Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, October 29, 2018

Making a Murderer, Indian Law, and Habeas Corpus

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,

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
 
28 U.S.C. § 2254.
 
If Brendan had been convicted in federal court, he would have to show "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255.  
 
While it is hard to win on any type of habeas petition, the state standard is extra deferential to the underlying conviction.  As Steven explains in season 2, the state standard was modified in 1996 in the wake of the Oklahoma City bombing with the passage of the Anti-terrorism and Effective Death Penalty Act.
 
So, what does this have to do with Indian law?  My appellate advocacy students are currently working on their briefs for my class.  Their problem involves a habeas petition from a Tribal court.  Under 25 U.S.C. § 1303, "The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe."  That is it.  This provision was passed in 1968, and it hasn't been modified since.  As Prof. Jordan Gloss notes in the American Indian Law Review, this hasn't been a big issue historically because federal courts have not had to handle a lot of habeas petitions from Tribal courts. This is due, in part, to the limited sentencing capacity that Tribal courts had.  However, in 2013, Congress passed the Violence Against Women Reauthorization Act, which, in part, gave Tribes that opted-in to the Act limited jurisdiction over certain non-Indians who committed acts of dating or domestic violence against Tribal members. See 25 U.S.C. § 1304.  Additionally, the 2010 Tribal Law and Order Act gives tribes additional sentencing power.  Combined, these two acts mean that federal courts will have to handle more habeas petitions from Tribal courts, potentially including Tribal convictions of non-Indians.
 
I agree with Prof. Gloss that Congress is going to need to step in to clarify what the habeas standard will be for Tribal convictions.  If it doesn't, I am sure that the courts will.

October 29, 2018 in Current Affairs, Federal Appeals Courts, Television | Permalink | Comments (0)

Thursday, September 6, 2018

Kavanaugh Hearings Continue for the Third Day

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.

September 6, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Monday, July 16, 2018

New SCOTUS Nominee

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!

 

July 16, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (1)

Thursday, May 3, 2018

Would you get an RBG tattoo?

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).

Screen Shot 2018-05-03 at 9.30.09 AM

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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. 

 

May 3, 2018 in Current Affairs | Permalink | Comments (0)

Thursday, January 25, 2018

Should Justices Dine with Senators?

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.

Gorsuch-2

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. 

 

January 25, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Thursday, January 4, 2018

Thinking Thursdays: New Science on the Ability of Facts to Debunk Myths

 

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.[1] 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, [2]  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.[3]  As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.[4]

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

Blog Analysis

Core facts

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.

Explicit warnings

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.

Alternative Explanation

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

Graphics

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).

[1] 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.

[2] 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).

[3] 60 Rutgers L. Rev. 381 (2008).  

[4] 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)

Thursday, November 2, 2017

The 2017 Appellate Hot List

Contrary to the enticing moniker, The Appellate Hot List is not a beauty contest! It is an annual round-up of the top law firms who have won significant victories at the Supreme Court or in the federal circuit courts. This year's Hot List naturally includes some repeat offenders, because clearly, once the word gets out that a firm wins in the highest court, more clients will come calling. The National Law Journal did quick summaries of the cases involved, and some of the more prominent attorneys were asked to give advice to their younger selves.

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With an eye towards educating my students, the advice portion is the most interesting:

William Jay of Goodwin Proctor won Star Athletica v. Varsity Brands, a copyright case dealing with original artwork on cheerleaders' uniforms. His advice was, "Read as much good writing as you can—nonlegal as well as legal [and] [s]et aside some time each day for long-term planning, because otherwise the immediate tasks at hand will swallow all your time." His first recommendation to read, read, read, is echoed by other top appellate lawyers in this year's list as you will see. The second piece of advice for time management is rarely discussed in law school but is ultimately a key factor to success in practice and living a balanced life.

Steve Rummage of Davis Wright Tremaine, along with his partners, won Microsoft v. Baker, a case about class certification. His advice was, "Focus less on trying to show case law mandates an outcome and more on showing how to reach a just and fair result for your client within the law." This is a lesson moot court students have to be reminded of frequently when they first practice developing their arguments for competition. Many are usually stuck on "precedent" as an argument, but the Supreme Court is more interested in finding the right outcome. Once students internalize this, their creativity bounds.

Adam Unikowsky of Jenner & Block won Kokesh v. SEC, a disgorgement case with the novel argument that it was really a penalty. The argument had never succeeded at the lower courts but ultimately won the day with the Supremes. Unikowsky advised, "If possible, make your brief shorter [and] [i]t is always necessary to be scrupulously accurate—otherwise you will lose all credibility with the court." Concision and accuracy are holy principles in legal writing. It is always nice to see your lessons reinforced by those in the trenches.

Jeffrey Green of Sidley Austin won Dean v. United States, a case regarding how sentences for gun crimes should be determined. Green gave some colorful, but very practical advice:

"Avoid lawyerly ‘splain’in. Explication, exegesis and theorizing rarely have a place. Give reasons instead—nothing more or less. What the Fourth Amendment or case X says is not going to win the day. [And] [s]ay it well, but say it only once. You can’t overestimate the goodwill you earn with any justice or judge by submitting a brief that is just about one-half of the allowable length. Don’t be repetitive about what you want, the justices just want to know why you want it."

At the risk of being repetitive myself, this advice is worth highlighting - simplify and avoid redundancies. Priceless.

Kannon Shanmugam of Williams & Connolly won two victories in the Supreme Court, and two in the circuit courts. Shanmuhagn was most proud of the hard work of the junior associates who won the cases in the lower courts. His advice was, "Take every opportunity you can to stand up in court or even to engage in public speaking. For most of us, oral advocacy is an acquired skill. [And, once again,] [r]ead good writing in any form you can find it. The best writers are voracious readers." Many students are petrified of oral presentations, but the trick is that there is no trick - only practice. Sure, some people do have a gift that gives them a leg up, but most people come by their oral argument skills through lots and lots of practice. And also, read! Read anything and everything. It will show up in your work product either way. 

Observing those who are successful at the highest levels of the profession is always worth a pause, and a thought about incorporating their lessons into our own practice - whether we maintain clients and a case load, or are simply imparting demonstrated wisdom to the youngest new attorneys. 

November 2, 2017 in Appellate Advocacy, Appellate Practice, Current Affairs | Permalink | Comments (0)

Monday, October 2, 2017

First Monday

Happy first Monday!  Today kicks off the start of the Supreme Court's term.  The term last year was something of a snooze-fest as we all waited for the presidential election and the nomination of Justice Scalia's successor on the Court.  This term will likely be much more exciting with union dues, religious liberty, immigration, and sports gambling on the Court's agenda.  Check out this NY Times article and this Washington Examiner article for summaries of some of the key cases.

