Friday, November 8, 2019
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 Opinions and News:
- Next Tuesday, November 12, the court will hear arguments on the validity of President Trump’s decision to terminate the DACA program. More on the case here and a summary of the arguments by Amy Howe (SCOTUS Blog) here.
- The court has released the January calendar, which begins on January 13, 2020.
- A new book about a Supreme Court Justice has been released; this one about Justice Clarence Thomas. Author Corey Robin answers questions here about “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).
Federal Appellate Court Opinions and News:
- The Second Circuit ruled that Donald Trump's accounting firm must turn over the returns to Manhattan District Attorney. The three-judge panel rejected Trump’s argument that he is immune as president from criminal investigation while in the White House. Coverage by NPR and Washington Post.
- An Alabama US District Court has blocked Alabama’s abortion law. The law was a near-total abortion ban that would have taken affect next month. The order calls the law clearly unconstitutional. AP News report.
The Massachusetts Appeals Court rules that, although improper, appealing to a jury’s “reptile” brain is not enough for a mistrial. Law360 article here.
Saturday, October 19, 2019
This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship. In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights.
Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case? The case could impact the scope of free access researchers and appellate practitioners have to online materials. In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.
In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina. Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years. According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge. The researcher hired Petitioner, Frederick Allen, to document the shipwreck. Id. Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office. Id. at 342, 344.
At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication. The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future. Id. at 344-45. Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record. See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.
Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional. The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity. The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA. Allen, 895 F.3d at 342-43, 350-53. The Supreme Court granted cert, and will hear the case on November 5. https://www.scotusblog.com/case-files/cases/allen-v-cooper/.
Over twenty amici have filed briefs. Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA. For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA. Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597. These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.
On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA. The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries. The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance. ALA ACB, 2019 WL 4858292. Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights. Public Universities ACB, 2019 WL 4748384.
Whatever the outcome of these arguments, our appellate community should keep an eye on this case. Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.
Monday, October 7, 2019
I love a good meme. Make it a good grammar, writing, or editing meme and I am in law professor meme heaven.
Not long ago one of my Facebook friends started sharing the funniest grammar memes (or maybe she had been sharing them all along, but Mark Zuckerberg finally thought I should start seeing them). Regardless, I was hooked and followed the clicks through to the main Facebook page of Analytical Grammar. The company also has a website.
What I have loved about the Analytical Grammar memes is that they explain often misused words. For example, check out this meme (which I share with permission!):
I shared this meme on my Facebook page and several of my friends found in informative. I also like that if you click to Analytical Grammar's Facebook page, there is a short text description of the meme and the proper word usage.
I could share a lot more of the Analytical Grammar memes--they are delightful--but I want to get to the rest of the story. When I clicked over to the Analytical Grammar Facebook page, I was struck by the cover photo. It contains a few images and the following text: "This page is run by an Air Force reservist and small business owner, and the business is being SUED for sharing a viral meme. For the full story, documentation, and other info, go to this link: www.gofundme.com/analyticalgrammar." Naturally, I went to the GoFundMe page for more information.
Apparently, Analytical Grammar shared a viral picture of a visual pun. The pun went viral from its site too. That was in December 2017. Almost two full years later Analytical Grammar was sued in federal court by the man who said he created the meme.
According to the complaint (in a nutshell), the plaintiff took the photograph and copyrighted it. He claims that Analytical Grammar ran the photo without permission or a license. He also seems to claim that Analytical Grammar removed "copyright management information." He asks the court for actual damages, profits Analytical Grammar received from the infringement, attorneys fees, and punitive damages. Wow!
Analytical Grammar's answer and counterclaims is pretty awesome. In a delightful play on words (since the original photo was of several levels), it states;
Bradley’s lawsuit is wrong on so many levels. He levels claims against Analytical for sharing his joke. He does his level best to take Analytical down a level. But his claims are not on the level. Analytical raises these counterclaims to level the field.
It recounts the history of the photo, which wasn't even copyrighted until 2018, (even I was able to look that up on Copyright.gov) after the photo had risen to Internet fame, much to the plaintiff's delight.
Analytical Grammar raises several counterclaims too: (1) invalidity of copyright, (2) declaratory judgment of non-infringement of copyright, and (3) declaratory judgment of non-removal of copyright management information.
I was struck by this case. I often share memes on Facebook. I see others share memes on Facebook. I "like" shared memes on Facebook. Not once did I ever think about copyright when doing any of those things. I imagine that I am not alone in that regard. I will certainly be watching this case as it moves through the federal district court in North Carolina. Good luck Analytical Grammar!
Tuesday, September 24, 2019
Earlier this month, CNN reported that Judge Roberts had supported the administration's ability to add a citizenship question to the census before he had decided to oppose it. According to "sources familiar with the private Supreme Court deliberations," Roberts had, to use a political term, flip-flopped. This seemed to be supported by the opinion, which began by noting the broad power of the relevant agency to include questions about citizenship, but eventually concluded that it still had to provide an honest rationale for any decision to do so, and that the record indicated that the explanation provided was pretextual.
This was not the first time Roberts had been allegedly outed for changing his mind during the deliberative process. In 2012, when Roberts joined the majority to support the Affordable Care Act, the press again used insider information to show his change of mind. In that case, CBS cited to "two sources with specific knowledge of the deliberations," who detailed Roberts' journey from one side to another.
There is a very short list of who these sources might be. It is also fairly apparent that the damage to the Court is mounting, as these leaks fit into the narrative that politics plays more of a role than precedent.
