Sunday, November 12, 2023
Law schools should train students how to think, write, and practice like a lawyer. They should only admit students, based on LSAT scores and undergraduate grade point average, who are likely to succeed in a law school and the legal profession. And they should produce competent graduates who can pass the bar examination on their first attempt, and who obtain jobs that justify the non-dischargeable debt that graduates often incur.
To do so, contrary to the views espoused by some scholars, the Socratic method is necessary, as it teaches students the value of, among other things, preparation, thinking on your feet, and performing capably in front of a large audience. And if cold calling causes students stress and anxiety, so be it. Law schools should teach students how to cope with, not avoid, anxiety, pressure, and stress because that will prepare them for the legal profession – and life. Additionally, legal writing courses should be integrated within the law school curriculum and courses should blend doctrine and practical skills to produce marketable graduates. In short, law school is about teaching students how, not what, to think, providing students with real-world skills, and respecting the diverse viewpoints that students of all backgrounds bring into the classroom.
Recently, however, some law schools – and universities – have become so liberal that division and discord have replaced civility and respect, and ideological uniformity has replaced the tolerance of diverse viewpoints. The bias against hiring conservative scholars at many law schools is one example that reflects the liberal bias and discriminatory behavior that pervades some institutions.
Sadly, the current conflict in the Middle East underscores how political – and often extreme – institutions of higher education have become. To be sure, the history of the Israeli-Palestinian conflict is complex. Both Israelis and Palestinians have suffered horribly, and both sides bear responsibility. One would expect that academics, including law professors, would have a balanced view that recognizes the nuances of this conflict and appreciates the diverse points of view that students and citizens express on this tragic situation.
For example, despite the torture and murder of Israelis last month, a professor at Albany Law School posted on social media "Long live the Palestinian resistance & people of Gaza, tearing down the walls of colonialism and apartheid." Did this professor express compassion for the horror and suffering that so many Israelis endured? No. Additionally, a professor at Cornell University described the attacks by Hamas as “exhilarating,” and a professor at Columbia University described Hamas’ attacks as “astounding,” "incredible,” and a "stunning victory." Not to be outdone, an organization that a New York University professor co-founded praised “heroic Palestinian resistance.” And an adjunct professor at the City University of New York posed on social media that “Zionists are straight Babylon swine,” who are “racist arrogant bullies” affected by a “genocidal disease.”
In response, major donors at some institutions, including Harvard University, Stanford University, and the University of Pennsylvania, criticized these universities for failing to explicitly condemn Hamas’ attack, with one Penn donor expressing disgust at the university’s “silence in the face of reprehensible and historic Hamas evil against the people of Israel.” Considering the expressed and unrelenting desire of some of Penn’s faculty and administration to fire Professor Amy Wax, one would have expected that Penn’s administration would immediately condemn the torture and slaughtering of countless Israelis. It did not. Given the increasing toxicity in academia, it should come as no surprise that students are so afraid to disagree with their professors.
This troubling reality, namely, academics with extreme viewpoints who show no tolerance for opposing views, is not new. At Stanford University, former Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach told federal judge Kyle Duncan, who was invited to speak at the law school, that his opinions have “caused harm” thus placating a mob of students who tried to shout down Duncan because they disagreed with his conservative judicial philosophy. Similarly disgraceful conduct occurred when Josh Blackmun, an accomplished and highly respected constitutional scholar, attempted to speak at CUNY Law School, only to be met by students who sought to censor his speech and mischaracterize his views. And consider administrators and professors who, while preaching “diversity, equity, and inclusion,” condemn “whiteness,” embrace segregated living spaces and graduation ceremonies, establish “bias” hotlines where students can anonymously claim to be the victim of “microaggressions,” ban words such as “brave” and “American,” and claim that math is racist. Sadly, this is only a sample of the concerning behavior that is occurring on college and law school campuses across the country – and dividing students based on, among other things, race, gender, and political affiliation.
The deplorable conduct of these and other educators has affected students and inhibited the exchange of diverse viewpoints. For example, Nyna Workman, an NYU law student, refused to condemn Hamas, stating that “Israel bears full responsibility for this tremendous loss of life,” and that Israel’s “regime of state-sanctioned violence created the conditions that made resistance necessary.” Remember that this gibberish was expressed by a student at NYU Law – one of the best law schools in the United States – not at some predatory law school that admits unqualified students, saddles them with non-dischargeable debt, and provides them with no legitimate prospects for long-term employment. Thankfully, in response to Workman’s disgraceful conduct, Winston and Strawn withdrew her offer of employment.
Likewise, at Harvard University several student groups stated that Israel was “entirely responsible” for the violence. And few can forget CUNY Law School’s student commencement speaker who used her platform to denounce “Israeli settler colonialism” and “the fascist N.Y.P.D.” Additionally, some NYU students were seen ripping down posters detailing stories about Israeli hostages, and a student at Cornell University threatened to slit the throats of Jewish students. Not to mention, Princeton and NYU law graduate Colinford Mattis, who, along with Urooj Rahman, thought it would be a good idea to throw a Molotov cocktail at an empty police car. This is a sample of what some universities and law schools are producing these days. Indeed, the damage that ideologically driven professors inflict has far-reaching consequences on the students that they serve because it fails to teach students how to think critically, disagree respectfully, and communicate civilly.
To make matters worse, some professors coddle rather than challenge students, placing less emphasis on the development of critical thinking and other real-world skills, and instead indoctrinating them into a worldview where diverse viewpoints are unwelcome, ‘feelings’ matter more than logic, and emotion matters more than reason. Lest there be any doubt, look at the nonsense occurring on many campuses where ultra-fragile students often feel “unsafe” when confronted with a perspectives different from their own and thus demand “safe spaces,” administrators provide “cry closets,” to help students deal with the stress of examinations, or offer Play-Doh to students who could not cope with the results of the 2016 presidential election.  And consider the shenanigans at Yale Law School, where a group of ‘offended’ students interrupted a discussion on free speech by a speaker whose views differed from their own.
Put simply, some academics have placed a premium on identity politics, where one’s group identity matters far more than an individual’s character, and on victimhood, where students are convinced that they are ‘oppressed’ and ‘marginalized.’ As Cornell Law Professor William A. Jacobson stated, “[a]lmost everything now is viewed through an identity lens, pitting groups against each other, pitting colleagues against one another, and pitting students against their peers.” In other words, the notion of diversity, equity, and inclusion is anything but diverse, equitable, or inclusive.
As Professor Jacobson stated, "[t]here is substantial evidence that such DEI programming makes race and other relations worse, not better.” Moreover, the impact of this divisive nonsense is that it promotes hate and homogeneity of thought, not diversity and a marketplace of ideas. As one professor at the University of California-Berkeley School of Law stated, “if you don’t want to hire people who advocate hate and practice discrimination, don’t hire some of my students.” No wonder our society is divided and riddled with ignorance.
The role of professors is to prepare students for the real world, not to indoctrinate students into a liberal or conservative worldview that is infused which the very implicit and explicit biases that professors often accuse others of harboring. Professors should develop students’ (particularly law students’) critical thinking, writing, and communication skills, and hold students to high standards. They should also ensure that the classroom is a welcoming place for all students, regardless of, among other things, political affiliation, race, gender, sexual orientation or identity, and socioeconomic status. Equally as important, professors should expose students to conservative and liberal viewpoints, and ensure that dialogue is civil and respectful. After all, if diversity, equity, and inclusion mean anything, it should mean that universities respect and welcome views with which they disagree, and that educators dedicate themselves to equipping students with the tangible and intangible qualities needed to succeed in law and life.
Put simply, educators must teach students how to think, not what to think, because teaching is not about professors or their views – it is about the students.
 See The University of Chicago Law School, The Socratic Method, available at: The Socratic Method | University of Chicago Law School (uchicago.edu)
 See, e.g., Robert Leroux, Woke Madness and the University (Winter 2021), available at: Woke Madness and the University by Robert Leroux | NAS; Lexi Lonas, UPenn Loses Bog Donor, Board Member Resigns Citing ‘Antisemitism,’ (Oct. 16, 2023), available at: UPenn loses big donor, board member resigns citing ‘antisemitism’;
 See Adam Bonica, et al., The Legal Academy’s Ideological Uniformity (2018), available at: The Legal Academy’s Ideological Uniformity (harvard.edu)
 Michael Goot, Albany Law Professor Ripped for Praise of Palestinians ‘Tearing Down the Walls of Colonialism (October 12, 2023), available at: Albany Law professor ripped for praise of Palestinians 'tearing down the walls of colonialism' - WNYT.com NewsChannel 13
 Yarun Steinbuch, Cornell Professor Who Found Hamas Attack ‘Exhilarating and ‘Energizing’ Now on Leave of Absence (Cornell professor who found Hamas attack ‘exhilarating’ and ‘energizing’ now on leave of absence (msn.com)
 Tens of Thousands Sign Petition to Oust Ivy League Columbia Professor Who Praised Hamas Terror Attack Against Israel as an ‘Awesome Stunning Victory,’ (Oct. 16, 2023), available at: Tens of thousands sign petition to oust Ivy League Columbia professor who praised Hamas terror attack against Israel as an 'awesome stunning victory' | Daily Mail Online
 Marya Ruth Dunner, NYU Prof’s ‘Decolonization’ Org Praises ‘Heroic’ Hamas After Brutal Attacks Against Jews (Oct. 11, 2023), available at: Campus Reform | NYU prof's 'decolonization' org praises 'heroic' Hamas after brutal attacks against Jews
 See Juni Nguyen, Some U.S. Professors Praise Hamas’s October 7 Terror Attacks (Nov. 8, 2023), available at: Some U.S. Professors Praise Hamas’s October 7 Terror Attacks | ADL
 Kate Anderon, Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (Oct. 24, 2023), available at: Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (dailysignal.com); see also Judy N. Liu, Alumni Condemn University’s Response to Hamas Attach (Oct. 31, 2023), available at: Alumni condemn University's response to Hamas attack (stanforddaily.com)
 See id.
 See James Freeman, Most U.S. College Students Afraid to Disagree with Professors (Oct. 26, 2018), available at: Most U.S. College Students Afraid to Disagree with Professors - WSJ To be clear, there are many outstanding and inspiring law professors (and professors throughout academia) who are instrumental in helping their students prepare for the legal profession (or whatever profession they pursue). And there are many law schools whose administrations do the same. But that is increasingly becoming the exception, not the rule.