First Monday also means the start of the FantasySCOTUS season.  By this point, you have an idea of how your Fantasy Football season is going.  Maybe your key draft picks have been injured or just aren't playing up to expectations. Well, it is time to cut your losses and focus on FantasySCOTUS! Created by Professor Josh Blackman and now run by LexPredict, FantasySCOTUS allows anyone to predict how the cases before the Supreme Court will be decided.  User predict how individual justices will vote on cases, as well as the how the case will ultimately be decided.

I have used FantasySCOTUS as a teaching tool in the past, offering incentives for my students to participate in the contest and stay current on what the Court is doing.  The program allows you to create your own league, or you can participate in a law school specific league. There are even prizes for the top predictors! FantasySCOTUS also features {MARSHALL}+, a "revolutionary algorithim that can accurately predict Supreme Court cases."  Created by LexPredict, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

Although my Fantasy Football team seems to be doing pretty good for the first time in years, I look forward to seeing how my FantasySCOTUS predictions go this term.  Good luck to all of the participants.

October 2, 2017 in Current Affairs, Oral Argument, Sports, United States Supreme Court | Permalink | Comments (0)

Monday, September 11, 2017

Guest Post: Dreamers or Illegal Aliens? Framing and Persuasion

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This is a guest post by UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi.

This week, Attorney General Jeff Sessions announced the end of Deferred Action for Childhood Arrivals (DACA). This announcement caused a public outcry, as well as a response from former President Obama, whose administration had spearheaded the program.

Sessions and Obama spoke of DACA in very different terms, no doubt trying to persuade those who were still undecided, but also trying to connect with those who already agreed with them. Their two short statements illustrate core principles of legal persuasion because their words created network of favorable connections in the minds (and hearts) of their audiences.

Sessions, for example, referred to the program as “DACA”, a flat, bureaucratic acronym. Is there anything drearier than an acronym? The word “DACA” sounds like something worth getting rid of – whatever it is. Moreover, using “DACA” allowed Sessions to characterize the program as borderline illegal -- “an open-ended circumvention of immigration laws” that allowed “800,000 mostly-adult illegal aliens” to remain in the U.S. In Sessions’ statement, it is easy to dismiss the DACA participants as “other” – as people breaking the law -- not like “us.”

Contrast “DACA” with the program’s popular name, the “Dreamers.” Whereas DACA sounds emotionally flat, “Dreamers” triggers one of the most evocative and compelling cultural stories we have, the American Dream. James Truslow Adams described the American Dream in the early 1930s as the idea that "life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement" regardless of social class or circumstances of birth.

Imagine how dissonant Sessions’ message would have been if he’d said the “Dreamers” were “mostly-adult illegal aliens.” Such a semantic and emotional flub might have damaged Sessions’ message even with those inclined to agree with him. No American wants to connect the “American Dream” with “illegal” behavior.

By contrast, Obama’s statement took the American Dream connection and ran with it. He called the Dreamers “young people who grew up in America -- kids who study in our schools, young adults who are starting careers, patriots who pledge allegiance to our flag.” Not “other” people but “kids” “Americans” and “patriots” just like “us” (or our kids). More than that, these young “Dreamers are Americans in their hearts, in their minds, in every single way but one: on paper.”

Like these political rhetoricians, lawyers and judges are effective in legal persuasion when they help their audiences make favorable connections. Those connections can be semantic (illegal versus patriot) or they can be emotional (we are all Dreamers). They can prime our biases (those people are illegal or my grandparents were immigrants). In the end, the way we talk about the “dreamers” provides a powerful example of persuasion -- of how to forge connections that allow us to influence others.

UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi are the authors of Legal Persuasion: A Rhetorical Approach to the Science (Routledge), a book that explores how legal persuasion results from making and breaking mental connections, using examples from law and politics.

September 11, 2017 in Current Affairs, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, August 7, 2017

Making a Murderer Dassey Case Headed to En Banc 7th Circuit

Somehow I missed this news last week, but the Seventh Circuit has announced that it will rehear, en banc, the case Dassey v. Dittman.  If you watched the Netflix documentary "Making a Murder," you were probably shocked by Brendan Dassey's conviction, which certainly appeared coerced.  

A split panel of the Seventh Circuit had upheld the district court's decision overturning Dassey's conviction.  Now the whole Seventh Circuit will have a chance to opine.  Eugene Volokh's post has some statistical information about the Seventh Circuit, including the number of judges appointed by Republican and Democratic presidents and the gender make-up of the court. Based on the actions of the panel, Prof. Volokh doesn't think that the typical stereotypes apply to this case. This is certainly a case that will attract significant media attention, so it will be interesting to see how it comes out on appeal.

August 7, 2017 in Appellate Advocacy, Current Affairs, Federal Appeals Courts, Film | Permalink | Comments (0)

Thursday, June 15, 2017

Justice Gorsuch's first Supreme Court opinion is unanimous

This week, the newest justice on the United States Supreme Court issued his first authored opinion, Henson v. Santander Consumer USA Inc. The topic was debt collection, perhaps not a scintillating topic for most, but Justice Gorsuch opened with a catchy couple of lines - the most colorful of the opinion: 

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices.

The rest of the decision centers on statutory interpretation, and following in the footsteps of Justice Scalia as he does, Justice Gorsuch's textual approach does not diverge from that of the late justice. The issue in the case was whether a third party purchaser of a debt can fall within the statutory definition of a "debt collector." Because the Fair Debt Collection Practices Act defines a debt collector as one who collects a debt on behalf of another, the defendant in the case could not be called a debt collector, and so did not violate the Act. The petitioner sought to use grammatical reinterpretations of the Act's wording that did not comport with the plain meaning, and failing that, asserted policy arguments. But Justice Gorsuch did not buy it, saying:

All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodri- guez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pur- sues its [stated] purpose[ ] at all costs.” Id., at 525–526. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legis- lature says . . . what it means and means . . . what it says.” Dodd v. United States, 545 U. S. 353, 357 (2005) (internal quotation marks omitted; brackets in original).

The opinion writer has been criticized for not being sensitive to a broader policy of consumer protections, and while that may be true, it was a unanimous Court that agreed the statute's definition of debt collector did not include the type of defendant before the Court. The Court, all nine now, agreed upon one thing - the plain meaning of the statute as written. Further, the Court did not veer off the beaten path. It affirmed the decision of the Fourth Circuit, which had affirmed the decision of the lower district court. It seems that this reading of the statute wasn't any rogue opinion, and instead placed the responsibility of writing clear law back in the hands of Congress. 

June 15, 2017 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Monday, June 12, 2017

Shout-out For Clear Writing

Last week it seemed like the only thing on cable news was former FBI Director James Comey's testimony before Congress.  While the content of Comey's written and oral testimony has received a lot of press, one surprise feature of the hearing was the praise Comey received for his writing.  Here is the exchange Comey had with Senator James Risch from Idaho:

RISCH:  Yesterday, I got, and everybody got, the seven pages of your direct testimony that’s now a part of the record, here. And the first — I read it, then I read it again, and all I could think was, number one, how much I hated the class of legal writing when I was in law school.