Of course, judges do, and should, change their minds during the deliberative process. Simple issues are rarely appealed, and even more rarely reach this level. The complex issues involved require time to determine, and we should hope that judges maintain an open mind during this time, permitting change. And the modern "rule" of judicial silence in response to these leaks means that judges are unable to defend those deliberations.
These leaks are nothing new. As Jonathan Peters wrote for Slate after the 2012 leaks, there is a long history of leaks from the high court. This history seems to indicate that the damage done by the leaks, which are usually politically motivated, is mounting.
In the 1800's, the New York Tribune seemingly sat in chambers with the Court. Days before the Court handed down its decision in Pennsylvania v. Wheeling and Belmont Bridge Company, the Tribune reported the outcome. It then provided detailed accounts of the deliberations in the Dred Scott case. Historians have speculated that the leak came from Justice McLean, who authored a dissent in those cases.
In the 1960's, a law clerk leaked information to the New York Times about Justice Fortas and his close connection to the administration. According to the U.S. Senate website, as a sitting justice, Fortas regularly attended White House staff meetings, briefed the president on secret Court deliberations, and, on behalf of the president, pressured senators who opposed the war in Vietnam. When these details were revealed during his confirmation hearings to be appointed Chief Justice, along with details of a private stipend he received to teach, rather than being confirmed as Chief, he eventually stepped down from the bench.
The leaks escalated after this point. In the 1970's Justice Douglas wrote a memo to his colleagues in the Roe v. Wade case, and it reached the hands of the Washington Post. Time then published a story about Roe v. Wade before the decision was announced by the Court, detailing the votes. Believing that a law clerk was again to blame, Justice Burger created the "20-second rule," meaning any clerk caught talking to a reporter had no more than 20 seconds left as a clerk before being fired.
Of course, the 20-second rule only applies to current clerks. Thus, in 2004, a group of former clerks leaked the details of the deliberations in Bush v. Gore to Vanity Fair.
Some of the leaks have been remarkably detailed. In 1986, ABC reported not only the outcome but the actual vote break-down before the decision was handed down regarding the Gramm-Rudman-Hollings balanced budget act. It also disclosed the date the decision would be handed down, a forecast that was off a few days reportedly only because Justice Burger delayed the release so that the reporter would be wrong about something.
This brief history gives some clue as to who the most likely sources might be. But whether it is a judge or a clerk (and it seems unlikely that it could be anyone else), they are damaging the Court at a time when it is already under serious attack.
As Justice Frankfurter noted, the secrecy of the Court's work is "essential to the effective functioning of the Court." Mr. Justice Roberts, 104 U. Pa. L. Rev. 311, 313 (1955). Justice Burger considered the enforcement of this secrecy to be an essential "inherent power" of the Court. New York Times Co. v. United States, 403 U.S. 713, 723 n.3 (1971) (Burger, dissenting). Rehnquist stated in a lecture on the topic that without secrecy, the open, at times short-tempered discussions at conference would end, to the detriment of the Court and the public it serves.
Judges need to feel free to change their minds and be open with each other as they deliberate and discuss difficult issues. If leaks and reports continue to cast any change of heart during the deliberative process as being political motivated, it seems likely that the result might be a chilling of both communication and flexibility in thought. Either one would be dangerous.
(image source: Library of Congress, World War II poster from the U.S. Navy)
Monday, August 12, 2019
In March, Professor Teri McMurtry-Chubb blogged about her forthcoming article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, which will be published in the Washburn Law Journal. The article can now be accessed here on SSRN.
As Prof. McMurtry-Chubb explained in her post, her article explores "how bias shapes lawyer analytical and reasoning processes," and it is the product of "a 6-year empirical research study [that she] conducted involving student motion and appellate briefs generated from case files involving social justice issues." In her article, Prof. McMurtry-Chubb goes into more detail on the different problems that she used in the study--ranging from legacy admits to law school to Indian Child Welfare Act cases. Her article, her study, and the results are simply fascinating and raise important questions for law schools. As she explains in the article,
This research project has the potential to change how we view the preparation of law students for law practice. As such, it has significant implications for how we approach diversity, equity, and inclusion in legal education and the law. Legal education touts diversity—equity and inclusion less so—as aspirational goals, but has largely focused efforts to achieve the same in admissions and faculty hiring.
. . . .
. . . The study in this Article suggests that the presence of non-White racial and ethnic bodies in law school classrooms do not, and cannot, in and of themselves, promote
better learning outcomes, prepare all students for a globally diverse workforce and society, and help them to shape professional identities beyond the touch of white supremacy, patriarchy, and capitalism.
In sum, rarely have law schools mapped and studied their curricula to assess how it perpetuates inequities and reinforces hierarchies. This and more are required to address the law and lawyers’ inability to fully serve racially and ethnically diverse client groups. As this study teaches us, legal educators and employers cannot take for granted that students leave law school with the skills to advocate effectively for historically marginalized, underrepresented groups, even as they matriculate successfully through law school. A heart for justice is not sufficient to do justice. Rather, law schools must actively develop interventions in their core curricula that directly and explicitly engage students around issues of power and privilege. Until then, students will not act with agency to transform law practice and its societal impact in ways that challenge their unexamined assumptions and allow them to make arguments in the service of justice.
Thank you Prof. McMurtry-Chubb for your important contribution to how we approach legal education. I am certainly going to be mindful of these issues as I teach this semester.
Tuesday, July 23, 2019
This is a guest post by John Browning. John is a partner in a Dallas law firm, where he handles civil litigation and appeals in state and federal courts. He is the author of multiple books and many articles on social media and the law.
