Appellate Advocacy Blog

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!  

We have reached the fourth Saturday of December, the last possible day for me to post my monthly “Saturday” blog.  For the last four Saturdays, I have diligently worked to find time to write something sharp and fun on appeals and the end of the year.  But like so many of you, I found my time consumed with grading, other pressing work, kids home from college, and holiday obligations.

In my effort to post something meaningful and enjoyable, I started several essays discussing how trying to manage a December schedule as a parent and professional is like writing an appellate brief.  These posts were so cute in my mind, drawing all sorts of neat comparisons between making filing deadlines for multi-issue briefs and triumphing after nightly holiday events.  I also started some great (again, only in my mind) comparisons of Lexis+ AI and gift shopping for colleagues and family.  But just as I would start writing, a last-minute emergency or holiday engagement would take my time.  Alas, this will not be the nifty post connecting appellate writing and holiday stress that I had imagined.

Instead, I have realized my struggle to be fresh, creative, relevant, and thoughtful in a holiday blog while also trying to sleep during the holidays—even a little—just might not be possible for me this year.  Therefore, my gift to you this season is a poem on appeals and holidays ChatGPT helped me draft.  Hopefully, this makes you smile as we welcome more generative AI into our teaching and practice in 2024.  I plan to spend a fair amount of time next semester talking with my students about letting generative AI assist them while always “thinking like lawyers” and checking chatbots’ work.  I might even try to connect some of these lessons to holiday shopping and family time. 

Holidays and Appeals

In the court of appeal’s courtroom's hallowed halls we stand, A season of justice, a legal command.

Holidays approach, a festive cheer, Yet in the legal realm, the briefing schedule draws near.

Gavels echo, a rhythmic song, As our appeals dance along.

Beneath the twinkling lights of the law, Hope and reason, like ornaments, draw.

In the silent night, briefs are penned, Arguments woven, like wreaths descend.

Lawyers gather, minds ablaze, To navigate through the appellate legal maze.

Amidst the carols and joyous sounds, Legal battles on hallowed standard of review grounds.

A respite sought, an enforcement reprieve, In the holidays, justice we believe.

The scales of justice, like gifts exchanged, In opening and reply brief wrappings, fairness arranged.

Briefcases filled with legal might, As holiday spirits take their flight.

Jingles of high court precedent in the air, A legal dance, a record laid bare.

A yuletide plea, a solemn quest, To find justice, in holidays dressed.

Ornaments of statutes, hung with care, As legal appeals fill the festive air.

Holidays and justice, hand in hand, A legal season, a legal stand.

In the echoes of a reviewing courtroom's call, May fairness and merriment reign for all.

 

Paragraphs and Pilcrows

This blog has featured paragraph-pertinent musings before. Today I hope to share a little about the petite pilcrow, offer some guidelines for proper paragraphing, and provide a tip for formatting with pilcrows in legal writing.

What is a pilcrow?

If you are an attorney, you have likely been using the pilcrow for years.  I certainly have, but until today I did not know its name (how impolite!).  The pilcrow is the paragraph symbol: ¶. 

I stumbled upon a fascinating article on the origin of the pilcrow.  According to the article, "pilcrow" evolved from the very fitting Greek word paragraphos for "write beside."  It iterated through French (paragraph) and Middle English (pylcrafte) to "pilcrow."

The symbol was originally written on a page to signal changes in topic or speaker, similar to its function today.  It started out looking like a K, then morphed into a C in a nod to "chapter" differentiation.  Ultimately scribes added a line to the C to distinguish the mark from the rest of the sentence, then the symbol stretched and straightened into the ¶ we know today. 

The symbols became quite ornamental, requiring extra time for decoration at the end of a written document, and when the scribes ran out of time to finish the decorating, they left out the pilcrows altogether.  That is why we generally use pilcrows in legal writing only to separate statutory paragraphs and cite complaint allegations, not at the beginning of our paragraphs.

What is a proper paragraph?

If a pilcrow developed to separate speakers and topics, how do we mimic their function in our prose?  Paragraphs should follow some basic guidelines in legal writing to make the document easiest to read and comprehend.

Contains an average of 150 words

As has been said, Bryan Garner recommends that paragraphs average about 150 words, and no more than 250 words.  Some writers recommend three to eight sentences.

These are good rules of thumb.  When your topic is complex or involves large or unfamiliar words, err on the side of fewer, shorter sentences in your paragraphs.  Capitalize on readers' ability to process small chunks of information at a time and provide them necessary breaks in the word flow.

Conveys a distinct thought

Besides length, you can decide to start a new paragraph when you begin writing a distinct thought.  While all thoughts in a brief should connect to the main idea and ultimately seek the same relief, slight variations in thoughts or angles of the argument should trigger new paragraphs.  Cramming too much into one paragraph contradicts the small chunk principle and makes the reading a slog.

