Appellate Advocacy Blog

When Is a Judge Unfit, and What Can be Done About It?

The controversy surrounding Judge Pauline Newman of the Federal Circuit raises an interesting question for appellate advocates. Judge Newman, age 95 and appointed by President Reagan in 1984, was asked to step down by the circuit’s chief judge but declined the suggestion. Allegations against her include bouts of paranoia in which she claims that the court is spying on her, that her staff is betraying her and at least one of them should be arrested, that she engages in conversations with dead colleagues, and that she forgets how to log into her computer or where files on it can be found.

She is now being investigated by a special committee of the circuit about her competency to continue to serve as a judge. A recently released 26-page Order requires Judge Newman to undergo “neurological evaluation and neuropsychological testing to determine whether she suffers from a disability.” The order follows a previous one where Judge Newman refused to comply, labeling the requested medical records “irrelevant,” objecting to examinations by court-designated professionals and to their scope, and asking that the determination of her fitness to remain on the bench be determined outside the circuit. The new order rejects those objections and includes more specificity about what the investigative committee of fellow judges requires.

Judge Newman has responded with a lawsuit, filed May 10, in the federal district court in Washington, DC. It denies that she suffered a heart attack that prevented her from sitting during the summer of 2021, asserting instead that she was a member of 10 panels from June to September of that year and issued at least eight opinions from those sittings. Her productivity, it alleges, eclipses that of all but two colleagues. It further asserts that the circuit, by unanimous vote of the other judges, refuses to assign her any more cases. The complaint further states that Judge Newman’s judicial assistant and law clerk were reassigned without leave for the judge to replace them.

The complaint argues that the treatment of Judge Newman, constructively a removal from office, violates separation of powers because she serves “during good Behaviour,” removable from office only through impeachment and conviction by Congress. It further asserts that the circuit judicial council acted prematurely under the Judicial Conduct and Disability Act of 1980, which requires a completed investigation before action, comparing the procedure utilized to “Sentence first—verdict afterwards” from “Alice’s Adventures in Wonderland.” It further asserts a Fifth Amendment due-process violation “because the special committee is composed of witnesses to Plaintiff’s alleged disability.”

Judge Newman also claims the court has violated the First Amendment by virtue of a “Gag Order [that] forbids Plaintiff or her attorneys from engaging in any speech that would in any way publicize the ongoing disciplinary proceedings against Plaintiff.” Indeed, until the complaint was filed, the court’s order was filed under seal and released only because of the lawsuit.

Finally, Judge Newman asserts most of the authority claimed by the investigating committee is unconstitutional, due to the vagueness of “what constitutes a mental disability that renders a judge ‘unable to discharge all the duties of office’” and what remedies the judicial council may employ.

For appellate counsel facing a court with a judge displaying erratic behavior or otherwise unable to follow the argument, what happens in Judge Newman’s circumstances could be instructive. We may learn what authority courts have to intervene when a judicial council acts, what authority judicial councils may exercise, and what behavior provides grounds for action against a judge. We may also learn what appointment by the president and confirmation by the Senate, subject to impeachment, means in these circumstances.

Of course, appellate counsel has no means to challenge the assignment of a judge to a matter, absent a clear conflict of interest. Still, the Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings provide a complaint process, which basically follows the process that the Federal Circuit employed – although in this instance the Chief Judge filed the complaint herself.

We have at least one historic precedent of a court acting to restrict a judge who had lost the ability to discharge his duties. Justice Gabriel Duvall, a once prominent Maryland lawyer and judge appointed to the Supreme Court by President Madison, became so sick and deaf during his final years on the bench that Chief Justice John Marshall ordered that the clerk not supply the infirm justice with any supplies, lest he actually write something about one of the cases before the Court.

Today, we live in a different world, but the problem of a judge who does not recognize when the time to step down has come remains. Whether that time has come for Judge Newman or not, her case and the Federal Circuit’s actions may provide some answers about what a court can do.

Should I include a stand-alone “introduction” section in my brief?

I was recently discussing persuasive writing with an appellate attorney, and he mentioned how important he believed the “introduction” section of the brief was.  He wasn’t talking about an introductory paragraph to the argument; he meant an entirely independent, stand-alone section of the brief. 

The idea of an “introduction” (or preliminary statement) section has taken hold over the past few years in the appellate practice world.  It was mentioned on this very blog back in 2019:  https://lawprofessors.typepad.com/appellate_advocacy/2019/12/writing-an-outstanding-appellate-brief.html. But those who support it also recognize that not all appellate courts authorize it.[1]  And that raises several questions.

• What is an “introduction” section?

An introduction section has been described by advocates as “a short and persuasive overview of the case,”[2] or “a concise statement of the issues and arguments that the writer view[s] as most important, as well as the desired outcome.”[3]  

While most appellate courts do not expressly authorize its inclusion in briefs, some do.  Arizona, Illinois, Kentucky, Maine, Minnesota, Utah, and Washington all expressly authorize (or require) an introduction section in their state appellate court rules.[4]  Utah’s rule says that “[t]he introduction should describe the nature and context of the dispute and explain why the party should prevail on appeal,” while the Illinois rule provides a model:  “This action was brought to recover damages occasioned by the alleged negligence of the defendant in driving his automobile. The jury rendered a verdict for the plaintiff upon which the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.”[5]  But the other state rules provide less guidance, suggesting that the introduction should address the “nature of the case” (Kentucky and Maine) or be “concise” (Washington), while Arizona and Minnesota provide no guidance at all.

With respect to the federal circuits, none address introductions in their local rules, but Westlaw’s Practical Law toolkits suggest that introductions are commonly included by practitioners in the First, Second, Fifth, Eleventh, and Federal Circuits.  These introductions are generally described as “a short preliminary explanation of the facts and procedural history of the case [with an] expla[nation] why the . . . Circuit should grant the appellant relief from the district court’s order or judgment.”[6]

• What are the pros and cons of using an introduction?