And you were the guy that probably got the A, after — after reading this. So I — I find it clear, I find it concise and, having been a prosecutor for a number of years and handling hundred — maybe thousands of cases and read police reports, investigative reports, this is as good as it gets.

And — and I really appreciate that — not only — not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes, so we know exactly what happened and we’re — and we’re not getting some rendition of it that — that’s in your mind. So...

COMEY: Thank you, Senator.

RISCH: ... so you’re — you’re to be complimented for that.

COMEY: I had great parents and great teachers who beat that into me.

While it is a shame that Senator Risch disliked legal writing in law school (and that he mentioned the fact at a hearing that was nationally televised), I appreciate the shout-out for the importance of clear and concise writing (and parents and teachers who encourage such writing).  

Over at the Lady (Legal) Writer blog, Prof. Kirsten Davis has an excellent post on why she thinks Comey's testimony is "A" worthy.  All of her comments are spot on.  A few of the comments pertain directly to appellate writing, such as organizing information chronologically (almost always a great strategy in the statement of facts) and showing how his ideas connect together.  She also notes the effective nature of the introductory paragraph that Comey uses and how he could have improved it.  I appreciate Kirsten's insight, and I am considering using Comey's testimony in my Advanced Legal Writing course this fall when we discuss the statement of the case.

 

June 12, 2017 in Current Affairs, Legal Writing | Permalink | Comments (0)

Thursday, February 9, 2017

Ninth Circuit responds to TRO challenge

Readers of this blog are probably universally up to speed on the latest court happenings in Washington v. Trump regarding the January 27, 2017 Executive Order entitled Protecting the Nation from Foreign Terrorist Entry into the United States, so this report will not be news to many.

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The Ninth Circuit has upheld the stay issued from the District Court in Seattle. The state of Washington, joined by Minnesota, alleged the order violated protections against religious discrimination. The order from the Ninth Circuit can be found here. All other appellate documents and audio relating to this case can be found here

The Ninth Circuit stated:

The court rejected the administration's claim that it did not have the authority to review the president's executive order.

"There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the court said.

President Trump has already responded via Twitter:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

As the White House is considering options on what to do next, the media is puzzled over what that tweet means. The Government could appeal to the Ninth Circuit en banc, which would consist of a panel of nine or ten judges, including the judges in the panel issuing the order. The Ninth Circuit has twenty-nine judges in total. The Government would also opt for a direct appeal to the United States Supreme Court. Or the Government could let the ruling stand and allow the trial court process to move forward at a snail's pace. High in the halls of Justice many bright minds are gaming out the next move. What is your best guess of how this will play out?

February 9, 2017 in Current Affairs | Permalink | Comments (0)

Friday, December 9, 2016

Appellate Advocacy Blog Weekly Roundup December 9 2016

WeeklyRoundupGraphic

As  we do every Friday, the Appellate Advocacy Blog 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 a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Ruling in Samsung v. Apple

On Tuesday, a unanimous Supreme Court ruled in favor of Samsung in Samsung v. Applethe patent infringement suit brought by Apple, sending the case back to the Federal Circuit for further consideration.  In the case, Apple alleged that Samsung infringed on patents covering specific design elements of Apple's iPhone, including the rectangular front face with rounded corners and colorful grid of icons. Federal law provides that companies found to have infringed design patents on an "article of manufacture" are liable for their total profits. The lower court had awarded Apple $399 million in damages for Samsung's design patent infringement.  In the Supreme Court opinion, Justice Sotomayor wrote that the operative phrase in the statute, "article of manufacture," could sometimes be the entire product (the phone) and sometimes be the components found to have infringed the design patent. The Supreme Court opinion held that the Federal Circuit erred in ruling that the "article of manufacture" must always be the end product (the phone), but did not resolve whether the article of manufacture in the case was the whole phone or parts of it. 

Coverage:

New York Times

Reuters

SCOTUSBlog

Ruling in Salman v. United States

On Tuesday, the Supreme Court unanimously ruled in Salman v. United States, a significant insider trading case that raised the question of whether gifts of confidential information from business insiders to family members without direct financial benefit violate securities law. The Court ruled in favor of prosecutors, ruling that gifts to friends or relatives, whether in the form of cash or a tip of information, sufficiently "benefit" the insider to be considered a violation of securities law.

Coverage:

New York Times

Fortune

Bloomberg

SCOTUSBlog

 

Takeaways from 2016 SCOTUS Oral Arguments So Far:

Adam Feldman writes on the Empirical SCOTUS blog about "Four Takeaways From this Term's 2016 SCOTUS Oral Arguments" so far. There is a wealth of great information about the Justices' interactions with one another and with advocates during the first 1/3 of this term's oral arguments, including which Justices tend to speak the most (or the least), the issues that interest the Justices the most, and the tendencies of some of the best and most frequent advocates to appear before the Court.

Highlights from Appellate Twitter:  #PracticeTuesday

On Tuesdays the brilliant tweeters of #AppellateTwitter post a variety of useful tips, strategies, guidelines, advice, etc.  Here are a few of the highlights from this week, where the topic was mythbusting -- conventional wisdom with which experienced appellate practitioners disagree:

  • Sean Marotta (@smmarotta) argued against the myth that a law student should take "any" clerkship, regardless of location, judge, etc.  He argued that young graduates should definitely consider costs to family, significant others, and other factors when deciding whether a clerkship is really the right opportunity to pursue.
  • Rachel Gurvich (@RachelGurvich) argued against one of my personal favorite myths, that being on Law Review is some kind of prerequisite to a successful legal career. I always tell students that law review is not for everyone and is not a magic bullet -- the key is to find something that catches a potential employer's eye and once you get your foot in the door, you can explain why you didn't go the law review route.
  • Bryan Gividen (@BryanGivi) argued against the myth that a young associate should never so no to an assignment -- because if you don't learn how to say no to assignments that you cannot perform well, you are sure to start alienating colleagues and clients with poor work product.
  • Jennifer Romig (@JenniferMRomig) argued against one that is dear to my heart, as an educator -- the myth that law school conclusively reveals whether someone will be a good lawyer.  I've known many students who were "average" or even below in performance in law school, but went on to be fine and highly successful members of the legal community -- even some who took a couple of tries to pass the bar exam. I've known students who excelled in classes, but not so much in the real world. There's just more to it than that.
  • Finally, Supreme Court Places (@SCOTUSPlaces) called for the debunking of a myth that is near and dear to the hearts of anyone who has ever clerked for an appellate court -- "There must be a case for that simple, seemingly incontrovertable proposition."  It's amazing how often you think that but research seems to come up empty!