Has a topic sentence

In the same vein, every paragraph should have a topic sentence.  The topic sentence signals what each paragraph is about and how it is different from the paragraphs before and after it.  As you edit your writing, use your topic sentences to cut extraneous material from the brief.  Legal writers should never aim to repeat themselves.  Judges are intelligent folks.  You need not say the same thing five different ways; once is sufficient.

Starts with a meaningful transition

Finally, while you need not repeat yourself when you have made your point, it is always beneficial to link distinct thoughts between paragraphs.  Legal readers are looking for connections between concepts and logical through lines in your argument.  Make those explicit.

How do I ensure my pilcrows never hang alone at the end of lines?

This is one of the easiest ways to clean up a brief before you even finish writing.  You can eliminate lonely pilcrows hanging at the edges of lines of text by adding a nonbreaking space (CTRL + Shift + S) after every pilcrow.  The nonbreaking space, which looks like a small open circle when you show formatting, holds the pilcrow and following number together (¶ 1).

You can even build in an automatic nonbreaking space every time you type a pilcrow using Word's AutoCorrect feature.

Step 1:

A.   Insert > Symbol > More Symbols > Special Characters > Paragraph > Insert // Or type ALT + 0182

B.    Insert > Symbol > More Symbols > Special Characters > Nonbreaking Space > Insert // Or type CTRL + Shift + S

Step 2: Copy those two characters (CTRL + C).

Step 3: File > Options > Proofing > AutoCorrect Options > Replace

Step 4: “Replace” box > Paste the two characters you copied (CTRL + P).

Step 5: Backspace over the nonbreaking space. Only one character should be in the box.

Step 6: “With” box > Paste the two characters again. Backspace over any additional space at the end.  Only two characters should be in the box.  One is your invisible nonbreaking space.

Step 7: OK

Presto!  Proper paragraphs and partnered pilcrows in perpetuity.

Tongue-in-Cheek Answers to Bizarre Questions

Oral advocates often must resist the first answer that comes to mind from judges who are ill-prepared or concerned about an issue not presented by the case. The judges asking the questions will make the decision so counsel must fashion a respectful response, even if the question does not merit it and the quick-witted answer that seems so tempting.

The same dynamic was on display during the recent hearings on Judge Ketanji Brown Jackson’s nomination to the Supreme Court. Senators, all of whom voted against consenting to her nomination, asked some strange questions. Despite claims that judges should apply rather than make law and thus keep their personal views in check, many senators sought Judge Jackson’s policy positions on a range of hot button political issues. Her unflappable demeanor and deft handling of the questions posed to her was a model for the type of temperament we expect from judges – and from counsel arguing before a court.

Still, as I listened to the hearings, my responses were unrestrained, knowing that I had not been nominated to the highest court in the land, no one would hear my answers, and I was not making history. In this post, I indulge some of those imaginary answers that popped into my head, tongue firmly placed in cheek, by substituting RSP (me) for KBJ.

Senator Ted Cruz: “I’m a Hispanic man; could I decide I was an Asian man?”

RSP: “Senator, as far as I’m concerned, you can decide you are a fruitcake, and I’d have no reason to doubt you. Still, you would remain equally unwelcome in my household.”

Senator Tom Cotton: “Do you think we should catch and imprison more murderers or fewer murderers?”

RSP: “Really, that’s your question? Do you even know what a Supreme Court justice does? A justice does not catch or imprison murderers or make the laws that govern that process. And, by “we,” are you suggesting that members of the Senate Judiciary Committee do that task? Do you want to try asking a question again?”

Senator Lindsey Graham: “Did you watch the Kavanaugh hearings? … He was ambushed. How would you feel if we did that to you?”

RSP: “Senator, I was busy working for the American people as a judge while those hearings took place, so I did not watch the hearings. How I would feel, though, is an irrelevant question. Judges do not interpret or apply to the law based on how they feel – and your questions will not figure in any case I might hear as a supreme court justice. Senator, given the kinds of questions I have received from your side of the aisle, most of which have little to do with judging or my qualifications to serve on the Supreme Court, like this one, how I feel isn’t relevant.”

“One more thing, Senator. An ambush is the act of approaching or confronting someone with something unexpected. Are you suggesting, based on the questions I’ve been asked at this hearing, that I should have expected such bizarre questions?”

Senator Marsha Blackburn: “Can you provide a definition for the word ‘woman’?”

RSP: “You want a definition of a woman. Here’s one. A ‘woman’ is a person that the Supreme Court as recently as 1961 held Florida could exclude from the jury service list unless she affirmatively volunteered for it, even though no such requirement was imposed on men. The Court reasoned that, ‘Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.’[*] That’s a decision where the majority’s personal views obliterated the constitutional requirement of equal protection – and thankfully no longer holds sway.”

Senator Lindsey Graham: “On a scale of 1 to 10, how faithful would you say you are, in terms of religion?”