In our increasingly wired world in which over 82% of adult Americans maintain at least one social networking profile—and in which Facebook boasts over 2.2 billion users and Twitter processes a billion tweets every 48 hours—the potential for using social media in ways that violate attorneys’ ethical restrictions looms large. Lawyers across all practice areas have tweeted, Instagrammed, posted, and Snapchatted their way into disciplinary proceedings, judicially-imposed sanctions, and other forms of ethical hot water. But in the comparatively staid, even monastic confines of the appellate world, can appellate lawyers fall prey to the siren song of social media?
The answer is a resounding, if somewhat surprising, “yes.” Appellate lawyers, clerks and other court staffers, and even judges have seen their online activities result in public embarrassment, job loss, and disciplinary action. And while reviewing the record in an underlying case and engaging in legal research may not be typical paths to social media misuse, breaching confidentiality by discussing certain aspects of a case on social media platforms is a very real danger.
Let’s begin with a cautionary tale. Sarah Peterson Herr was a newly-minted graduate of Washburn University School of Law in Kansas in 2010 when she started her first job at the Kansas Court of Appeals as a judicial assistant to Judge Christel Marquardt. About a year later, she was promoted to research attorney, the position she held on November 15, 2012. When she reported for work that day, Herr noticed that there was an unusual amount of security. She soon learned the reason why: that day, the Kansas Supreme Court would host an attorney disciplinary proceeding against former Kansas Attorney General Phill Kline. While serving as attorney general, Kline attracted controversy over the use of his office to investigate and prosecute abortion providers such as Planned Parenthood.
Herr decided to view the oral arguments using the computer in her office, where she also proceeded to “live Tweet” the proceedings, sending out a series of tweets that included the following:
- “You can watch that naughty naughty boy, Mr. Kilein [sic], live! live.kscourts.org/live.php”
- “Why is Phil Klein [sic] smiling? There is nothing to smile about douchebag.”
- “ARE YOU FREAKING KIDDING ME. WHERE ARE THE VICTIMS? ALL THE PEOPLE WITH THE RECORDS WHO WERE STOLEN.”
- “You don’t think a sealed document is meant to be confidential. BURN.”
- “I predict that he will be disbarred for a period not less than 7 years.”
- “I might be a little feisty today.”
With that last note, about whether or not she might be too “feisty,” Herr may have made her most salient observation. While she did not associate her tweets with her job, at least some of Herr’s Twitter followers were aware of her position with the Court of Appeals, and now everyone also knew her opinion of Phill Kline—including her accusation that Kline’s “witch hunt” helped lead to a doctor’s murder. A journalist with the Associated Press learned of Herr’s tweets and contacted the Kansas Judicial Center’s public information officer the next day for comment, and shortly thereafter Herr was placed on leave and, falling on her sword and issuing an apology:
I didn’t stop to think that in addition to communicating with a few of my friends on Twitter I was also communicating with the public at large, which was not appropriate for someone who works for the court system . . . I apologize that because the comments were made on Twitter—and thus public—that they were perceived as a reflection on the Kansas courts.
The following Monday, Herr was terminated. Within days, she was referred to the Kansas bar’s disciplinary body by the clerk of the appellate courts, and in January 2014, Herr was found to have violated Kansas Rules of Professional Conduct 8.4(c) (about engaging in deceit or misrepresentation) and 8.4(e) (about implying on ability to influence a government agency). She received an informal admonition and became a cautionary tale for the Digital Age.
Even appellate judges can misstep or overshare on social media platforms. In November 2017, Ohio Supreme Court Justice Bill O’Neill was also a Democratic candidate for governor of Ohio. On the national landscape, U.S. Senator Al Franken of Minnesota was embroiled in a highly publicized scandal involving his alleged sexual misconduct with radio host Leeann Tweeden during a 2006 USO tour. Inexplicably, Justice O’Neill felt compelled to weigh in on what he described as the “national feeding frenzy about sexual indiscretions” with a “too much information” Facebook post about his own sexual history. Saying it was “time to speak up on behalf of all heterosexual males” and expressing that he would “save my opponents some research time,” Justice O’Neill posted the following:
In the last fifty years I was sexually intimate with approximately 50 very attractive females. It ranged from a gorgeous personal secretary to Senator Bob Taft (senior) who was my first true love and we made passionate love in the hayloft at her parents barn in Gallipolis and ended with a drop dead gorgeous red head who was a senior advisor to Peter Lewis at Progressive Insurance in Cleveland.
O’Neill’s Facebook post led to an immediate backlash, including from his own party. O’Neill had already been widely criticized for his refusal to resign from the Supreme Court while openly proclaiming his candidacy for governor. Ohio Chief Justice Maureen O’Connor stated “No words can convey my shock. This gross disrespect for women shakes the public’s confidence in the integrity of the judiciary.” Justice O’Neill deleted his post but posted new comments on Facebook, at first lambasting his critics. O’Neill eventually posted an apology, but the damage was already done.
Appellate lawyers and judges should not only be aware of the ethical risks presented by their own misuse of social media, they also have to be mindful of what their lawyer and non-lawyer staff might be posting. Appellate courts, including the Supreme Court of Texas, have begun implementing social media policies for that reason. Courts’ internal handling of matters before them are confidential, and courts must balance the First Amendment freedoms of current and prospective court employees with the courts’ legitimate interest in protecting the integrity and efficiency of their work. The online activities of court employees can implicate or even threaten multiple ethical obligations, including the duty to maintain confidentiality, the duty to avoid conduct that would jeopardize the integrity and independence of the judiciary, and the duty to avoid any conduct that would cause a reasonable person to question the impartiality of the court.