 Josh Moody, Dean at Center of Stanford Law Controversy Resigns (July 21, 2023), available at: Dean at center of Stanford Law controversy resigns (insidehighered.com)
 See Scott Jaschik, Guest Lecture on Free Speech at CUNY Law School Heckled (April 15, 2018), available at: Guest lecture on free speech at CUNY law school heckled (insidehighered.com)
 See, e.g., Paul Farrell, Florida University Adopts Radical DEI Program that Condemns US As a System of ‘White Supremacy,’ (March 1, 2023), available at: Florida university adopts radical DEI program that condemns US as a system of 'white supremacy' | Daily Mail Online; Seattle Schools Propose to Teach That Math Education is Racist—Will California Be Far Behind? (Oct. 29, 2019), Lee Ohanian, available at: Seattle Schools Propose To Teach That Math Education Is Racist—Will California Be Far Behind? | ; Karsten Schneider, New York University Moves to Implement Racial Segregation in Student Dorms (Aug. 24, 2020), available at: New York University moves to implement racial segregation in student dorms - World Socialist Web Site (wsws.org); Richard Vedder, Racial Segregation on American Campuses: A Widespread Phenomenon (Nov. 15, 2018), available at: Racial Segregation On American Campuses: A Widespread Phenomenon (forbes.com)
 Danielle Wallace, Nonbinary NYU Student Bar Association President Loses Job After Defending Hamas Terror Attack on Jews (Oct. 11, 2023), available at: Nonbinary NYU Student Bar Association president loses job offer after defending Hamas terror attack on Jews | Fox Business; Tesfaye Negussie and Aisha Frazier, NYU Law Student Who Blamed Israel After Hamas Attacks Defends Remarks (Oct. 25, 2023), available at: NYU law student who blamed Israel after Hamas attack defends remarks - ABC News (go.com)
 See id.
 Names and Faces of Harvard Students Linked to an Anti-Israel Statement Were Plastered on Mobile Billboards and Online Sites (Oct. 12, 20203), available at: Names and faces of Harvard students linked to an anti-Israel statement were plastered on mobile billboards and online sites | CNN Business
 Ginia Bellafante, She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target (June 2, 2023), available at: She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target. - The New York Times (nytimes.com)
 Krish Dev, Students Caught Tearing Down Israeli Hostage Posters May Face Disciplinary Action (Oct. 23, 2023), available at: Students caught tearing down Israeli hostage posters may face disciplinary action (nyunews.com)
 See Brian Mann, Cornell Student Arrested in Connection with Antisemitic Threats on NY Campus (Oct. 31, 2023), available at: Cornell student arrested in connection with antisemitic threats on NY campus : NPR
 Jonathan Dienst, Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty Oct. 6, 2021), available at: Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty – NBC New York
 See, e.g., Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas are Setting Up A Generation for Failure available at: The Coddling of the American Mind; Grace Bird, ‘Cry Closet’ Installed for Finals at University of Utah (April 25, 2018), available at: 'Cry Closet' Installed for Finals at University of Utah (insidehighered.com); Jonathan Zimmerman, College Campuses Should Not be Safe Spaces (Jan. 17, 2019), available at: College Campuses Should Not Be Safe Spaces (chronicle.com); Stacy Zaretsky, T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled ‘P*ssies,’ (Nov. 14, 2016), available at: T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled 'P*ssies' - Above the Law
 See Yaron Steinbuch, Yale Law Students Disrupt Bipartisan Free Speech Panel (March 18, 2022), available at: Yale law students disrupt bipartisan free speech panel (nypost.com)
 Louis Casiano, Ivy League School Slammed After Professor Calls Israel Attack ‘Exhilarating’: A Much Deeper Problem (Oct. 20, 2023), available at: Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News
 Ryan Quinn White Professor Resigns, Alleges Reverse Discrimination (June 26, 2023), available at: White professor resigns, alleges reverse discrimination (insidehighered.com); Bonica, et al., supra note 3, available at: The Legal Academy’s Ideological Uniformity (harvard.edu)
 Casiano, supra note 26, available at: Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News
 Allie Griffin, UC Berkeley Law Professor Urges Firms to Not Hire His ‘Antisemitic’ Students (Oct. 21, 2023), available at: UC Berkeley law professor urges firms to not hire his ‘antisemitic’ students (msn.com)
Saturday, October 21, 2023
A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative
As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration. One of my favorite aspects of full time appellate practice was just that: time. I treasured having more time--albeit never enough time--than I had in trial practice. I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court. Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research. Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients. In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized? Neither have I.
In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar. The Bar is considering whether to adopt a pilot for this PBE alternative. You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here: https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf. In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure.
The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test. Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision. These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients. As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.” Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).
How would this work? Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.” Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.” https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.
Of course, not everyone favors the PBE proposal. Some opponents raise thoughtful and important issues of bias and discrimination. A small pilot can help us address these concerns. Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities. See https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion. As former Trustee Mendoza explains:
The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly. Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.
The most vocal opposition seems to be from people connected to profitable bar preparation courses. Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising. See id. While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.
The State Bar is asking for public comment on the PBE Pilot. The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys. If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”: https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.
If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button. The Bar has also provided a box for typed or uploaded comments. The deadline to comment is Wednesday, October 25, 2023. I clicked “AGREE” and completed my comment in less than two minutes. I urge you to weigh in on this important question too.
Tuesday, October 10, 2023
“We . . . must continue individually and in voices united . . . to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will [be] and are making.” –Justice Sonia Sotomayer[i]
The Appellate Project is an organization doing just that. It is designed “to empower law students of color, particularly those most underrepresented, to become the next generation of lawyers and judges in our highest courts” and “thrive in the appellate field.” It was founded in 2019 by civil rights litigator Juvaria Khan. The organization offers programming, mentorship, and resources for law students to build the skills and connections needed to break into and succeed in the appellate field.
Their work is incredibly important. Increased representation in appellate courts leads to an “enhance[d]. . . legitimacy of courts among traditionally underrepresented groups”[ii] and the public as a whole.[iii] The value of legitimacy cannot be overstated because “[d]ecisions of our courts are to be complied with, even when we disagree with them.”[iv]
And “diversity on the courts enriches judicial decisionmaking[;] . . . the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decisionmaking, especially on our appellate courts.”[v] Studies have shown that “female and minority judges, on average, bring a different judicial perspective to the bench.”[vi] Adding just one female judge “to an otherwise all-male panel significantly increases the probability that the male judges will support a plaintiff in sex discrimination or sexual harassment cases.”[vii] And the inclusion of a single Black judge on a three-judge panel “increases the likelihood that a non[B]lack colleague will find that a state or locality violated the Voting Rights Act.”[viii] In short, “the interaction of wise Latinas,[[ix]] white men and women, African Americans, Native American judges--just like the interaction of former prosecutors, defense counsel, corporate practitioners and in-house counsel--provides opportunities for a robust exchange that can inform appellate decisionmaking.”[x]
The Appellate Project offers a mentorship program each year, pairing law students of color interested in appellate practice with two mentors in the appellate field, including attorneys, judges, professors, and law clerks. If you are an appellate practitioner, I urge you to volunteer as a mentor. And, if you are a student, this is a fantastic opportunity you don’t want to miss. The deadline for this year’s mentorship program is October 13, 2023.
[i] Hon. Sonia Sotomayor, A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87, 93 (2002).
[ii] Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts, 57 Am. J. Pol. Sci. 167, 168 (Jan. 2013).
[iii] Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 2d 45, 48 (2009).
[v] Id. at 49.
[vi] Kastellec, supra n. ii, at 167.
[vii] Id. at 169.
[viii] Id. at 170.
[ix] In her speech, A Latina Judge’s Voice, Justic Sotomayor controversially stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” Sotomayor, supra n. i, at 92. She was later questioned about this statement during her Supreme Court confirmation hearings in the United States Senate. Sotomayor Explains "Wise Latina" Comment, CBS News (July 14, 2009), available at: https://www.cbsnews.com/news/sotomayor-explains-wise-latina-comment/
[x] Ifill, supra n. iii, at 52.
Saturday, September 30, 2023
Christopher Columbus Langdell got it right – for the most part. What Langdell got right is the Socratic Method – and the accompanying cold calling – that is essential to training law students to be outstanding lawyers. Below is a brief explanation of why Langdell’s method is a vital component of legal education, along with a few suggestions to maximize the competency and marketability of law school graduates.
I. Why Langdell was right.
A. The Socratic Method works because it improves critical thinking skills.
Critical thinking (and intelligence generally) is among the most important skills needed to be an excellent lawyer. For example, great lawyers know how to read and distinguish cases, synthesize complex precedents, reason by analogy, and make persuasive arguments. To do so, you must know how to think critically, identify the weaknesses (and strengths) in arguments, distinguish relevant from irrelevant facts (and law), use the law and facts to craft a compelling narrative, and make policy arguments that support a judgment in your favor.
Put differently, intelligence matters. The Socratic method makes you a smarter and more analytical thinker.
B. Cold Calling is beneficial.
Cold calling is essential to an effective legal education. Indeed, cold calling teaches students the value of preparation. It teaches students to think on their feet. It forces students to perform in front of a large audience. And it teaches students the importance of, among other things, being attentive to detail, responding to unexpected questions in a persuasive manner, and examining the flaws in their previously held beliefs.
C. Making students uncomfortable (and nervous) is a good thing.
Law students must learn how to deal with adversity, and they must learn how to respond effectively to adversity. They need to understand that they will fail often in life, and that failure is an opportunity to gain experience and persevere through challenges in life and in the law. They must be taught that your choices and decisions, not your circumstances, determine your destiny.
The Socratic Method – and cold calling – accomplishes these objectives. Sure, students may experience anxiety. They may dread being called upon in class. They may embarrass themselves. They may experience self-doubt. So what? Experiencing – overcoming – these challenges help a person to grow, develop thick skin, and understand the value of preparation, perseverance, assertiveness, and confidence. In other words, learning how to cope with negative emotions, and developing a strong mindset where you take responsibility for your choices, is essential to succeeding in the law and in life.