As with any persuasive writing, you must first know your audience.  As a law clerk, I’ve seen only a few of these (they are not expressly authorized by my state’s rules), and I was neither put off nor blown away.  For me, it was meh.  But it’s really the judges’ opinions that matter, so I asked the judge I work for if she had noticed them and what she thought.  She also expressed mixed feelings, noting that introductions were helpful only if they were well-written, avoided redundancy, were brief, and acted as a guide for analyzing the claims on appeal.[7]

There are several potential benefits from a well-written introduction section.  You get to frame the case; you get to prime your reader to accept your legal positions or view the facts favorably to your claims;[8] and you can help the court navigate your brief.

But there are risks, as well.  The most obvious is potential redundancy.  Most appellate courts permit or require a summary of the argument section.  According to the federal rules, this section “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and . . . not merely repeat the argument headings.”[9] And, presuming your argument identifies the nature and context of the dispute and explains why your client should prevail, it’s hard to see the distinction between the summary of the argument and an introduction.  As one author put it, “At best, the brief simply contains two summaries of the argument, rather than one.”[10]  And one Florida court noted, “Outlines of substantive arguments are more proper in a brief's summary of argument section.”[11]

An additional (and very real) risk is violating a procedural rule.  Most appellate courts allow for dismissal of appeals in the face of briefing rule violations.  Even in jurisdictions allowing introductions, failing to write them properly (or taking liberties with the opportunity) can land you in a court’s crosshairs.  See, e.g., Yakima Sch. Dist. No. 7 v. Magee, 16 Wash. App. 2d 1079 (Wash. App. Div. 3 2021) (rejecting the appellant’s “preamble” as “a confusing jumble of words” that failed to “help the court or opposing counsel ‘expeditiously review’ the issues in the case”).  Furthermore, in jurisdictions without express rules, it is unclear whether an introduction counts in the page and word limits or whether the failure to include legal or record citations constitutes a violation of other briefing requirements.  And both the Second Circuit and the United States Supreme Court have rules requiring briefs to be free of “irrelevant” or “immaterial” matter.[12]

In short, the inclusion of an optional or unauthorized introduction is a gamble with some significant risk for potentially high reward—but only if it is done well.

• How do I effectively use an introduction?

The first decision is where to put it.  Its name, alone, suggests it should appear near the beginning of the brief, and jurisdictions with express rules generally say it should appear immediately after the table of authorities.[13]  In federal circuits where common practice exists, introductions appear immediately after the table of authorities (First and Second Circuits), after the statement of issues presented (Fifth Circuit), or between the statement of related cases and the jurisdictional statement (Federal Circuit).  Common practice in the Eleventh Circuit appears variable, with some introductions appearing at the very beginning, some after the table of authorities, and some as the first heading in the statement of the case.  (Though it seems odd to include the introduction within the statement of the case, the reason for doing so may be logistical; some appellate judges rely on summaries provided by staff attorneys, and including the introduction in the statement of case increases the likelihood that it will be included in those summaries.  Of course, placing the introduction within the statement of case may also increase the likelihood of a rules violation if the introduction lacks citation or includes argument.)[14]

The next decision is whether to include citations to either the record or legal authority.  In Washington, “[t]he introduction need not contain citations to the record or authority.”[15]  And judges who are open to introductions generally suggest that citations in this section detract from its purpose and effectiveness.  But, as mentioned above, whether you are required to include record citations depends to some degree on location of your introduction, and many appellate courts require citations to the record for every factual assertion in the brief.[16]

Additional considerations are whether introductions are appropriate in every case and, if included, how long they should be.  Considering how judges and law clerks use introductions, they are most effective when included in complex cases and least effective in simpler ones.  And there is universal agreement that they must be brief and concise or risk being ignored.  Thus, one author suggests, “Where introductions are concerned, you should make sure that every single word counts.”[17] 

As for contents, begin by describing the type of case (e.g., premises liability, landlord/tenant dispute, employment discrimination) and then provide a roadmap (as opposed to a summary) for the main arguments.  “This roadmap should say, in basic terms: what happened; what law applies; and what the result should be.”[18]  Here’s an example from a brief in the Eleventh Circuit:

This is a dispute regarding insurance coverage. [Insured] lived at Lakeview apartments. She sued Lakeview after she slipped and fell on a leak when the “air conditioning units” at the apartments stopped working. At issue is whether a Water Related Exclusion, which precludes coverage for bodily injuries arising out of, related to, or in any way involving a discharge or leak from “appliances,” applies to [Insured’s] lawsuit against Lakeview.

[Insurer’s] position is it does not have a duty to defend because [Insured] clearly alleges her bodily injuries arise out of a leak from an appliance, i.e., the air conditioning units. While the word “appliance” is not defined in the Policy, its ordinary meaning is a “device for a particular use or function.” An air conditioning unit meets this definition; simply, it is a device used to heat or cool air. There is no coverage under the terms of the Policy.

The district court disagreed and concluded [Insurer] has a duty to defend because it is not clear whether an HVAC system is an appliance. In the district court's view, an “appliance” means something “that you plug in, like a dishwasher or refrigerator.” The district court appears to have been swayed by Lakeview's expert who opined that the word “appliance” does not mean a building's HVAC system.

Applying the ordinary definition of “appliance” it is clear the Water Related Exclusion applies to the allegations in [Insured’] complaint. Moreover, expert opinion is irrelevant to the duty to defend. See Selective Ins. Co. v. William P. White Racing Stables, 718 Fed. Appx. 864 (11th Cir. 2017). This Court should reverse.[19]

The Takeaways:

• Check your local rules first to see if introductions are authorized, and if so, whether there are any requirements or constraints on usage;
• Use introductions for only complex cases where they can be a helpful guide for your reader;
• Ensure you are complying with other briefing requirements (e.g., record references and word/page limits); and
• Be concise—limit yourself to one page at most.[20]

*For more detailed advice on drafting effective preliminary statements, check out Adam Lamparello's recent post:  https://lawprofessors.typepad.com/appellate_advocacy/2023/05/drafting-a-strong-preliminary-statement.html

 

[1] See, e.g., Chris W. Altenbernd, Legalizing the Appellate Introduction, 90 Fla. Bar J. 60 (Sept./Oct. 2016), available at https://www.floridabar.org/the-florida-bar-journal/legalizing-the-appellate-introduction/.