One current lawsuit illustrates the dangers of court staffers’ social media activity when they communicate in such as way as to make their affiliation with an appellate court known. In May 2018, Olga Zuniga—a former secretary to Court of Criminal Appeals Judge Kevin Yeary—filed a federal lawsuit complaining that she had been fired from her job because of Facebook posts in which she criticized President Trump and other Republican politicians while praising Democratic politicians. According to the lawsuit, Zuniga had worked as a career legal secretary in state government, including at the Texas Attorney General’s Office, and had been an executive assistant at the Court of Criminal Appeals since 2003. In November 2016, Zuniga alleges Judge Yeary “counseled” her about her Facebook posts critical of Republican figures. Zuniga maintains that Judge Yeary’s periodic reviews of her Facebook activity continued throughout 2017, with Judge Yeary expressing “disapproval” of her politically-charged posts. Ultimately, according to Zuniga’s lawsuit, after again disapproving of posts Zuniga made in September 2017 critical of stances taken by both Governor Greg Abbott and Lt. Governor Dan Patrick on immigration-related issues, Judge Yeary terminated her on October 11, 2017.
Judge Yeary and the Court of Criminal Appeals responded with two motions to dismiss, filed on July 30, 2018 and March 28, 2019 respectively. In both motions, among other arguments, the defense pointed out numerous examples of Zuniga’s Facebook posts associating herself with the Court, its activities, and its personnel, as well as posts containing lewd content, to demonstrate her use of Facebook while at work on her official state computer. The motions also argued that dismissal was warranted based on the fact that, as someone employed in a judge’s chambers, Ms. Zuniga was an employee with access to confidential information, and one whose job functions required trust and loyalty. Moreover, Ms. Zuniga’s online comments suggesting that partisan elected judges could not be trusted if they belonged to a certain political party undermined the Court’s interest in maintaining authority and credibility. In addition, the motions to dismiss also argued that, as Zuniga herself had admitted, there were other factors leading to her termination, such as attendance problems, inaccurate leave reporting, the failure to complete assignments, and other job performance issues unrelated to any dispute over plaintiff’s political views. The court has not yet ruled on either of these dismissal motions.
In today’s digital environment, social media allows commentators incredible reach with the blinding speed of a search engine. Consequently, appellate attorneys—like their counterparts in other practice areas—need to be mindful of that when they express opinions online or on social media platforms, even when they think they are acting in a purely personal capacity. Lawyers face heightened public and ethical scrutiny when they make statements on social media, so if you wouldn’t put it in a letter or pleading, you probably shouldn’t post it on Facebook or tweet about it.
Monday, July 22, 2019
Today, Justice John Paul Stevens lays in repose at the Supreme Court. Later, he will be buried at Arlington National Cemetery. Justice Stevens died last Tuesday at ninety-nine years old, after retiring from the Supreme Court in 2010 at ninety. When he retired, he was the third longest serving Justice in Supreme Court history.
President Ford, a Republican, nominated Justice Stevens, who became a leader of the liberal voices on the Supreme Court. According to Jan Crawford Greenburg in her 2007 book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States, Justice Stevens “was a Maverick who didn’t ascribe to a particular theory. He was fiercely independent in his writings and actions. When the justices donned their robes before taking the bench, Stevens was the only one who refused assistance from the aides in the robing room. He always insisted on putting on his own robe. He took his own path in his opinions, too.”
Live coverage at the Supreme Court today on C-SPAN:
A biography of Justice Stevens at Oyez.org:
Paul Clement’s Tribute on SCOTUSblog:
Friday, July 5, 2019
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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt.
Supreme Court Opinions and News:
The New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies. Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage. Gundy is such a defendant, did not register, and was charged and convicted as a result. He challenged Congress’ delegation as impermissible. As the article notes, the Court has long allowed Congress broad authority to make such delegations. In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board. The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate. The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.
FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy. The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case. Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.
The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is." He's now the longest-serving member of the Court and the senior associate Justice. On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty.
Federal Appellate Court Opinions and News:
In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website. The case was Oberdorf v. Amazon.com. More from the CA3blog.
State Appellate Court Opinions and News:
The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt. The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents. The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder. In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm. More here.
Practice Tips and Pointers:
Tuesday, April 30, 2019
In my last article I commented briefly on the political history of the selection and number of justices on the Supreme Court of the United States. As I was writing that piece, a committee was taking testimony in the Texas legislature on a bill attempting to change the Texas judicial selection process. While federal judicial selection is largely a set process, the method of selection of state judges is an experiment in democracy that continues to change today.
Prior to the mid-1800s, most states selected their judges in a way that mirrored the federal system – gubernatorial appointment with legislative confirmation - with a minority of states using direct legislative selection. The Jacksonian era saw a renewed concern with accountability and public participation, and this led to rapid change. In 1832, Mississippi became the first state to switch to a popular election for judges. After a few years of observation, New York and several other states followed suit. By 1861, 24 of the 34 states used the new election system.
There have been several experiments since. Nonpartisan elections were used by 12 states in 1927. Since 1940, over thirty states have adopted some form a system of appointments (either solely gubernatorial or gubernatorial selection from a merits-based nomination system, which is called the “Missouri plan”) with nonpartisan retention elections. Today, only ten states use some kind of partisan election process to select their high court justices, and only five states rely solely on partisan elections.