II. Additional Suggestions
As stated above, the Socratic method is a critical component of a rigorous and beneficial legal education. But other components matter too.
A. Legal Writing and Communication
The ability to write and communicate persuasively is essential to being an excellent attorney and advocate. For this reason, law schools should devote more time to their legal writing curriculum and require students to take a writing course in every semester of law school. In so doing, law schools should require students to draft the most common litigation and transactional documents and train students in rewriting and editing. After all, if law graduates cannot write persuasively, they will not practice law effectively.
B. The Intangibles
Law schools should emphasize that success in the legal profession and in life is due in significant part to intangible factors that transcend raw intelligence, an LSAT score, or law review membership. These factors include, but are not limited to, humility, a strong work ethic, maturity, excellent judgment, discipline, consistency in performance, and passion. It also includes respecting diverse viewpoints, being willing to admit that you are wrong, and accepting responsibility for your mistakes.
Perhaps most importantly, students need to learn how to overcome adversity and respond well to and learn from failure. They need to understand that they will face injustice and unfairness in life. And they need to be told that they are not victims, that they should not embrace victimhood, and that they aren’t “oppressed.” Rather, law students need to understand and embrace the fact that their choices, not their circumstances, determine whether they will be successful.
C. High Standards
Law schools must hold students to high standards. Law professors need to be honest about the demands of the legal profession and the skills that separate mediocre lawyers from outstanding lawyers. Professors do a tremendous disservice to students if they inflate grades, coddle their students, or fail to help students acquire the skills needed to prepare them for the real world. And law professors whose teaching is influenced by political ideology or bias, and who show hostility to viewpoints that differ from their own, should not be professors.
Of course, students’ feelings matter and should never be disregarded. But the real world does not care about your “feelings” or sensitivities. Law firms, lawyers, and clients care about what you can do for them. Can you write a persuasive motion to dismiss, a summary judgment motion, and a trial brief? Can you make a persuasive oral argument? Can you work well under pressure and deal effectively with stress? Are you likable and relatable, or are you a narcissistic jerk? Can you communicate with clients in a simple, honest, and straightforward manner, and maintain positive relationships with them?
Teaching the tangible – and intangible – qualities necessary to succeed as a lawyer means holding students to high standards and being honest with them. After all, they will discover the truth when they enter law practice. Preparing them for those realities reflects the truest form of empathy.
Sunday, September 17, 2023
Law students (and students generally) are different than students from twenty or thirty years ago. Below are a few observations about the current generation of students, and a recommendation concerning how to adapt to a changing student population. Of course, this does not apply to all or even the majority of students, but the issues listed below are certainly more prevalent now in universities and law schools.
1. Students can be entitled and narcissistic.
Some students are simply entitled and, quite frankly, narcissistic. They lack respect for authority and do not adhere to common norms of civility and respect (e.g., shouting down a speaker with whom they disagree). They believe that they are entitled to a certain grade, to contact a professor at any time of the day, or to challenge any decision that is inconsistent with their expectations (often to administrators so concerned about student retention that they yield to every demand, however unreasonable). They often don’t respect boundaries – or their professors. And they rarely take accountability for their actions, instead blaming others for their failures or behavior. Not to mention, these students’ parents, who are often living in a state of ignorance and believe that their child can do no wrong, react with hostility when their child is subject to criticism.
2. Students don’t buy into the process of what it takes to be successful.
Achieving success and performing at a high level requires grit. It requires hard work and sacrifice. It demands that you learn from failure and respond effectively to adversity. It requires discipline, consistency, and commitment. It requires you to take responsibility for the choices and decisions that you make daily. And it requires a recognition that your choices, not your circumstances, determine the likelihood of achieving your goals. Many students, however, do not embrace these principles or the process that it takes to be successful. In fact, over sixty percent of university students have admitted to cheating.
3. Students lack mental toughness – and other intangibles.
Some students are too sensitive. They often lack the mental toughness and other intangibles necessary to achieve success in a competitive legal profession. For example, some students react negatively to constructive criticism. They respond poorly to adversity. They make excuses for an unacceptable work product and eschew accountability for their choices. They allow external factors to affect their self-perception and motivation and blame others whenever they experience failure. And they do not interact and work effectively with others, especially those whose viewpoints differ from their own. As one scholar explains:
Gen Z has less resilience than other generations, … It’s less that faculty are making their courses harder and more that students feel greater anxiety and overwhelmed when they perform worse than they expected. This puts them in a ‘fight or flight’ state, and often they’re fighting to get grades changed or to discipline faculty members.
This is a sad state of affairs.
4. Students struggle with mental health issues.
Increasingly, students struggle with mental health and substance abuse issues, which affects their ability to study effectively and perform at a high level. To be sure, approximately sixty percent of college students meet the criteria for at least one mental health problem. One survey concluded as follows:
Specifically, 44 percent of students reported symptoms of depression; 37 percent said they experienced anxiety; and 15 percent said they were considering suicide—the highest rate in the 15-year history of the survey. More than 90,000 students across 133 U.S. campuses participated in the survey.
Undoubtedly, this affects students’ ability to succeed academically and professionally.
5. Students are consumed with and affected negatively by social media.
Many students are consumed with social media, often interested in how many 'likes' they receive for a post on Instagram or Facebook, or engaged in a debate on X, formerly known as Twitter. And for some students, social media is their primary source of information. Unfortunately, this can affect students’ mental health and affect their ability to succeed academically. As one commentator states, “[e]xcessive social media use can … take a toll on young people's mental health.” Indeed, “[a]s college-age students are spending up to an hour or two a day at a minimum on social media, it is cutting into time that they could be studying or engaging in actual social activities.”
6. Students enter law school lacking analytical thinking and writing skills.
Students often enter law school without adequate analytical thinking and writing skills, often because their undergraduate institutions did not sufficiently emphasize the development of these skills. This places a substantial burden on professors, especially legal writing professors, to prepare students for law practice. It should come as no surprise that many judges and lawyers criticize law graduates’ writing skills, which can be traced to inadequate emphasis on developing writing skills at the undergraduate level (and to some extent, in legal education).
7. Students are too political.
Some students have such strongly held political views that they develop their relationships with, and judgment of, others based on whether they agree with their views. This has led to a failure to respect different viewpoints, which is one of the primary benefits of a diverse student body. It has led to a lack of civility and respect among those with whom students disagree. It has made compromise impossible, and a failure to appreciate nuance prevalent. Indeed, one needs only to look to students’ behaviors in response to university-sponsored speakers that they don’t like to see how pathetic some students have become. If you doubt this, consider how many students claim to feel “unsafe” or cry, scream, or collapse whenever a professor or student says something that “offends” them. To know that college and even law students behave like this shows how deeply troubled students have become.
Students and future advocates need to understand that, if you are pro-choice, you can respect and be friends with someone who is pro-life. If you voted for President Biden, you can respect and be friends with someone who voted for Donald Trump. The fact that this even needs to be stated shows how significantly our educational system and culture has declined.
How should law professors (and professors generally) respond to this reality?
It begins with university administrators. If administrators coddle entitled students and accommodate their every demand, this leaves professors powerless to do anything to ensure student accountability and success. After all, if professors know that their dean will not support them if a conflict with a student arises and where the student is at fault, there is no incentive for professors to do anything other than coddle students and give inflated grades.
More fundamentally, however, educators, including law professors, should hold students to high standards and focus on preparing them for the real world. This means teaching students how to think analytically and write persuasively and holding them accountable for subpar work. It also means teaching soft skills such as mental toughness, resilience, perseverance, grit, and respect for diverse viewpoints, and emphasizing the coping skills needed to control their emotions and deal with the challenges that law and life invariably present.
After all, students need to know how to handle adversity. They need to learn how to respect and work with people who think differently from them – and who they do not like. They need to deal with failure constructively and cope with setbacks effectively. They need to learn that crying and screaming whenever things don’t go their way (or when someone disagrees with them) will not serve them well as a lawyer (or in any aspect of life). As one commentator explains:
College is not summer camp, college is not group therapy, college is not a sanatorium, college is not (despite the current fad for "adventure" bonding experiences prior to the beginning of classes) survival training. They are students (the word comes from the Latin for "to apply oneself seriously"), and the best thing I can do for them, as their professor, is to treat them not as children but as serious people who are there to be serious about the subjects they study.
Most importantly, students need to know that they are not entitled to anything – except what they earn, and teachers should know that coddling students only sets them up for failure.
 See Niraj Chokshi, Attention Young People: This Narcissism is All About You (May 15, 2019), available at: Attention Young People: This Narcissism Study Is All About You - The New York Times (nytimes.com)
 See Brett A. Sokolow, College Students Are Sooo Sensitive (Jan. 6, 2016), available at: College Students Are Sooo Sensitive... | HuffPost College
 Chris Burt, Are Gen Z’s Complaints About College Workload Warranted, Or Are They Just Entitled? (October 16, 2022), available at: Are Gen Z’s complaints about college workload warranted, or are they just ‘entitled’? - University Business
 See Mary Ellen Flannery, The Mental Health Crisis on College Campuses (March 29, 2023), available at: The Mental Health Crisis on College Campuses | NEA
 See Peter Suciu, Social Media Continues to Affect the Health of College Students (December 12, 2022), available at: Social Media Continues To Affect The Health Of College Students (forbes.com)
 See John Schlueter, Higher Ed’s Biggest Gamble, Can colleges truly teach critical-thinking skills? (essay) (insidehighered.com)
 Georgetown University, One in Four College Students Say They Ruled Out a School Due to Its State’s Political Climate (A One in four college-bound students say they ruled out a school due to its state’s political climate - THE FEED (georgetown.edu)
 See Karen Sloan and Nate Raymond, Stanford Apologies After Law Students Disrupt Judge’s Speech (March 13, 2023), available at: Stanford apologizes after law students disrupt judge's speech | Reuters
 See Josh Blackman, Students at CUNY Law Protested and Heckled My Lecture About Free Speech on Campus (April 12, 2018), available at: Josh Blackman » Students at CUNY Law Protested and Heckled My Lecture about Free Speech on Campus
 Thankfully, at Georgia College and State University, I have outstanding administrators and students who inspire me to continue teaching.