[2] Savannah Blackwell, Legal Writing Tip:  Start Your Brief With a Solid Introduction, available at https://www.sfbar.org/blog/legal-writing-tip-start-your-brief-with-a-solid-introduction/

[3] Lance Curry, No Introduction Needed?  The Effectiveness of Introductions in Appellate Briefs, The Record, Journal of the Appellate Practice Section of the Florida Bar (Winter 2011), available at http://therecord.flabarappellate.org/wp-content/uploads/2018/07/AP-Winter-11.pdf.

[4] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3). 

[5] According to Illinois law, “The introductory paragraph should not include lengthy recitations of fact and should not contain argument.”  Slater v. Illinois Lab. Rel. Bd., Loc. Panel, 144 N.E.3d 618, 624 (Ill. Ct. App. 1st Dist. 2019).  Thus, it is probably not the kind of introduction most advocates envision.

[6] See, e.g., Fifth Circuit Appellant's Brief, Practical Law Standard Document w-000-5018.

[7] These views have been echoed by other appellate judges, though some believe the introduction (if not expressly authorized by rule) is not only a waste of time but also a violation of appellate briefing rules.  Curry, supra note 3.

[8] Joe Regalia, Eight Easy Strategies to Write Better Introductions, available at https://write.law/blog/eight-simple-strategies-to-write-better-introductions

[9] Fed. R. App. P. 28(a)(7).

[10] Altenbernd, supra note 1.

[11] Florida Second District Court of Appeal, PRACTICE PREFERENCES, pg. 4, available at www.2dca.org.   

[12] 2d Cir. R. 28.1(a); Sup. Ct. R. 24.6.

[13] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3).  But see Ky. R. App. P. 32(A)(1) (indicating the introduction should be the first section of the brief); Minn. R. Civ. App. P. 128.02.1(d) (indicating the introduction should appear between the facts and the argument sections).

[14] See Curry, supra note 3, pg. 13-14.

[15] Wash. R. App. P. 10.3(a)(3); but see Est. of Gilkey v. Gilkey, 11 Wash. App. 2d 1080 (Wash. App. Div. 1 2020) (unpublished) (stating, “we disregard factual statements not supported by the record in the introduction, just as we disregard them in other parts of a brief”).

[16] E.g., 3d Cir. R. 28.0(c) (“All assertions of fact in briefs must be supported by a specific reference to the record.”); 5th Cir. R. 28.2.2 (“Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record”); 6th Cir. R. 28(a) (“A brief must direct the court to the parts of the record it refers to.”); 9th Cir. R. 28-2.8 (“Every assertion in the briefs regarding matters in the record, except for undisputed facts offered only for general background, shall be supported by a citation to the Excerpts of Record”); 11th Cir. R. 28-1(i) (“In the statement of the case, as in all other sections of the brief, every assertion regarding matter in the record shall be supported by a reference to the record”) (emphasis added); Fed. Cir. R. 28(f) (“Any reference in a brief to the underlying record . . . must be to the corresponding appendix page number(s) assigned to the material”); D.C. Cir. R. 28(b) (“When citing to the record, authorities, or any other material, citations must refer to specific pages of the source”).

[17] Jon Barnes, Intro to Intros: How to Write the Winning Preliminary Statement, 58-APR Ariz. Att’y 28 (April 2022).

[18] Id.

[19] KINSALE INSURANCE COMPANY, Plaintiff-Appellant, v. LAKEVIEW TOWER VENTURE, LP, et. al., Defendant-Appellee., 2023 WL 1778409, at *1-2 (11th Cir. App. Br.).

[20] Federal practice suggests that one-to-two pages is an acceptable length, but some state court rules expressly limit introductions alone, or in combination with other sections, to one page.  See, e.g., Ky. R. App. P. 32(A)(1).

To Burn the Midnight Oil . . . or Not

On Tuesday, the U.S. Court of Appeals for the Third Circuit adopted a rule that requires filings be submitted by 5 pm on the due date, rather than any time before midnight that day as part of an effort to impose better work-life balance on lawyers and their staffs, effective July 1. To help people get used to the new rule, a “grace period” allowing acceptance of filings submitted later in the day will be permitted through the remainder of 2023.

The new L.A.R. 26.1 applies the Clerk’s Office’s closing time to electronic filings. Fed. R. App. P. 26(a)(4)(B) sets the deadline for electronic filings in a court of appeals to be midnight in the court’s time zone on its due date. However, that rule is premised on the condition that no “different time is set by a statute, local rule, or court order.” The Third Circuit is the only circuit to take advantage of that clause to set a uniform 5 pm filing deadline.

In a Public Notice issued May 2, the court explained that the new deadline permits its Helpdesk to assist with last-minute filing problems during regular business hours, the Clerk’s Office to extend deadlines on the due date, and allows judges to receive and review the filings at an earlier hour. The court also expressed concern for pro se filers, who comprise more than half the court’s filers and do not have access to the electronic filing system and thus must file by paper in the clerk’s office. The court stated that a 5 pm deadline equalized the requirements between attorneys and pro se litigants. The rules was also aimed at the “practice by some of unnecessary late-night filings intended to deprive opponents from hours that could be used to consider and formulate responses to such filings,” while saving opposing counsel from checking their email to see if the papers were filed yet. Finally, the court said the rule prevents confusion on when the filing must be made. It noted that about a quarter of all filings come in after business hours.

The rule was promulgated over the opposition of bar groups. The Pennsylvania Bar, for example, argued that the court’s quality-of-life concerns were misplaced because further constraining the time to file “intensifies the existing strain on the well-being of the lawyer,” would alternatively engender more 11th-hour motions to extend the time to file, and, consequently, further burden “scarce judicial resources.” The bar’s letter also noted that the “brunt” of the burden from a shortened deadline would fall on small firms and individual practitioners with more limited resources. Finally, the Pennsylvania Bar asserted that the rule would increase confusion by making the Third Circuit different from each of the other federal circuits, where the same appellate lawyers might practice.

