Friday, July 2, 2021
Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.
1. Persuasion is about perception
In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.
Simply put, confidence is everything.
Confident advocates take a stand and are bold.
They are unequivocal.
They never get flustered.
They never act surprised.
They never say “um,” or, “I think,” or, “I’m not entirely sure.”
When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”
In short, if you win the battle of perception, you also likely win the war of persuasion.
2. Make your audience initially agree with you by connecting your argument to commonly accepted values
To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:
The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.
Ok, whatever. Now consider this example:
Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused. And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.
The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.
Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.
3. It’s ok to be a little unprofessional in the right circumstances
Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience. And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.
Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:
In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.
Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:
My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.
The second example is real. It is raw. It is authentic.
Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real.
4. Reframe your opponent’s argument
Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.
The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.
The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.
Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case.
5. Explain with specificity why your position is good policy and will lead to fair and just results
It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.
To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.
After all, facts don’t always win arguments.
The law doesn’t always win arguments.
Be confident. Be authentic.
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.
US Supreme Court News and Opinions:
It was a very busy final week of the term for the Supreme Court, with a number of orders and opinions released throughout the week.
On Monday, the Court rejected requests to review two cases concerning the ability of courts to intervene in disputes arising in religious settings, declining to resolve separation of church and state disputes. More from Bloomberg.
Also on Monday, the Court declined to review a lower federal court decision that found a school violated the Constitutional rights of a transgender student when it imposed a policy banning him from using the boys' restroom. More from BuzzFeed.
Also on Monday, the Court struck down barriers to challenging governmental takings of property in federal court, ruling that the "exhaustion requirement" imposed before bringing suit in federal court only requires giving a state agency a chance to weigh in, rather than requiring following all of the agency's administrative procedures. More from Bloomberg.
Also on Monday, the Court vacated an Eighth Circuit opinion and remanded a case involving assertions of excessive force by St. Louis police who restrained an inmate in an incident in which he died. The Court ruled that the appellate court deemed as "insignificant" facts that should have been given consideration in deciding whether to grant summary judgment on the excessive force claim, reviving the claim. More from Courthouse News.
On Tuesday, the Court ruled against a group of noncitizens who had applied for "withholding" relief -- a remedy that involves an exception to the typical action of expeditiously again removing noncitizens who have been removed but are found back in the United States when there is risk of returning them to a country where they might face torture or persecution. More from Scotusblog.
Also on Tuesday, the Court ruled that states cannot stop developers from using the federal government's power of eminent domain to seize property for construction of a natural-gas pipeline through the state. More from Scotusblog.
Also on Tuesday, the Court refused to lift the federal moratorium on evictions during the COVID-19 outbreak, leaving the ban in place until the end of July, as extended by the U.S. Centers for Disease Control and Prevention. More from Bloomberg.
On Thursday, the Court upheld voting restrictions imposed by Arizona, limiting cases under the Voting Rights Act. The ruling will make it more difficult to contest state-imposed election regulations. More from Scotusblog.
Also on Thursday, the Court struck down a California requirement that charities and nonprofit organizations operating in the state disclose to the state attorney general's office the names and addresses of the organization's largest donors. More from Scotusblog.
On Friday, the Court issued a summary reversal in the case of an Alabama death row inmate who had won habeas corpus relief in the lower court, upending the death row inmate's win. More from Bloomberg.
In the ongoing discussion of whether Justice Breyer will or should consider retiring and allowing President Biden to name and seek confirmation of his replacement, Breyer's friend Kenneth Feinberg writes that Breyer is "at the top of his game" right now. See the piece at Law.com.
Federal Appellate Court News and Opinions:
This week, the Tenth Circuit issued a ruling that mostly upheld Oklahoma's mandatory bar dues as Constitutional. More from Law360.
Appellate Practice Tips and Pointers:
Appellate Twitter provided a couple of great threads this week, with appellate practitioners providing some great thoughts on effective advocacy.
Tobias Loss-Eaton started a thread on Thursday discussing the virtues of doing trial level work and trial level briefs, even if you aspire to some kind of "idealized" practice of high court appellate brief writing, because of the insight and development it can provide.
The Seventh Circuit is accepting applications for positions in the court's Office of Staff Law Clerks to begin in the fall of 2022. Application information HERE.
Tuesday, June 29, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the third post in the series.
Do present an honest, accurate position:
- Do include all relevant facts.
Appellate counsel must provide the court all the facts that are relevant to the issues raised in the appeal—yes, even the bad facts. Of course, we want to use word choice, sentence structure, and other techniques to deemphasize the facts that are unfavorable to our client and highlight those that are favorable. And while appellant’s counsel might be tempted to save those “bad” facts for a reply brief—don’t. First, we have an ethical obligation to provide the court all of the relevant facts. Second, it is better to present those “bad” facts first and in the way that is best for our client than to have opposing counsel bring them out first. Finally, disclosing the “bad” facts may enhance our credibility with the court.
- Do cite the record accurately.
The Federal Rules of Appellate Procedure require the appellant’s brief to contain “a concise statement of the case setting out the facts relevant to the issues submitted for review . . . with appropriate references to the record (see Rule 28(e).” Rule 28(e) provides:
References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:
Answer p. 7;
Motion for Judgment p. 2;
Transcript p. 231.
Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.
Accurate record cites are important. They allow the court to confirm the accuracy of our representation of the facts, which again, allows us to build credibility with the court. Accurate record cites also allow the court to confirm that we preserved for appeal the issues we raise. Failure to include record cites may result in sanctions.
- Do disclose relevant authority, including adverse controlling authority.
Of course, we’re going to disclose relevant authority that supports our arguments. But what do we do about unfavorable authority that doesn’t control? (We’ll discuss controlling adverse authority in a minute.) If our opponent is likely to cite the unfavorable authority, or the court is likely to discover it, then I think the best approach is to disclose it and find a way to distinguish it. Just as with “bad” facts, disclosing adverse authority allows us to shape how the court views that authority.
We have an ethical duty to disclose adverse controlling authority. For example, the Model Rules of Professional Conduct provide, “A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
Counsel ignored controlling precedent in Gonzalez-Servin v. Ford Motor Co., which led to an interesting set of photographs in the Federal Reporter. After noting counsels’ failure to disclose controlling adverse authority, the court wrote:
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless.”
The court then included these images in its opinion:
- Do update all cited authorities and exclude any reversed or overruled cases.
Modern research tools make “Shepardizing” authorities a relatively simple task—far less laborious than for those of us who learned using books. But, we can’t just rely on the flags or signals that appear on your screen. We must read the authorities to ensure the flag or signal is accurate for the point upon which we wanted to rely.
An honest, accurate writing style builds credibility and makes our reader’s job easier.
 Fed. R. App. P. 28(a)(6).
 Fed. R. App. P. 28(e).
 E.g. Dennis v. Intl. Paper Co., 58 F.3d 636 (5th Cir. 1995) (“Dennis's brief does not comply with this rule. We are satisfied, based upon the evident carelessness in which Dennis's attorney has presented this appeal and its obvious deficiency on the merits, that Dennis's attorney has persisted in prosecuting a meritless appeal in contravention of § 1927. We find, therefore, that some measure of sanctions is appropriate.”); Plattenburg v. Allstate Ins. Co., 918 F.2d 562, 564 (5th Cir. 1990) (“This brief also fails to make even one citation to the record where relevant . . . .”)
 ABA Model Rule 3.3(a)(2).
 662 F.3d 931 (7th Cir. 2011).
 Id. at 934, quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987).
Saturday, June 26, 2021
Often, students and practitioners ask for me book recommendations on appellate advocacy. Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert. Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen). The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike. I will definitely be recommending Principles of Appellate Advocacy in the future.
Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.” She also: “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners. Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.” Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”
In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book. The second edition is only 166 pages before the samples and problems. While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing. Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters.
Delfino explained the main changes to the second edition came from student and colleague feedback. Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal. They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.” Finally, they added a helpful video on oral argument and a sample syllabus.
I especially liked Chapter 10, “Basic Writing and Other Mechanics.” As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles. Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences. The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes.
As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.” But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.
Tuesday, June 22, 2021
When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves. But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia. Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling. Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.
The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.
Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.
Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.
No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.
 In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).
 593 U.S. __ (2021).
 494 U.S. 872 (1990).
 See Gentithes, supra note 1, at 341.
 See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).
Sunday, June 20, 2021
In Fulton v. City of Philadelphia, the United States Supreme Court confronted the question of whether the City of Philadelphia could deny a contract to a Catholic foster care agency (Catholic Social Services) because the agency refused to provide service to same-sex couples. The city argued that the agency's policy violated the city’s anti-discrimination law, which prohibits discrimination based on, among other things sexual orientation.
By way of background, in Employment Division v. Smith, the Court held that neutral laws of general applicability that incidentally burden religion do not violate the Free Exercise Clause of the First Amendment. Writing on behalf of the majority, Justice Antonin Scalia relied in part on Reynolds v. United States to hold that the Free Exercise Clause does not permit religious organizations to receive exemptions from generally applicable laws. Justice Scalia reasoned that to allow such exemptions “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Justice Scalia held that religious exemptions could be granted only when an alleged violation of religious liberty was coupled with a violation of another constitutional right. For example, in Wisconsin v. Yoder, the Court held that the parents of an Amish child were exempt from a generally applicable law requiring all children to attend public school until the age of sixteen because the law infringed on both the parents’ religious liberty and the fundamental right to direct the upbringing of their children.
The Court’s decision in Smith has proved quite controversial, as some argue that it is inconsistent with the original purpose of the Free Exercise Clause. And Smith has been implicated in recent disputes involving the balance between accommodating individuals’ religious beliefs and protecting citizens against discrimination. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a cakeshop owner refused to design a custom wedding cake for a same-sex couple, arguing that doing so would violate his religious beliefs. The State of Colorado argued that the cakeshop owner's refusal violated its generally applicable anti-discrimination law, which prohibited discrimination based on sexual orientation. The facts in Masterpiece Cakeshop arguably presented the Court with the issue of whether Smith should be overruled.
But the Court avoided the question.
Instead, it ruled on very narrow grounds, holding that the Colorado Civil Rights Commission had demonstrated hostility toward the cakeshop owner’s religion when addressing his claim. As a result, Masterpiece Cakeshop resolved nothing. The decision provided no clarity or guidance to courts and citizens regarding the Free Exercise Clause. It was a missed opportunity.
Not surprisingly, three years later in Fulton, the same issue arose again when Philadelphia denied a contract to Catholic Social Services because it refused to offer services to same-sex couples. As in Masterpiece Cakeshop, the Court was faced with the question of whether Smith should be overruled.
Yet again, the Court avoided the question.