My home state of Texas is one of them. In the most recent election cycle, for reasons that political wonks can (and do) argue about endlessly, this resulted in a seismic shift on the bench. 35% of all intermediate appellate justices were replaced. One-fourth of all trial judges, at all levels, were also replaced. Four of the largest state appeals courts flipped along partisan lines. By one count, over 700 years of judicial experience were removed from the bench.
The response has been a re-evaluation of the method the State uses for judicial selection. Official committees have been formed to re-evaluate judicial selection and qualification, and there has been vigorous debate over the pros and cons of each system.
The hearing on HB 4504, proposing a new judicial appointment and retention vote system (similar to the "Missouri plan"), covered the gambit of options and perils. Chief Justice Nathan Hecht framed the discussion in terms of the inherent conflict between impartiality and accountability. To be truly impartial, judges must be free of outside influence. At the same time, there must be some accountability for their stewardship of power. But if a judge rules contrary to popular opinion in order to remain impartial, yet is subject to removal through election by that same population, this balance is imperiled.
Calling partisan election an “utter failure,” Hecht opined that partisan election often means there is no true accountability for judges, since the focus is on partisan affiliation rather than performance. He also warned against the risk to impartiality in such a system:
If you want judges who rule in favor of the Republicans or Democrats, in favor of the left or the right, in favor of the establishment or the outsiders, in favor of the rich or the poor, then we should keep partisan judicial elections. But be clear - today, tomorrow, or the day after, the powerful will win that struggle.
Former Chief Justice Wallace Jefferson, the first African American member of the Supreme Court of Texas, while supporting the system, acknowledged that any system needs to increase diversity on the bench, and briefly discussed the impact of implicit biases based on different life experience. Former Chief Justice Tom Philips also supported the bill, asserting that for the vast majority of judges, the partisan label is meaningless, because they seek to serve the people and follow the law. Partisan labels, however, serve to undermine faith in their decision-making. Other practitioners spoke out against partisan elections because the cost in terms of the loss of judicial experience is too high when those elections result in sweeps, and because the system prevents some well-qualified candidates from ever running.
Speaking against the bill, Judge Eric Moyé, a longtime Dallas District Court judge, started with a reference to the importance of local government and local citizen control. Noting that judges are the most direct contact most citizens have with government, Moyé expressed his concern than any appointment process would bypass citizen control. Gloria Leal from the Mexican American Bar Association also testified against the bill, noting that 39% of the Texas population was Hispanic, a proportion that was not reflected on the bench (by my quick calculation of data from the Texas Office of Court Administration published on September 1, 2018, about 17% of the bench is Hispanic), and that popular election was the best way to reach a bench composition that matched the population.
In short, the testimony largely fell along the lines of the tension recognized by Justice Hecht – impartiality versus accountability. This balance was one of the many areas that Hamilton and Jefferson (as well as Madison) disagreed upon, with Hamilton arguing for a truly independent judiciary in Federalist 78, while Jefferson was primarily concerned that the judiciary remain accountable to the people through elections. Over the years, the various states have experimented with numerous ways to maintain that balance.
As an appellate practitioner who appears in different jurisdictions, I can say that by-and-large, these various systems get it right. The professionalism and integrity of our judges is, in fact, remarkable, given the various selection processes and pressures to which they find themselves subjected. This continued discussion, though, is important to ensuring that this remains the case. Only so long as the judiciary remains both impartial and accountable, through whatever procedures and safeguards we can refine, can we ensure a healthy system with judges who are qualified and willing to serve.
(Image credit: Thomas Nast’s cartoon “Princip-als, Not Men – A Lawyer Pleading for his “Client,” Harper’s Weekly, August 7, 1875, showing Nast’s fear that wealth was influencing the bench in its decisions regarding Tammany Hall. The sign on the bar is a quote from King Lear: “Plate sin with gold, and the strong lance of justice hurtless breaks. Arm it in rags, a pigmy’s straw doth pierce it.”).
Saturday, April 20, 2019
On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs. The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000. The change brings the Court in line with the federal Courts of Appeal. Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs.
The Court rejected one of the more controversial proposed rules. That proposal would have limited reply briefs to 4,500 words. Even so, the Court did shorten the time for filing a reply brief. Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier. The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.
So why did the Court adopt these changes? I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long. Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two. It's clear that some lawyers—yours truly included—forget that sometimes.
So how can you come in under these shorter word limits? That's simple—better writing. Here are some things to do, and to avoid, to bring your brief under the word limit.
- Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about." Don't. Instead of these wordy phrases, try "under," "before," and "on." This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up. As an aside, I've also encountered several that use "pursuant to" incorrectly. Things don't happen "pursuant to" anyone's recollection. If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
- Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words. Consider the common phrases "the issue of" or "the question of." You're likely able to pull those out without doing violence to your brief. Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
- Do run a search for "ly." You're hopefully not going to find very many adverbs. But if you do, take them out unless they're necessary. Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
- Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story. It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have. Even though replacing your client's four-word name would save space, resist the urge. I promise, what you're gaining in space, you're giving up in clarity.
- Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019. If you've got to describe a temporal relationship, try words like "later" or "before." Otherwise, just save the words and use the month or month and year.
These aren't all the ways to save space. But writing shorter, more coherent briefs is a mindset. You have to start somewhere.
Tuesday, April 16, 2019
Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.
I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.
First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.
This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.
This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.
After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.
That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.
In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.
The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.
In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.
There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.
Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.
Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.
(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)
Monday, March 25, 2019
The following is a guest post by Prof. Teri McMurtry-Chubb, Professor of Law at Mercer University School of Law.