The Third Circuit Bar Association also complained. It noted that the reduced hours took away flexibility needed to address “family care, medical appointments, unforeseen circumstances, and other work obligations” that could crop up. It also asserts that the fairness concerns are overblown and easily addressed on a case-by-case basis.

Forty-three appellate lawyers sent a memorandum that praised the flexibility that a midnight deadline provides, noting that post-COVID that many people work non-regular hours from home, and urged the court to keep the old rule.

None of these pleas were successful. Some of the arguments were or should have been easily dismissed. While uniformity among the circuits is desirable, appellate lawyers, like their trial-level counterparts, should read the local rules. For example, Fed. R. App. P. 32 sets the word count for principal merit briefs at 13,000 words and reply briefs at 6,500 words. The Ninth Circuit, however, its Cir. Rule 32-1 maintains the old rule of 14,000 and 7,000. On the other hand, the idea the public notice advances that a judge was anxiously awaiting the filing to begin diving into the brief that evening seems pretty farfetched for everything but emergency filings, which often have their own specific deadlines.

Others should have been taken more seriously. I look at the issue from the perspective of a solo practitioner with a national practice. In the last several circuit arguments I have made no one came from within that circuit. In arguments in the Seventh and Ninth Circuits, both parties were represented by counsel from Washington, DC. In the Fifth Circuit, my opponent was from New York. The point is that a substantial number of appellate lawyers practice in circuits where they do not reside. If the Ninth Circuit adopted a 5 pm deadline, the time difference from Washington, DC gives me an extra three-hour window. By the same token, the Third Circuit’s new rule would deprive a practitioner from San Francisco of three hours of regular business time due to the time difference.

In a world adjusting to remote work where offices have become less meaningful, the idea that a 5 pm deadline will have meaning for quality-of-life concerns strikes me as fanciful. In all likelihood, it merely shifts the extra hours needed to the days before. As the Supreme Court term started moving toward its last few months, Justice Byron White would tell his clerks that it was time to start burning the midnight oil. What the Third Circuit seems to be saying by its new rule is burn the midnight oil every day up to but not including the due date for a filing.

Legal Communication and Rhetoric: JALWD Turns 20

The journal, Legal Communication and Rhetoric: JALWD, (formerly the Journal of the Association of Legal Writing Directors) will publish its twentieth volume this year. The journal has this mission statement:

The journal is dedicated to encouraging and publishing scholarship (1) focusing on the substance and doctrine of legal writing. Legal writing is broadly defined to include many types of writing in a lawyering setting; (2) grounded in legal doctrine, empirical research, or interdisciplinary theory; and (3) accessible, helpful and interesting to all “do-ers” of legal writing: attorneys, judges, law students, and legal academicians. Published articles are intended to reach all of those audiences.[1]

The journal regularly includes articles that appellate practitioners will found helpful and it publishes articles written by practitioners as well as academics. Here are just a few examples:

• Raffi Melkonian, Thoughts and Worries About Appellate Practice Post-Pandemic, 19 Legal Commc’n & Rhetoric 129 (2022)
• Stephen Boscolo, Using Judicial Motives to Persuade Judges: A Dramatistic Analysis of the Petitioners’ Brief in Lawrence v. Texas, 17 Legal Commc’n & Rhetoric 103 (2020)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)
• Barbara K. Gotthelf, The Lawyer’s Guide to Um, 11 Legal Commc’n & Rhetoric 1 (2014)
• Stacy Rogers Sharp, Crafting Responses to Counterarguments: Learning from the Swing-Vote Cases, 10 Legal Commc’n & Rhetoric 201 (2013)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)

You’ll find a complete archive of the journal here Legal Communication & Rhetoric: JALWD

 

[1] https://www.alwd.org/aboutlcr

Personal Jurisdiction – Messy Jurisprudence that May Be in Even Greater Flux

            Rex Lee, the late Reagan-era solicitor general and president of  Brigham Young University, once wrote that the Supreme Court’s “net contribution” to a “cohesive body of law” applying the First Amendment’s  Religion Clauses “has been zero” and added that “some would say that it has been less than zero.”[1] Personal jurisdiction, a subject of intense interest in the Court over the past dozen years, has suffered a similar fate with the Court making a hash of it.

            If there is one case lawyers remember from their civil procedure class, it is Int'l Shoe Co. v. Washington,[2] which established that due process only required that a defendant have “certain minimum contacts” of a continuous and systematic nature with a jurisdiction sufficient “that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”[3] Int’l Shoe overturned Pennoyer v. Neff,[4] which adhered to a rigid territorial limitation that was somehow derived from the Due Process Clause. With the demise of Pennoyer, states began to enact long-arm statutes that enabled them to exercise authority over out-of-state defendants who had caused injury and damage within the state. About a decade after Int’l Shoe, the Court speculated that the law would continue to expand “the permissible scope of state jurisdiction over foreign corporations and other nonresidents,” because of the “increasing nationalization of commerce” and the ease of “modern transportation and communication” to make it “less burdensome for a party sued to defend himself in a State where he engages in economic activity.”[5]

            Yet, more recently, the Court has adopted a more restrictive approach to personal jurisdiction than Int’l Shoe suggests, even as it continues to identify that opinion as the “canonical decision” on personal jurisdiction.[6] Its recent cases have reduced Int’l Shoe’s flexibility into a set of mechanical, bright-line rules that it often claims divides personal jurisdiction into only two forms: “specific” and “general.”[7]

Specific jurisdiction exists when the activity or occurrence that is the subject of the lawsuit takes place in forum State.[8] A defective product is sold or shipped there. Thus, in Bristol-Myers, the Court permitted California consumers of the allegedly defective drug to sue the out-of-state manufacturer for their injuries, but held that non-California plaintiffs alleging the same injuries could not sue in that state, but had to initiate separate lawsuits in their home states, even if the allegations were identical. Those who also sued the distribution company in California had to split their lawsuits, because the distributor was California-based and subject to general jurisdiction in California. As Justice Sotomayor pointed out in dissent, the decision was a substantial “contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.”[9] Moreover, she points out that the consequences of the decision is to prevent plaintiffs from banding together from different states to bring a single action based on a defendant's nationwide course of conduct, unless they sue in the defendant’s home state, where the action would likely have to be subdivided into claims for each plaintiff’s home state.[10] Yet, where the defendants are from different states so that no one state will be able to entertain the mass action, there will have to be a multiplicity of lawsuits,[11] including potentially separate lawsuits against each defendant, creating a potential “empty-chair” defense.  