Instead, in an opinion by Chief Justice Roberts, the Court issued a very narrow decision in favor of Catholic Social Services, holding that Philadelphia’s anti-discrimination law was not generally applicable because the city retained the discretion to grant exemptions to the law. This led to a narrow, unanimous ruling for Catholic Social Services. But again, the decision failed to resolve the underlying question of whether Smith should be overruled and avoided addressing how to balance an individual’s right to religious liberty against another individual’s right to be free from unlawful discrimination. The result is that one of the most sacrosanct constitutional rights – the free exercise of religion – is now marred in constitutional purgatory, with no clarification or guidance about the scope of this right and the limits on state power.
Fulton was legal gymnastics at its finest. And politics at its worst.
Sadly, the decision in Fulton is yet another example of Chief Justice Roberts's disappointing jurisprudence.
To be clear, by all accounts Chief Justice Roberts is a brilliant and ethical jurist – and a great person. Roberts is deeply committed to preserving the Court’s institutional legitimacy and to avoiding the perception that politics and ideology motivate the Court’s decisions. To that end, Roberts strives to achieve consensus on the Court and avoid controversial 5-4 decisions. To reach consensus, Roberts seeks to decide each case on the narrowest ground possible, which often has the effect, as in Masterpiece Cakeshop and Fulton¸ of rarely addressing the fundamental constitutional issues that undergird many cases and, concomitantly, failing to clarify the law.
The ugly truth about this approach is that it causes precisely what Chief Justice Roberts hopes to avoid: it politicizes the Court, undermines its institutional legitimacy, and destabilizes the rule of law. And it causes Roberts to become precisely what he disavows: a political actor.
As stated above, it is politics at its worst.
Unfortunately, even a cursory examination of Roberts’s jurisprudence in recent years reveals that his decisions often result from political calculations rather than principled constitutional considerations.
Indeed, Roberts’s decision in Fulton was eerily reminiscent of his decision in National Federation of Independent Investors v. Sebelius, where the primary issue confronting the Court was whether the Affordable Care Act violated the Commerce Clause. Roberts agreed that the Act violated the Commerce Clause, yet after initially voting to invalidate the Act, Roberts reversed course and concluded that the Act was a proper exercise of Congress’s taxing power. It was apparent that Roberts was trying to find a way – any way – to avoid issuing a decision that might compromise the Court’s legitimacy, lead to a divisive decision, and be perceived as political.
Yet, Roberts created precisely that result. The Court’s legitimacy was damaged because the decision was so obviously based on political calculations, not constitutional principles.
This is not the first time that Roberts has engaged in legal gymnastics that elevate politics over the rule of law and provide no clarity, guidance, stability, or predictability on important legal issues affecting civil rights and liberties. For example, in June Medical Services v. Russo, Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges. Roberts argued that, based on the Court’s decision in Whole Women’s Health v. Hellerstadt, where it invalidated a nearly identical law in Texas (although Roberts dissented), principles of stare decisis required him to invalidate the Louisiana law.
But Roberts’s jurisprudence shows that he has an on-again, off-again relationship with stare decisis. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, which addressed a union’s ability to collect fees from non-union members, Roberts joined the majority in overruling Abood v. Detroit Board of Education, which had been valid law for over forty years. And in Citizens United v. FEC, Roberts joined a 5-4 majority that invalidated a federal law restricting independent expenditures from corporations; in so holding, the Court overruled Austin v. Michigan Chamber of Commerce, which held that restrictions on corporate speech did not violate the First Amendment. Thus, Roberts’s reliance on stare decisis in June Medical Services was about as disingenuous and manipulative as it gets. Simply put, when a concern for institutional legitimacy triumphs over the rule of law, the result is an unprincipled jurisprudence that at its core is political.
If Chief Justice Roberts values the Court’s institutional legitimacy, he should prioritize the rule of law and base his decisions on reasonable interpretations of the Constitution. He should stop avoiding the real issues that are presented in each case. He should make decisions based on what he believes, not on how others may react to a particular decision. In doing so, Roberts would demonstrate that he is faithful to the Constitution and the rule of law, and that his decisions are based on principle, not politics.
To date, sadly, Chief Justice Roberts has become the Court’s most political actor. And the Court is unquestionably a political institution.
 No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)
 See id.
 494 U.S. 872 (1990).
 See id.
 See id.
 406 U.S. 205 (1972).
 See Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of Petitioners, available at: 20200602142513866_19-123 CCJ tsac.pdf (supremecourt.gov)
 138 S. Ct. 1719 (2018)
 See id.
 See id.
 No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)
 567 U.S. 519 (2012).
 See id.
 2020 WL 3492640 (2020)
 138 S. Ct. 2448.
 558 U.S. 310 (2010).
Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.
Saturday, June 5, 2021
Winning an argument depends in substantial part on effectively using strategies to maximize your argument’s persuasive and logical force, expose weaknesses in your adversary’s argument, and convince the audience to adopt your position. Below are tips that will enhance your chances of winning an argument in many contexts, such as in court, at a debate, or in a negotiation.
1. Require that your adversary define relevant terms with specificity.
You should always require your adversary to define important terms that are essential to proving or disproving an argument. And you should never engage in or respond to arguments that consist of overly general propositions. For example, imagine the following discussion between two scholars who differ about the extent to which systemic racism and white privilege exists in the United States:
Scholar: Both history and current laws demonstrate that the United States is systemically racist, and that white privilege is pervasive throughout this country. Ultimately, until our society is more diverse and inclusive, we will continue to oppress marginalized populations.
Wow. There is a lot to unpack in that statement.
Importantly, the scholar’s adversary should neither react nor respond to the substance of that statement. Instead, the scholar’s adversary should state as follows:
I certainly agree that racism, inequality, and oppression are antithetical to basic human values. But how do you define and quantify systemic, or institutional, racism? Which specific institutions do you allege are racist? And how do you define and quantify white privilege?
This strategy forces your opponent to be specific and places on your opponent the burden to provide a definition upon which most reasonable people can agree. In so doing, the opponent will likely reveal underlying assumptions or biases in an argument and thus allow you to expose the flaws in whatever definition the adversary provides. At the very least, you will prevent your opponent from relying on unproven generalities and enable yourself to avoid a futile discourse involving statements that may lack an empirical foundation.
2. Expose logical fallacies in your opponent’s argument, especially appeals to authority and emotion.
Logical fallacies undermine many arguments. Two of the most common are the appeals to authority and emotion.
First, many advocates strive to enhance the validity and persuasiveness of an argument by relying upon well-respected sources or unnamed “experts.” Consider the following example:
Any athlete should have the right to kneel for the national anthem and thus exercise their right to free speech. As nearly every justice on the United States Supreme Court has stated, freedom of speech is critical to protecting liberty and democratic values.
This statement represents an appeal to authority. Specifically, the fact that nearly every justice on the Supreme Court may have expressed these sentiments utterly fails to support the argument that any athlete should have the right to kneel for the national anthem. In essence, the person making this statement is saying, “If the justices on the Supreme Court agree with me, the argument must be valid.” Wrong. An argument is valid only if it is based on facts and evidence.
Second, many advocates appeal to the audience’s emotion when striving to maximize an argument’s persuasive value. Consider the following example:
We must resist attempts to abolish the death penalty. A few years ago, my teenage son was brutally murdered by a man who had previously murdered four teenagers. The only way justice will be served is if we hold this man accountable for the atrocities he committed.
This is a tremendously sad story. But it is not a logically valid argument. Whether the death penalty should be abolished depends on facts and data regarding, among other things, whether the death penalty is applied fairly and equitably, and whether it deters crime. The above statement addresses none of these points.
3. Begin your argument with a foundational and well-accepted principle.
To maximize the likelihood that the audience will adopt your position, begin your argument with foundational principles that engender widespread agreement. For example, assume that you are debating whether Georgia’s recently-enacted voter identification law will suppress voter turnout, particularly among minority communities. Consider the following two statements:
Georgia’s voter identification law does not and will not impact voter turnout. And the law isn’t targeted at minority communities. It applies to everyone and enhances election integrity.
Racism and discrimination are intolerable, and equality is a basic principle of democracy and essential to liberty. To that end, we must embrace the core principle that every person, regardless of, among other things, race, ethnicity, religion, and sexual orientation, has an equal right to vote and must have equal access to the ballot box. Georgia’s law does not violate this important principle.
Which statement is better? The answer should be obvious – as should the reasons why.
4. Know the statistics. Again, know the statistics.
To win an argument, you must know the relevant statistics and empirical studies that impact the argument’s validity. If you don’t, or if you rely only on statistics and studies that are favorable to you, your argument’s persuasive force vanishes along with your credibility. For example, some scholars have posited, in law review articles and other publications, that implicit bias is a major contributor to ongoing discrimination, marginalization, and oppression in society. In support of this argument, they cite studies allegedly illustrating implicit bias’s pernicious effects.
There is only one problem. Several recent studies have debunked or, at the very least, cast serious doubt upon the relationship between implicit bias and biased behavior. Sadly, very few advocates of implicit bias training have addressed this damaging evidence. This failure renders their arguments unpersuasive and calls into question their objectivity as scholars.
To avoid this mistake, be sure to prepare extensively before any argument by knowing the relevant facts and data, both favorable and unfavorable, that impact your argument. Don’t be afraid to concede bad facts. Instead, explain why they do not affect the outcome you seek and highlight how the statistics favor the position for which you advocate.
After all, facts and statistics are the foundations of powerful arguments.
5. Transition from abstract to concrete arguments.
When making an argument, avoid extensive reliance on abstract principles. Instead, provide concrete evidence and examples that support your argument, and offer a solution or rule that demonstrates your position's practicality and workability. Consider the following example:
The Fourth Amendment should not be construed to allow law enforcement officers to conduct warrantless cell phone searches. Privacy is a bedrock principle in the Constitution and citizens have a right to be free from unreasonable, government-sanctioned intrusions on privacy. Furthermore, law enforcement must not be given the power to encroach upon basic civil liberties and thus place the freedoms of all citizens at risk.
Yeah, whatever. That statement is far too abstract. Consider this example:
Warrantless cell phone searches incident to arrest violate the Fourth Amendment. Unlike searches of closed containers or passenger compartments, a cell phone houses a vast amount of the very papers and effects, such as personal photographs, bank statements and other documents, text and email addresses, and online search history, that the Founders would have afforded the highest Fourth Amendment protection. As such, warrantless searches in this context are unreasonable per se. The Court should thus adopt a rule stating that law enforcement officers must have probable cause and warrant before searching a cell phone incident to arrest.
This statement is far more persuasive because it makes specific points, and proposes a workable and practical rule.