On Friday, February 17, 1978 the Chelsea Chapter of the N.Y. Committee to Overturn the Bakke Decision (NYCOBD) met to strategize how best to influence the Supreme Court decision in Regents of the University of California v. Bakke. The purpose of the meeting was to strategize under the banner of the National Committee to Overturn the Bakke Decision (NCOBD) as it planned a unified “March on Washington” in protest. In keeping with the call to arms espoused by its sister chapters throughout the United States, Chelsea NYCOBD boldly stated in its meeting flier:
Fight Racist Attacks on Affirmative Action Programs!
In the spring, the U.S. Supreme Court will render a decision on the Bakke case – one of the most important cases in the last 25 years on the question of racial equality. The Bakke decision, which is based on the absurd and racist idea of “reverse discrimination,” is a serious attack on the rights of minorities to jobs and education. If the Bakke decision is not overturned by the court, affirmative action programs for minorities and women will be threatened with elimination. Join the growing anti-Bakke movement in our demands to: implement, maintain, and expand special admissions and other essential affirmative action programs for minorities and women at all levels of higher education and employment. Fight Racism. Overturn the Bakke Decision!
Although the NCOBD was not successful in overturning the decision, its act of grassroots organizing and educating the public is a primer on the importance of education to informed direct action. 41 years later, our contested, national conversation about affirmative action has continued with the Harvard Affirmative Action Case and the College Cheating Scandal. The scandal has caused us to (again) pause and ponder what is an elite education, who “earns” admission to America’s most prestigious educational institutions, and who deserves access to the America Dream. However, what about the lawyers who litigate these cases? Have you ever considered the views they hold about affirmative action in admissions and how their beliefs shape their discussions about the litigants and the arguments in their briefs that will ultimately become part of the jurisprudential landscape of affirmative action law?
This question, the question of how bias shapes lawyer analytical and reasoning processes, is the subject of a 6-year empirical research study I conducted involving student motion and appellate briefs generated from case files involving social justice issues. The study examines 576 brief submissions from 192 students on topics ranging from hostile work environment claims based on colorism, religion, and national origin to LGBTQIA students’ right to freedom of expressive association in creating the policies for their student organizations. I wanted to know if law student biases concerning race, gender, class, and sexuality colored their analytical and reasoning processes as they drafted the argument sections of their briefs, and if so to what extent. The focus of one of the case files (the universe in which students litigate) was an African American man ranked in the 75th percentile of all law school applicants who was denied admission to law school, even when White legacy students were admitted despite being consistently ranked in the lower 25th percentile of all applicants. The claimant sued the University on grounds that the law school’s legacy admissions policy was an unconstitutional affirmative action program - he argued that a White student “took his seat” in the 1L class. The Bakke case and its progeny were the controlling authority.
Student attitudes about colorblindness led approximately 85% of them to make legal arguments flawed by bias in the first drafts of their briefs. For example, students representing the claimant analyzed his racial classification, “African American,” when the race of the legacy admits, “White,” was the racial classification at issue in the lawsuit. Student arguments advanced the notion of color-blindness or the phenomenon of “not seeing color.” Moreover, students representing the University argued for diversity as a compelling state interest even though the legacy admissions policy favored White applicants over applicants of color - a losing proposition for the University. Simply, they could only see race or ethnicity as anything other than White. These arguments based on biased assumptions led students to make arguments that were incorrect and inconsistent with the major tenets of the Bakke decision, and ultimately contrary to their client’s interests.
The good news is that with critical pedagogical interventions, teaching methods aimed at problematizing students’ biased assumptions, students course corrected their attitudes from color-blind to color-conscious. Approximately 82% of all student final appellate brief submissions, the final assignment submitted by students in the study, evidenced a critical engagement with issues of race and class in higher education admissions policies. Students made arguments that recognized “White” as a racial category of analysis in affirmative action jurisprudence, “legacy” as a function of class hierarchy, and the connection between the two. Most importantly, students continued to engage with each other and their peers around these issues after their time in the study ended.
Law firms, public interest and government agencies should note that unless their attorneys have been taught to recognize and disrupt their biases with respect to race, class, gender, and sexuality, it is probable that they will replicate these biases as they interpret the law and develop the analytical frameworks in their briefs. A heart for justice does not necessarily mean that lawyers will do justice. Rather, it is imperative that legal educators and the bar actively implement interventions to make attorneys aware of how their arguments replicate structural and societal inequities. We can do no less if our expectation is that attorneys serve their clients with excellence and an eye toward equity. You can read a detailed analysis of the study in my article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal ____ (forthcoming 2019).
Tuesday, March 5, 2019
There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.
Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.
Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”
A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.
Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.
Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:
The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.
After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:
The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.
Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).
And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.
Not surprisingly, a long catalogue of abuses followed.
In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.
In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money - donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.
In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.
More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.
These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.
Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.
Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.
(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)
Thursday, November 29, 2018
The retirement of a Supreme Court Justice has become an event surrounded by speculation and spectacle. Justice Anthony Kennedy's retirement this summer lead to the most contentious confirmation process ever, so we can only brace ourselves for what the next retirement might bring. Justice Ruth Bader Ginsberg has faced much criticism for not stepping down during President Obama's tenure. Her supporters fear her trailblazing legacy may be in jeopardy if she is replaced by another justice who could be nominated by President Trump. A fight even more politicized than the last is likely in our future.
And that's why it was especially refreshing to hear Justice Kennedy's thoughts on his own retirement, and particularly the process of it. In a recent interview, Justice Kennedy said that he told none of colleagues of his decision until about an hour and a half before he went to the White House. He asked them not to say anything until he had his meeting with President Trump, who also was not given any advance warning from Kennedy.