General jurisdiction provides all-purpose authority over a defendant when it is “essentially at home” in the forum because it is either incorporated or has its headquarters there.[12] Under the general jurisdiction rubric, illogically, a corporation can have a broad corporate campus and substantial operations in a state, but not be subject to general jurisdiction there. Yet, incorporation in, say, Delaware, where its only presence is a post office box, is sufficient to subject the corporation to suit in that state because it is deemed essentially at home even if not actually present there.

Yet, specific and general are not the only types of personal jurisdiction that exist, even though the Court has said as much. For example, the Court has also recognized “tag” jurisdiction, which subjects an individual from outside the state to jurisdiction when served in the state.[13] Although being subject to personal jurisdiction when caught passing through a state could pose a hardship to an individual, no similar concept permits jurisdiction over a corporation that maintains a continuous and substantial presence in the state. A second form of personal jurisdiction is consent jurisdiction, where the defendant either agrees to jurisdiction or does not fight it.[14] The Supreme Court has previously approved state statutes that require registration and consent to personal jurisdiction as the price of doing business in a state.[15] Yet, on November 8 of last year, the Court heard argument on whether the Pennsylvania consent statute it upheld more than a century ago violated due process in Mallory v. Norfolk Southern Ry. Co., No. 21-1168, where a decision is expected by June.

And there are congressional grants of personal jurisdiction as well.[16] Yet, a 12-5 en banc decision by the Fifth Circuit last year, for which certiorari was denied this past week, required the use of Rule 4(k)(2), promulgated as a federal long-arm statute at the suggestion of the U.S. Supreme Court to reach foreign defendants, still had to satisfy the general jurisdiction test, so that it could never be used for foreign or domestic defendants. [17] Foreign defendants cannot be “at home” in the U.S. And, if general jurisdiction applies, Rule 4(k)(2) is unnecessary The decision effectively renders the rule unconstitutional as a matter of due process.

Is there a way out of the current messy jurisprudence that has developed recently? Justice Gorsuch, joined by Justice Thomas, has suggested that the current personal-injury regime is looking “quaint” and “a little battered” “when corporations with global reach often have massive operations spread across multiple States,” rather than one or two homes.[18] He added, “[m]aybe, too, International Shoe just doesn’t work quite as well as it once did.”[19] So, while the past dozen years have seen a revolution in personal jurisdiction as the Court embarked on a more restrict approach, leavened a bit by its 2021 decision in Ford, another potentially abrupt change may be in the making. Indeed, originalist scholars contend that due process puts no limitation on federal personal jurisdiction.[20] If the Court, which has taken an originalist approach to a number of constitutional issues, goes down that path, they could untangle the ball they created for personal jurisdiction. Could they also replace it with nothing?

 

[1] Rex. E. Lee, The Religion Clauses: Problems and Prospects, 1986 B.Y.U. L. Rev. 337, 338 (1986).

[2] 326 U.S. 310 (1945).

[3] Id. at 316.

[4] 95 U.S. 714 (1877).

[5] McGee v. Int’l Life Ins. Co., 355 U.S. 220, 222-23 (1957).

[6] Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021).

[7] Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 262 (2017).

[8] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

[9] Bristol-Myers., 582 U.S. at 269 (Sotomayor, J., dissenting).

[10] Id. at 277 (Sotomayor, J., dissenting).

[11] Id. at 278 (Sotomayor, J., dissenting).

[12] Goodyear, 564 U.S. at 919.

[13] Burnham v. Sup. Ct., 495 U.S. 604, 619 (1990) (plurality op.).

[14] Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982).

[15] See, e.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); Ex parte Schollenberger, 96 U.S. 369, 376-77 (1877).

[16] See, e.g., D'Arcy v. Ketchum, 52 U.S. (11 How.) 165, 176 (1850).

[17] Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226 (5th Cir. 2022), cert. denied, No. 22-562, 2023 WL 2563319 (U.S. Mar. 20, 2023). The author was counsel for Petitioners in the Fifth Circuit and in the Supreme Court.

[18] Ford, 141 S. Ct. 1017, 1034 (2021) (Gorsuch, J., concurring).

[19] Id. at 1038 (Gorsuch, J., concurring).

[20] See, e.g., Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 467 (2022); Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483, 524 (2022); and Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020).

Appellate Advocacy Blog Weekly Roundup Friday, March 17, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• West Virginia has asked the Supreme Court to vacate in an injunction in a transgender rights case, West Virginia v. B.P.J. The injunction bans a law that prohibits trans-identified boys from competing on female-only sports teams at the secondary and university level. If the Court reaches the merits, it may be the first case where the Court will determine whether the Constitution protects against anti-trans discrimination. See report from Vox.
  
  
• The United States Courts posted this News Release announcing that the Judiciary’s 2022 Annual Report and Statics is now available.
  
  
• The Supreme Court’s memorial for Justice Ruth Bader Ginsberg was held today, Friday, March 17. See a report from the Associated Press.