6. Use ‘hidden’ premises in your argument.
Including ‘hidden’ premises in your argument helps to reframe the issue(s) effectively in your favor and increases the likelihood that the audience will agree with your stated premises and conclusion. Additionally, it often presents as accepted or proven precisely the issue(s) that the argument or debate involves. Consider the following example:
The death penalty should be abolished immediately for three reasons. First, the death penalty disproportionately impacts African-American defendants. Second, it is almost certain that innocent people have been executed. Third, the death penalty serves none of the purposes of criminal punishment. Thus, because I am against racial discrimination and inequality, because I do not believe in intentionally murdering innocent civilians, and because I do not support criminal justice policies that have no societal value, the death penalty should be abolished.
This statement is effective because of the ‘hidden’ premises, even though some scholars would disagree with one or more of these assertions. But that is not the point. The point is that all reasonable people are against racial discrimination and inequality. No one believes in “intentionally murdering innocent civilians.” And few would support any policy that has no societal value. By including in your argument widely accepted principles, you increase the likelihood that the audience will accept your argument and adopt your position.
7. Never allow your adversary to characterize you or your argument inaccurately.
Make your adversary work diligently to establish any point that impacts negatively your argument. Put simply, always challenge inferences or assumptions that your adversary makes to undermine your position. Consider the following example:
Professor Smith recently drafted an article claiming that the late Justice Antonin Scalia was an “intellectual giant on the Supreme Court and the author of many extraordinary opinions that respected the Constitution’s text and structure.” Professor Smith’s endorsement of conservative values and a conservative judicial philosophy means that he will support judges who turn a blind eye to progressive values and marginalized populations.
Be sure to call out such nonsense. What Professor Smith said does not even remotely support the proposition that he endorses conservative values and will support judges who “turn a blind eye” to progressive values (whatever that means). Never allow your adversary to get away with such a misrepresentation and never concede more than is necessary to maintain your argument’s credibility.
8. Listen more and talk less.
It’s the quality, not the quantity, that matters. In an argument, never talk too much and dominate the discussion. When you do so, it suggests that you are insecure about the merits of your argument, that you believe your adversary has made compelling points that require an immediate response (which gives your adversary credibility), and that you are so rigidly attached to your argument that alternative perspectives are neither necessary nor welcomed. Unfortunately, that approach undermines your credibility.
Remember, less is more. You should listen calmly and carefully to your adversary’s argument. You should recognize good points that your adversary makes and strive to find areas of agreement. And when you do speak, be sure to make a concise, high-quality, and compelling statement. What does that mean? Get to the point immediately. Start with a powerful theme. Use the Rule of Three. Lead with your strongest points. Use statistics to support your assertions. End powerfully and confidently.
Then, shut up.
The best advocates pick their battles effectively.
9. Never show emotion.
Getting emotional is one of the worst things that you can do in an argument. When you show emotion, such as by being angry, irritated, or offended, it typically means that your adversary is winning the argument and that you are not confident in your position. Consider the following two statements from the captain of an airline to passengers who just flew through severe turbulence in bad weather:
Hi everyone, please do not worry. I know that things were really rough for several minutes, but I will never allow this plane to crash! Let me repeat – I will not let this plane crash, no matter what! I am a veteran of the Air Force and I’m going to fight this weather to the death!
If I were a passenger on this plane, I would immediately believe that the plane was going to crash nose-first into a ditch. Now consider this statement:
Hi folks, sorry about the rough air we just encountered. The plane is fine, of course, and the turbulence we just encountered is pretty common in this part of the country. We’re going to change our altitude as soon as possible to make your flight as comfortable as possible and we don’t expect much rough air for the rest of the flight.
If I were a passenger on this plane, I would feel assured and safe. The difference wasn’t simply the words. It was the measured manner with which the latter statement was delivered.
Simply put, in an argument, be confident. Be calm. Never act surprised by a point your adversary makes or a question that your adversary asks. This doesn’t mean that you shouldn’t show passion and conviction. You should certainly be your authentic self. But you must avoid the negative reactions and emotional outbursts that invariably raise questions about your credibility and the merits of your argument.
10. Don’t be an a******.
People like others who are nice. They like others who are respectful, friendly, and civil. They like others who are mature. They like others who are honest and genuine. And when people like you, they will be more likely to listen to you and find you credible. Most importantly, when people like you, they are more inclined to adopt your position. After all, people associate with those that they like and respect.
Conversely, people hate jerks. And they know them when they see them. Jerks attack people rather than ideas. Jerks insult others. Jerks always think that they are right and that else is always wrong. Jerks interrupt people when they are speaking. Jerks misrepresent others’ positions. The list goes on and on.
You get the point. Don’t be an a******.
Remember, when you make an argument, people are not just listening to what you say. They are evaluating you.
Sunday, May 23, 2021
Last week, the United States Supreme Court agreed to review the constitutionality of a Mississippi law that prohibits most abortions after fifteen weeks. This case, Jackson Women's Health Organization v. Dobbs, represents yet another episode in the seemingly never-ending abortion saga. Simply put, a state enacts legislation striving to restrict the right to abortion and the Court renders a divisive decision, often by a 5-4 vote along ideological lines, that fails to resolve and clarify permanently the scope of the abortion right. The Court’s incremental, case-by-case jurisprudence has invited confusion and unpredictability into abortion jurisprudence and incentivized states to continue testing the viability of Roe v. Wade, which held that the judicially-created right to privacy under the Fourteenth Amendment encompassed a right to abortion.
So, here we go again.
Another divisive abortion decision is likely and whatever the Court decides, its decision will likely be viewed as political and compromise the Court’s institutional legitimacy.
This constitutional mess can be traced to Roe v. Wade and Griswold v. Connecticut, in which the Court manipulated the Fourteenth Amendment’s Due Process Clause to create unenumerated rights that no reasonable reading of the text could support. In Griswold, the Court held that the Due Process Clause, along with other provisions in the Bill of Rights, contained invisible “penumbras … formed by emanations from those guarantees that give them life and substance.” Within these judicially-invented “penumbras,” the Court gave itself the power to discover unenumerated “rights” out of thin air, including the right to privacy, that could not possibly be found in or inferred from the text. Relying in substantial part on Griswold, the Court in Roe held that the right to privacy encompassed the right to terminate a pregnancy.
Regardless of one’s policy views on abortion, liberal and constitutional scholars largely agree that Roe was constitutionally indefensible. Harvard Law School Professor Laurence Tribe, for example, stated that “behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found.” The late Justice Ruth Bader Ginsburg described Roe as “heavy-handed judicial activism,” and Edward Lazarus, a former clerk to Justice Harry Blackmun (who drafted the majority opinion), stated that “as a matter of constitutional interpretation ... if you administer truth serum … [most scholars] will tell you it is constitutionally indefensible.” These scholars are correct – Roe was one of the worst decisions of the twentieth century.
Importantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had the opportunity to overturn Roe and return the abortion question to the states. Instead, the Court made the problem worse. In a 5-4 decision, the Court upheld the “central holding” of Roe but overturned Roe’s trimester approach, which provided that, absent a compelling interest, states could not restrict a woman’s right to access abortion services during the first two trimesters, or pre-viability phase, which lasts approximately twenty-four weeks. In the third trimester, the states had the authority to prohibit abortion except where necessary to protect the life or health of the mother. In Planned Parenthood, however, the Court rejected the trimester approach; instead, the Court held that abortion restrictions during the pre-viability phase that imposed a “substantial burden” on the right to access abortion services were unconstitutional.
Planned Parenthood was equally, if not more, constitutionally indefensible than Roe and it thrust the right to abortion into legal purgatory. After all, what precisely constitutes a “substantial burden” on the right to access abortion? And what criteria should be used to determine whether a burden is substantial? The Court had no answer.
But the states opposing abortion did. Recognizing the ambiguity that Planned Parenthood created, these states have repeatedly enacted legislation that seeks to restrict abortion rights and thus rendered the scope of abortion rights unclear and uncertain. To make matters worse, the Court has evaluated these laws on a case-by-case basis and, in divisive and muddled opinions, failed to resolve the abortion question. Recently, for example, in Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, the Court invalidated – for good reason – laws requiring abortion providers to obtain hospital admitting privileges.
The problem is that the Court, in these and other abortion decisions, has failed to definitively clarify the nature and scope of the abortion right, thus perpetuating a never-ending saga in which some states continue, in various ways, to eviscerate the abortion right. Instead of deciding each case narrowly – and based on an arguably subjective application of the undue burden standard – the Court should have either: (1) overturned Roe and returned the abortion issue to the states; or (2) held that women have an unfettered right to abortion before viability. Whatever one’s views on abortion, this would have resolved the constitutional question and precluded the seemingly never-ending litigation that Roe and its progeny have engendered. In short, Roe was a terrible decision and Planned Parenthood only compounded the constitutional damage that Roe inflicted. By way of analogy, when a person lies, the best course of action is to admit and own up to the lie rather than try to cover it up with additional lies. The Court’s abortion jurisprudence reflects the latter.
As such, the Court once again finds itself in a constitutional quagmire, the result of which will surely divide the country and risk compromising the Court’s institutional legitimacy. But the Court has no one but itself to blame. It created – and exacerbated – the constitutional fictions known as “penumbras” and substantive due process.
Of course, one’s views on whether women should have a right to abortion are irrelevant. Most polls suggest that a majority of citizens support at least a limited right to abortion. And the reasons are understandable. But the abortion issue should have always been resolved by state legislatures, not nine unelected and life-tenured judges. The Court should have never involved itself in the abortion debate.
Ultimately, what should the Court do in Jackson Women's Health Organization? It should end this constitutional charade. In so doing, the Court should hold that, although Roe was constitutionally indefensible, it should not be overruled. For nearly fifty years, women have relied on Roe to make decisions, in conjunction with their health care providers, regarding whether to terminate a pregnancy. Put simply, Roe is entrenched in the public consciousness and stare decisis counsels in favor of reluctantly upholding Roe despite its obvious flaws. Furthermore, the Court should return to the trimester framework and hold that states may not restrict abortion access prior to viability.
That will end the inquiry and the uncertainty.
But don’t count on it. The most likely result will be a decision, engineered by Chief Justice John Roberts – who has become the Court’s most political actor – that confuses, rather than clarifies, abortion jurisprudence. That is the sad reality of the U.S. Supreme Court. Despite Chief Justice Roberts’s assertions to the contrary, the Court is unquestionably political.
Most importantly, in the future, the Court should hold that the penumbras upon which Griswold and Roe are predicated no longer exist. Had the Court adhered to an originalist framework, we would never be in this mess.
Hopefully, the Court will learn its lesson. There is ample reason, however, to be skeptical.
 Jackson Women's Health Organization v. Dobbs, No. 19-1392 (October Term, 2021).
 410 U.S. 113 (1973).
 Id; 381 U.S. 479 (1965).
