside.

In New York, a federal judge limited New York’s post-Bruen statute that attempted, among other things, to define “sensitive” or “restricted” locations” by declaring unconstitutional its application to places that lacked historical precedent. In Antonyuk v. Hochul, the court struck down restrictions that applied to summer camp, public transportation, places of entertainment or amusement where alcohol is served, Times Square, and a generally defined sensitive or restricted places.

To this list, in the past week another decision came down. In United States v. Price, a federal district court struck down the federal law that prohibits possession of a firearm with an altered, obliterated, or removed serial numbers because it lacked historical analogue. The court notes that it is “undisputed that serial numbers were not required, or even in common use, in 1791,” but came into effect only with the mass production of firearms. Even then, serial numbers became mandatory only after passage of a 1968 federal law. Those facts were determinative under Bruen’s mandatory mode of analysis.

These examples demonstrate the limited value of the type of rigid analysis adopted by the Court. Even so, an advocate pressing an issue cannot forego utilizing the Court’s new-found fondness for historical tradition when advancing arguments under other constitutional provisions. And, under that approach, settled law can become unsettled. It may even be a form of malpractice to accept precedent not based on historical conventions without making new arguments that place the advocate’s position within that accepted tradition. Welcome to the new world of constitutional appellate advocacy.

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.

***

The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.

 

[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

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

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).

[7] 567 U.S. 519 (2012).

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

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

When to Make a Bold Argument

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.

 In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.

Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.

The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.

Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.

Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.

If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”