Appellate Court Opinions and News

• The Fifth Circuit has refused to recognize the state-created danger doctrine, which is an exception to the general rule that the government has no duty to protect against privately caused harm. Although recognizing that a majority of federal circuits recognize the doctrine and noting that the “facts giving rise to [the] lawsuit are unquestionable horrific,” the Fifth Circuit found that the state-created danger doctrine was not clearly established in the Fifth circuit and cited the recent Dobbs opinion as a basis for not expanding substantive due process rights without careful consideration, including considering whether the right is “deeply rooted in the Nation’s history and tradition.” Thus, the court ruled that a school enjoyed qualified immunity from liability regarding the repeated sexual assault of a severely disabled public-school student on school grounds. In the case, school officials not only knew in advance of the first assault that the victim required supervision at all times and that her attacker had violent tendencies but also knew about the prior attack on the victim by the same attacker before again allowing victim and her attacker to be unsupervised. A dissent posing as a concurrence urged the Fifth Circuit to hear the case en banc and adopt the doctrine, stating “it is well past time for this circuit to be dragged screaming into the 21st century.” See the ruling and reports in The Volokh Conspiracy, Law.com, Courthouse News Service, and Bloomberg (subscription required).

• The Eleventh Circuit upheld a Florida law that bans people under 21 from owning a gun. In upholding the ban, the court applied the 2022 Bruen framework that requires the government to demonstrate that the regulation “is consistent with this Nation’s historical tradition of firearm regulation” and cited more than a dozen state law barring people under 21 from buying guns. See the ruling and reports from Reuters and CBS News.

• The Ninth Circuit refused to rehear the November 2022 case that ruled that the First Amendment protected an Oregon beauty pageant’s “natural born female” eligibility requirement and allowed the pageant to ban a transgender contestant. See the November 2022 ruling and the order denying rehearing.  

State Court Opinions and News

• The North Dakota Supreme Court upheld a lower court decisions that blocked an abortion ban and held that the state constitution protects the right to “enjoy and defend life and a right to pursue and obtain safety,” including the right to an abortion to preserve life or health. See the ruling and report from The New York Times.

When Your Opponent’s Brief is a Headscratcher

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

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

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

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

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

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

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

The 2023 Justice Donald L. Corbin Appellate Symposium

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

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

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

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

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

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

Appellate Advocacy Blog Weekly Roundup Friday, February 17, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• Adam Feldman at Empirical SCOTUS posted an historical look at the timing of Supreme Court decisions. The post compares the pacing of this year’s releases to past pacing.
  
  
• On Friday, March 17, the Supreme Court will honor the memory of Justice Ruth Bader Ginsberg. The Court will hold a meeting of the Supreme Court’s Bar, followed by a special sitting of the Court. The bar meeting will be held at 1:45 p.m. in the Upper Great Hall and will feature several notable speakers, including Honorable Elizabeth B. Prelogar, Solicitor General of the United States. The meeting will be live-streamed on the Court’s website: www.supremecourt.gov. See the Supreme Court press release.
  
  
• After the filing of the Solicitor General’s brief announcing that the end of the public health emergency will moot the case, the Supreme Court has cancelled oral argument in the challenge to the Biden administration’s attempts to end Title 42 (see previous coverage from this blog). Title 42 is the pandemic-era immigration measure that has allowed migrants, even those who might otherwise qualify for asylum, to be quickly expelled at the southern border. Last year, when Title 42 was challenged, the Federal District Court set a deadline for the end of the measure, finding that the measure did not advance public health but did endanger immigrants. When the Biden administration did not appeal that ruling, 19 states sought intervention to defend Title 42 and asked to stay the deadline. The Court of Appeals for DC denied the stay finding that the Petitioner States had not timely intervened. On appeal of that decision, the Supreme Court agreed to hear only the question of whether the Petitioner States had properly intervened and granted a stay to maintain the status quo. Oral argument was set for March. The Solicitor General’s brief states that the expected end to the public health emergency will moot the case: “ the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot [petitioners’ attempt to intervene].” Today, the Petitioner States filed a reply arguing that the end to the public health emergency does not moot the issue presented by the case: whether the petitioner states properly intervened. See reports from CBSNews, Politico, and CNBC.

Appellate Court Opinions and News

• The Third Circuit ruled that Johnson & Johnson was not in financial distress when it filed for bankruptcy, and the court rejected J&J’s attempt to move the close to 40,000 talc lawsuits against it to bankruptcy court. The ruling creates a new financial distress standard and seems to undercut the use of what’s known as the Texas two-step bankruptcy strategy. To avoid much of the financial liability it faces from the talc-cancer suits, J&J employed the Texas two-step: J&J created a subsidiary and transferred liability for the talc-related claims to the subsidiary; then the subsidiary filed for Chapter 11 bankruptcy, claiming insolvency. If permitted, the strategy could have allowed J&J to avoid much of the financial liability it faced from the mass tort talc cases. The court ruled that J&J’s agreement to fund the subsidiary’s liabilities made J&J the subsidiary’s ultimate financial safeguard and that was “not unlike an ATM disguised as a contract.” See a 2022 WBUR discussion of the Texas two-step strategy and see the decision and reports from The Wall Street Journal, Reuters, Bloomberg, and NBCNews.
  
  
• The Fifth Circuit found unconstitutional a decades-old law barring domestic abusers from possessing firearms and ruled that those convicted of domestic abuse have an unrestrainable right to bear arms. The decision stated that the statute contradicts an “historical tradition” allowing access to guns. The court determined that the statute gives too much power to Congress to determine who qualifies as “law-abiding, responsible citizens.” The opinion seems to compare domestic abuse to crimes like speeding, political non-conformity, and failing to recycle. The ruling earned a rebuke from US Attorney General Merrick Garland, who said: “Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. … Accordingly, the department will seek further review of the Fifth Circuit’s contrary decision.” See the ruling and reports from Bloomberg, CNN, and The Hill.

Other News

• The Senate confirmed Cindy Chung for the Pennsylvania federal appeals court; she will be the first Asian American to sit on the Third Circuit. See reports from Reuters and Bloomberg.

Should Courts Dispense With the Table of Authorities?

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

A Call for Law Over Politics

In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.

It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.

Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.

New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.

Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.