 Id. at 484.
 410 U.S. 113.
 Timothy P. Carney, The Pervading Dishonesty of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner
 505 U.S. 833 (1992).
 136 S. Ct. 2292 (2016); 2020 WL 3492640.
Tuesday, May 18, 2021
We hear a lot about mandates these days. Politicians claim mandates when they eke out wins. Social media warriors fight over when masks should be worn. And state and federal officers joust over social distancing and mask mandates in public spaces. But if you are an appellate practitioner, one mandate you should definitely pay attention to is the one that actually ends your appeal.
The judgment of the court does not end an appeal. The mandate does. The mandate terminates the jurisdiction of the case in the court of appeal and returns it to the district court (or, in rare cases, the Supreme Court) for action. Thus, even if a case is simply affirmed, the mandate must first issue before the district court can enter judgment. And if there is any additional action necessary, such as with a remand, the mandate will define exactly what actions can be taken (with certain exceptions, of course).
Federal Rule of Appellate Procedure 41 provides that a mandate can either be a formal document entire in itself, or can simply be "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." FRAP 41(a). Because it is the mandate that controls, close attention should be paid to the directions it contains.
The mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41(b). It is important to note what does NOT extend the deadline for the mandate - motions for extensions of time to file petitions for rehearing, for instance, do not extend the deadline. Neither does the filing of a petition for writ of certiorari.
In the case of either a motion to extend or the filing of a petition for writ of certiorari, a party can (and should) move the court to stay issuance of the mandate pending action. To stay issuance for filing of a petition for writ of certiorari, the party must show that the petition "would present a substantial question and that there is good cause for a stay." FRAP 41(d)(2)(A). If the request is denied by the court of appeals, it can be renewed in the Supreme Court under its Rule 23.
If a stay is granted for a certiorari petition, it can only be for an initial maximum period of 90 days from entry of judgment, mirroring the time period for filing the petition. FRAP 41(d)(2). The stay can be extended on a showing of good cause, or upon notice that the deadline to file the petition has been extended or that the petition has actually been filed (in which case the stay is extended until the petition is disposed). FRAP 41(d)(2)(A),(B). If the Supreme Court denies the petition, the mandate immediately issues. FRAP 41(d)(2)(B)(4).
Close attention should be paid to the interplay of the mandate and any supersedeas bond. Such bonds stay execution of any judgment and remain in effect until their terms are fulfilled. See FRCP 62(b). Some bonds may be written to end upon issuance of the mandate. Thus, even if an appeal is pending, if the mandate issues, collection could begin without the proper stay being requested.
(Image attribution: Mask-wearers in Mill Valley, Calif., 1918. (Photo by Raymond Coyne/Lucretia Little History Room, Mill Valley Public Library/Public domain.) Proving that there has always been someone with their nose sticking out.)
Sunday, May 16, 2021
On April 20, 2021, after a brief deliberation, a jury convicted former police officer Derek Chauvin for second-degree unintentional murder (i.e., felony murder), second-degree manslaughter, and third-degree murder in connection with George Floyd’s death.
Chauvin’s attorney, Eric Nelson, who has already moved for a new trial before Judge Peter Cahill, will certainly appeal Chauvin’s conviction. Although the likelihood of succeeding on appeal is relatively small, several issues in Chauvin’s case render the guilty verdict vulnerable to reversal.
1. The jury deprived Chauvin of a fair trial
Chauvin’s defense team will likely argue that the conduct and composition of the jury deprived Chauvin of a fair trial. First, the defense will assert that the jury violated Chauvin’s Fifth Amendment rights. The Fifth Amendment provides, among other things, protection against self-incrimination. At a criminal trial, a defendant may invoke the right against self-incrimination and thus refuse to testify. Importantly, jurors may not infer guilt from a defendant’s silence; doing so is grounds for overturning a guilty verdict.
During the trial, Chauvin invoked his Fifth Amendment right and thus did not testify. Unfortunately, there is some evidence that at least one of the jurors construed that silence against Chauvin. Specifically, shortly after the verdict, Brandon Mitchell (Juror No. 52), spoke to the media and, after being asked whether Chauvin’s silence impacted the jury, stated as follows:
Yeah, definitely it [Chauvin's silence] did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout. You know it probably was to his detriment that he didn’t take the stand ’cause people were curious on what his thoughts were throughout the entire incident.”
At the very least, Mitchell's statement may cause Judge Cahill to question the jurors regarding the effect, if any, that Chauvin’s silence had on their deliberations.
Second, the defense will argue that the jury was impermissibly biased against Chauvin. Once again, Brandon Mitchell’s conduct provides a basis upon which to support this assertion. After the trial, a photograph emerged of Mitchell wearing a t-shirt that stated, “Get your knee off our necks,” which Mitchell allegedly wore at a Washington, D.C. rally commemorating Martin Luther King’s “I have a dream” speech.
The photograph’s impact on appeal will depend primarily on whether Mitchell was truthful when answering the jury questionnaire during voir dire. Specifically, Mitchell was asked the following questions:
“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.
Mitchell answered “no” to both questions.
At the very least, the photograph of Mitchell wearing a shirt stating, “Get your knee off our necks,” coupled with his “no” answer to the second question, supports a further inquiry by Judge Cahill into Mitchell's potential bias.
2. Failure to sequester the jury
Chauvin’s defense team will certainly argue that the jury should have been sequestered from the beginning of the trial, not merely during deliberations. There may be some merit to this argument, given: (1) the pervasive media coverage in the months following Floyd’s death and particularly during the trial; (2) the statement by Maxine Waters, in which she stated that protesters should “get more confrontational” if a guilty verdict was not reached. Indeed, Judge Cahill stated that Waters’ statement may lead to a reversal on appeal. Furthermore, Alan Dershowitz stated:
Well, first, what was done to George Floyd by officer Chauvin was inexcusable, morally, but the verdict is very questionable because of the outside influences of people like Al Sharpton and people like Maxine Waters,” … Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, 'If you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed,' seeped into the jury room because the judge made a terrible mistake by not sequestering the jury.
And a statement by alternate juror Lisa Christensen, although not necessarily relevant to the appeal, suggests that the pressure to reach a guilty verdict may have impacted the jury. When questioned about the possible social unrest that may result from the verdict, Christensen stated as follows:
There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.
Coupled with Brandon Mitchell’s statement (and the photo), Christensen’s statement arguably supports the argument that the jury should have been sequestered.
3. Failure to Change Venue
Chauvin’s defense will argue that Judge Cahill erred by failing to grant a change of venue. To begin with, the incessant media coverage in Minneapolis and elsewhere following Floyd’s tragic death, coupled with the widespread protests in Minneapolis, which universally condemned Chauvin’s actions (some of which turned violent), may support the argument that Judge Cahill should have granted the defense’s motion to change venue. However, the prosecution will argue that the media coverage and protests occurred throughout Minnesota and the United States, thus rendering it unlikely, if not impossible, that Chauvin would have received a fairer trial anywhere in Minnesota. The prosecution will probably succeed on this aspect of the venue issue.
That, however, does not end the inquiry. Shortly before jury selection, Minneapolis announced that it reached a settlement of twenty-seven million dollars with Floyd’s family in connection with the family’s civil suit. The timing of this settlement is certainly suspect and a legitimate question exists concerning whether the settlement affected the jurors' impartiality.
4. Insufficiency of evidence on one or more of the charges
The defense will likely argue that the evidence did not support a conviction for second-degree unintentional murder (felony murder) or third-degree murder. The third-degree murder conviction is problematic because Minnesota’s statute requires that an individual engage in conduct that is a threat to “others.” It is difficult to conceive of how Chauvin’s actions threatened anyone by Floyd, thus warranting a reversal of the conviction on this charge. As a practical matter, however, this will have no impact on the sentencing because the conviction for second-degree unintentional murder, which results in the most severe sentence, will likely be upheld, and because the sentences for each conviction will be imposed concurrently, not consecutively.
Ultimately, the vast majority of commentators and citizens viewed Chauvin’s actions as egregious and criminal. Moreover, the likelihood of overturning a conviction on appeal is small.
But in this case, the chances of success are higher. Based on Brandon Mitchell’s statements (and the photograph), the failure to sequester the jury despite the incessant and negative media coverage, and the twenty-seven million dollar settlement on the eve of jury selection, Chauvin’s defense team will have a strong argument to overturn the conviction.
And for the reasons stated, the conviction should be overturned.
Process matters – regardless of Chauvin’s egregious and deplorable conduct.
 Scott Cosenza, Did Floyd Jurors Violate Chauvin’s Fifth Amendment Rights? (April 29, 2021), available at: Did Floyd Jurors Violate Chauvin's 5th Amend Rights? - Liberty Nation
 See Paulina Villegas, Photo of Chauvin Juror Wearing BLM T-Shirt at March Raises Questions of Impartiality, Experts Say (May 3, 2021), available at: Brandon Mitchell, juror in Derek Chauvin’s murder trial, faces allegations of prejudice after photo surfaces - The Washington Post
 Jonathan Turley, Juror No. 52: Does Chauvin Have a New Challenge Over Juror Brandon Mitchell? (May 4, 2021), available at: Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell? – JONATHAN TURLEY
 See Chandelis Duster, Waters Calls for Protestors to ‘Get More Confrontational’ If No Guilty Verdict Is Reached in Chauvin Trial (April 19, 2021), available at: Maxine Waters calls for protesters to 'get more confrontational' if no guilty verdict is reached in Derek Chauvin trial - CNNPolitics
 Jordan Davidson, Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting and Destruction’ and ‘People Coming to My House’ to Protest Verdict (April 23, 2001), available at: Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting And Destruction’ (thefederalist.com)
Saturday, May 15, 2021
While avoiding grading recently, I found an interesting analysis of inclusive language as a lawyer’s professional responsibility, and as a form of allyship. Jayne Reardon, a former Illinois State Bar disciplinary counsel, posted a thoughtful piece on inclusion and allies on the Illinois Supreme Court Committee on Professionalism’s 2Civility website. See Jayne Reardon, Inclusive Language Is Allyship (Apr. 22, 2021).
Reardon aptly concludes: “Given that ‘effective communicator’ is part of a lawyer’s job description, we should be sensitive to how listeners may interpret our language.” Id. As lawyers, “our stock in trade is language. We can choose language that makes our points persuasively or language that is distracting and possibly offensive. Distracting or offensive language, of course, doesn’t serve our clients, our profession, or our image in the eyes of the public.” Id.
As appellate lawyers, we are in an especially good position to combine our duty to communicate clearly with the goal of using language non-offensively. In so doing, we can also use our privilege to serve as allies for underrepresented groups.
How do we combine communication with allyship? Hopefully, in many ways, including using our writing skills and engaging in conversations on bias and inclusion.