RSP: “In introducing your question, you just said that you understood my faith is important to me and that you don’t measure up on being faithful because you only go to church three times a year. Now you want me to rate my religious faithfulness on a scale of 1 to 10? Let’s just leave it at more faithful than you revealed yourself to be, even though the question has nothing to do with my qualifications or ability to serve on the Supreme Court. Next question.”

Senator Ted Cruz: “Do you agree with this book that is being taught with kids that babies are racist?”

RSP: “I have not read this book. My only knowledge of it comes from your description of it and the passage you read before you posed this question. If I were to believe your earlier characterization, it does not say that babies are racist but states that babies are born without prejudice or bias. Your question presupposes the opposite. So, before I can answer your question, answer this one: were you lying about the book then or are you lying about it now?”

 

[*] Hoyt v. Florida, 368 U.S. 57, 61-62 (1961).

Oral Argument Prep While Managing Life Too: Make a One-Sheet and Keep Your Sense of Humor

My first-year students participated in a traditional 1L moot court competition this week, making their first oral arguments.  As I helped guide the students through this rite of passage, I answered many anxious questions about content, presentation style, appropriate “court suit” fashion, and more.  In answer, I stressed the need to be prepared and flexible, and most of all, to enjoy the process.  My overall advice:  make a one-sheet, place the sheet in an organized binder to support a professional and successful argument, and don’t buy a new suit just for an argument.   

I stress the one-sheet because it worked for me.  Also, as a former state and federal appellate law clerk, and then an appellate specialist for years, I saw many oral arguments fail over lack of preparation and complicated podium notes.  Instead of fancy folders or notes, I suggest  students distill the argument to one piece of paper.  The process of making this one-sheet, in law school and practice, requires advocates to know their record and case law very well, and to create argument summaries taking no more than a sentence or two.  Plus, even if you drop one piece of paper, you can quickly pick it up and continue, unlike scattered index cards or multi-page notes. 

As part of my preparation to teach the one-sheet approach to oral argument this year, I once again read many blogs and articles to see if I could add any new advice.  I found a very helpful ABA Journal piece which perfectly summarized my appellate practice life before full-time teaching.  In A Working Mother's 32-Step Guide to Preparing for Oral Arguments, author, law professor, and former Dean Sarah Gerwig-Moore provides a humorous and helpful discussion of oral argument, especially the concerns of being an advocate, mother, and woman in an appellate court setting.  See ABA Journal, Nov. 18, 2019,

https://www.abajournal.com/voice/article/a-working-mother-prepares-for-oral-argument

I suggested my students read Gerwig-Moore’s piece, and many told me the humor helped them keep their argument preparation in perspective.   

Given how much my students enjoyed Gerwig-Moore’s 32-steps, I am also sharing them here.   Gerwig-Moore explained her preparation for a Spring 2019 law clinic oral argument in the Supreme Court of Georgia “that would decide an important question regarding the scope of issues cognizable in habeas corpus proceedings.”  See id.  As so often happens, her “oral argument coincided with a truly insane week or two of sports and other obligations for [her] sons.”  She explained, “[s]ometimes you just have to laugh to keep from crying. And—just as in baseball—there’s no crying in court.”  Id.

Here is Gerwig-Moore’s lighthearted summary of her oral argument preparation:

1. 1. 1. Reread all briefs and entire case record, making notes and highlighting.
      2. Reread all laws cited. Realize you might need the full 150-year history of the statute—ask team to track that down. As they’re researching this, realize the milk in your refrigerator might be 150 years old.
      3. Reread every case cited in all briefs and make notes. Ask your team to create charts of cases and facts so you can see each one at a glance. Make sure to ask very nicely.
      4. Slice up your brief for the first draft of an outline.
      5. Slicing up the brief reminds you to slice up food. Your children need to eat. Cook dinner! Leave dishes in the sink.
      6. Question absolutely everything—even your own name. Stay up too late.
      7. Wake up too early. Wonder if dark circles under your eyes make you look too shrill. Consider buying undereye concealer.
      8. Decide on a few key record items you will need to memorize. Make breakfast for children while reciting these. Scowl when sons remark that this isn’t fun. Consider smiling more with record recitations. Scowl again.
      9. Let at least three people down. (These are likely to be close friends or family members.)
      10. Anticipate questions from the bench. Arrange mock arguments with colleagues who don’t mind insulting you. Consider inviting archrivals, too. Or your teenage offspring. They’ll definitely insult you.
      11. Feed pets. Feed children. Eat leftovers. Deposit dishes in the sink.
      12. Moot the argument. Send follow-up assignments to team. Thank team! Donuts are a good way to thank people! Consider bringing some donuts to work but then forget.
      13. Consider wardrobe. Pantsuit? Skirt suit? Dress? Clothes should be flattering—but not too flattering. It should be comfortable—but not too comfortable. Assess work shoes to decide which will help you see over the podium but not actually tip you over in court. Don’t even get started on all the ways you can mess up your hairstyle strategy.
      14. Simultaneously wish you were both much, much taller and much, much smaller (see musing above re: shoes).
      15. Reread everything.
      16. Hem your suit—and I am not making this up—while on a conference call, while sitting in your car watching your son play lacrosse.
      17. As you are sewing, notice your nails haven’t been done in months. Wonder how many people will actually notice your hands. Resolve not to be too demonstrative with hands while in court.
      18. Do all your other work and errands and at least one ridiculous extra thing (can you say “homemade” cookies for your kid’s class, anyone?) you committed to months ago.
      19. Try to see the case from opposing counsel’s perspective. Consider adopting this tactic with your children, but then (metaphorically) hit them with the ol’ “Because I said so.”
      20. Check in with client.
      21. Buy the best lipstick your credit card can handle. This is unquestionably Pirate by Chanel. Case closed. (See what you did there?)
      22. Be serious but not too serious. Be confident but not too confident. Be yourself but not too much of that either (e.g., suit sleeves should cover your justice tattoos).
      23. Eat one vegetable. Make children eat two vegetables. Pat self on back for being health guru.
      24. Reread everything. Condense argument down to a one-pager.
      25. Ponder a twist on the Dorothy Parker classic: Justice makes spectacles of women in spectacles (which cause issues with limited peripheral vision). Decide to wear contact lenses.
      26. Read notes from team. Wax philosophical on the notion that all team members are working with the same richness of the experience of your work.
      27. Whiten teeth. Sharpen fangs. Consider optics of fangs. Stow them in a tiny pocket right next to your heart.
      28. Reread everything.
      29. Decide you hate your suit. Wish that suits of armor were still a thing.
      30. No—not sigh—breathe.
      31. Reread everything. Boil down outline to one word and the dancing woman emoji.
      32. Set four alarm clocks. Or is it alarms clock?

Id.  Gerwig-Moore added a fun postscript, and if you want to know how the argument ended, please check out her article. 

I wish you all great oral arguments, with one-sheets and humor as your guides. 

A Winning Legal Argument

We give good tips here at the Appellate Advocacy Blog. But I believe that Luke Bradley's daughter Anne has us all beat. Just absorb everything this offers:

Judicial Opinions & Pop Culture (or, are the Star Wars sequels "mediocre and schlocky")

Earlier this week I received an email from a student with this Ninth Circuit opinion attached. The subject of the email was "Judge Lee and Star Wars," and the student told me to look on page 26 at footnote 5. I was a bit puzzled at first, since the case was about class action settlements. But, when I got to page 26 it was all clear. Here is what Judge Lee wrote,

Under the settlement, ConAgra agreed to refrain from marketing Wesson Oil as “100% Natural.” That sounds great, except that ConAgra already abandoned that strategy in 2017 — two years before the parties hammered out their agreement — for reasons it claims were unrelated to this or any other litigation. Even worse, ConAgra’s promise not to 
use the phrase “100% Natural” on Wesson Oil appears meaningless because ConAgra no longer owns Wesson Oil. In reality, this promise is about as meaningful and enduring
as a proposal in the Final Rose ceremony on the Bachelor. Simply put, Richardson — the new owner of Wesson Oil — can resume using the “100% Natural” label at any time it
wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.5

Footnote 5. As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.

I laughed out loud when I read the paragraph and footnote, but I also was not surprised, since I have known Judge Lee for many years, and he is definitely a fan of Star Wars (and apparently the Bachelor?). Judge Lee's Star Wars analogy has also made the news, especially in the movie and comic spheres, with one headline reading:

U.S. Ninth Circuit Court Declares THE LAST JEDI "Mediocre And Schlocky" In Recent Ruling

Although that headline might stretch the analogy a bit, it did get me thinking--should judges throw pop culture references into their judicial opinions? In my mind, the answer is certainly yes.

Before I defend pop culture references in judicial opinions, let me start with what I assume to be the critique--that it trivializes important disputes. The response is--like any other use of humor--there is certainly a time and a place for pop culture references. There are some cases where pop culture references could seem insensitive or overly trivial, but in other cases, they humanize the judiciary and raise awareness about our court system, which is why I think that they are great!

According to a 2020 survey, only 51% of Americans can name all three branches of government, with 23% unable to name any branch of government. Compare this to the 49% of adults who have seen The Empire Strikes Back. I couldn't find statistics for the number of people who can name the three movies in the original trilogy, but I think that you get my point.  Star Wars is a big business and very well known. If a pop culture reference to Star Wars gets people to think, albeit even briefly, about our federal court system, that reference is a plus in my book.