            As Justice Anita Earl put it in dissent from the grant of reconsideration:

it took this Court just one month to send a smoke signal to the public that our decisions are        fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.

Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).

I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.

 

 

 

Concrete Economics on the Supreme Court

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

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

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

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

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

 

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

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

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

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

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

What is Your Best Case?

“What is your best case?”

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

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

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

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

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

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

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

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

Appellate Advocacy Blog Weekly Roundup Friday, January 20, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court has issued a statement about the leaked draft of the controversial abortion decision in Dobbs v. Jackson Women’s Health Org., stating that it has been unable to identify the source of the leak. The Court’s statement included the report from the Marshal of the Supreme Court, who has been tasked with investigating the leak. The statement also included a statement of Michael Chertoff, former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey.  The Court asked Mr. Chertoff to assess the Marshall’s investigation. See a sampling of reports on the statement and the status of the investigation: The Wall Street Journal, The Washington Post, The New York Times, CNN, SCOTUSBlog, Associated Press

• In Supreme Court news this week is the potential impact of cases that consider the rules regulating online speech and social network platforms. One case, Gonzalez v. Google, to be heard next month, will determine whether social media platforms may be sued notwithstanding a 1996 law that shields online companies from liability for users’ posts. See an October 2022 report from The New York Times. This week, The New York Times reported that the Court will discuss whether to consider two other online speech cases; these cases challenge state laws that bar online platforms from removing political content, one in Florida and one in Texas. This week, the ACLU and the Electronic Frontier Foundation (EFF) filed amicus briefs in Gonzalez, warning of the potential for harm to users’ free speech from changes in the power and responsibility of social networks. 

• The Court agreed to hear a case asking it to strengthen protections for workers seeking accommodation for religious beliefs and practices. The petitioner, an evangelical Christian, sued after he was forced to resign from the US Postal Service when his job began to require working on Sunday, his Sabbath. The petitioner lost in the federal district court and in the Third Circuit. Federal law requires that an employer permit the religious observance of workers unless doing so would impose an “undue hardship.” Courts currently rely on the rule established by a 1977 Supreme Court case, Trans World Airlines v. Hardison, which found that, to qualify as being subject to undue hardship, an employer need show only a “more than a de minimis cost.” See the case docket, a report from The Washington Post, and a Reuters report at the time of the appeal. Vox and Slate posted essays on the topic as well.

Appellate Court Opinions and News

• President Biden released the first slate of judicial nominees for 2023 this week. See the White House statement and a report from CNN.

• The Third Circuit has proposed a change to its local rules that would move its filing deadline from midnight to 5 pm in an effort to improve practitioners’ work life balance. The proposal has generated some debate among attorneys in the circuit. See the proposed amendment and reports from Law.com and Reuters. See also a poll created by Howard Bashman (creator of HowAppealing) asking for comment on whether the proposed change would actually improve work-life balance.

Other News

• The Federalist Society posted recordings of some the programs from its January 5-6 faculty conference. Recorded topics include “Politicization of the Economy,” “Dobbs & the Rule of Law,” “Election Law in Flux,” and a debate titled “Resolved: The Major Questions Doctrine Has No Place in Statutory Interpretation.

• Here's an informative and sometimes amusing thread on what signals a good brief. Writers take note!
  Joe Fore posed the following question, which generated a short thread with the kind of advice I give students and practitioners every day:

What's something in #legalwriting that's the *opposite* of a Brown M&M? Is there a small detail--usage, style, formatting--that if you see/saw it in a piece of writing, immediately signals that it's going to be good?

Appellate Advocacy Blog Weekly Roundup Friday, January 13

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

U.S. Supreme Court News:

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

Federal Appellate Court News:

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

State Appellate Court News:

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

Appellate Practice Tips:

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

Appellate Jobs:

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

Who Serves on the Bench Matters

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

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

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

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

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

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

 

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

[2] Id.

Appellate Advocacy Blog Weekly Roundup Friday, January 6, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

Happy New Year from The Weekly Roundup! 

US Supreme Court Opinions and News

• Justice Roberts’s 2022 Year-End Report on the Federal Judiciary was released on December 31, 2022. Find reviews and analysis of the report from The New York Times, The Washington Post, The Associated Press, Reuters, and Bloomberg.    
• In December, the Supreme Court announced that this year it will resume the tradition of announcing opinions from the bench. The practice has been suspended since the beginning of the pandemic. The last opinion delivered from the bench was Kansas v. Garcia, delivered March 3, 2020. Opinion announcements will not be livestreamed but will be recorded and available at the National Archives at the beginning of the next Term, which was the pre-pandemic tradition. See reports from The New York Times, CNN, SCOTUSBlog, and Bloomberg Law.
  
  
• This week, the Biden Administration filed a response in the case challenging its student loan forgiveness plan. The Court will hear two challenges: one by states arguing that the plan will harm companies that service the loans and the other by individuals arguing that the plan will harm them because they are excluded from the plan. The administration’s response argues that the challenging parties have failed to show the requisite harm to establish standing and that the administration is within its authority to implement the plan. Late last year, the Court issued an injunction blocking the administration from implementing the plan to forgive up to $20,000 per borrower. Oral argument is set for February 28, 2023. See reports from CNBC and The New York Times.
  
  
• The Court ruled that Title 42, the pandemic-era restrictions on migration along the southern border, must stay in effect pending a ruling. The decision overturns a lower court decision to remove a stay issued against the Biden administration’s attempt to lift Title 42 restrictions. The Court is set to hear argument only on the question of whether the 19 states could pursue their challenges. See reports from The New York Times and The Wall Street Journal.
  
  
• The Supreme Court is set to become the subject of a new primetime legal drama. See descriptions and discussion of the new ABC pilot, “Judgement,” from The Hollywood Reporter, Variety, and Deadline.