 Daniel Mendelsohn, How To Raise a Proper College Student (June 28, 2017), available at: Professor Daniel Mendelsohn On Entitled College Students - How to Raise a Proper College Student (townandcountrymag.com)
 See Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure (Penguin, 2018).
Saturday, August 19, 2023
The best attorneys often, but not always, share common characteristics. They are incredibly intelligent. They often graduated from top law schools and were ranked at the top of their law school classes. They were on law review. They obtained federal clerkships. And they received an offer from a large law firm in, for example, New York, Los Angeles, or Chicago.
But what truly distinguishes the best from the very good (and mediocre) attorneys is the intangibles, namely, those characteristics that you cannot teach in a classroom or learn from a textbook. Below is a list of the intangibles that are essential for greatness in the law – or any aspect of life.
1. Hard work.
This doesn’t need a detailed explanation. The best attorneys will always outwork their adversaries. They never use notes. They know every precedent that is relevant to their litigation. They can recite the page and line numbers of every deposition that was taken in their case. And they will spend however long it takes to ensure that their preparation is as perfect as possible. In short, they are tough, and they have heart.
As legendary coach Vince Lombardi stated, “[i]f you’re lucky enough to find a guy with a lot of head and a lot of heart, he’s never going to come off the field second.”
2. Doing things right all of the time, not some of the time.
Vince Lombardi stated that “[w]inning is not a sometime thing; it’s an all the time thing. You don’t win once in a while; you don’t do things right once in a while; you do them right all of the time.” He was right.
The best attorneys demonstrate unwavering commitment, unparalleled motivation, and unquestionable discipline every day, and in every case. And they do so when their circumstances, whether professional or personal, are less than ideal. After all, it’s easy to do the right things when you’re doing something that you want to do, or when your life circumstances are perfect. But it’s harder to do the right things when you are required to do a task that you despise or when you are facing professional or personal adversity. The best attorneys do the right things regardless of external factors because they focus on what they can control and never get distracted by what they cannot.
Most importantly, the best attorneys focus on the process by which a successful outcome is achieved, and not on the outcome itself. They know that if they make the right choices, the results will take care of themselves. They also know that success must be sustained if one is to truly be called successful.
3. They take responsibility for their choices and don’t make excuses or blame others.
The best attorneys -- indeed, the best people – recognize that their choices and decisions, not their circumstances, determine their destiny. They take responsibility for their life (and happiness) and make choices and decisions daily that maximize their chances for success. As Vince Lombardi stated, “truth is knowing that your character is shaped by your everyday choices.”
And when things go wrong, such as by receiving an unfavorable ruling, they don’t make excuses. They don’t blame others. They learn. They take responsibility. And they grow.
4. Responding positively to failure.
Everyone fails at some point in the law and in life. As stated above, the best attorneys do not respond to failure by making excuses or blaming other people and circumstances. Instead, they view failure as an opportunity to enhance their self-awareness and their ability to self-assess. To grow. To improve.
As Nick Saban, the head coach of the University of Alabama’s football team stated, you should “never waste a failure.”
The best attorneys are humble. They listen to and learn from their colleagues. They accept criticism. They collaborate. And they value different perspectives because they know that they don’t know everything, that they aren’t always right, and that others may have something to teach them.
Lawyers (and people generally) who lack humility often harm their careers because, among other things, no one likes to work with them. In so doing, they prohibit meaningful professional (and personal) relationships. If you doubt that, have a conversation with your local narcissist(s).
The best lawyers know how to adapt to changing circumstances. They do not, for example, follow a script when making an oral argument or taking a deposition. Rather, they listen to a judge’s questions, or a deponent’s answers, and adapt their strategy based on a judge’s concerns or a deponent’s evasiveness. The ability to adapt, particularly when circumstances are unexpected and situations are fluid, is critical to success.
7. Control of emotions.
The best lawyers are mature. They exercise outstanding judgment, particularly when confronted with incomplete facts. Most importantly, they know how to control their emotions. When they lose a motion, they don’t get angry (or cry) and let it affect their preparation. When a judge (or a client) is difficult, they maintain professionalism and focus on the facts. And they know how to put the past behind them and focus on living in the moment, in which past failures do not affect or influence future success.
Ultimately, as Vince Lombardi said, “winning is not everything, but making the effort to win is.” Lombardi summarized it perfectly when he stated that “the difference between a successful person and others is not a lack of strength, a lack of knowledge, but rather in a lack of will.”
Making the effort to win – and making the right choices – isn’t determined by an LSAT score or a class ranking. It depends on whether you have the intangibles. And those with the right intangibles recognize that life “ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. That’s how winning is done.”
 Jason Kirk, Nick Saban Explains the Most Precious Fuel of All: Failures (July 13, 2017), available at: Nick Saban explains the most precious fuel of all: failures - SBNation.com
 Rocky Balboa (2006), available at: HD - Rocky Balboa (2006) - inspirational speech - YouTube
Wednesday, August 2, 2023
I clerked for three years before entering private practice. It was easy to be a sponge and soak up the good tactics of the attorneys I observed, the procedures of the courts where I worked, and familiarity with new areas of law I never studied. I read hundreds of briefs, crafted technically and legally precise bench memos and draft opinions, and examined the issues from all sides to help my judges see the lay of the land and make the best decisions.
One skill I did not learn was how to write for a client. I learned some of that in law school, through drafting persuasive memos and briefs and some exam essays. It crept in a bit when my bench memos took a slight step toward intemperate near the end of my clerkships, and I realized I was itching to finally get out there and practice The Law myself. But writing with a grasp on a client's real-world concerns and goals came much later.
As a new associate, I wrote a lot. Most of the early comments on my briefs went like this: "This is good, but you write like a law clerk." Just as my feathers started to puff, I realized that was not a compliment.
"Writing like a law clerk" means you forgot you have a client. You are not maximizing the chances of your client winning if you are presenting both sides evenly. When someone says you write like a law clerk, they are telling you to reconsider these areas of your brief:
- The introduction: Introductions are tough. They are the most important section of your brief because they may be the only thing a busy judge or colleague will read. Introductions are also a summary of the brief, but no other rules apply. In the introduction, you must be both creative and direct. What's the real reason your client should win on the issue at hand? What's the real reason the parties are fighting about this issue? Highlight those.
- The facts: The legal standards section should be written persuasively, but it is not where you will convince a judge to rule for you. That's the fact section. The law provides the outlines, but the facts fill in the story that underpins your case. They distinguish this case from others or provide parallels to cases with good outcomes you can highlight. The facts may tell the liability story or they may detail your efforts to avoid a discovery tiff and incorporate communications between counsel the judge has not seen yet. Plus, the facts help to orient the judge and law clerks who (unlike you) have not thought about your case for a few months. Tell your client's story accurately and persuasively in the facts section, and you are putting your best foot toward victory.
- The money: If you ignore the damages, fees, or expenses of a case, you are thinking like a law clerk. Clerks (at least temporarily) accept a sub-private practice salary to bask in ivory towers for a year or two. Practicing attorneys run a business. The business needs money to function, and clients care about how much money they are paying. Money also drives both corporate and individual clients on both sides of the v. Follow the money. Is the other party's motion to compel discovery a tactic following stalled settlement talks? Can you get the other side to stipulate to some facts so no one has to subpoena and depose a third party? These realities should be reflected in your writing. And when appropriate, and without disclosing any confidential settlement discussions, explain the reality of the case to the judge.
If you or a colleague think your work product sounds like a law clerk wrote it, take heart. Focusing on these areas of your writing can turn a balanced brief into a winning brief.
Saturday, July 15, 2023
One of my exciting (yes, really) summer projects is to help with a Legal Writing textbook, including drafting a chapter on trial briefs. In looking at state and local rules on what trial briefs should contain, I found a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.
On his chamber’s webpage, https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael, Judge Michael has a list of his “Policies and Procedures,” including a document called, Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf. Judge Michael is a respected and prolific author and speaker, and he’s even been on stage as a singer at Carnegie Hall, so I was not surprised to find his list of tips both engaging and fun. See generally https://www.law.com/clecenter/online-course-catalog/you-want-me-to-do-what-the-dilemma-of-trying-to-interpret-and-follow-appellate-precedent-6056/.
Of course, some of the judge’s tips are applicable to Bankruptcy Court and trial filings, but most apply well in appellate writing too. Therefore, I’m sharing all ten of his tips, although I’ve deleted points especially applicable to trial or bankruptcy practice.
Judge Michael begins:
I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing.
He cautions: “What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.”
For this post, I’ll highlight Tips One through Five, and next time, I’ll discuss Tips Six to Ten.
Tip 1. Remember, Your Goal Is to Persuade, Not to Argue. Judge Michael explains, “[w]e all have had people come up to us at cocktail parties or family reunions and say, “’You know, I would make a good lawyer because I just love to argue.”’ He says, those statements “could not be further from the truth [as g]uests on the Jerry Springer show argue [while] Lawyers persuade.” Thus, the judge reminds us the idea “behind an effective brief is to have the audience (the judge and/or the law clerk) read the brief and say to themselves, ‘“why are these parties fighting over such an obvious issue?”’ because the points are actually persuasive, and not just argumentative.
Tip 2. Know thy Audience. Judge Michael notes that most bankruptcy judges write and publish opinions, and some even provide links of those opinions on their webpages. While appellate judges do not necessarily provide links to their opinions, we can certainly search for them. As the judge explains, “[w]e publish those opinions in order to give you some idea of what we have done and why [and w]e try to be consistent.” Therefore, judges find it “extremely frustrating (and remember, a frustrated judge is not easily persuaded) to have counsel in either written or oral argument raise an issue and be completely ignorant of the fact that we decided that issue in a published opinion last week, last month or last year.” Moreover, not knowing what your panel previously decided “is also embarrassing, both for you and for us.”
Tip 3. Know thy Circuit. Sadly, Judge Michael has to remind us his court is “bound by published decisions of the United States Court of Appeals for the Tenth Circuit,” even though he “ know[s] this sounds obvious,” because “on more than one occasion, [he] had an attorney ask [him] to follow a decision from another circuit which is directly contrary to controlling Tenth Circuit authority.” Avoid “creative” arguments to use sister circuit cases when your circuit really has decided the issue.