How common are pop culture references in judicial opinions?  I ran a few searches on Westlaw Edge to see what I could find.  Searching "Star Wars" in all cases brought up 403 hits. In glancing at the top 50 results, most of them have to do with copyright infringement--they aren't using pop culture to make an analogy.  Justice Kagan did make a Star Wars reference in her dissent in  Lockhart v. U.S., stating "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. . . . Everyone understands that the modifying phrase—'involved with the new Star Wars movie,' . . . —applies to each term in the preceding list, not just the last." 577 US. 347, 362 (Kagan, J., dissenting).

A search for "Harry Potter" in all cases brought up 284 hits. I looked at the last 84 results, and I found some gems:

• "Between Marshall's status as the only other person at the defense table and the fact that, by this time, Jenkins had twice previously been shown Marshall's face, Jenkins's in-court identification of Marshall was about as unexpected as the mention of Voldemort in a Harry Potter novel." Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1293 (11th Cir. 2016)
• "According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm's current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good." Deseret Mgmt. Corp. v. United States, 112 Fed. Cl. 438, 451 (2013)
• "In a word, today's decision will not require even depositary banks to hire armies of employees to examine each check like something out of Harry Potter's Gringotts Wizarding Bank. It will require only a minimal level of reasonable care." HH Computer Sys., Inc. v. Pac. City Bank, 231 Cal. App. 4th 221, 240, 179 Cal. Rptr. 3d 689, 703 (2014)
• "The effect is that the debtor's homestead is subject to the loss of its exemption because the snapshot taken upon filing catches the potential for movement not unlike a photograph from a Harry Potter novel captures the movement of the subjects in the photograph." In re Montemayor, 547 B.R. 684, 701 (Bankr. S.D. Tex. 2016)

So appellate judges--throw in those pop culture references!  Maybe, just maybe, it will increase awareness and interest in the judiciary.

A Fairy Tale Brief Teaches Clarity and Form

Once again, we find ourselves at the end of a week full of heavy news.  While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter.  If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal:  https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf. 

In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear.  See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition).  The sample also helps litigants include all opening brief sections required by the California Rules of Court.

For example, the Court’s Statement of the Case provides a truly brief summary of the key facts, with no unneeded detail or argument.  In two sentences, the sample summarizes the parties’ status and introduces the important facts: 

The Three Bears filed a complaint in August 2001 alleging Goldilocks had trespassed on their property by entering their home when they were not at home, consuming a meal and falling asleep in a bed. The complaint alleged that Baby Bear had suffered physical and mental damages as a result of being frightened upon discovering Goldilocks. (CT 1-4.) 

The brief also shows proper record cites to the Clerk’s and Reporter’s Transcripts in all sections, something too often missing from briefs. 

The sample brief continues with a very straightforward recitation of the facts. including the fun note Baby Bear’s treating doctor was an “expert bear cub psychologist, Dr. Dramatic.”  In five paragraphs, the Court’s sample outlines the testimony from the parties, Dr. Dramatic, and a neighbor, Gloria Gardener.  For example, “Goldilocks testified she was looking for a boarding facility to take a rest, the Bears' house was very large, there was no fence to indicate this was private property, the door of the house was open and there was a mat at the front door that said ‘WELCOME.’  (RT 25-26.)”   Since Goldilocks “thought this was a commercial boarding establishment, as large amounts of food were set out as if for guests, “ she “looked for someone to ask about spending the night[,] saw several sets of chairs and beds all in different sizes (RT 27-28.),” and fell asleep.

As this image shows, the Argument section of the sample brief has three subsections, including the separate sections required in California and many jurisdictions on the standard of review and the elements of the action: 

While the Court’s sample is not perfect, and I would remove passive voice and add more express application of the law to the underlying facts, the brief still follows a clear CRAC format.  Finally, the brief concludes briefly, as all appellate writing should.  Instead of an overly argumentative or detailed conclusion, the sample very quickly summarizes and then asks for specific relief:  “Goldilocks respectfully asks that this Court reverse the decision of the trial court and vacate the award of damages.”

Hopefully, the fairy tale context of the Court’s sample will make you smile.  But on a deeper level, the brief helps unrepresented litigants and law students with basic brief format.  The Court’s brief also reminds experienced practitioners to always check local rules and keep our briefs as straightforward and simple as possible.

Another Great Statutory Interpretation Case out of Washington State

Almost three years ago, I posted about a statutory interpretation case out of the Washington Supreme Court that addressed the thorny question of whether a riding lawn mower is a vehicle. It seems that Washington State is at it again with this fascinating case out of the Ninth Circuit.  The question--Does "and" mean "and" or does it mean "or?"  At issue--who exercises jurisdiction over non-Indians who commit crimes on the Yakima Nation's reservation.

The history of the case is rather complicated, but the key provision is quite simple.  At the request of the Yakima Nation, Washington Governor Jay Inslee issued a Proclamation in 2014 that "retroceeded" to the federal government jurisdiction over certain civil and criminal matters that occurred on the Yakima Nation Reservation.  Paragraph two of the Proclamation stated (my emphasis):

Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.