December 9, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, November 14, 2016

2016 Election Recap--State Supreme Courts

Last week I blogged on the impact of the 2016 presidential election on the U.S. Supreme Court.  On Friday, once the results were in, Dan linked to several articles discussing the results.  Today I want to focus on the impact of the election on the state supreme courts by looking at the 2016 state supreme court elections:

Alabama:  In Alabama, Michael F. "Mike" Bolin (Republican), Tom Parker (Republican), and Kelli Wise (Republican) won reelection as an Associate Justice on the state supreme court.  

Alaska:  Supreme Court Justices Joel Bolger and Peter J. Maassen won retention elections in Alaska.  Both men were originally appointed by Republican governors.

Arizona:  State Supreme Court Justice Ann A. Scott Timmer won retention election.  She was appointed by a Republican governor.

Arkansas:  Arkansans elected two Supreme Court Justices in the March 2016 primary.  John "Dan" Kemp, a circuit court judge, defeated Associate Justice Courtney Goodson for the chief justice seat.  Circuit Court Judge Shawn Womack defeated Clark Mason, a Little Rock attorney, in the other state supreme court election.

Colorado:  William W. Hood won a retention election to continue service on the Colorado Supreme Court.  He was appointed by a Democratic governor.

Florida:  Chief Justice Jorge Labarga, Justice Charles Canady, and Justice Ricky Polston all won retention election.  All three were appointed by a then-Republican governor (Charlie Crist).

Georgia:  David Nahmias won a retention election to hold his seat on the Georgia Supreme Court in May of this year.  Additionally, on November 9, Republican Governor Nathan Deal appointed three justices to the states supreme court—Solicitor General Britt Grant and Court of Appeals Judges Michael Boggs and Nels Peterson. 

Idaho:  Attorney Robyn Brody defeated Republican State Senator Curt McKenzie for a seat on the Idaho Supreme Court.

Iowa:  Chief Justice Mark Cady and Associate Justices Daryl Hecht and Brent Appel won retention election.  Chief Justice Cady was appointed by a Republican governor and Justices Hecht and Appel were appointed by a Democratic governor.

Kansas:  Chief Justice Lawton Nuss and Justices Marla Luckert, Carol Beier, Daniel Biles, and Caleb Stegall were all retained.

Kentucky:  State Appeals Court Judge Larry VanMeter, a registered Republican, defeated another state appellate judge, Glenn Acree, a registered Democrat.

Louisiana:  Incumbent Marcus Clark (Republican) won an unopposed election for the Fourth District seat on the state supreme court.  Additionally, Republican James Genovese defeated Republican Marilyn Castle for the Third District seat. 

Michigan:  Incumbent Republicans David Viviano and Joan Larsen survived election challenges to remain on the state supreme court.

Minnesota:  Incumbent Natalie Hudson beat attorney Michelle L. MacDonald for a seat on the Minnesota Supreme Court.  Justice Hudson was appointed by a Democratic governor.

Mississippi:  Three incumbents won reelection to the Mississippi Supreme Court.  Incumbent Jim Kitchens beat State Appellate Court Judge Kenneth Griffis.  Incumbent Dawn Beam beat Michael Shareef.  Incumbent James D. Maxwell won an unopposed election.  Additionally, Robert P. Chamberlin won a four-way race for the state supreme court.

Missouri:  Justice Richard Teitelman, a Democrat appointee, was retained for his seat on the state supreme court.

Montana:  In June, Chief Justice Mike McGrath and Justice Jim Shea both ran unopposed for their seats, which was treated per Montana law as a retention election.  Shea had been appointed by a Democratic governor.  Additionally, on November 8, Kristen Juras beat Dirk M. Sandefur for the vacancy caused by Justice Patricia O’Brien Cotter’s retirement.

Nebraska:  Chief Justice Michael Heavican and Justices John Wright and William Cassel all were retained.  Chief Justice Heavican and Justice Cassel were appointed by Republican governors, while Justice Wright was appointed by a Democratic governor.

Nevada: Justices James Hardesty and Ron Parraguirre were both retained on the state supreme court.

New Mexico:  Justice Barbara J. Vigil, a Democrat, was retained to the state supreme court and Republican incumbent Judith Nakamura, a recent appointee, defeated Democrat Michael Vigil.

North Carolina:  Incumbent Justice Bob Edmunds, a Republican, lost to Mike Morgan, a Democrat, in North Carolina’s nonpartisan supreme court election.  This gives Democrats a majority on the state supreme court, but the state legislature is allegedly considering expanding the size of the court.

North Dakota:  Justice Lisa Fair McEvers, an incumbent, ran unopposed for her seat on the state supreme court.  Jerod Tufte defeated Robert V. Bolinske, Sr., to replace Justice Dale Sandstrom on the state supreme court.

Ohio:  Republican Justice Maureen O’Connor won an unopposed election for the chief justice seat.  Republican Pat DeWine defeated Democrat Cynthia Rice for a seat on the Supreme Court.  Republican Pat Fischer holds a narrow lead over Democrat John O’Donnell in the other supreme court race.

Oklahoma:  Justices James R. Winchester and Douglas L. Combs were both retained to the state supreme court.

Oregon:  Justice Lynn Nakamoto won an unopposed election to remain on the state supreme court. In May, Justices Rives Kistler and Jack Landau also won unopposed elections.

Tennessee:  Three state supreme court justices were retained in August—Justices Holly Kirby, Jeff Bivins, and Roger A. Page.  All three were appointed by a Republican governor.

Texas:  Texas has two high courts—the state supreme court and the Court of Criminal Appeals.  For the state supreme court, the three Republican incumbents—Debra Lehrmann, Paul Green, and Eva Guzman—defeated their Democratic challengers Mike Westergren, Dori Contreras Garza, and Savannah Robinson.  On the Court of Criminal Appeals Democrat incumbent Larry Meyers was defeated by Republican Mary Lou Keel.   Incumbent Republican Michael Keasler defeated Democrat Robert Burns.  For the open seat, Republican Scott Walker defeated Democrat Betsy Johnson.

Washington:  Incumbents Mary Yu, Barbara Madsen, and Charlie Wiggins defeated challengers David DeWolf, Greg Zempel, and Dave Larson to remai on the state supreme court.

West Virginia:  In May, incumbent Republican Brent Benjamin faced a five-way race for his seat involving two Republicans and three Democrats.  He lost to Republican Beth Walker.

Wisconsin:  In April, incumbent Rebecca Bradley defeated JoAnne Kloppenburg to remain on the state supreme court.

Wyoming:  Justices Kate M. Fox, William U. Hill, and Keith G. Kautz, all appointed by Republican governors, were retained.