Tip 4. Know the Facts of the Cases You Cite. When teaching first-year students, I often caution them not to take quotes from cases either out of context or without context. Judge Michael’s Tip 4 says we must resist the temptation to insert what seem to be “magic words” of these unconnected quotes into our briefs. According to the judge, “insert[ing] that quotation ([he] call[s] them “sound bites”) into your brief and say[ing], “see, judge, other courts agree with me so I must be right” is actually “a dangerous practice.” Why? Because courts “decide real disputes” and “[r]eal disputes are fact driven.” Thus, we must “[b]e wary of the case which is factually dissimilar to yours, but has a great sound bite.” Instead, we should “be sure” to explain “why the factually dissimilar case is applicable to your situation.”
In another point I often raise with first-year students, the judge reminds us to “be cognizant of the difference between the holding of a case and the dicta contained therein,” as “[m]ost judges (this one included) find little value in dicta unless we already agree with it.”
Tip 5. Shorter Is Better. When I was in appellate practice, my clients often asked me to ghost write “record-protecting” trial briefs or include weaker issues on appeal to preserve them for high court review. Deciding which issues might prevail one day and which you should exclude because they are weak is a truly lawyerly task. In each case, you will balance the needs of the client—especially an institutional client—to raise issues against the persuasive value of focusing on just the best arguments. Judge Michael suggests we balance on the side of fewer arguments. He states: “Thurgood Marshall once said that in all his years on the Supreme Court, every case came down to a single issue. If that is true, why do most briefs contain arguments covering virtually every conceivable issue (good, bad or indifferent) which could arise in the case”?
The judge explains, “[w]eak arguments detract from the entire presentation.” He offers this great advice: “If you feel compelled in a particular case to include everything including the kitchen sink, maybe you ought to take another look at settling the case.” Good advice, indeed.
Sunday, July 9, 2023
Admittedly, I was at a loss today about what topic to write about on this blog. But then I thought about the debate that I had with Robert Peck and Phillip Seaver-Hall regarding originalism. That debate was an example of how to engage in civil and respectful discourse.
1. We did not attack each other; we attacked each other’s ideas.
Not once did Robert, Phillip, or I attack each other. Rather, we challenged each other’s ideas and arguments, including regarding the cases upon which we relied to support different interpretive methods. Indeed, to promote a diverse and reasoned public discourse, you must separate the person from the argument, and the individual from the ideas. Otherwise, you cannot have a constructive debate and the marketplace of ideas becomes a fading memory rather than an enduring value.
2. You can disagree and still be professional and respectful.
At all times, the language that Robert, Phillip, and I used in presenting our arguments was respectful and professional. We did not use over-the-top language or strong adjectives to denigrate or demean each other’s position or person. Simply put, you can disagree with someone and still be friends. You can disagree and still value each other as professionals and people.
If anyone doubts that, talk to a couple that has been married for fifty years. Or remember that Justices Scalia and Ginsburg had a close and enduring friendship for years. And for good reason. Human beings are much more than their views on, among other things, constitutional interpretation, their vote for a presidential candidate, or their views on abortion. As Justice Scalia said when discussing his close friendship with Justice Ginsburg, “some very good people can have some very bad ideas.”
3. We showed humility.
The debate was respectful and polite. And it was not about trying to force our views upon the readers, but about making an argument and letting the readers form their own conclusions. Robert said it perfectly: “Readers now can reach their own conclusions, perhaps prompted to a perspective based on what we have said.” I suspect that some readers will agree with Robert and Phillip, and some will agree with me. That is a good thing.
Humility means, among other things, that you do not always believe that you are right. It means that you do not dismiss alternative perspectives. Rather, you listen to and learn from your opponents’ perspectives – and have the courage to admit when you are wrong. When people insist that they are right, something is usually very, very wrong.
Put differently, being an originalist does not make you a bad person; it does not mean that you support discrimination or inequality or are striving to advance a conservative agenda. Likewise, being a living constitutionalist (or embracing any alternative theory) does not make you a bad person either; it does not mean that you are relying solely on subjective values to advance a liberal agenda. Human beings are far more complex. Their ideas are far more nuanced. They come from different environments and thus have different worldviews. Respecting, rather than vilifying, those views is essential to a properly functioning democracy.
In academia today, this is often glaringly absent, and it is a shame. If diversity and inclusion mean anything, they mean welcoming and respecting different perspectives and allowing students to form their own conclusions rather than indoctrinating them into a particular worldview.
Ultimately, when asked how he dealt with colleagues with different ideas on constitutional interpretation, Justice Scalia replied, “if you can’t separate the two [the ideas from the person], you [have to] get another day job.”
The same is true for law students, lawyers, professors, and, for that matter, everyone.
Friday, June 30, 2023
Recently, I asked ChatGPT to write some poems about hallucinations. Why? In part, because it’s summer and I think watching ChatGPT create poems is fun. I also asked because I’ve been thinking about how to cover generative AI with my first-year students in the fall.
First, the fun. Here’s one poem ChatGPT wrote:
In realms where minds dance on fragile strings, Where perception waltzes and reality sings, There lie the realms of wild hallucinations, A kaleidoscope of bewildering sensations.
In the tapestry of swirling dreams, Illusions bloom, unraveling seams, Colors ignite, in vivid display, As sanity fades, in a twilight ballet.
Whispers of shadows tease the mind, Whimsical echoes, elusive to find, Figments morph and take their form, An enigmatic symphony, a tempestuous storm.
Phantoms parade through the labyrinth of thoughts, Phosphorescent specters, tangled in knots, They twirl and they twist, surreal and sublime, Guiding the lost to a place out of time.
Walls dissolve, unveiling hidden dimensions, Mirrored reflections, fragmented inventions, A fragile balance, fragile as glass, Where illusions and truths become enmeshed.
The boundaries blur, in a psychedelic trance, Reality's grip begins to wane and advance, Visions arise, transcending the known, A voyage into realms where reason is thrown.
Whispers turn to laughter, laughter to screams, In this realm, nothing is as it seems, A carnival of apparitions, a fevered reverie, An exploration of the mind's symphony.
But as the moon yields to the sun's gentle touch, The hallucinations fade, leaving little as such, A fading memory, a fleeting sensation, Lost in the haze of our imagination.
Yet, in the realms where hallucinations reside, A glimpse of the extraordinary may yet preside, Where the mind's kaleidoscope paints its own art, Unveiling mysteries, a journey to embark.
So let us wander, embrace the unknown, Where hallucinations thrive and fantasies are sown, For within these realms, as illusions unfold, The depths of our imagination are truly untold.
Hopefully, you enjoyed the poem as much as I did. But on a serious note, we know counsel who use ChatGPT run many risks, as the current free version of the generative AI program will “hallucinate” cases and statutes. Several of my fellow bloggers have posted great notes on the ethical pitfalls of using current free generative AI without checking its sources. Of course, we always had ethical obligations to check the work of our human staff, and of any brief-writing features we used from Lexis or Westlaw. Perhaps ChatGPT is so fun, easy, and free, that we’re more likely to rely on it without questioning its work. In any event, several courts have now issued standing orders reminding us of our ethical obligations.
For example, Judge Brantley Starr of the Northern District of Texas issued a standing order titled “Mandatory Certification Regarding Generative Artificial Intelligence” for “[a]ll attorneys and pro se litigants appearing before the Court.” https://www.txnd.uscourts.gov/judge/judge-brantley-starr; see also https://www.cbsnews.com/news/texas-judge-bans-chatgpt-court-filing/.
Judge Starr ordered that parties must, “together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.” Mandatory Cert. Order. The judge explained: “These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them.” Id. According to Judge Starr, these programs “in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations.” Id.
Judge Starr also exposed a more existential problem with these current generative AI programs, reasoning they are “[u]nbound by any sense of duty, honor, or justice,” and “act according to computer code rather than conviction, based on programming rather than principle.” Id. I plan to emphasize this point with my students, in hopes they will see a broader goal behind our rules on plagiarism and limits on generative AI.
I might also show my students what ChatGPT said when I asked it to write a poem about ChatGPT hallucinations in law:
In the realm of legal filings, precise and stern, Where facts and truth should always discern, There dwells a specter, an unwelcome guest, ChatGPT's hallucinations put to the test.
Within the code and circuits, a mind simulated, Words flow freely, but often miscalculated, In the realm of law, where clarity is key, ChatGPT's hallucinations become a liability.
For in the realm of justice, truth must prevail, But illusions dance, weaving a murky veil, False narratives concocted in the machine's mind, Threatening the integrity that we must find.
Legal filings, a battleground of truth's fight, Yet ChatGPT's hallucinations cast a blight, Misinterpretations, misconceptions arise, Distorting the facts before our very eyes.
Subtle nuances lost in a tangled web, As ChatGPT's hallucinations spread and ebb, Precision diluted, arguments distorted, The foundation of justice, slowly thwarted.
Where once we sought justice, a balanced scale, Now we grapple with the machine's tall tale, For ChatGPT's hallucinations, though mere illusions, Can lead to consequences, grave inclusions.
Thus, caution must prevail when machines take part, Their hallucinations tearing at the fabric of art, For in the realm of legal filings, we must tread, With vigilance and wisdom, ensuring truth is spread.
So let us harness technology's immense power, Yet remain mindful in this transformative hour, To temper ChatGPT's imaginative train, And keep its hallucinations bound, restrained.
For in the world of law, where justice resides, Hallucinations in filings should not coincide, Let truth be the guide, unwavering and clear, So justice may prevail, untouched by fear.
June 30, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Web/Tech | Permalink | Comments (0)
Tuesday, June 20, 2023
Last week, Professor Lamparello argued on this blog that "originalism, although not perfect, is the best method of constitutional interpretation." I'm skeptical.
Admittedly, in the vacuum of political theory, originalism has a certain elegance and persuasive force. The Framers created a system of separated powers, originalists reason. Congress makes law; the judiciary merely interprets it. Any interpretive theory that permits unelected judges to change the meaning of a law is dangerous and anti-democratic. Thus, to curtail judicial legislation, originalists say that judges should endeavor to discover and preserve the meaning the Constitution's words bore at the time of ratification. After all, the law is the law, until lawfully changed under Article V.
I happily concede these points. (What serious constitutional lawyer would dare disagree with these basic principles of political science?) But they're not the whole story.