Reardon suggests we start by avoiding metaphors and by thinking carefully about the way phrases like “Chinese wall” and “the blind leading the blind” can be offensive and painful. Id. Ellie Krug, founder and president of Human Inspiration Works, LLC, finds “the language of ‘us vs. them’ particularly pernicious to our democratic values and “exhorts lawyers to embrace the diversity, equity, and inclusion practices that the business community adopted long ago.” Reardon, Inclusive Language Is Allyship.
We can also connect our language to allyship with a full understanding of what being an ally can entail. As Nicole Asong Nfonoyim-Hara, the Director of the Diversity Programs at Mayo Clinic, defines, “allyship” is "when a person of privilege works in solidarity and partnership with a marginalized group of people to help take down the systems that challenge that group's basic rights, equal access, and ability to thrive in our society." Samantha-Rae Dickenson, What Is Allyship? (Nat’l Inst. of Health Jan. 28, 2021). “Allyship” can also focus on “help[ing] humans who often lack a voice to speak on their own behalf or who aren’t always in the room when demeaning or marginalizing comments/behaviors occur, or marginalizing policies or plans are made.” Ellie Krug, Allyship for Lawyers in an Awakened America (Apr. 21, 2021).
As Reardon notes, “[w]hen we disregard how others may interpret our language or are unthoughtful with our words, we risk offending members of our professional community, like the judge, judge’s staff, opposing counsel, or others who may hear the oral argument or read the brief. In choosing more inclusive language, we choose allyship.”
I am working to choose allyship in my writing and teaching, and I appreciate the resources and conversations about being an ally from 2Civility and others. If you are interested in seeing more of the 2Civility website and programs, you can subscribe here for the Commission’s weekly newsletter.
Tuesday, May 11, 2021
The Supreme Court’s recent decision in Jones v. Mississippi purported to do all the right things with respect to precedent cases. The majority claimed to uphold precedents like Miller v. Alabama that highlighted the intransigence of youth and the need for courts to consider whether a juvenile defendant is permanently incorrigible before sentencing them to life without parole. It then noted Montgomery v. Louisiana’s holding that Miller’s rule was substantive, and therefore applied retroactively on collateral review. Yet in the opinion’s fourth footnote, the majority purported to limit Montgomery’s holding, stating that because it was in “tension” with other retroactivity cases, Montgomery “should not guide the determination of whether rules other than Miller are substantive. Essentially, the majority acknowledged its disagreement with the holding of Montgomery—that Miller’s rule was substantive and not procedural—but refused to overrule it, saying that it ought to be a one-of-a-kind precedent courts in future retroactivity cases should feel free to ignore. Perhaps unsurprisingly, the Court then rejected the juvenile petitioner’s argument that under Montgomery a court could only sentence him to life without parole after making and on-the-record finding that he was permanently incorrigible.
Will footnote four in Jones come to rival other famous fourth footnotes in Constitutional jurisprudence? That all depends on one’s conception of stare decisis and its meaning. It might create categories of precedents not just limited to their facts, but limited in their peculiar readings of long-standing doctrinal puzzles. Sure, one might say, Montgomery still stands as a precedent holding that Miller retroactive, but its comments on retroactivity doctrine and the distinction between substantive and procedural rules do not extend to future cases. Thus, Montgomery still exists, but has limited value in the development of retroactivity doctrine. It stands as a unique form of zombie precedent that appears all but dead, yet stills lurk the corridors of the United States Reports.
Several Justices challenged footnote four’s approach, though they raised conflicting critiques of the zombie precedent model. Justice Thomas’s concurrence and Justice Sotomayor’s dissent used differing versions of stare decisis to make their points. First, Justice Thomas cited to his opinion Gamble v. United States that would permit overruling any “demonstrably erroneous” precedent, without further analysis, to argue that Montgomery could not survive and should be directly overruled. As I’ve noted in an earlier post, that trend towards a weaker version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone, has taken root on the Court in the last decade, though it is yet to garner a clear majority of the Justices’ support. On the other hand, Justice Sotomayor relied upon a stronger conception of stare decisis traceable to 1992’s Planned Parenthood v. Casey. That conception of stare decisis only permits the Justices to overrule based upon special justifications beyond “poor reasoning,” such as unworkability, special reliance interests, new legal developments, or vastly changed facts. Applying those possibly justifications, Sotomayor and her colleagues saw no reason to overrule Montgomery’s retroactivity holding, then chided the majority for seemingly overruling it nonetheless.
The Jones majority’s effort to render Montgomery a zombie precedent introduced a new battle front in the larger ongoing war over the future of stare decisis. Justices that support both the strong and weak version of stare decisis should take note of the possibilities and perils that such zombie precedents present. Jones’s footnote four has the potential to become a flashpoint in the stare decisis debate for years to come.
 Jones v. Mississippi, 141 S.Ct. 1307, 1317-19 (2021).
 Jones v. Mississippi, 141 S.Ct. 1307, 1317 (2021).
 Jones v. Mississippi, 141 S.Ct. 1307, 1317 n. 4 (2021).
 Jones v. Mississippi, 141 S.Ct. 1307, 1321 (2021).
 See United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938).
 Jones v. Mississippi, 141 S.Ct. 1307, 1323 (2021) (Thomas, J., concurring).
 505 U.S. 833, 854-55 (1992) (plurality opinion).
 For more on the competing strands of the stare decisis doctrine, see Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 98-112 (2020).
 Jones v. Mississippi, 141 S.Ct. 1307, 1330, 1335-36 (2021) (Sotomayor, J., dissenting).
Sunday, May 9, 2021
In the past year, COVID-19 has transformed how legal education – and legal writing – is delivered to students. Online instruction replaced in-person instruction, professors and students were forced to adapt quickly to an alternative learning format, and grading policies were adjusted to account for the unique hardships that online learning engendered for many law students. And all of this occurred while administrators, faculty, and students were living in fear of a virus that has killed more than 570,000 citizens in the United States.
Notwithstanding, the challenges involved in transitioning to online learning – along with the challenges of transitioning to in-person instruction post-COVID – need not compromise the transformative and practical instruction that legal writing courses can effectuate, regardless of whether through online or in-person instruction. Indeed, several universal principles or designs can ensure that students learn real-world writing and critical thinking skills in online and in-person contexts. Those principles are below and can be useful to both new and experienced legal writing faculty to ensure that legal writing courses provide students with the competencies to succeed in law school and the legal profession.
1. Connect legal writing to the real world – a memo and appellate brief are not sufficient.
The best legal writing courses and curriculums connect pedagogy and assignments to the real world. To do so, legal writing professors should require students to draft and re-draft the most common litigation documents in their courses, including complaints, answers, motions to dismiss and motions for summary judgment, trial briefs, and appellate briefs. And these assignments should be given in the order they would be drafted in practice.
To accomplish this objective, legal writing professors should, either individually or collaboratively, draft a detailed hypothetical fact pattern that includes substantive issues from all first-year courses and requires students to “litigate” a hypothetical case from the complaint to appellate brief in the first year of law school (or the first three semesters). The assignments could be administered as follows:
Legal research assignment (one or more issues in the hypothetical)
Predictive memorandum (closed research)
Re-write of the predictive memorandum with one or more issues added (open research)
Answer (which allows students to self-critique their complaint consider a legal issue from an opposing perspective)
Motion to Dismiss
Motion for Summary Judgment (with previously prepared discovery provided)
Re-write of the Motion for Summary Judgment
Re-write of Appellate Brief
Appellate court opinion (students assume the role of judge and draft an opinion affirming or overturning the lower court)
This format will allow students to gain experience in drafting and re-drafting the most common litigation documents in the order that they would be drafted in practice, thus enabling students to understand the ‘big picture’ of how law is practiced, and gain experience in applying predictive and persuasive writing techniques to various real-world documents and contexts. Perhaps most importantly, this approach enables professors to focus on persuasive advocacy from day one, in which students will be required to, among other things, formulate a theme and theory of the case, distinguish relevant from irrelevant facts, and synthesize the law to present a compelling legal argument. Of course, this would not eliminate instruction on predictive writing; it would simply incorporate the predictive writing component into the litigation and sequence it appropriately.
2. Prioritize integration over separation – legal writing assignments should be connected to doctrinal courses
When drafting a multi-issue hypothetical that allows students the opportunity to litigate a hypothetical case from the complaint to the appellate brief, law professors should include issues from the students’ required first-year courses. Doing so will enable students to apply the legal doctrines that they are learning in their required courses to real-world contexts and help students to understand how these doctrines operate in law practice. Furthermore, by applying foundational legal doctrines (e.g., personal jurisdiction, negligence) to a real-world fact pattern, students will simultaneously improve their writing and critical thinking skills and learn how to effectively analyze legal issues, which will maximize their performance on end-of semester-exams and enhance their ability to think like lawyers.
For example, a multi-issue fact pattern in a first-year legal writing curriculum can include issues such as negligence, personal jurisdiction, assault and battery, proximate causation, and supplemental jurisdiction. By connecting the assignments in legal writing courses to the topics students are learning in doctrinal courses, the legal writing curriculum will be an essential and integrated part of the curriculum.
3. Require students to read excellent writing
Before students write, they should read excellent legal writing texts and documents. After all, students need to understand what good writing is before they can become excellent legal writers. For example, professors should require students to read Plain English for Lawyers by Richard Wydick and Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which is a perfect example of outstanding storytelling and persuasive advocacy.
4. Make the Rule of Three a cornerstone of legal writing instruction.
The Rule of Three is an effective technique to maximize the persuasive impact of an argument. This technique instructs students, when making legal arguments, to identify three reasons that support a desired outcome or remedy. Social science research demonstrates that the Rule of Three effectively simplifies and organizes an argument for the audience, and appeals to the audience because people respond positively and attentively to arguments that are delivered in sets of three.
5. Teach students how to re-write and edit, not just write
Excellent writing requires excellent editing.
Indeed, to write effectively, students must understand and embrace the writing process, which consists of the: (1) first draft; (2) rewriting phase; and (3) revision phase. Thus, legal writing professors should instruct students on macro and micro level editing, including issues such as organization, conciseness, word choice, grammar, and style. Put simply, if students do not understand how to re-write and edit effectively, they will not write persuasively.
Perhaps the best way to train students in re-writing and editing is to provide them with a legal brief written by a practicing attorney and require them, individually or in groups, to re-write and edit the document, and explain why their edits made the document flow better and present the arguments more persuasively.
6. Include time-pressured assignments
As every lawyer knows, legal documents must often be drafted under strict time constraints. Thus, law students should gain experience in drafting real-world documents under the pressures that attorneys face daily. For example, legal writing instructors can require students to draft a rule section explaining the law of defamation and give students, either individually or in groups, twenty-four hours to complete the assignment. Doing so enables students to continue developing their legal writing skills while simultaneously coping with the pressures that they will encounter in law practice.