November 14, 2016 in Appellate Advocacy, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Friday, November 11, 2016

Appellate Advocacy Blog Weekly Roundup

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Here are a handful of tidbits on appellate practice from around the web this past week.  As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Presidential Election and the Courts:

The Presidential election dominated news this week, in blogs, online news sites, and Twitter.  As a result, the biggest discussion point this week regarding appellate practice was the variety of thoughts about how Donald Trump's election will impact the courts -- the Supreme Court and other federal courts.

Here at the Appellate Advocacy Blog, Tessa posted on the topic in a post on Monday:  The Election and the Courts.  But that discussion ramped up even more starting midweek, after the election and Donald Trump's victory.  Discussions of how the Supreme Court is likely to change under a Trump presidency made headlines at The Economist, Bloomberg, the New York Times, NPR, and other sites. A list of the potential candidates from which Trump might pick a replacement for Justice Scalia (and other potential vacancies) is on the Trump/Pence website.  The National Law Journal expanded the discussion to remind us of the 52 nominees for open federal court seats already put forth by President Obama but not acted on.

Appellate Judges Education Institute:

The 2016 Appellate Judges Education Institute Summit begins today in Philadelphia. The annual summit provides a variety of educational opportunities specifically designed for appellate judges, lawyers, and staff attorneys.  When I worked for the Nebraska Court of Appeals, I was fortunate enough to attend the summit one year, and it is without a doubt one of the best appellate-specific educational opportunities there is.

#AppellateTwitter Swag:

If you are an appellate practice person -- lawyer, judge, casual fan -- you are likely already aware of the Twitter hashtag #AppellateTwitter.  It's continuing to grow, and is a source of some really great Twitter users, posts, and practice tips and discussion.  Jason Steed (@5thCircAppeals) recently indicated an interest in creating some #AppellateTwitter swag -- starting with coffee mugs.  And he's following through on it. He posted on Twitter this week how you can order your own #AppellateTwitter coffee mug, paying through Paypal.  Sign me up.

November 11, 2016 in Appellate Advocacy, Appellate Court Reform, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, October 28, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

Here are a handful of tidbits on appellate practice from around the web this past week.  As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Continuing Impacts of the Supreme Court Vacancy 

This week, Lyle Denniston (@lylden) took a look at three Supreme Court cases that were accepted right before Justice Scalia's death, but haven't received an oral argument date yet.  Denniston noted that the cases have intentionally been bypassed as hearings have been scheduled, and argued that the most likely reason for the intentional bypassing of these three cases – which have been waiting the longest to be argued – is that the Justices are inclined to think that they would wind up in 4-to-4 splits. 

One of the cases, Trinity Lutheran Church v. Pauley, is about school access to a state government program for turning tires into playground sufaces.  The case implicates state constitutional clauses in more than 30 states that deny equal access to government benefits for an organization that is a house of worship or is directly affiliated with one. 

The second case, Murr v. Wisconsin, involves the question of how private property is defined when the government seeks to prevent or regulate development because of environmental concerns. 

The third case, Microsoft v. Baker, involves suit by a group of consumers in Washington against Microsoft, in which they complain that the Xbox 360 had a defect that caused its optical disc to damage the machine to the point that it was unplayable.  Although the plaintiffs in the suit were denied class action status, they managed to get the case dismissed in a manner that allowed them to appeal as a class. 

Each of the three cases involves matters in which Justice Scalia had been outspoken in decisions in recent years.  

Posner Declares the Supreme Court "Awful" 

Judge Richard Posner of the Seventh Circuit Court of Appeals made headlines again this week.  This time, the headlines stemmed from a recent appearance at the Seminary Co-op Bookstore in Chicago, in connection with the launch of a biography on Posner. 

At the event, Posner said that he was working on a new book about the federal judicary. He said that he had "about ten pages on the strengths and about 320 pages on the weaknesses."  Posner continued to say that he was "very critical" and that he does not "think the judges are very good. [He thinks] the Supreme Court is awful. . . . Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They're okay, they're not great." 

Posner criticized federal judges, including the Supreme Court Justices, as lacking intellect – suggesting that they are appointed for appearance purposes and use clerks to do much of their work.  He asserted that the Supreme Court Justices lacked extensive trial experience.  And he criticized their writing, suggesting that Breyer and Ginsburg are the only ones who author readable opinions.  He also took issue with formalisms like res judicata and continued reliance on precedent. 

Posner even took issue with the fact that judges call their offices "chambers," attributing the practice to fourteenth century French language. 

(Video of Posner's Comments )

(Hat Tip:  Above the Law @atlblog )

Clarence Thomas' Majority by Dissent and Jeffrey Toobin's Disdain 

Adam White had a piece this week at the Weekly Standard where he discussed Jeffrey Toobin's latest critical piece about Justice Clarence Thomas.  Toobin's latest piece in the New Yorker reflected on Justice Thomas' 25-year anniversary with the Supreme Court. White noted that Toobin's premise in the latest piece is that Thomas does not write any significant majority opinions and instead focuses mostly on dissenting from others' opinions and has been "on a Court of his own" for his career with the Supreme Court.  

White disagrees with the premise.  White notes that Thomas has written dozens of majority opinions, including ones in cases "on questions of state sovereignty, the First Amendment, antitrust, and . . . administrative law." White also contends that it doesn't matter how many majority opinions he has written – because Thomas authors concurrences and dissents, spelling out his own reasoning, and emphasizing his view of original intent in Constitutional thinking. Thomas also notes that while Toobin has praised other justices, like Ginsburg, for being "influential in different ways," he seems to turn a blind eye to that same thought when looking at Justice Thomas. 

 

Adnan Syed's Lawyers Motion for Bail 

Adnan Syed, whose murder case was spotlighted on the popular podcast, "Serial," in 2014, has remained incarcerated despite a ruling more than three months granting him a new trial. This week, his lawyers filed a motion asking that he be released on bail. The filing asserted that "Syed has now served more than 17 years in prison based on an unconstitutional conviction for a crime he did not commit." 

(NY Times Article

ABA's Unease Over Trump Article Results in First Amendment Debate 

A media lawyer in California, Susan Seager, authored an article reviewing Donald Trump's history as a libel plaintiff.  In the article, Seager called Trump a "libel bully" and a "libel loser," because of his record of losing such cases.  Her article was originally supposed to run in Communications Lawyer, a quarterly newsletter of an ABA member group.  In mid-October, however, discussion between ABA deputy executive director James Dimos, the newsletter's editors, and Seager, resulted in Seager pulling the piece and having it published online at medialaw.org. 

Among the suggested edits were recommended deletions of "direct references to Trump as a bully, a description of Trump as 'orange haired and orange tinged,' and a statement that Trump lacked a sense of humor."  Additionally, the suggested edits included changing the proposed title of the article from "Donald J. Trump is a Libel Bully but also a Libel Loser," to "Preseidential Election Demonstrates Need for anti-SLAPP Laws." 