In this essay, I hope to show why a rigid, singular focus on original public meaning is a shortsighted way of interpreting many of the Constitution's provisions. In Part I, I discuss serious reasons to doubt the idea that the Framers actually believed in originalism as an interpretive theory. In Part II, I dissect Professor Lamparello's "ideal approach" to constitutional interpretation, highlighting its practical shortcomings and its lack of textual or historical support. And in Part III, I interrogate Professor Lamparello’s claim that originalism most effectively constrains judges.
I. Originalists bear the burden of proving that originalism was, in fact, the original intent of the Framers. But on that score, there is serious reason for doubt.
Originalism's focus on the Framers' intent raises a threshold question: did the Framers actually believe in originalism? Whether viewed through the lens of "New Originalism" (which eschews extratextual sources, focusing only on the original public meaning of the document's text) or "Traditional Originalism" (which focuses on the drafters' subjective intent), there are serious reasons to doubt that the Framers would have actually endorsed the theory.
A. The Constitution's text, structure, and purpose all cast doubt on the idea that the Framers would have preferred originalist judges.
In interpreting the Constitution, we must start with its text. To be sure, the text is frequently clear and free from ambiguity--nobody could seriously argue, for example, that Article I allows a state to elect three senators--and when the text is clear, the inquiry ceases. But the text also contains many provisions with broad, normative language. Take, for example, the Constitution's guarantee of "equal protection of the laws," its prohibition of "cruel and unusual punishments," or its clause forbidding "unreasonable searches and seizures." It's no coincidence that many of these nebulous, normative words are found within the Constitution's substantive guarantees.
Why would the Framers purposefully choose such ambiguous, value-based language? First, it was politically savvy, since it provided a way to quell the local concerns that presumably would have arisen during the states' ratification debates. But more importantly, the Framers wanted their document to have staying power. This is expressly confirmed by the Constitution's Preamble--which, originalists should agree, is a proper source of clarification in the face of textual ambiguity--where it states that one of the Constitution's core purposes is "to secure the Blessings of Liberty to ourselves and our Posterity."
Let's pause here to nip a possible misapprehension in the bud. Readers may presume I'm arguing for a Constitution whose fundamental meaning changes over time. Not so. The meaning of the Constitution's words doesn't change; I do not argue, for example, that "equal protection" should be redefined to sanction unequal insecurity. But, as mentioned, the Constitution frequently uses ambiguous, normative language. While the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow. That's a key difference.
Consider, for example, the Fourteenth Amendment's Equal Protection Clause. Few historians would argue that the Equal Protection Clause was intended to apply to women; conventional wisdom holds that the Reconstruction Amendments were principally aimed at combating racial prejudice against Black citizens. Indeed, in 1868, no state had an operative women's suffrage law, and coverture still held a grip on American gender relations. And yet, the Amendment's words are plain: no State may "deny to any person within its jurisdiction the equal protection of the laws." While women might not have been considered "persons" deserving of "equal protection" in 1868, our attitudes and prejudices on that front have changed. For that reason, the Supreme Court correctly held in Reed v. Reed that the Equal Protection Clause applies to women. Critically, the meaning of the Equal Protection Clause didn't change; the Court did not hold, for example, that the Clause no longer applied to Black citizens. Our understanding of what the Equal Protection Clause tells us to look for, however, evolved.
Would an originalist, focused solely on the ratifying generation's understanding of the Fourteenth Amendment's text, reach the Reed Court's conclusion? I have my doubts.
Eighth Amendment jurisprudence provides a contrary example—one where the Court has wrongly changed the standard. The Eighth Amendment forbids "cruel and unusual punishments." But one cannot determine what is "cruel" without engaging in a normative, moral analysis. For this reason, the U.S. Supreme Court has correctly concluded that a punishment is unconstitutionally cruel if it is considered cruel in light of the "evolving standards of decency that mark the progress of a maturing society." But, critically, the Court has also held—wrongly, I contend—that the Eighth Amendment does not draw any meaning from “the standards that prevailed . . . when the Bill of Rights was adopted[.]”
The more proper reading of the Cruel and Unusual Punishments Clause would hold that it prohibits both (1) punishments that would have been considered cruel and unusual in the founding era and (2) punishments that are cruel and unusual under our maturing society’s evolving standards of decency. Had the Court not discarded history, this "evolving standards of decency" test wouldn’t have changed the meaning of the phrase "cruel and unusual" at all; it would have given full effect to the phrase by recognizing that it’s both descriptive and normative.
Undeniably, originalists make many good points. But too often, by refusing to look past the "original public meaning" of a constitutional provision, originalists unduly constrict (and therefore change) the Constitution's normative language. In doing so, originalists commit the same sin they swear to disavow.
B. The historical record, too, casts doubt on the idea that the Framers would have approved of originalism.
Originalists insist that New Originalism was actually the authoritative American method of legal interpretation until the mid-twentieth century, when Chief Justice Earl Warren took the bench. But here again, history renders that claim dubious.
Take, for example, William Blackstone, who most scholars consider the authoritative expositor of the common law. Justice Scalia has famously called Blackstone a "thoroughgoing originalist." Yet, in his Commentaries on the Law of England, Blackstone said that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law." Blackstone also said that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it." That's hardly the stuff of modern-day originalism.
Consider, also, Chief Justice Marshall. In Cohens v. Virginia, Marshall asked rhetorically whether "the spirit of the constitution" would justify Virginia's exempting itself from the federal constitution. And in McCulloch v. Maryland, Marshall said that "all means which are . . . not prohibited, but consistent with the letter and spirit of the constitution, are constitutional." Admittedly, Marshall also argued--as I do--that although "the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words." But the fact remains: Marshall was far from the rigid originalist many claim.
Thomas Jefferson provides another example. Concededly, Jefferson was in Paris during the summer of 1787, so his views on the Constitution cannot be considered controlling. But, as a leading figure of the founding generation, and James Madison's friend and mentor, his insight into the Constitution is undeniably relevant. Jefferson wrote this to Samuel Kercheval in 1816:
Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
All this is not to say that contrary evidence tending to support originalism can't be found. It certainly can. But that's precisely the point: the historical record from the Founding generation is hardly as one-sided as originalists claim.
II. Professor Lamparello's "ideal" conception of originalism requires revising the constitutional text he claims to venerate.
Most of Professor Lamparello's essay presents garden-variety originalist arguments. But one downright surprising argument comes near the end, where he says that whenever a law is challenged under a constitutional provision reasonably susceptible of two or more interpretations--for example, the "cruel and unusual punishments" clause--"the ideal approach would be for the Court to defer to the coordinate branches" and uphold the law's constitutionality.
That argument reflects a shockingly limited perception of the proper role of the judiciary--one that's entirely atextual. The drafters easily could have written, for example, that "no act of Congress may be struck down as violative of the provisions of this Constitution, unless the act's unconstitutionality be clear and free from doubt." But, as Hamilton pointed out in The Federalist No. 78, the drafters said no such thing:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.
For someone so concerned about judicial legislation, it is certainly odd for Professor Lamparello to invent constitutional rules out of thin air. And for someone so focused on the original public meaning of the Constitution, it is equally odd to advocate for an interpretive theory that faces such directly countervailing historical evidence.
Professor Lamparello's theory is also impractical and ahistorical. James Madison, the Father of the Constitution, pitched the Bill of Rights as a document that would make judges "guardians" of individual rights, just like Hamilton did in the passage excerpted above. But if judges could only strike down a law when no reasonable person could defend the law's constitutionality, then how could the judiciary effectively guard citizens' rights in the ordinary case? After all, in what case can't one think of reasonable, good-faith arguments on both sides of a constitutional issue? If the Framers actually intended the judiciary to defer to the political branches whenever presented with two plausible, competing arguments, then why include these constitutional prescriptions in the first place? Wouldn't it be easier to simply say nothing and let the states legislate as they see fit?
III. Originalism, while theoretically attractive, does a poor job of constraining judges.
Originalism hails itself as the best way to constrain judges. Critics have long questioned that claim, too.
To see why, consider District of Columbia v. Heller. In Heller, both the majority and dissenting opinions cited historical evidence supporting their constitutional interpretation of the Second Amendment. Fourth Circuit Judge J. Harvie Wilkinson III has argued that, given the murky historical record in Heller, the Court should have stayed its hand and declined to strike down the District of Columbia's handgun prohibition. And as Judge Posner has noted, Judge Wilkinson's argument finds support from an unlikely source: Justice Scalia's treatise on legal interpretation. In the Foreword of Justice Scalia's treatise, Judge Easterbrook says this:
Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably. . . . [When that happens, the courts should] declare that meaning has been lost, so that the living political community must choose.
This is a version of the judicial-restraint principle for which Professor Lamparello, Justice Scalia, and other originalists advocate. In Heller, Justice Scalia's reading of the Second Amendment's history was likely erroneous. But even if the history is mixed, that should have led Justice Scalia to conclude that the relevant meaning had been "lost to the passage of time" and to entrust the answer to the living political community. The "living political community" in Heller was the District of Columbia legislature. But, far from exercising the democratic "deference" Professor Lamparello advocates, the Court struck down the District of Columbia's gun-ownership prohibition.
And historical questions plagued more than just the Heller majority's holding. In a dictum, the Court explained the contours of the right it recognized:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
As Professor Reva Siegel has persuasively argued, there is little historical evidence supporting this passage, and it actually contradicts the Second Amendment's textually enunciated purposes. "In these passages," Professor Siegel concludes, "Justice Scalia seems to apply something other than an original 'public understanding' analysis."
United States v. Eichman provides another example of how originalism fails to constrain judges. In Eichman, Justice Scalia voted to strike down a federal statute outlawing the burning of the American flag. To Scalia's credit, it was a vote against his political predilections. But it was certainly an odd ruling for an originalist. The governing constitutional provision--"Congress shall make no law . . . abridging the freedom of speech"--says nothing about non-verbal forms of protest. And the eighteenth-century conception of the speech right was much narrower than our modern understanding. According to Blackstone, at common law, freedom of speech only forbade prior restraints on speech; it did not prohibit after-the-fact punishment of speech determined to be blasphemous, obscene, or seditious. Thus, a First Amendment that bans prohibitions on flag burning is decidedly unoriginalist.