In an accompanying letter, Governor Inslee explained that the "and" in that last sentence meant "and/or," and, according to the opinion asked the Interior Department  to make that clear when it accepted the Proclamation. It didn't.  Over the intervening years, there were several interpretations of the language by different parts of the federal government and the court system.  The most lasting interpretation appears to be a memorandum from the Office of Legal Counsel, which sided with team "and/or,"  resting heavily on the usage of "in part" in the first line.

In September 2018, the events giving rise to this case occurred. The Yakima Nation brought this particular claim seeking a preliminary injunction for team "and."  Unfortunately for them, the Ninth Circuit didn't agree.  

There is some delightful language in the Ninth Circuit opinion. Judge Ryan Nelson, writing for the majority, explained that while the "most common meaning" of and is "together" or a conjunctive usage, it isn't always used that way.  It can, he says, mean "or": 

Examples of “and” used to mean “or” abound. For example, a child who says she enjoys playing with “cats and dogs” typically means that she enjoys playing with “cats or dogs”—not that cats and dogs must both be present for her  to find any enjoyment. Similarly, a statement that “the Ninth Circuit hears criminal and civil appeals,” does not suggest that an appeal must have a criminal and civil component for it to be properly before us. Nor would a guest who tells a host that he prefers “beer and wine” expect to receive “a glass of beer mixed with wine.” OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J., dissenting). In each instance, the common understanding is that “and,” as used in the sentence, should be construed as the disjunctive “or.”

Seems pretty logical to me, but I would naturally use "or" in that last example (although I dislike beer so I wouldn't even say that last example).  Judge Nelson goes on to explain,

The same is true here when we examine “the broader context” of the Proclamation, Robinson, 519 U.S. at 341, in particular the Proclamation’s use of the term “in part” in Paragraphs 2 and 3. In both Paragraphs 2 and 3, the State “retrocede[s]” criminal jurisdiction “in part,” but retains “criminal jurisdiction” over “offenses involving non-Indian defendants and non-Indian victims.” If “and” in those  sentences is interpreted to mean “or,” the retrocession “in part” makes sense. Under that interpretation, the State has given back a portion of its Public Law 280 jurisdiction— jurisdiction over crimes involving only Indians—but has kept Public Law 280 criminal jurisdiction if a non-Indian is involved.

Interpreting “and” in those Paragraphs as conjunctive, however, does not give “in part” meaning. Under that interpretation, the State has retroceded all jurisdiction that it received under Public Law 280—that is, criminal jurisdiction over all cases involving Indians. If that is the case, Paragraphs 2 and 3 are no different than Paragraph 1, which retroceded “full civil and criminal jurisdiction” over certain subject matters. But that cannot be right, because Paragraph 1 uses the phrase “full,” whereas Paragraphs 2 and 3 use the phrase “in part.”

Looking at the Proclamation, this does seem like a logical reading of it, although I wonder why "and/or" wasn't used in the original drafting of the Proclamation.  It seems like that would have saved everyone a lot of trouble.

Regardless, let this be a lesson for drafters of statutes and Proclamations.  Have a happy Monday AND (and I do mean AND) a good week.

Obscenities & The Supreme Court

While many people may be swearing on April 15 because they forgot to do their taxes, the Supreme Court will have swearing on its mind for another reason.  Iancu v. Brunetti poses the very interesting question of whether, under the First Amendment, the government may refuse to register trademarks it deems "immoral" or "scandalous."  Mr. Brunetti was denied a trademark for his clothing brand FUCT (Friends U Can't Trust). The Federal Circuit ruled in Brunetti's favor, and now the Supreme Court will hear the case.

Just two years ago, the Supreme Court ruled in Matal v. Tam, that the "disparagement clause" in the Latham Act is incompatible with the First Amendment.  I think that is likely that Brunetti will succeed too in his trademark quest.

But, the merits of the case isn't want I wanted to blog about.  What is quite interesting in the case are the numerous examples in Brunetti's brief of trademarked and rejected words that could be deemed "immoral" or "scandalous."  National Law Journal, in its Supreme Court Brief email, noted that the briefs are "most assuredly not suitable for minors."  According to NLJ, the brief lists "34 words that might sound scandalous, only three of which have been handled consistently. [The trademark office] has allowed FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? Again, those are mild compared to other unmentionable words and phrases in the brief."  If you would like to read all of the bad words in Brunetti's brief, you can find it here.  The juicy part starts on p. 11.

Despite the bad words in the brief, Brunetti's attorney told the Court in a footnote that he didn't expect it would be "necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed."  That decision was probably for the best.  The NLJ article mentions Carter Phillips, who was called twice by the Court and advised not to use bad words in oral argument when he argued the FCC v. Fox case. 