7. Include simulations and require students to argue opposing viewpoints
When using a multi-issue hypothetical that requires students to litigate a case from the complaint to the appellate brief, legal writing faculty should include simulations, such as a client interview, presentation of the law to a partner, settlement negotiations, and trial and appellate court oral arguments. The point is to train students to communicate effectively and interpersonally, which essential to excellent counseling and advocacy.
8. Truly ‘Flip the Classroom’: Turn the students into teachers
Students should be challenged in the legal writing classroom and curriculum – and treated as peers. One way to do this is to truly flip the classroom by requiring students, as part of an assigned group, to teach particular classes that discuss topics such as IRAC/CRAC, case synthesis, and binding versus persuasive legal authority. Doing so will ensure that the ‘teaching students’ master the relevant material and gain experience in public speaking and communication. Also, this exercise can empower students and create an environment in which they are views as peers in a collaborative learning process.
9. Stay away from politics
No one cares about your political views. More specifically, no student wants to enroll in a course where they will be subject to ideological indoctrination. Students learn best – and are motivated to learn – in a classroom where they feel welcomed and accepted. As such, classrooms should be places in which all views – liberal, conservative, libertarian, and whatever else – are welcomed and respected. Thus, to promote diversity of viewpoint and experience, law professors should never make statements or design assignments that strive to advance a particular point of view or agenda. Doing so is antithetical to creating a diverse and inclusive classroom environment.
10. Be available – always
Great professors care deeply about their students’ success and demonstrate that commitment by being accessible and available to every student – even in the evenings and on weekends. Indeed, getting to know each student individually – and establishing productive relationships with each student – inspires trust and motivates them to work hard and succeed. For these reasons, go the extra mile and be available to students whenever they need advice or assistance. It shows that you care, which inspires students to excellent lawyers – and citizens.
Ultimately, the best legal writing professors realize that their mission is not about them – it is about improving the skills and lives of their students. These tips will help in achieving those objectives and make the legal writing curriculum a place where students learn to become great lawyers and great people.
 See Adam Lamparello & Megan Boyd, Legal Writing for the Real World (LexisNexis, 2014).
 See Adam Lamparello & Charles E. MacLean, The Guide to Experiential Legal Writing (Carolina Academic Press, 2015).
 See, e.g., Kathleen Elliot Vinson & Sabrina DeFabritis, Under Pressure: How Incorporating Time-Pressured Performance Tests Prepares Students for the Bar Exam and Practice, 122 West Va. L. Rev. 107 (2019).
Monday, April 26, 2021
Recently the Fifth Circuit issued a 325 page opinion in an en banc case, Brackeen v. Haaland, which concerns the constitutionality of the Indian Child Welfare Act. The actual per curiam opinion is only 5 pages. But then you have the concurrences and dissents. Figuring out who joined what part of what opinion could be an LSAT logic game. I want to read all of the opinions, I am interested in ICWA issues, but the time that it would take to really sit down and process it is pretty overwhelming--like reading a novel!
Luke Burton, a career clerk on at the Eighth Circuit, recently published an article in The Journal of Appellate Practice and Process on the need for shorter appellate opinions. In the (short) article, Burton postulates a few reasons why judicial opinions are getting longer and offers some virtues of shorter opinions. I want to just focus on one of his points--public participation in the judicial system. Burton argues that long opinions "encourage public ignorance of the law and the courts" because "[i]n today's 280-character culture, the public simply does not have the attention span to spend hours reading judicial opinions." Amen to that. Long opinions take a long time to read, and then an even longer time to analyze, which can lead to another problem Burton notes--"misinterpretation." Burton cites an example of misinterpretation from his own court. Misinterpretation, of course, can also destroy public confidence in the courts as an institution and lead to more division and strife.
Some cases are complex and may require lengthy opinions, and perhaps the Brackeen case fits the bill. Hopefully this summer I will have time to relax by the pool and read it, instead of the latest novel that has been released.
Saturday, April 24, 2021
In Jones v. Mississippi, the United States Supreme Court ruled by a 6-3 margin that a sentence of life imprisonment without parole for a fifteen-year-old juvenile who was convicted of murder did not violate the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Court’s decision will likely engender criticism because it is arguably inconsistent with the Court’s precedents.
By way of background, in Roper v. Simmons, the Court held that it was unconstitutional to impose capital punishment for crimes that an individual committed while under the age of eighteen. In so holding, the Court emphasized that juveniles’ brains are not fully developed and, as such, juveniles lack the maturity of adults and often engage in impulsive conduct that reflects a failure to appreciate the consequences of particular actions. For these reasons, juveniles are less culpable than adults and therefore not among the narrow category of offenders for whom the death penalty is warranted. Additionally, in Miller v. Alabama, the Court relied in substantial part on the differences between juveniles and adults to hold that laws authorizing mandatory sentences of life without parole for juvenile offenders convicted of murder violated the Eighth Amendment. The Court emphasized that a juvenile’s crime often reflects “unfortunate but transient immaturity,” and that a sentence of life without parole should be reserved for a narrow category of juvenile offenders “whose crimes reflect irreparable corruption” or “permanent incorrigibility.” Accordingly, imprisonment for life “is a disproportionate sentence for all but the rarest children.” And in Montgomery v. Louisiana, the Court held that the rule announced in Miller applied retroactively to juveniles previously sentenced to life without parole, thus requiring re-sentencing for these offenders. Finally, in Graham v. Florida, the Court held that sentencing juveniles to life imprisonment without parole for non-homicide offenses violated the Eighth Amendment.
The Court’s decisions in Miller and Montgomery arguably require that, before a juvenile can be sentenced to life without parole, a court must determine whether a juvenile’s crime reflects “unfortunate yet transient immaturity,” therefore precluding a sentence of life without parole, or “irreparable corruption” (permanent incorrigibility), thus justifying the imposition of such a sentence.
In Jones, the Court’s decision, although not technically inconsistent with Miller and Montgomery, certainly appears at odds with the spirit and purpose underlying these decisions. Writing for the majority, Justice Brett Kavanaugh noted that Miller only prohibited the imposition of mandatory sentences of life without parole for individuals who were minors when the crime was committed. In Jones, however, the trial court had the discretion to impose a lesser sentence on the defendant – who was fifteen at the time of the crime – and thus did not violate Miller by exercising that discretion to impose a sentence of life without parole. Furthermore, because Graham v. Florida only prevented the imposition of life without parole for non-homicide offenses, it violated neither Miller nor Graham to impose a discretionary sentence of life without parole for a homicide offense. Furthermore, Justice Kavanaugh stated that, when exercising such discretion, a trial court is not required to determine whether a juvenile’s crime reflected “transient immaturity” or “irreparable corruption,” the very distinction upon which Miller relied to identify the narrow category of juvenile offenders for whom life imprisonment without parole could be justified. Rather, it suffices that a court has the discretion to consider youth as a mitigating factor – even in the absence of a record showing that the court considered this issue to a meaningful degree.
The Court’s decision in Jones appears inconsistent with Miller and Montgomery and casts doubt upon their continued viability. First, if a sentence of life without parole should be, as the Court stated in Miller, reserved for a narrow category of juveniles who demonstrate irreparable corruption (or permanent incorrigibility), it seems logical and constitutionally necessary for courts to determine at sentencing that a juvenile falls within this narrow category. Holding that a sentence of life without parole is permissible simply because the lower court had the discretion to impose a lesser sentence – even if the court did not meaningfully exercise this discretion as Miller and Montgomery contemplate – eviscerates the precedential value of these decisions.
Second, as the Court in Roper, Miller, and Montgomery recognized, juveniles lack fully developed brains and the capacity to act with the same degree of maturity as adults. For that reason, only juveniles whose conduct reflects “irreparable corruption” may be sentenced to life imprisonment without parole. Unfortunately, by refusing to require a finding that a juvenile falls into this narrow category, the Court’s holding in Jones eviscerates the distinction between juveniles whose actions reflect “transient immaturity” and those whose actions reflect “irreparable corruption.” And Jones arguably undermines, at least to a degree, the distinction previously recognized by the Court between juvenile and adult culpability. After all, in Roper and Miller, the Court relied on the differences between juveniles and adults regarding brain development, maturity, and rational decision-making to hold that juveniles are less culpable for even the most serious crimes. After Jones, the Court appears willing to relegate decisions regarding culpability to courts who have the “discretion” to impose lesser sentences while imposing no requirements on how courts exercise this discretion.
Put simply, Jones cannot be reconciled with the Court’s prior jurisprudence, suggesting yet again that stare decisis is a doctrine of convenience rather than conviction. Indeed, Chief Justice Roberts, despite pledging fidelity to stare decisis in June Medical Services v. Gee, where he voted to invalidate a Louisiana law requiring abortion providers to have hospital admitting privileges, joined the majority in Jones and appears to have an on-again, off-again relationship with stare decisis. And given that Roberts seems to care more about public perceptions of the Court rather than constitutional law, his decision to inconsistently apply the doctrine is surprising because it undermines the very institutional legitimacy he strives to preserve.
Third, the Court failed to address the concern that permitting a judge to consider youth as a mitigating factor violates precedent holding that the Sixth Amendment requires juries, not judges, to make such factual findings, particularly where they may result in an increased sentence.
Ultimately, the Court’s decision in Jones confuses, rather than clarifies, the law regarding whether, and under what circumstances, juveniles can be sentenced to life imprisonment without parole. And by countenancing such sentences simply because a court has the discretion to impose a lower sentence – without any requirement that a court determine that a juvenile’s actions reflect irreparable corruption – the Court turned a blind eye to the risk that sentencing in this area will become arbitrary and unfair.
The decision was a mistake.
 593 U.S. (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)
 543 U.S. 551 (2005).
 567 U.S. 460 (2012).
 Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.
 Montgomery, 577 U. S., at 195.
 577 U.S. , 136 S. Ct. 718 (2016).
 560 U. S. 48 (2010)
 Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.
 593 U.S. (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)
 See id.
 See id.
 See id.
 591 U.S. (2020), 2020 WL 3492640.
Sunday, April 18, 2021
George Floyd’s death, which was captured on video, is difficult to watch and, quite frankly, disturbing. In that video, former Minneapolis police officer Derek Chauvin kneeled on Floyd’s neck for over nine minutes, including several minutes after which Floyd had lost consciousness. Floyd’s death sparked protests (and, in some areas, riots) throughout the country for many months and, over the last three weeks, Chauvin has stood trial for Floyd’s murder in Minneapolis. Both the prosecution and defense are expected to deliver closing arguments tomorrow and the jury may begin deliberating as soon as Tuesday.