Justice Kennedy recognized his special place in history for his opinions that broke new ground, and were decidedly unpopular in some circles like Obergefell v. Hodges (same sex marriage), and Citizens United v. FEC (campaign finance). As to Obergefell, he remarked,
“I couldn’t hide,” Kennedy added. “The nature of injustice is you can’t see it in your own time. As I thought about it more and more, it seemed wrong to say over 100,000 adopted children of gay parents could not have their parents married. I struggled with it and wrote the case over the weekend. As you write, the reasons either compel themselves or not.”
And as for Citizens United, he noted,
“It’s true there’s a problem with money in politics, but I think we have to address it another way,” said Kennedy. He pointed to disclosure of the sources of the money. “Voters can vote against the candidate if they don’t like it.”
And mostly of his opinions, and those of the Court, he said,
“Our thinking is set forth in the opinions,” Kennedy responded. “We don’t go around later explaining. We hope the opinions are convincing.”
Aside from his written opinions, Justice Kennedy leaves another legacy of sorts: Both Justice Kavanaugh and Justice Gorsuch were clerks for Kennedy. Justice Gorsuch was the first justice to serve alongside his former boss. Kavanaugh now takes over Kennedy's seat, and with six of his former clerks also filling the billets of Supreme Court clerks this year, everyone should feel quite at home.
Monday, October 29, 2018
Recently, habeas corpus has been on my mind. It is partly because I have started watching season 2 of Making a Murderer. To me, the most interesting part of the second season is the saga of Brendan Dassey's habeas petition, which is based in part on the involuntariness of his confession. I found the circumstances around Brendan's confession quite troubling. Several months ago I spoke at an appellate conference that also featured Steven Drizin, one of Brendan's post-conviction attorneys. Steven's presentation on false confessions was fascinating.
In season 2 of Making a Murderer, Steven and his colleague Laura Nirider do an excellent job explaining the habeas process in layman's terms. Because Brendan's conviction was in Wisconsin state court, he cannot prevail on habeas unless he can show that the state court conviction,
Thursday, September 6, 2018
The Kavanaugh hearings are entering their third day. The place to be to receive thoughtful commentary on Supreme Court happenings is SCOTUSblog. They will be live blogging today's confirmation hearings starting shortly after 9 am eastern. You can find the live stream here. The commentary found on SCOTUSblog is always well balanced if not entirely objective. But even posts that contain a specific point of view do so in a serious, transparent, and respectful way. This is in contrast to how most of us receive our news today. We have to sort through lots of superficial explicit and implicit bias. Some bias is easy to see, some not so much. It's a really unfortunate state of affairs.
There is a surprising contrast to the commentary on the hearings and the facts behind the nominee's voting record. The interesting fact that emerged from the hearings yesterday was how frequently Judge Kavanaugh's opinion aligned with Judge Merrick Garland's opinion. Garland was President Obama's nominee following the passing of Justice Scalia. Judge Garland's nomination was not taken up by the Republican Senate in the election year, so there was no chance for public debate as Kavanaugh is now experiencing. The somewhat shocking statistic is that Judge Garland and Judge Kavanaugh, who both sit on the D.C. Circuit Court, actually voted together 93% of the time: "Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh, while Judge Kavanaugh joined 28 out of 30 of Judge Garland’s rulings." Each judge was nominated by an opposing political party, and yet the large majority of their opinions are in congruence with each other.
The existence of that fact is bit astonishing when compared to the partisan debates we hear from our news sources. More than anything it appears to show that our appellate court judges work hard to find consensus and perhaps our judicial system is not in as much peril as we are sometimes cajoled into believing.
Monday, July 16, 2018
While I was out of town visiting family (and staying far away from computers) the country had some big appellate news! Justice Anthony Kennedy announced his retirement from the Supreme Court, giving President Trump his second Supreme Court nomination. One week ago today, President Trump announced that he was nominating D.C. Circuit Judge Brett Kavanaugh to fill the vacancy. Judge Kavanaugh, a former Kennedy clerk, has served on the D.C. Circuit for 12 years.
While I know that Judge Kavanaugh has lots of supporters, I was surprised by the pick for two main reasons. First, Judge Kavanaugh is very connected to the Bush II administration, having served as White House Staff Secretary. His wife also worked in the Bush administration. Second, and relatedly, Judge Kavanaugh's long time service in D.C. seems to connect him to the "swamp" that President Trump disavows. However, those two issues didn't seem to bother the President, and Judge Kavanaugh got the nod over other potential front runners including Judge Hardiman, Judge Barrett, and Judge Kethledge.
It hasn't taken long for the battle lines to be drawn in the Senate. My email has been flooded with information and stories about Judge Kavanaugh. His detractors seem to focus on hot button social issues and whether Judge Kavanaugh will be too deferential to the president. His supporters point to his long, respected record on the D.C. Circuit and the praise that he has received from his law clerks and others. It remains to be seen whether Judge Kavanaugh will be confirmed. I have heard some speculation that he could have trouble with some of the more moderate Republicans (or perhaps with Sen. Rand Paul). However, there are a lot of Senators from "red" states who are up for reelection. They might feel pressure to support the President's pick.
Apart from the politics of the Kavanaugh nomination, I am struck by how much the Supreme Court has changed in the last 13 years. When I graduated from law school in 2005, the Court had not changed in composition in over 10 years. In the 13 years since I graduated, we have seen five new justices (and that number will be six if President Trump's pick is confirmed). New justices mean a younger court too! The institution has changed some too, with new required e-filing. Perhaps we will even see cameras in the courtroom in the next 10 years.