Appellate Court Opinions and News

• The Ninth Circuit ruled that wearing a MAGA hat is free speech. The plaintiff claimed that a school principle violated his first amendment rights by disciplining him for wearing the hat at a teacher-only training session. The court determined that wearing the hat had not caused actual disruption and that evidence that some faculty members were offended was not sufficient justification to infringe the plaintiff’s rights. The court ruled, however, that the plaintiff could not sue the school district for dismissing the harassment complaint. See the ruling and reports from Reuters and CBS News.
  
  
• The Eleventh Circuit upheld a Florida school board’s transgender bathroom policy that segregates bathrooms by sex. A transgender student challenged the policy because it discriminates against transgender students. The court ruled that the policy survives constitutional review because it has the legitimate objective of protecting students’ privacy and shielding their developing bodies from the opposite sex. The dissent recognizes that “[t]he bathroom policy categorically deprives transgender students of a benefit that is categorically provided to all cisgender students—the option to use the restroom matching one’s gender identity.” See the ruling and reports from Reuters and Bloomberg Law.

State Court Opinions and News

• The Oregon Supreme Court has ruled that the ban on non-unanimous jury verdicts applies retroactively to all convictions in Oregon. The April 2020 Supreme Court case, Ramos v. Louisiana, outlawed convictions based on divided verdicts but the Court declined to apply the ban retroactively, leaving that decision to the states. (See The Weekly Roundup’s coverage here and here.) With the Oregon ruling, hundreds of Oregon felony convictions became invalid. The Oregon court recognized that the policy of allowing non-unanimous verdicts was intended to minimize the voice of non-white jurors and that it “caused great harm to people of color” and “undermined the fundamental Sixth Amendment rights of all Oregonians.” See the ruling and a report from The Oregonian.

This week, a couple of state courts have contributed to the still developing national abortion landscape:

• The South Carolina Supreme Court struck SC’s 6-week abortion ban on state constitutional grounds, finding the that the “state constitutional right to privacy extends to a woman’s decision to have an abortion” and that the 6-week ban was an unreasonable invasion of privacy. See the ruling and reports from CNBC and The New York Times.
  
  
• Meanwhile, in Idaho, the state supreme court upheld Idaho’s near total abortion ban, finding that the Idaho constitution did not include a right to the procedure. Idaho has three abortion bans, one of which bans abortion from conception. See the ruling and reports from The New York Times and Politico.

Other Appellate News

• The Eleventh Circuit has held that “and” means “and” not “or” in an analysis of the First Step Act, a law giving offenders a “safety valve” that allowed them to escape certain mandatory minimum sentences. The “safety valve” applies only if certain conditions are met. The list of conditions is connected with the word “and,” which generally means that all conditions must be met. This interpretation significantly limits when an offender would be excluded from enjoying the “safety valve.” However, Florida prosecutors argued that, in this case, “and” meant “or.” The Eleventh Circuit disagreed, applying the common definition of “and.” For those of us who enjoy statutory interpretation and language analysis, the ruling is worth a read. See also reports from Georgia Public Broadcasting and The Atlanta Journal-Constitution.

Two Overlooked Tips for Writing Briefs and Arguing Cases

Experienced appellate advocates often tell others that the art of effective brief writing relies on a uniform set of tips, such as keeping sentences short, using topic sentences, and simplifying language. Sometimes, though, violating these precepts can prove effective, even though the advice offered is usually worth following.

Today, however, I want to focus on two key tips that, too often, are ignored: maintaining credibility and making no assumptions about the court’s knowledge of the law. It is critical that your rendition of the facts and the law are credible. In one case years ago, my opponent, a prominent appellate practitioner made a factual assertion that misstated the record. It was not a crucial fact, but it was used by the other side to demonstrate the insensibility of what the court below had done across the board so that he could claim the actual ruling in the case was similarly fanciful. In my reply brief, I dropped a footnote that showed the assertion was wrong with a citation to the record. Surprisingly, during oral argument, my opponent repeated his misrepresentation of the record from his brief. As I jotted down a note to remember to debunk the claim when I stood up, one of the judges eviscerated him for the misstatement. He never recovered from that during the remainder of his argument. To me, the rebuttal was all the stronger because the judge made the point, rather than me. Misrepresenting the record can destroy credibility on other issues, just as he had hoped to harm the credibility of the decision below by making a point that turned out to be unanchored by the evidence.

A similar experience occurred in another case, although this time it concerned the state of the law. My opponent sought to make a seemingly logical argument about why a federal district court should have denied a remand motion after removal from state court. He relied upon support for his position from a nonbinding letter from the general counsel of a federal agency. What he failed to explain, though, was how his position remained credible after three other federal circuits and more than 100 district courts had ruled otherwise. No court had accepted his position. At oral argument, the panel never let him off that point. The issue consumed all his argument time so he had nothing left for rebuttal. On the other hand, in light of how his argument went, I used very little of my time before sitting down.

Where the law is uncertain and conflicting decisions or building blocks render it a close call, credibility can be the key to success. A court is more likely to accept a novel position if it is built on a solid and acceptable foundation, rather than one that does not withstand scrutiny.

Today’s second tip requires you to lay a foundation for the fundamentals that undergird what may be a fairly sophisticated issue. Judges are often generalists and may lack experience with even well-established issues. There are many areas of law where the usual assumptions do not apply. Burdens can shift to defendants, proximate cause standards can vary based on statutory text, and developing trends can signal a change when the context of the dispute creates new considerations. A credible and informed brief will explain the basic rules, whether they apply or require adjustment because of the context of the case. Even during oral argument, it pays to explain fundamentals before reaching the key issue. While most judges are well prepared for oral argument, some may not have read the briefs as carefully as you assume. Without dwelling on basic concepts, it helps to tie them to the issue at hand unless a fair reading of the tribunal indicates a different course. At the same time, one must be alert to a well-informed court that will not patiently await your explanation of basic law.

While no advice about brief writing or oral argument is immutable, credibility and foundational explanations for the legal issue come to providing a consistently helpful approach as any advice you might consider.

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

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

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

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

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

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

Happy Thanksgiving!

Shortcomings in Arguing Original Public Meaning

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

Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.

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

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

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

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

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