Although the ABA disputes that its expressed concerns and suggested edits to Seager's language amounted to blocking the initial publication, media lawyers have expressed concern and called the situation an example of censorship. 

According to the ABA, the concerns expressed about the language of the article were based on concerns about whether the pointed language in the article amounted to "[n]ame calling and questioning Mr. Trump's mental capacity," were "ad hominem attacks [that could] increase the risk of the ABA being sued by Mr. Trump," and were inconsistent with the ABA's strong policy of being a nonpartisan organization. 

(Article

SCOTUS Celebrity News 

Apparently Chief Justice Roberts and his wife recently purchased a second home on an island off the midcoast of Maine.  Although the price was not disclosed, a 15-year mortgage for $1Million was filed.  

(Hat Tip:  Howard Bashman @howappealing) 

#AppellateTwitter Weighs in on Golden Rules of Legal Writing 

Joe Fore (@Joe_Fore), Co-Director of the UVALaw legal writing program, asked for #AppellateTwitter's help this week in boiling down legal writing into aa few golden rules – broad take-homes – for his legal writing class.  And #AppellateTwitter did not disappoint. 

(Twitter Thread)

 

October 28, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, September 30, 2016

Appellate Advocacy Blog Weekly Roundup

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Here are a handful of tidbits on appellate practice from around the web this past week.  As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). 

Upcoming SCOTUS Term 

SCOTUS kicks off its new term on the first Monday in October.  As a result, the week before usually results in quite a bit of chatter, speculation, and discussion about the coming term and what can be expected.  Here are a few tidbits in that regard: 

SCOTUS Order List: 

On Thursday, SCOTUS released an Order List adding eight cases to its new term, to start next week.  SCOTUSblog provided a good / quick writeup about the list and a little preview of each case. 

Order List: 

https://www.supremecourt.gov/orders/courtorders/092916zr_b97d.pdf 

SCOTUSblog Article:  https://www.scotusblog.com/2016/09/justices-add-eight-new-cases-to-docket-for-upcoming-term/ 

SCOTUS 2016 Term: By the Numbers 

Bloomberg broke down the upcoming term "by the numbers" -- including how many cases had been docketed at the beginning of the week (out of the 75 or so likely to make up the full docket for the year), the number being heard on direct appeal vs. discretionary grants of cert, original jurisdiction, etc. The article also breaks down civil vs. Criminal cases on the docket, the possibility of the 9th Circuit becoming the most reversed court for this term, etc. 

Article:  https://www.bna.com/scotus-2016-termby-n57982077532/ 

5 Facts about the Supreme Court 

Pew Research Center summarized five facts about how Americans view SCOTUS as this year's term looms on the horizon.  Americans' opinions of the Court hit a 30-year low last year, but have rebounded; there is a significant partisan gap in views of the Court; those partisan views include sharp divisions about how the Court should interpret the Constitution; voters closer to the conservative end of the Republican spectrum or the liberal end of the Democratic spectrum (as opposed to moderates) view court appointments as more important to their vote in the upcoming presidential election; and most Americans disagree with the current Senate's decision not to hold hearings on the nomination of Merrick Garland.  See the article for more in-depth explanation of these five points. 

Article:  https://www.pewresearch.org/fact-tank/2016/09/26/5-facts-about-the-supreme-court/ 

Hat Tip:  Robert Barnes (@scotusreporter

How Clinton's or Trump's Nominees Could Affect the Balance of the Supreme Court 

Adam Liptak and Alicia Parlapiano had an article in the NY Times that provided an interactive guide and links to a new study prepared by Lee Epstein of Washington University in St. Louis, Andrew D. Martin of the University of Michigan, and Kevin Quinn of the University of California-Berkeley, discussing predictions about each candidate's potential nominees. 

Article:  https://www.nytimes.com/interactive/2016/09/25/us/politics/how-clintons-or-trumps-nominees-could-affect-the-balance-of-the-supreme-court.html?_r=0 

Hat Tip:  Howard Bashman (@howappealing

#TwitterTuesdays Here 

This week's edition of #TwitterTuesdays here at the Appellate Advocacy Blog focused on Supreme Court related Twitter accounts to keep you informed about all thing SCOTUS. 

Link:  https://lawprofessors.typepad.com/appellate_advocacy/2016/09/twittertuesday-scotus-edition.html 

Judge Clears Path for PACER Overcharge Suit 

An article on Law.com this week highlighted that a U.S. Court of Federal Claims judge has denied the government's request to dismiss a class action suit alleging that a computer glitch caused the Public Access to Court Electronic Records (PACER) system to erroneously overcharge users for accessing and viewing federal court docket information.  The basis for the government's claim was an assertion that the plaintiffs in the suit were required to exhaust administrative remedies before pursuing the action in court; the judge disagreed. The underlying action is based on "claims for breach of contract, breach of an implied covenant of good faith and fair dealing, and illegal exaction." 

Article: https://www.law.com/sites/almstaff/2016/09/26/judge-clears-path-for-pacer-overcharge-suit/?cmp=share_twitter&slreturn=20160827104313 

Hat Tip:  Zoe Tillman (@ZoeTillman) and Jason P. Steed (@5thCircAppeals

September 30, 2016 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, September 16, 2016

Appellate Advocacy Blog Weekly Roundup

  WeeklyRoundup

This is the first edition of a new regular feature here at the Appellate Advocacy Blog:  The Weekly Roundup.  Each Friday, we’ll post links to some of the best appellate practice content that we’ve come across in the past week.  If you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). 

 How Not to Argue About Extrinsic Evidence 

600 Camp – a blog about commercial litigation before the U.S. Court of Appeals for the Fifth Circuit – had a brief post on September 12 about the Fifth Circuit’s unpublished opinion in SmithGroup JJR, PLLC v. Forrest General Hospital.  The brief opinion addressed the importance of preserving at the trial level arguments to be raised on appellate review.  The particular issue at hand involved the admission and use of extrinsic evidence in the interpretation of a contract. 

Blog Post:            600 Camp Blog Post 

Fifth Circuit Opinion:       SmithGroup v. Forrest General Hospital Opinion

Hat Tip:                 @David Coale

 The 5 Edits I Make Most Frequently 

Mark Herrmann, formerly a partner at a leading international law firm and now responsible for litigation and employment matters at a large international company, authored a post at Above the Law this week recounting common editing moves in the writing of briefs.  There is a wealth of good advice there, based on real experience. 

Blog Post:            Above the Law Blog Post 

Hat Tip:                 Raymond P. Ward

 A Worthwhile, Four-Day Appellate CLE Is Coming to Philadelphia  

Howard Bashman (featured in this week’s “Twitter Tuesday” has written a great post discussing the annual Appellate Judges Education Institute Summit, an annual four-day program hosted by the judicial division of the ABA and the Southern Methodist Dedman School of Law.  In a lot of ways it is like a big CLE over several days, featuring a large group of judges and appellate practitioners.  This year’s event is being held in Philadelphia in November.  If it fits your schedule, it’s a highly beneficial event to attend and participate in.   