For the present though, we will watch and wait to see if Judge Kavanaugh is confirmed in time for the Court's October 2018 term. It should be an interesting summer!
Thursday, May 3, 2018
Supreme Court Justice Ruth Bader Ginsberg has become quite the pop icon. She is the subject of a documentary (opening May 4, 2018), and picked up the moniker Notorious RBG. Tumblr memes abound. When she gives talks to various groups, she is given the rock star treatment. She takes this all in humble stride, but even she thinks getting a tattoo of her face might be taking it a little too far.
While flattered by superfans who get tattoos of her face, the 85-year-old has also said she was "a little distressed that people are really doing that."
In an interview she elaborated:
Ginsburg: I saw that. And I thought it was — I thought it was a joke. I thought it was something you pasted onto your arm. But I'm a little distressed that people are really doing that.
Carmon: Distressed why?
Ginsburg: Because why would you make something that can't be removed on yourself?
I mean, it's one thing to make holes that you can use or not. My granddaughter for awhile was wearing a nose ring. Now she's not anymore. But a tattoo you can't remove.
Carmon: Well, I think it's because they admire you, that's why. This is the second tattoo I'm aware of. The other one has a picture of you. And it says, "Respect the bench."
Ginsburg: Well, that's a nice sentiment.
It is unknown how many RBG tattoos adorn peoples' bodies, but so far the trend is reportedly limited to women, some are lawyers, others are not, but they all still see her as their personal hero.
Amy Wallace, a 34-year-old attorney in Minneapolis, got a Rosie the Riveter-inspired RBG sleeve last year, which had a blink-or-you'll-miss-it cameo in the new film. "Justice Ginsburg is my only personal hero, and as an atheist, my adoration of her is the closest thing I get to personal worship," she told Refinery29. "The secular iconography of Rosie the Riveter mashed up with Justice Ginsburg seemed like a perfect articulation of the way I feel about her." The idea for it came after seeing someone else's tattoo of Our Lady of Guadalupe with a modern, feminist twist (A.K.A. standing inside a vulva instead of surrounded by a religious halo).
In a free society, there is certainly no stopping these cultural developments. The prevalence of tattoos in only the last decade or so has risen dramatically, and they are no longer solely associated with prison or gang culture. In fact, tattoos are very close to being considered mainstream (ironically making them much less of a rebellious statement than maybe they once were). So it's not the tattoo that bothers me so much, it's the idolization of any one person in our justice system.
Call me old fashioned, but I have a perception of a justice system that is a bit removed from the hype. I want our judges to be and to be perceived as being unbiased arbiters of the law, and to favor no outcome based on how they will be perceived by the public. Judges should do the right thing because it is the right thing to do. I have no fear that this celebrity in any way sways Justice Ginsburg's approach to her duties. Her life's work has proven her dedication to her own moral compass, and from that direction she has not faltered. But I have not seen the same sober and restrained attitude in all judges in many publicized cases. When judges play to the masses, justice can be undermined, so any action that tends to promote the courts in a superficial way sort of wrankles me.
Judges are people too, and it's good for the public to understand we are all human. Those who practice in the legal system are not above the law, and our legal system should exemplify the rule of law in every one of its actions. This promotes predictability and stability in the law and society. While those who take on unpopular but righteous causes should be admired, and even praised for their courage, we need to be careful about exalting them to a height of idolization. It can become dangerous for the perception of the fairness of the legal system. RBG, through her steadfast dedication to her own moral compass, has led the way for more equality under the law and she should be recognized for that in her lifetime. I'm just not sure tattooing her face on your body is the best way to do it - for her or for justice.
Thursday, January 25, 2018
The newest justice to the Supreme Court, Neil Gorsuch, is doing his part to keep Twitter rolling. A few days ago he attended a private dinner with Republican Senators Cornyn, Alexander, McConnell, and Secretary of Transportation, Elaine Chao, who is married to McConnell. How do we know this? Senator Alexander tweeted about it saying,
I enjoyed having dinner tonight at the home of Senator John Cornyn and his wife Sandy with our newest Supreme Court Justice, Neil Gorsuch, Transportation Secretary Chao and a few of my other Senate colleagues to talk about important issues facing our country.
The Tweet did not go unnoticed and drew criticism ranging from charges of fraternization to ethical impairment. The action of dining together is not actually against any judicial code of conduct. According to the Code:
Canon 5: A Judge Should Refrain from Political Activity
(A) General Prohibitions. A judge should not:
(1) act as a leader or hold any office in a political organization;
(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or
(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.
Sharing a meal would not fall under these restrictions, but could there still be a problem with it? Yes, and the problem is with perception. Justice Gorsuch, by all accounts, seems to be a very even-tempered judge, not subject to whim. He writes thoughtful opinions and might even be called predictable in his votes. Not everyone will like his decisions, but he does not seem susceptible to political pressure.
However, in light of the current state of the public discourse and political climate, dining privately with politicians of only one political party certainly looks bad, and is not a suggested way to build a public perception of impartiality. Based on what I perceive to be Justice Gorsuch's respect for the judiciary and public perception, I doubt we will see anymore tweets documenting his attendance at dinners like this again.
Thursday, January 4, 2018
Extra! Extra! In a Post-Facts World, Facts Still Matter!
Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.
The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions. Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.
Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.
Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability,  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.
So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy. As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.
Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.
Elements, per handbook
Explanation in handbook
Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space
This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.
Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false
In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.
Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).
This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect
Core facts should be displayed graphically, if possible.
For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).
 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.
 Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).
 60 Rutgers L. Rev. 381 (2008).
 Id. at 390–92.
January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)