I think that the subject of how litigants and the Court use profane language is fascinating.  Should the word be spelled out?  Should one use asterisks? And, if you dare spell it out, can you then say it out loud at argument?  Dare the justices say the word when announcing the opinion?  According to a 2012 New York Times article, when Justice Harlan announced the opinion of the Court in the Cohen case, he was instructed by Chief Justice Burger not to "'use that word' because 'it would be the end of the court' if he did."  You may recall from constitutional law that Mr. Cohen was prosecuted for wearing a jacket that contained words that, according to his attorney attorney, were "'not actually advocating sexual intercourse with the Selective Service.'"  Despite the Court's reticence to hear the word out loud, in many cases, especially in a case like Brunetti's, it is important to see the word in context.  

I plan on listening to Brunetti's attorney's argument if I get a chance to see if he holds true to his word.

Not all fun, part of the game: Jacobi & Sag on [laughter] at the Supreme Court

I've blogged here about laughter at the Supreme Court. And I've blogged about the fascinating empirical work of Tonja Jacobi and Matthew Sag. So I'm thrilled that Professors Jacobi and Sag have trained their analytical lens on laughter in oral arguments at the United States Supreme Court.

Their new piece is Taking Laughter Seriously at the Supreme Court, forthcoming in the Vanderbilt Law Review; they summarize it in two recent posts (here and here) on their must-read blog, SCOTUS OA. This is not the first scholarly effort to track laughter at the Supreme Court: Jay Wexler, for funsies, has been cataloging SCOTUS laughter since 2005, and rhetoric researcher Ryan Malphurs has dug into the communicative function of humor at oral argument (pdf). But Professors Jacobi and Sag take the scholarship of laughter at SCOTUS—and, more generally, the scholarship of oral argument—to entirely new, deeply serious places. They leverage a remarkable dataset: a database of every SCOTUS oral argument transcript from the 1955 through 2017 terms. In the 1.7 million speech events by justices and advocates in 6,864 cases, 9,378 triggered a [laughter] notation in the transcript; about two-thirds of the laughter events were prompted by something a justice said. Jacobi and Sag supplement their text-mining quantitative analysis with old-school qualitative analysis: they read and cataloged all 1,061 episodes of justice-induced laughter from 2010 to 2017.

Their conclusion: laughter at SCOTUS isn't much about fun and frivolity; it's mostly about the modern blood sport of judicial advocacy. 

The piece builds on and reinforces Jacobi and Sag's prior work about shifts in the dynamics of  SCOTUS oral argument. In an era of sharpening division and partisanship, justices have increasingly used oral argument to advocate rather than inquire. And the justices' use of humor at oral argument is of a piece. Just as justices' use of oral argument time to comment and advocate has increased dramatically in the modern era, so too has the [laughter]. In the 1950s and 60s, laughs were few and far between, and they were prompted nearly as often by advocates as by the justices. This mostly continued into the 1980s. But then, in the late 1980s and again in the mid-1990s, the pace of justice-triggered laughter escalated sharply. And it has stayed high.

There's more: at the same time, the patterns of justice-provoked laughter shifted significantly. Justices tend to draw more laughter during arguments with which they ultimately disagree. Put bluntly, they make jokes at the expense of advocates they oppose. This has mostly been true for most justices since 1955. But the "laughter gap" increased significantly in the mid-1980s and again in the mid-1990s. This too is consistent with the broader trends Jacobi and Sag have identified regarding the rise of judicial advocacy in SCOTUS oral argument. The justices also increasingly use humor as a signal of an advocate's weakness: they direct humor at advocates who are losing. This pattern too deepened in the mid-1980s and again in the mid-1990s. And the justices' use of humor reinforces hierarchy on another dimension: it is directly most often at novice advocates, particularly ones on the losing side. And when one looks at the quips that inspire laughter, the data make sense: a massive share of SCOTUS jokes involve putting advocates in their place. One example, from United States v. Kebodeaux: 

So humor in the contemporary Supreme Court is a sharp and serious tool. And Profs Jacobi and Sag have done sharp and serious work.

Lessons from the Carpenter oral arguments: SCOTUS echoes with [laughter]

I'm no Orin Kerr, but I've been pretty obsessed lately with United States v. Carpenter, this term's blockbuster Fourth Amendment-meets-technology case. It's a fascinating case, and it features outstanding advocates addressing important issues (and it makes for a nifty moot court problem). So I figured today I'd get the transcript, pore over it, and identify some great moments that let me say useful things about advocates doing advocacy.

There definitely are such moments. Interesting exchanges. Justice Gorsuch sharply pursuing a property-interest line of reasoning. And, most of all, the remarkable Michael Dreeben spinning out elegant prose on the fly.  

But what struck me first was the laugher. Or, in SCOTUS, the [laughter]. Apparently, cell phones bring out the funny in the justices. 