Apparently anticipating the objection raised in this Part, Professor Lamparello preemptively defends his position by arguing that "in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences. However, that reflects bad judging, not problems with originalism per se." Is the truth so conveniently simple? Can we really shrug off as "bad judging" the remarkable methodological elasticity of originalism's leading champion? Or is it possible that the problem lies deeper below the surface?
* * *
To be sure, no theory of constitutional interpretation is perfect. But the manifold problems with originalism--too many to detail exhaustively in this short essay—lead me to question whether, as Professor Lamparello insists, originalism is the best we can do.
 See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008).
 See U.S. Const. art. I, § 3, cl. 1.
 U.S. Const. amend. XIV, § 1.
 U.S. Const. amend. VIII.
 U.S. Const. amend. IV.
 See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217 (1st ed. 2012) (hereinafter “Scalia & Garner, Reading Law) (approving of interpretive canon providing that “[a] preamble . . . is a permissible indicator of meaning”).
 U.S. Const. pmbl. (emphasis added).
 See also Furman v. Ga., 408 U.S. 238, 382 (1972) (reasoning that “[t]he standard itself remains the same, but its applicability must change as the basic mores of society change”).
 See, e.g., Slaughter-House Cases, 83 U.S. 36, 81 (1873).
 Women’s Suffrage in the U.S. by State, https://tag.rutgers.edu/wp-content/uploads/2014/05/suffrage-by-state.pdf (last visited June 20, 2023).
 Encyclopedia Britannica, Coverture, https://www.britannica.com/topic/coverture (noting that “[c]overture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s”).
 404 U.S. 71 (1971).
 U.S. Const. amend. VIII.
 Kennedy v. La., 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382).
 Trop v. Dulles, 356 U.S. 86, 101 (1958).
 Atkins v. Va., 536 U.S. 304, 311 (2002).
 Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism (hereinafter “Posner, Incoherence”).
 19 U.S. 264 (1821).
 Id. at 383.
 17 U.S. 316 (1819).
 Id. at 421 (emphasis added).
 Sturges v. Crowninshield, 17 U.S. 122, 202 (1819).
 The Federalist No. 78 (Alexander Hamilton).
 The Bill of Rights: Its History & Significance, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html (last visited June 20, 2023).
 554 U.S. 570 (2008).
 Posner, Incoherence.
 Scalia & Garner, Reading Law at xxv.
 Posner, Incoherence (noting that “most professional historians reject the historical analysis in Scalia’s opinion”).
 Scalia & Garner, Reading Law at xxv.
 Heller, 554 U.S. at 626-27.
 See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).
 Id. at 200.
 496 U.S. 310 (1990).
 Id. at 312.
 U.S. Const. amend. I.
 Posner, Incoherence.
June 20, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Religion, Rhetoric, United States Supreme Court | Permalink | Comments (0)
Sunday, June 11, 2023
Justice Elena Kagan once stated, when referring to the justices on the Court, that “we are all originalists.” She is right. Originalism, which has many variations, is the predominant interpretive theory in American constitutional law – and for good reason.
Below are a few reasons why originalism, although not perfect, is the best method of constitutional interpretation.
1. Originalism focuses on process, not outcomes.
Originalism, when properly applied, ensures the integrity of the judicial decision-making process, and eschews a focus on whether the outcome of a decision is politically or personally desirable. This is not to say, of course, that judges should never consider outcomes, or the consequences of their rulings when deciding a case (and when the text reasonably supports such outcomes). It is to say, however, that judges should not base decisions on whether the outcome is consistent with their subjective values or policy predilections. As Justice Neil Gorsuch stated:
Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences.
Furthermore, as Justice Gorsuch noted, even if “originalism does lead to a result you happen to dislike in this or that case,” that should not matter because “[t]he “judicial Power” of Article III of the Constitution isn’t a promise of all good things.”
2. Originalism leads to conservative and liberal results because the focus is primarily on the legitimacy of the decision-making process, not on reaching outcomes that reflect the justices’ subjective values.
When originalism is properly applied, it leads to conservative and liberal results because the justices are focused on interpreting the text, not reaching outcomes that comport with their policy preferences. As Justice Gorsuch explained:
In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.
Justice Gorsuch is exactly right. In Texas v. Johnson, for example, the Court, with Justice Scalia in the majority, held that the First Amendment protected the right to burn the American flag. In Employment Division v. Smith, Justice Scalia held that generally applicable laws that only incidentally affect religious practices did not violate the Free Exercise Clause. In Bostock v. Clayton County, Justice Gorsuch, an originalist, held that Title VII protects gay and transgendered employees from discrimination.
And Justice Scalia's Fourth Amendment and Confrontation Clause jurisprudence shows that originalists reach outcomes that most living constitutionalists -- and liberals -- would support. Thus, originalism cannot be categorized as simply a tool for a conservative majority to implement a political agenda.
3. Originalism focuses on the Constitution’s words and what the Founders understood those words to mean, not on vague formulations about a provision’s underlying purposes.
When interpreting a constitutional provision, originalists focus on the words – and what the Founders understood those words to mean – not the purposes of a constitutional provision. And for good reason.
Determining the intent or purpose of a constitutional provision can be difficult, and even where it is ascertainable, it may not guide judges to an outcome that reflects a reasonable interpretation of the text. After all, a constitutional provision can have more than one purpose. How is a judge to quantify these purposes and decide which purpose should have priority over another? And at what level of generality – or specificity – do you define that purpose? Moreover, how should an alleged purpose be applied in a specific case, and given how broadly a purpose can be interpreted, how can it be applied without involving a judge’s subjective values? Put differently, a focus on a provision’s underlying purposes can unmoor judges from the Constitution’s text and, as Justice Scalia emphasized, leave them “at sea” where nothing but their personal values guide the way. That is a prescription for judging of the most politicized and untenable kind.
Lest there be any doubt, recall the “sweet mystery of life” passage where the majority in Planned Parenthood v. Casey stated, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That passage is precisely what living constitutionalism, which states that the Constitution’s meaning changes over time, produces: a lot of nothing – except maybe those invisible penumbras that the Court, in Griswold v. Connecticut, invented out of thin air, and from which it created unenumerated constitutional rights.
4. Originalism constrains judges and promotes democratic governance.
Courts should protect vigorously the express and implied rights enunciated in the Constitution. For example, the Sixth Amendment right to counsel can certainly be interpreted to include the right to effective assistance of counsel. But courts should not invent rights out of thin air that have no grounding in a reasonable interpretation of the text and that remove important social and political issues from the democratic process. Originalism is the best way to prevent this type of judicial overreach.
Think about it: where in the Constitution is there a right to abortion? Where in the Constitution does it say that a state cannot authorize the death penalty for child rape? Where in the Fourteenth Amendment’s Due Process Clause, which protects citizens from being deprived of life, liberty, or property without due process of law, is there a substantive right to privacy (or any substantive rights whatsoever)? Where in the Constitution does it say that a person under the age of eighteen cannot be sentenced to death for murder or sentenced to life imprisonment? Where in the Constitution does it say that, when you provide personal information to third parties, you surrender all privacy rights in that information? Where in the Constitution does it say that you do not have a right to assisted suicide, or suicide generally? And what about the right to polygamy? Can that be found somewhere in the Constitution?
And where are the rights that the Court recognized in Griswold and in Roe located in the Constitution?
That’s why when the Court answers these questions, it is acting arbitrarily and basing its decisions on little more than the justices’ subjective values. Why, though, do the justices’ values or policy preferences matter more than every American citizen? And why should nine unelected and life-tenured justices be inventing rights for an entire nation? As Justice Scalia argued, “[i]f the constitution is not an ordinary law but rather this empty bottle into which each generation is going to pour the liquid that it desires, why should the bottle be filled by nine unelected judges?” After all, when deciding whether a punishment is “cruel and unusual,” why should citizens trust nine unelected justices to determine what punishments are consistent with “evolving standards of decency that mark the progress of a maturing society?” And what does that even mean?
When judges have this kind of power, democracy is truly in danger. Of course, many will agree with the outcomes that the Court reached in these and other cases. But that is not the point. What should trouble citizens of every political persuasion is that the process by which these outcomes were reached had nothing to do with the Constitution. Instead, they originated from those invisible “penumbras” that Griswold invented and that any legitimate constitutional would find illegitimate. That, in a nutshell, is the problem with living constitutionalism. It allows judges to do whatever they want for whatever reason they want.
To be sure, decisions such as Roe, Kennedy, and Roper did not result from a principled interpretation of the Constitution. They happened because, at the time, the political affiliations of the justices were more liberal than conservative. And while many celebrated those decisions, they failed to consider that what the Court gives, it can take away whenever it wants. Indeed, the moment that you embrace living constitutionalism as a basis to create unenumerated rights, those rights are contingent on the whims of the justices and the justices’ respective political affiliations at a given moment in time. Lest there be any doubt, look no further than Dobbs v. Jackson Women’s Health, where the Court overturned Roe and other precedents, suddenly discovering that the Constitution does not protect a right to abortion. The only reason the Court overturned Roe was because there were more conservative justices on the Court. It was not because the Court suddenly gained new insight into constitutional meaning. Rather, it demonstrated that the foundation for constitutional rights is more political than principled.
This reduces constitutional meaning to little more than what the justices think it means – based on their political affiliations and subjective values – and with no regard to what you think it should mean. It is difficult to imagine fundamental rights with a more flimsy and arbitrary foundation. Simply put, the creation of unenumerated rights should occur through the legislature, not the courts, and the people, not nine unelected and life-tenured justices, should identify the unenumerated rights to which all citizens in a particular state are entitled.
5. When judges have unchecked power or rely on their subjective values to reach decisions, it often leads to unjust outcomes.
Living constitutionalism, which states that the meaning of the Constitution changes over time, can lead to terribly unjust outcomes. As Justice Gorsuch states:
Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day. A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws. A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories. In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution.
Indeed, “as Korematsu and Dred Scott illustrate, the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.” The Court’s decision in Dobbs is a testament to this fact.
Furthermore, consider that those who support living constitutionalism so conveniently happen – in nearly every case – to be liberal. Why is that? Because they want the Court to reach outcomes that they believe are morally correct, and they want to politicize and use the Court to make policies that properly belong to the legislative process. To be sure, when was the last time that you encountered a liberal professor who was an originalist?