When deliberations begin, the jury will consider the following three charges against Chauvin: (1) second-degree unintentional murder (felony murder); (2) second-degree manslaughter; and (3) third-degree murder. Second-degree unintentional murder, which carries a prison sentence of up to forty years, applies to a defendant who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second-degree with force or violence or a drive-by shooting.” Under Minnesota law, the underlying felony must pose a “special danger to human life,” thus requiring at least some risk of death. Second-degree manslaughter applies where an individual’s death results from “the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Third-degree murder applies to individuals who “without intent to effect the death of any person, cause the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
Determining which, if any, charge will result in a conviction is difficult to predict. During the trial, the prosecution, led by Minnesota Attorney General Keith Ellison, presented thirty-eight witnesses. This included testimony from Minneapolis Police Chief Medaria Arradondo, who stated that Chauvin’s decision to kneel on Floyd’s neck was not an approved police technique and that Chauvin should have ceased kneeling on Floyd’s neck when he longer presented a threat to the officers (the evidence shows that Chauvin continued restraining Floyd for approximately three minutes after Floyd was unconscious). Additionally, the prosecution presented numerous medical experts who testified that hypoxia, which is a low level of oxygen that leads to asphyxia, caused Floyd’s death, and that the asphyxia resulted from Chauvin kneeling on Floyd’s neck for over nine minutes.
The defense, led by attorney Eric Nelson, argued that Floyd’s death was caused by a combination of factors unrelated to Chauvin’s actions, such as drug use and heart disease. For example, the toxicology report revealed that Floyd had ingested a potentially lethal amount of Fentanyl, and that Floyd had methamphetamine and THC in his system. Additionally, Floyd had atherosclerosis and hypertensive heart disease. The defense’s expert, Dr. David Fowler, concluded that these conditions, coupled with the drugs Floyd ingested and his inhalation of carbon monoxide from the squad car, collectively caused his death. The defense also presented a use-of-force witness who testified that, under the circumstances, Chauvin did not use excessive force.
It is difficult to predict whether the jury will convict Chauvin and, if so, what charge will most likely result in a conviction. The prosecution’s witnesses, particularly Minneapolis Police Chief Medaria Arradondo and Dr. Martin Tobin, were quite compelling. Defense attorney Eric Nelson, however, effectively cross-examined several witnesses and focused extensively on drugs and heart disease as the causes of death.
Arguably, the causation issue will most likely consume much of the jury’s deliberations and will require a determination of whether Chauvin’s actions – or drugs and heart disease – caused Floyd’s death. Indeed, given the amount of Fentanyl in Floyd’s system and his underlying cardiovascular conditions, it may be difficult for jurors to conclude beyond a reasonable doubt that Chauvin caused Floyd’s death. Importantly, however, the prosecution need only show that Chauvin’s actions were a contributing cause of Floyd’s death, which renders a conviction more likely.
Ultimately, considering the arguments, testimony, and evidence, it seems that, if the jury does convict Chauvin, it will likely be for second-degree manslaughter. A conviction on the third-degree murder charge is implausible because Chauvin’s actions, although reprehensible, did not threaten to harm multiple persons or “others” as the statute requires. Also, a conviction on the second-degree unintentional murder charge seems less likely (although possible) because the felony murder statute has rarely, if ever, been applied to law enforcement officers in the context of restraining a suspect. This is particularly true concerning a suspect who is resisting arrest because, at least for a portion of the time, the restraint used is arguably justified. In addition, given that Chauvin was unaware of the level of Fentanyl in Floyd’s system or of his preexisting heart conditions, it may be difficult to demonstrate that Chauvin intended to inflict bodily harm on Floyd or that he knew his actions were likely to result in such harm. However, a conviction on second-degree manslaughter is arguably justified because Chauvin was culpably negligent by kneeling on Floyd’s neck for minutes after Floyd was unconscious and thus no longer presented a threat to the officers. Indeed, Chauvin’s failure to stop kneeling on Floyd’s neck despite his lack of consciousness cannot be justified.
If the jury returns an acquittal, it will almost certainly result from a belief that, although Chauvin’s actions were appalling and entirely unnecessary, they did not cause Floyd’s death. This is certainly a possibility and will depend on the jury’s assessment of the experts’ credibility and of the relevant medical reports.
Also, if the jury returns a guilty verdict, defense attorney Eric Nelson (or whomever Chauvin retains) will almost certainly appeal. Specifically, Nelson will likely argue, among other things, that Judge Peter Cahill’s refusal to change the venue for the trial deprived Chauvin of the right to a fair trial. And if the jury returns a guilty verdict on the third-degree murder charge, it may be overturned on appeal because Chauvin’s actions, however deplorable, did not threaten harm to multiple people.
Regardless, George Floyd’s death was a tragedy. The video of his death is appalling. Whatever the jury’s verdict, this incident will hopefully lead to reforms in how police are trained in the use of force and de-escalation techniques, such that an incident like this never occurs again.
 Minn. Stat. 609.19(1).
 Minn. Stat. 609.205(1).
 Minn. Stat. 609.195.
Saturday, April 17, 2021
Lawyer Who Protested Trial Court’s Interlocutory Ruling, Instead of Filing a Writ or Waiting for Appeal, Agrees to Public Reprimand & Judge’s “Bart Simpson” Punishment
On April 9, 2021, the Board of Professional Conduct of the Ohio Supreme Court recommended the court accept an attorney’s agreement to a public reprimand. See Order (Apr. 9, 2021) http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=901849.pdf. As Debra Cassens Weiss explained for the ABA Journal, the attorney, Anthony Baker, also agreed the trial judge’s “well-publicized and unusual punishment” was proper. Debra Cassens Weiss, Lawyer deserves reprimand for courtroom protest that led to 'Bart Simpson-esque' punishment, ethics board says ABA Journal (Apr. 14, 2021).
Baker represented a criminal defendant in the Cuyahoga County, Ohio Court of Common Pleas, before Judge Nancy Fuerst. See https://www.cleveland.com/court-justice/2020/02/judge-doles-out-bart-simpson-esque-punishment-to-lawyer-held-in-contempt-for-acting-out-at-trial-in-cleveland.html. The state charged defendant with felonious assault and domestic violence, and Baker filed a timely notice of defendant’s intent to rely on a claim of self-defense. Order at 1-2. The parties tried the case to a jury, and at the close of evidence, Baker requested a self-defense jury instruction. After hearing argument from counsel, Judge Fuerst denied the jury instruction request. Id. at 2.
Baker then staged what the parties before the Board called a “protest,” making “repeated efforts to stop the trial from proceeding.” Id.; Weiss, ABA Journal at 2. Judge Fuerst ordered Baker “to sit at the defense table and be quiet,” but while the judge was instructing the jury, “Baker left the defense table and stood behind a television stand.” Order at 2. Baker admitted to the Board: “’I moved away from the table so it was clear I'm not participating.’" Id. Judge Fuerst then dismissed the jury for a lunch break and documented Baker’s conduct for the record. When trial resumed, the jury returned a guilty verdict for the lesser offense of aggravated assault and domestic violence, and defendant appealed. Id.
In a February, 2021 post-trial proceeding, the judge found Baker guilty of contempt and fined him $500. Judge Fuerst also ordered what Cleveland.com called a “Bart Simpson-esque dose of punishment” by requiring Baker to hand-write 25 times each:
- I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.
- I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.
Baker immediately complied with Judge Fuerst's order and paid the $500 fine. In fact, Cleveland.com published photos of Baker sitting at counsel table and writing out his Bart Simpson-style phrases as well as the first page of his phrases.
Baker also “admitted to the inappropriate nature of his conduct and to deserving the contempt citation.” Order at 3. Baker told the ABA Journal he was “’discourteous,’ and that ‘the judge was right in the discipline she gave.’” Weiss, ABA Journal at 2. “’As I’ve maintained throughout, what I did in the courtroom was not justified,’” Baker told the ABA Journal. But Baker also explained he “didn’t engage in any kind of outbursts, and the judge noted that [his] protest did not create a circus atmosphere.” Id.
Based on media reports of the sanctions, the Cleveland Metropolitan Bar Association, as Relator, initiated a proceeding against Baker with the Ohio Supreme Court. Id. Baker and the Bar Association agreed to an additional sanction of a public reprimand, noting Baker immediately complied with the trial court’s sanctions order and admitted to the inappropriate nature of his conduct. An ethics hearing panel accepted the public reprimand after finding additional mitigating factors, including the “highly public nature” of the contempt proceedings against Baker, the lack of prior discipline against him, and his cooperative attitude in the ethics proceedings. Order at 3.
Judge Fuerst’s punishments—and the Ohio bar sanction—seem to have succeeded where Bart Simpson’s teacher’s punishment failed. Nonetheless, the real answer here was a properly-perfected appeal, or an interlocutory device like a writ (in jurisdictions allowing writs). As Baker’s client’s appeal proceeds, it will be interesting to see if the appeals court finds the failure to instruct on self-defense as troubling as Baker did.
Sunday, April 11, 2021
Recently, Georgia Governor Brian Kemp signed legislation that substantially revised Georgia’s election laws. As discussed in more detail below, the law, among other things, requires voters to present a valid state identification when voting in person (similar requirements apply to mail-in ballots), limits the number and location of drop boxes for mail-in ballots, reduces the time for requesting such ballots, and expands early voting in most of Georgia’s counties.
Almost immediately, critics claimed that Georgia’s law was racist. Such critics claimed, for example, that the law will suppress voter turnout and limit access to voting through provisions that will disproportionately impact people of color and various marginalized communities. The result, critics argued, would benefit the Republican party and diminish the voices of Georgia’s increasingly diverse electorate.
Additionally, Major League Baseball joined the chorus of critics in condemning the law as racist and decided to move its annual All-Star Game from Atlanta, even though doing so will likely have a deleterious impact on Atlanta’s minority-owned businesses. Likewise, Delta Airlines, United Airlines, and Coca-Cola criticized the law, with Delta Airlines CEO Ed Bastian stating that the law is “unacceptable and does not match Delta’s values.”
And President Joe Biden stated that Georgia’s voter identification law was “Jim Crow on steroids.”
But is the law racist? Is the law really “Jim Crow on steroids?” A brief analysis of the relevant provisions of Georgia’s law suggests that the answer is a resounding no.
First, the law requires individuals to present a valid state-issued ID when voting in person. For individuals voting by mail, the law requires individuals to submit a valid driver’s license or state identification number, or provide the last four digits of their social security number. Importantly, the Georgia Department of Driver’s Services and county registrar’s offices issue state ID cards at no cost to voters. Given that a valid ID is required, for example, to pick up tickets at an Atlanta Braves game or to board a Delta Airlines flight, it seems rather sensible to require one before voting.