I shouldn't be surprised by this. Talking about Cell Site Location Information allows the justices to mine rich veins of I'm-a-wizened-person-with-life-tenure-and-I-don't-know-how-these-gizmos-work humor. And that's what Justice Kennedy did with the day's first [laughter]:

And Justice Sotomayor:

 

OK, so these are not the funniest jokes in the world. But they are, like, legit jokes. And that is not the norm for Justices Kennedy and Sotomayor. They are not humorless folk, but they never rank highly in Jay Wexler's groundbreaking studies of SCOTUS humor. Today's yuk fest means that Justice Sotomayor finally opened up a gap between herself and Justice Thomas in this term's [laughter] count. Justice Kennedy gets in the occasional self-deprecating quip, but his funniest SCOTUS moment before today was when he played straight man for Justice Scalia in the great "What's a footman?" routine of '07. These justices are not Justice Breyer, who can bring down the house with a well-timed utterance of "Limburger cheese." 

Maybe [laughter] will unite the justices. And all of us, every one.

 

Should Judges Tweet?

This week the Senate held confirmation hearings on two nominees to the U.S. Court of Appeals for the Fifth Circuit, Justice Don Willett, a judge on the Texas Supreme Court, and James Ho, a private attorney. Ho fielded few questions compared to Willett's questioning, most likely due to Willett's more high profile media presence - he is known as the Tweeter Laureate of Texas. While Willett exhibits a lighthearted style and does not specifically make political tweets in his twitter feed, his social media presence does raise questions of how the public should view the judiciary. There are several pros and cons to the issue of judges having a social media presence, likely with the general public and the lawyer community having some different ideas.

The benefits to judges having a social media presence is certainly to make the judicial system less mysterious and to promote civic awareness of how government works. It would make the system less intimidating, since people would be able to see that judges are human. It would allow lawyers to get a feel for the personality of a judge before whom they may appear or to whom they may submit a brief. Understanding your audience as a lawyer is an important skill to persuading your listener.

On the other hand, judges having a social media presence may undermine the respect we want people to have for the judicial system. Judges inhabit power positions, and if they are seen as mixing it up on Twitter or other social platforms, it could bring disrespect to the judiciary and reflect on all judges. Perhaps some of the mystery of the courts is necessary to maintain the dignity of the courts. If judges stray from nonpolitical discourse, this could also be quite damaging to the fair and impartial image we expect from the judiciary. 

It's not just Justice Willett, many judges are on social media (and now even courts!), so reversing this trend is unlikely. (Tessa wrote here about getting Justice Willett back on Twitter since he went on hiatus once his nomination was released - he got his own hashtag #FreeWillet). But Justice Willett does provide some guidelines for how to approach social media as a judge. In an interview last year with Texas Lawyer he said this:

Texas Lawyer: As the unofficial “Tweeter Laureate of Texas,” you’ve become one of the most public members of the state judiciary. At 22,500 tweets and counting, the world knows a lot about your sense of humor, family life, sports team allegiances and political leanings. You’ve provided a rare look into the life of a judge. But by revealing so much about yourself, do you think you’ve compromised a judge’s mandate to appear neutral in all matters that may come before the court?

Justice Don Willett: A 2013 ethics opinion from the American Bar Association gives judges a thumbs-up to engage voters via social media, calling it “a valuable tool for public outreach,” but urging caution, as with anything, judges must always be judicious, whether crafting a 140-footnote opinion or a 140-character tweet. I diligently self-censor and aim for carefulness. A few cardinal rules: No discussing cases that could appear before me, and no partisan bomb-throwing. I try to keep things witty and light, regaling people with my random musings on sports, culture, parenthood, law, stuff like that. Judges on social media must be juris-prudent, always honoring our distinctive constitutional role. I take my job seriously, if not myself. The law is a majestic thing, and when citizens confer the title “Justice” on someone, they place in human hands that profound majesty.

In his confirmation hearings this week, Willett was asked whether he would give up tweeting should he be confirmed. He acknowledged that his wife would like him to stop, but that he would take it under advisement. 

Sen. John Cornyn, R-Texas, asked if Willett would keep tweeting if confirmed.

“The short answer is, I don’t know if I’ll continue tweeting,” Willett said. “I haven’t thought a lot about it, but if I do, certainly the frequency and the content would change.”

Willett said if he did tweet as a Fifth Circuit judge, he would focus on “civic education” and improving “our collective national civics IQ.”

Later, Sen. John Kennedy, R-Louisiana, asked the same question, and Willett gave a similar answer. But Kennedy expressed concern and asked that Willett consider not tweeting if confirmed. Willett promised the senator that if he did tweet, he would “post nothing that could be remotely construed as political.”

“Don’t you think the wiser course would be to just not do it?” Kennedy said. Willett said his wife agreed, and that he would think about it and get back to the senator.

It is not known when Justice Willett's nomination will be voted on, but it will be interesting to watch his reaction on Twitter!