Blog Post:            Bashman Blog Post 

Hat Tip:                 @howappealing

Combination of Clement/Bancroft firm with Kirkland & Ellis 

A big news item this week concerns the breaking news that Paul Clement and the Bancroft firm are going to combine with Kirkland & Ellis.  This news was reported and discussed in a variety of places, including an article in the National Law Journal, where another prominent SCOTUS bar practitioner was quoted as calling it “the biggest shake-up in the Supreme Court bar since [Clement] left King & Spalding in 2011.”  

Article:                 National Law Journal Article 

Hat Tip:                @tessadysart

Twitter Thread About Getting Into Appellate Practice 

Jason Steed, who was recently mentioned in our Twitter Tuesday feature and who is an appellate practitioner who blogs and tweets about appellate practice (especially in the 5th Circuit), started a twitter thread and discussion about getting into appellate practice that has some great discussion and thoughts.  You can follow Jason’s other posts about appellate practice at @5thCircAppeals. 

Link:       Jason Steed Twitter Thread

September 16, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 10, 2015

The Harms of Issuing Non-Precedential Opinions

In a post last Monday on Prawfsblawg, entitled, On Not Creating Precedent in Plumley v. Austin, Richard M. Re asks, "what’s so wrong with deliberately declining to create precedent?" By his answer, an implied "nothing" because "[d]oing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent," he seems to be asking, "what's the harm?"

There are a couple other bases for finding the practice "wrong," such as whether the practice is legitimate, constitutional, or just. But first, what's the harm in treating some circuit decisions as non-precedential? This is something I discuss in my works on the topic, especially: Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. App. Prac. & Process 61 (2009) and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. 685 (2009).

First, deliberately declining to create precedent creates fewer precedents. Fewer precedents means a less definite law. At least since the time of Lord Coke, the law has been viewed as refined by renewed applications. With each new decision, the law is broadened, narrowed, or simply reaffirmed. The common law treats each case as binding but is also concerned about the accrual of such cases and the varying facts to which the rule is applied. This the understanding of precedent of Coke, Blackstone, Kent, Marshall, Story, and Llewellyn. It's how the common law, in principle, works. Never before in common law history has a court been able, at the time of decision, to remove its holding from the body of precedent. And no matter how the court phrases its opinion, it has ultimately been up to the later court to decide whether and how earlier opinions applied.

I am partial to Karl Llewellyn's explanation: "We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping of concrete instances, the present, vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all." Karl Llewellyn, The Bramble Bush, 66-69 (1930).

The problem is not that there are too many precedents but that there are too few. Judge Posner wrote as much in The Federal Courts: Challenge and Reform, and his experience is echoed  in the experiences of the federal judiciary. In a 1998 survey of federal district judges, about a third identified some area of circuit law as inconsistent or difficult to know on account of lack of binding circuit decisions on point. But even more telling than what judges say is what they do. The survey also revealed that nearly two-thirds of lawyers surveyed reviewed unpublishd opinions either generally within their practice area or in researching specific cases. During the citation ban era (1974-2006), courts and litigants frequently cited to unpublished and allegedly non-precedential opinions even in violation of the ban.  They were, as Lord Coke might have described it, looking for greater refinement in the law that only comes by seeing it applied. Or as Llewellyn might have said, they saw the published, precedential grains of sand, but they wanted to see the heaps. The citation ban finally ended because it ran counter to a basic understanding of precedent shared by American lawyers and judges alike: each case has value in determining the scope of the law.

More applications of the principles of law to facts, such that those principles are tested and refined, improves our understanding of those principles and gives greater certainty to those seeking to conform their conduct to them. "Mistaken or sloppy precedent" can be corrected by more judicial oversight to their drafting, or should that fail, by the normal processes of the court. While conserving limited resources is important, expediency should not be our highest value. The federal judiciary, a co-equal third branch of our government is allocated a mere two-tenths of one percent of the total federal expenditures. Instead of asking our courts to do with less, we should give them the funds to do more.

Second, issuing some decisions as non-precedential creates the potential for blatantly conflicting published and unpublished opinions. A court may decide in favor of a party today but next year, on the exact same issue, decide exactly the opposite. If the earlier decision is unpublished, the later panel need not acknowledge the earlier decision or give a reason for the change. This was the case in a pair of cases in which the Dallas Area Rapid Transit authority (“DART”) received diametrically opposed decisions from the Fifth Circuit without explanation in a span of just three years. In 1999, a federal district court in the Fifth Circuit held that, “DART  is a political subdivision of the state of Texas, and is therefore immune from suit under the Eleventh Amendment," which the Fifth Circuit affirmed without comment in an unpublished opinion. Anderson v. Dallas Area Rapid Transit, No. CA3:97-CV-1834-BC, 1998 U.S. App. LEXIS, 15493 (N.D. Tex. Sept. 29, 1998) aff’d Anderson v. Dallas Area Rapid Transit, 180 F.3d 265, (5th Cir. 1999) (per curiam) (unpublished), cert. denied 529 U.S. 1062 (1999).

In Anderson, and two other unpublished opinions, the Fifth Circuit held that DART was a governmental unit or instrumentality of the State of Texas entitled to qualified immunity. The law on this point seemed so clear that in Williams v. DART, the district court felt this point was "firmly established." The Fifth Circuit disagreed and rejected DART's immunity claim dismissing the unpublished opinions as "neither binding nor persuasive," but failing to give any reason for the different treatment. Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 261 (5th Cir. (Tex.) 2001). This decision drew a strong dissent noting that this kind of unreasoned about-face exposed a flaw in the concept of non-precedential opinions.

A conflict like this between two precedential opinions would be resolved by the second panel distinguishing the present matter from the prior one, or if that proved impossible, by an open declaration of conflict followed by a resolution by the court en banc. Which leads to a third category of harm non-precedential opinions cause.

Third, issuing some decisions as non-precedential increases the likelihood of intra-circuit conflict. Such conflict was especially acute in the citation ban era, because a litigant perceiving a conflict in a circuit's unpublished opinions was prohibited by rule from raising it with the court. For example, in the wake of the U.S. Supreme Court's ruling in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), an ambiguity arose about how to treat a defendant convicted of illegal entry following deportation. Over a two-and-a-half-year period, twenty Ninth Circuit panels ruled on this issue and split three different ways (most remanding for resentencing, some remanding for amendment of the original judgment, and a few foisting the responsibility for determining the proper course of action on the district court). The split continued for over two years, with identically situated defendants receiving different answers from the Circuit. The ongoing intra-circuit conflict was revealed only when a panel in United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000) ordered a litigant to violate the Circuit's non-citation rule and provide a list of these unpublished opinions.