Second, the law expands early voting in most Georgia counties. Specifically, counties must designate at least two Saturdays in which to conduct early voting; counties also have the authority to offer early voting on Sundays. Indeed, because this portion of the bill increases early voting – as Georgia’s previous law only required one Saturday of early voting – it appears that this provision is the antithesis of racist.
Third, Georgia’s law requires one drop box per county (and only one drop box per 100,000 voters). In so doing, the law reduces the number of drop boxes, and limits the locations where, and times in which, they can be accessed. The rationale for this reduction is likely because the coronavirus pandemic, particularly due to current vaccination efforts, is nearing an end and thus does not justify the number of drop boxes made available for the 2020 election.
Fourth, the law bans giving food or water to voters who are waiting in line at the polls, ostensibly to prevent groups from campaigning to voters before they enter the ballot box. However, the law permits poll workers to create self-service areas where voters can hydrate. And, of course, voters are not prohibited from making the sensible decision to purchase water and food before arriving at their designated precinct. Although this provision seems rather unnecessary, there is simply no basis to conclude that it is racist.
Fifth, voters are required to request absentee ballots and must do so within approximately two-and-a-half months (seventy-eight days) of an election. Again, the racist aspect of this provision is not immediately apparent.
Sixth, and in what is perhaps the most problematic (although not racist) provision in the law, the secretary of state will no longer chair the state election board. Instead, the General Assembly will elect the chair and board members, which gives Republicans in the state an unnecessary degree of power in controlling how elections are conducted and how the results are processed.
The law also includes provisions striving to report election results more quickly by allowing counties to begin processing absentee ballots fifteen days before election day, and establishes a hotline that voters can call to report voter intimidation or illegal activity. 
Consequently, given that a state-issued ID in Georgia is free, that early voting is expanded, and that little, if any, evidence suggests that any of these provisions will suppress voter turnout, can Georgia’s new law properly be characterized as “Jim Crow on steroids?” Of course not. The assertion is ridiculous on its face – just about as ridiculous as harming minority-owned businesses by removing the All-Star Game from Atlanta.
Importantly, empirical evidence does suggest that voter ID laws are not effective in preventing voter fraud and that instances of voter fraud are relatively rare. However, voter ID laws can increase the perception that elections are being conducted honestly and with integrity, which will enhance public confidence in our electoral and democratic process. Perhaps that is why most states have enacted such laws. To be sure, voter ID laws in states that are the darkest shade of blue, such as New Jersey, New York, and Delaware – President Biden’s home state – are similar to, if not more restrictive than, Georgia’s new law. In short, Georgia’s law isn’t racist. It’s not “Jim Crow on steroids.”
Ultimately, racism is despicable. Racists should be universally condemned. And efforts to increase access to the polls for marginalized groups, and conduct free and fair elections, is a legal and moral imperative. But neither of these objectives is accomplished when leaders make irresponsible and factually inaccurate statements regarding voter ID laws, and causally make allegations of racism. Doing so only serves to further divide an already divided society and promote misinformation campaigns that are anathema to a healthy democracy.
 See, e.g., Adam Brewster, What Georgia’s New Voting Law Really Does – 9 Facts (April 7, 2021), available at: What Georgia's new voting law really does — 9 facts - CBS News
 See, e.g., Ben Nadler and Jeff Amy, Georgia’s New GOP Election Law Draws Criticism, Lawsuits (March 29, 2021), available at: Georgia's new GOP election law draws criticism, lawsuits (apnews.com)
 See, e.g., Natasha Dailey, Coca Cola, Delta, United, and 7 Other Companies Blast Georgia’s New Voting Law In a Wave of Corporate Backlash (April 5, 2021), available at: Coca-Cola, Delta, Others Speak Out Against Georgia Voting Law (businessinsider.com)
 Gabe Kaminsky, Biden’s ‘Jim Crow’ Label for Georgia’s Election Laws is Insane – Here’s Why (April 9, 2021), available at: Biden's 'Jim Crow' Label For Georgia Election Laws Is Insane. Here's Why (thefederalist.com)
 See Brewster, supra note 1, available at: What Georgia's new voting law really does — 9 facts - CBS News
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See e.g., German Lopes, A New Study Finds Voter ID Laws Don’t’ Reduce Voter Fraud – Or Voter Turnout (Feb. 21, 2019), available at: Study: voter ID laws don’t reduce voter fraud — or voter turnout - Vox
 See, e.g., Katie Daviscourt, MLB’s Decision to Pull All Star Game from Atlanta ‘Crushing’ for Small Businesses (April 7, 2021), available at: MLB's decision to pull All Star Game from Atlanta 'crushing' for small businesses | The Post Millennial
Sunday, March 28, 2021
Social media and online blogging have created extraordinary opportunities for individuals and groups to publicly disseminate information, participate in public policy debates, and contribute to the marketplace of ideas. Indeed, social media and online blogging certainly have benefits, such as providing individuals with platforms to connect with others, give commentary on political issues, and offer additional and alternative sources of information.
But social media and online blogging also have drawbacks.
For example, social media has been used – and continues to be used – as a vehicle by which to disseminate false or misleading information regarding, among other things, current political issues. As a source of misinformation in some instances, particularly during federal and state elections, social media has the potential to unduly influence voters and thereby indirectly affect election outcomes. Additionally, social media and online blogging have been used to disseminate false commentary about individuals and groups. To be sure, some social media users and online bloggers – using anonymity as a shield – have attacked individuals with deeply offensive insults and scurrilous attacks that contribute nothing to public discourse, and that cause severe and irreparable reputational harm.
Given the proliferation of such offensive and often harmful statements, the question arises whether defamation law provides a remedy to individuals who are the target of such commentary. The answer, in most instances, is no. And that is a problem.
Current defamation law suffers from a significant flaw. Statements that are deemed pure opinions, regardless of the harm they cause, cannot be considered defamatory. This limitation makes it impossible to obtain a remedy for statements that cause substantial, and sometimes irreversible, reputational harm.
By way of background, defamation consists of libel and slander, and is divided into two categories: defamation per se and defamation per quod. Defamation per se is reserved for a relatively narrow category of statements that are considered so inherently defamatory that they are presumed to cause reputational harm. Typically, defamation per se is limited to statements negatively affecting a person’s reputation relating to his or her business or profession, falsely claiming that a person has been convicted of a crime of moral turpitude, has a sexually transmitted disease, or is unchaste. Defamation per quod applies to all other allegedly defamatory statements and requires a claimant to demonstrate that a statement was: (1) published to a third party; (2) provably false; (3) likely to subject the claimant to embarrassment, scorn, and ridicule in the community; (4) negligently made; and (5) caused damages to the claimant’s reputation.
Importantly, however, if a statement is considered a pure opinion rather than a provably false fact, it cannot be defamatory. In Milkovich v. Lorain Journal Co., the United States Supreme Court explained that “under the First Amendment there is no such thing as a false idea … [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” As stated above, this aspect of defamation law makes it impossible to succeed in a defamation action and leaves individuals who suffer severe and often irreparable harm without a legal remedy. That is wrong. Pure opinions should not be categorically exempted from defamation law.
The fact that a statement reflects a speaker’s opinion does not mean that it is not or cannot be defamatory. Opinions can – and do – cause severe reputational harm. In Milkovich and other cases, the Court has acknowledged this fact, holding that opinions that imply underlying facts can be defamatory. Apart from the inherent difficulty of distinguishing pure opinions from opinions that imply underlying false facts, the Court missed the point. Pure opinions can be defamatory, and claimants should be entitled to have a jury decide if they are defamatory.
After all, readers arguably do not distinguish between pure opinions and provably false facts or condition their judgment of a person on whether a statement constitutes an opinion or a provably false fact. As one commentator explains:
Although people are in a position to judge for themselves whether an opinion is justified so long as the alleged facts utilized as a basis for the opinion are proven to be true and are available to them, most, if not all, people are often influenced by others, especially by the press and the media, in formulating their opinions. The reader of a book or an article may have difficulty in assimilating all the facts set forth as the basis for an opinion; as a result, the reader is apt to be more influenced by the opinion than the facts set forth to justify it.
Put simply, the "view that damage to reputation may be minimized by the recipients' ability to judge the soundness of the opinion is naïve … defamatory deductive opinions may be just as damaging to reputation as other defamatory facts." For example:
[C]onsider a hypothetical assertion in an editorial about John Doe, a candidate for city attorney: ‘In my opinion, John Doe is an incompetent lawyer because he was accepted into law school under an affirmative action program and would not have been admitted under the school's standards for whites.’ Even if the premises of this statement are true, a false assertion that Doe is an incompetent lawyer can be very damaging, causing readers to make judgments based on false premises. In part this pure deductive opinion may be persuasive because readers are ill informed; some may assume that the writer is correct that only those who entered law school under the standards applied to ‘whites’ can be competent lawyers.
Of course, some would argue that the First Amendment protects offensive and distasteful speech. Thus, holding individuals liable for such speech would compromise core First Amendment protections by, among other things, chilling speech and inhibiting a true marketplace of ideas. This argument fails to recognize that defamatory opinion "does not advance free speech values … because it is not the type of public discourse that contributes to intelligent decision making or promotes a multicultural society that is both dynamic and durable." Furthermore, the requirement that a claimant demonstrate tangible reputational harm (not merely emotional distress) inherently limits the extent to which opinions will be considered defamatory. To be sure, the problem is not solved by holding that opinions that implying underlying facts can be defamatory. How can courts distinguish between such opinions and pure opinions? There are simply no standards to make this distinction reliably and consistently, and doing so ignores the fact that pure opinions can – and do – cause reputation harm.
For example, imagine a situation where someone states that another person is a “self-serving fraud,” “Nazi war criminal,” or “Charles Manson wannabe.” The courts held that each of these statements constituted pure opinion and, as such, could not be deemed defamatory. Admittedly, depending on the context, such statements may not be defamatory. But to state that they can never be defamatory, regardless of the harm they cause, and simply because they are pure opinion, makes no sense. If a claimant can demonstrate that a pure opinion caused tangible reputational harm (e.g., economic harm), that claimant should have a legal remedy.
In an era where social media and online blogging are replete with slurs, insults, and degrading comments directed at individuals and groups, the law should not categorically shield such statements from legal liability because they are “pure opinions.” Instead, courts should recognize that pure opinions can – and often do – cause substantial and irreversible harm.
 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
 Milkovich, 497 U.S. at 18 (internal citation omitted).
 Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights J. 467, 495 (1994).
 Id. at 575-576.
 Id. at 579.
 Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999); Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987); Crowe v. Cnty. of San Diego, 593 F.3d 841 (9th Cir. 2010).