A circuit that does not view its unpublished opinions as binding can simply ignore those decisions for purposes of whether to hear an issue en banc. Yet, the unpublished opinion may be cited for persuasive effect (in all circuits since 2007), which merely increases the chance of creating the separate, conflicting lines of authority as in the Riveria-Sanchez scenario.

Fourth, inter-circuit conflict become more likely, too. In much the same way that intra-circuit conflict can arise undetected or unacknowledged within a circuit, such conflicts can arise between circuits. During the citation ban era, such conflicts were effectively hidden, because citation bans prevented their being raised. But even now, if the unpublished opinion is not treated as establishing the law of the circuit, it can be disregarded within its own circuit and by the other circuits. The Supreme Court takes only a tiny fraction of the cases seeking review each year.  Just as with en banc panels, a case that does not establish the law of the circuit is unlikely to be the basis of an apparent conflict even if the conflict it creates is real. In that way, a conflict can exist indefinitely in a manner much like that described in Rivera-Sanchez.

Fifth, declaring some opinions non-precedential allows them to evade Supreme Court Review. As noted above, one line of authority, if present only in unpublished opinions can obscure or deemphasize the nature of the conflict. Two Justices believed that was the case in Waller v. U.S., where Justices White and O'Connor dissented from denial of cert noting that a circuit split existed if one took into account unpublished opinions. 504 U.S. 962, 964-65, 112 S. Ct. 2321 (1992) (White J. and O’Connor J., dissenting) (Mem); see also Hyman v. Rickman, 446 U.S. 989, 990-92 (1980) (Blackmun, Brennan, and Marshall, J., dissenting) (Mem) (dissenting from denial of certiorari on the grounds that the unpublished circuit opinion was in conflict with other circuits on the issue of right to appointed counsel). While the conflict was sufficient to catch individual Justices' attention, it was not sufficient to prompt Supreme Court review, similar to the result in Plumley v. Austin.

Supreme Court review is also less likely due to the signal an unpublished opinion sends. A circuit’s decision not to publish a given decision signals that that decision is routine, even when it is not. For example in United States v. Edge Broad. Co., the Fourth Circuit declared a federal statute limiting lottery advertising unconstitutional in an unpublished opinion. 956 F.2d 263 (per curiam) (4th Cir. 1993). In its reversal of that decision, the Supreme Court expressed surprise and dismay that the Circuit Court could perceive such a ruling as unworthy of publication. 509 U.S. 418, 425 n.3 (1993) (“We deem it remarkable and unusual that although the Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion.”)

The hiding of cases from Supreme Court review also occurs because unpublished cases tend to create a less thorough record, which itself discourages Supreme Court review. For example, in County of Los Angeles v. Kling, the Supreme Court granted cert and issued a summary reversal on a case the Ninth Circuit had decided in a brief, unpublished, non-citeable opinion. 474 U.S. 936, 937-39 (1985). Justice Marshall dissented calling the Ninth Circuit’s practice “plainly wrong” and noting, "the Court of Appeals would have been well advised to discuss the record in greater depth. One reason it failed to do so is that the members of the panel decided that the issues presented by this case did not warrant discussion in a published opinion that could be 'cited to or by the courts of this circuit, save as provided by Rule 21(c).' That decision not to publish the opinion or permit it to be cited-like the decision to promulgate a rule spawning a body of secret law-was plainly wrong."

Justice Marshall continued by chastising the Court for engaging in the same type of shortcut decision making: "The brevity of analysis in the Court of Appeals' unpublished, noncitable opinion, however, does not justify the Court's summary reversal….For, like a court of appeals that issues an opinion that may not be printed or cited, this Court then engages in decision-making without the discipline and accountability that the preparation of opinions requires."

Even when both parties agree that a Circuit decision makes new law, the status of a decision as unpublished can discourage Supreme Court review.  In Family Fare, Inc. v. NLRB, both parties agreed that the Sixth Circuit had departed from its previous law in an unpublished opinion. 2006 U.S. Briefs 1536 cert. denied Family Fare, Inc. v. NLRB, 127 S. Ct. 2991 (2007). NLRB liked the change and sought publication or a Supreme Court affirmance to solidify the new interpretation. Family Fare disliked the change and viewed it as exactly the kind of surreptitious change in the law of the circuit that Justice Thomas alludes to in Plumley. Ultimately, The Supreme Court denied cert, probably in significant part because as an unpublished opinion, it was not the formally law of the circuit and did not truly represent a shift in the law. Yet, Family Fare was treated differently than prior litigants, and NLRB likely relied on the decision in future cases to show that the law had changed.

Sixth, creating an opinion on which no one can rely (and which for years no one could even cite) is an invitation to poor reasoning or even strategic, result-based reasoning. Justice Stevens expressed "that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify." Jeffrey Cole & Elaine E. Bucko, A Life Well Lived: An Interview with Justice John Paul Stevens, 32 No. 3 Litigation 8, 67 (2006).

This concern was also expressed by the late-Judge Richard Arnold and quite directly by Judge Wald of the D.C. Circuit: "I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would be dissenters go along with a result they do not like so long as it is not elevated to a precedent." The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995).

A study of asylum cases in one circuit and found considerable strategic decision making surrounding the outcomes of cases and the publication of opinions: "voting and publication are, for some judges, strategically intertwined: for example, judges may be prepared to acquiesce in decisions that run contrary to their own preferences, and to vote with the majority, as long as the decision remains unpublished, but can be driven to dissent if the majority insists upon publication" David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. Cinn. L. Rev. 117 (2005).

Finally, the system of unpublished, non-precedential opinions is harmful to both the courts and the litigants before them. It's harmful to the courts, which have been drawn into this very unjudicial exercise of prospectively dividing "worthy" cases from "unworthy" ones. For hundreds of years, a court was expected to abide by, or explain the difference from, a prior case, and a court knew that its decision created a similar obligation on later courts. Now, unmoored from that, they are engaged in a very different process. As the recent article by Adam Liptak suggests, the public concern with unpublished opinions is that a court can issue one-off rulings that it need not every follow again.

It also harms litigants, who look at prior adjudications in the form of unpublished opinions but have no assurance that they will be treated the same or that any explanation will be given for the difference. And often they are not. Individual litigants like those in the cases mentioned above and all the many similar cases they represent, have not been treated equitably or according the system most people believe exists.

But as noted at the outset of this post, these harms are the middle ground problems with non-precedential opinions. One could accept the practice in principle and have serious concerns with the manner in which it is carried out. Or, more deeply, it's fair to question what authority the federal circuits have for ex ante precedent-stripping and whether that practice is constitutional or just. But those will have to wait for other excessively long posts.

February 10, 2015 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)