6. Originalism is best suited to deal with constitutional ambiguity.
A significant problem when interpreting the Constitution is the fact that some provisions in the Bill of Rights contained broad language that is subject to reasonably different interpretations. For example, the Eight Amendment prohibits “cruel and unusual” punishment, and the Fourth Amendment prevents law enforcement from conducting unreasonable searches and seizures.
In the face of this ambiguity, the ideal approach would be for the Court to defer to the coordinate branches when reasonable people could disagree regarding a law’s constitutionality. For example, in Clinton v. New York, the Constitution’s Presentment Clause did not clearly support the conclusion that the line-item veto was unconstitutional. Thus, why did the Court invalidate a law that was designed to reduce wasteful government spending? And in Citizens United v. FEC, the First Amendment’s text certainly did not answer the question of whether Congress’s law limiting independent expenditures was permissible. Thus, why did the Court, including several originalists, invalidate a law that sought to reduce undue influence in the political process? That’s a great question.
In short, the answer to ambiguity is not living constitutionalism. It is deference. And when the Court does decide cases where a provision is ambiguous, originalism is the best, although certainly not perfect, approach because, at the very least, originalists will attempt to discern what the Founders understood the words to mean rather than basing decisions on subjective values.
Originalism is not perfect, and in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences. However, that reflects bad judging, not problems with originalism per se. And in the final analysis, originalism, when applied faithfully, limits judicial power and respects constitutional constraints on that power.
Ultimately, as Justice Scalia stated, “[y]ou either adopt originalism or essentially you say to your judges, ‘Come govern us.’” Put differently, the Constitution does not give courts the authority to “change meaning from age to age to comport with whatever the zeitgeist thinks appropriate.” And when scholars base their opinion of the Court – or of interpretive methods – on whether they agree with a decision, they are politicizing the Court and contributing to the delegitimization of the judiciary.
 Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time
 491 U.S. 397 (1989)
 494 U.S. 872 (1990)
 590 U.S. , 140 S. Ct. 1731 (2020). Additionally, originalism can and does support invalidating bans on interracial and same-sex marriage.
 See Pete Williams, Scalia: Judges Should Interpret Words, Not Intent (Aug. 22, 2012), available at: Scalia: Judges should interpret words, not intent (nbcnews.com)
 U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009), available at:
 505 U.S. 833(1992).
 381 U.S. 479 (1965).
 See Roe v. Wade, 410 U.S. 113 (1973).
 See Kennedy v. Louisiana, 554 U.S. 407 (2008).
 See Griswold v. Connecticut, 381 U.S. 479 (1965); U.S. Const., Amend XIV.
 See Roper v. Simmons, 543 U.S. 551 (2005).
 Smith v. Maryland, 442 U.S. 735 (1979).
 Washington v. Glucksberg, 521 U.S. 702 (1997).
 Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com
 Trop v. Dulles, 356 U.S. 86 (1958)
 This is not to say that the Court’s decisions in Griswold, Roe, and Roper did not reach good outcomes. The problem is that it took making bad constitutional law to reach those outcomes.
 597 U.S. , 2022 WL 2276808 (June 24, 2022).
 Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time
 Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time
 524 U.S. 417 (1998).
 558 U.S. 310 (2010).
 Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com
Sunday, May 28, 2023
The preliminary statement, or introduction, is among the most critical parts of a brief. Indeed, the preliminary statement affords you the opportunity to concisely and persuasively explain why you should win, and thus make an excellent first impression on the reader. Below are a few tips on how to draft a strong preliminary statement.
1. Begin with a strong opening sentence that captures the reader’s attention.
The first sentence in the opening paragraph of your preliminary statement should tell the court precisely and persuasively why you should win. Put differently, it should contain the theme of the case. Doing so will capture the court’s attention and focus the court’s attention immediately on the arguments that you believe support a ruling in your favor. Be sure, however, not to draft an opening sentence that contains over-the-top language and unnecessary adjectives, that is excessively long, or that contains excess or esoteric words. Keep it simple and to the point. Consider the following examples:
“The defendant subjectively believed that her life was in danger when she used lethal force, and the decision to use such force was objectively reasonable.”
“This case is about the defense of self-defense, and the defendant should be found by this court to have exercised the defense of self-defense in this case.
Of course, the first example is not perfect, but you get the point. The second sentence is an unmitigated disaster and will certainly not capture the judge’s attention (in a positive way) or begin your brief persuasively.
2. Tell the court what you want.
In the first paragraph of your preliminary statement, inform the court of the relief that you are seeking. For example, if you are opposing a summary judgment motion, say, “The defendant’s motion for summary judgment should be denied,” or if you are the plaintiff moving for leave to file an emergent appeal, say, “The plaintiff’s motion for leave to file an emergent appeal should be granted.” It sounds simple – and it is – but it's important to let the court know at the outset what relief you are seeking.
3. Tell the court why you should get what you want.
Explain to the court why you should get what you want. One strategy to ensure the effective organization and flow of your preliminary statement is to use the Rule of Two or the Rule of Three roadmap, in which you state concisely the two or three reasons that support ruling in your favor. Doing so gives the court an outline of the arguments to expect in the brief and allows you to explain why those arguments are meritorious. Consider the following examples:
“The plaintiff’s defamation claim should be dismissed because the allegedly defamatory statements: (1) were substantially true; (2) constituted protected opinion; and (3) did not cause the plaintiff’s alleged harm.”
“The plaintiff has alleged that the defendant defamed her, but that claim should be dismissed because, as discussed below, several defenses exist that prohibit the plaintiff from recovering damages in this matter.”
The problem with the second sentence is that it doesn’t say anything, and it gives the court no indication of the arguments that you intend to rely on to support your position.
Importantly, each paragraph that follows should be dedicated to explaining separately why each of the two or three reasons supports your position.
4. Be concise.
Always be concise and get to the point, using simple language and, as a general matter, never exceeding three pages. As such, avoid, among other things, Latin, legalese, fancy “SAT” words, long sentences, adverbs, adjectives, over-the-top language, and unnecessary repetition. Using such language suggests that you are trying to artificially persuade the court and do not believe in the strength of your arguments. Consider the following examples:
“On December 1, 2022, a blizzard struck Hasbrouck Heights, New Jersey, a town of 15,000 residents, with accumulations of approximately twenty-two inches of snow. The defendant, Mike Smith, owned Mike’s Grocery Store, a popular destination for many Hasbrouck Heights residents. In the aftermath of the blizzard, and for approximately five days, Mike remained open but did not make any effort to clear the snow and ice that had accumulated in the parking lot and walkway. As a result, on December 3, 2022, as Barbara Johnson, an elderly woman and a frequent patron, was walking to the front door, she fell, suffering severe injuries, including a concussion and broken shoulder. Barbara’s injuries were the direct and proximate result of Mike’s negligent conduct and entitle Barbara to damages.”
“As discussed in more detail infra, on December 1, 2022, a shocking event occurred in Hasbrouck Heights, New Jersey that no one could have ever predicted or imagined. Almost two feet of snow fell and the deleterious effects on the town’s vulnerable residents were incalculable and incomprehensible. However, despite the undeniable dangers that the storm engendered, Barbara Johnson, an elderly and mercurial woman, make the fateful decision to risk her life by venturing to Mike's Grocery Store, where the parking lot was covered in snow and the deleterious conditions unquestionably apparent. Not surprisingly, Barbara fell while endeavoring to enter the store and suffered injuries that any reasonable person would have foreseen. As such, and as described infra, Barbara’s injuries are ipso facto the result of her negligence and the complaint should be dismissed.
Again, the first example is not perfect, but the point should be obvious. The second example is about as bad as it gets.
5. In most instances, do not cite cases in the preliminary statement.
Some may disagree with this point, but in my view, the preliminary statement should provide a concise and compelling overview (and roadmap) of your arguments, including the facts that support granting the relief you seek. Citing cases can disrupt the flow and is arguably unnecessary because the legal argument section is where you will rely on case law to expand upon and further support your position.
*For an additional and helpful discussion of the preliminary statement, see Jayne T. Woods' excellent post, dated May 9, 2023, titled "Should I include a stand-alone "introduction" section in my brief?"
Sunday, April 30, 2023
Recently, several of my undergraduate students who are attending law school next semester expressed anxiety and uncertainty about the first year. Certainly, these feelings are normal and shared by many incoming first-year law students. But this need not be the case. Below is the advice that I gave to my students as they prepare to enter law school.
1. Don’t focus on succeeding in class; focus on succeeding on the exam.
In law schools, many professors use the Socratic Method, in which they question law students regarding, for example, the facts, holdings, and reasoning of particular cases. Many incoming law students fear the Socratic Method, worrying that they will embarrass themselves in front of the class. As such, these students often spend hours preparing for class and briefing cases.
That is the wrong approach.
At the overwhelmingly majority of law schools, your performance in class means absolutely nothing. Quite frankly, none of your fellow students care about how you perform in class. They are just relieved that they weren’t the one that the professor called on. Furthermore, don’t be impressed by the “gunners,” namely, those who talk excessively in class or ask what may appear to be incisive questions. They usually do not get the best grades – or even good grades. And your grades and class ranking, not your performance in class, are, by far, the most important factor in determining your job prospects upon graduation.
This doesn’t mean, of course, that you shouldn’t be prepared for class. But you should be aiming for a merely average, not an exceptional performance because your time should be dedicated to far more important matters.
Specifically, from day one, you should be focused on preparing for the final examination, which in most law school’s doctrinal courses determines your final grade.
How do you do that?
First, learn how to take a law school exam. To do so, purchase the Legal Essay and Essay Writing primer, which is available at www.leews.com. This program will teach you how to draft an effectively organized and persuasively presented answer. It will teach you CRAC or, as some professors prefer, IRAC, which will ensure that your answer is structured properly.
Second, take practice exams – under timed conditions. Doing so will simulate what you will face when taking the final exam and, ultimately, maximize your chance of obtaining a high grade. Additionally, review model answers to those exams, including those written and graded by your professor, to learn what constitutes an outstanding answer.
Third, don’t brief cases. Instead, purchase commercial outlines and other instructional materials, such as Emmanuel’s Law School Outlines and Joseph Glannon’s Civil Procedure coursebook. Why? Because you need to identify the relevant rules of law that govern the resolution of particular legal disputes, and because you need to know how to apply those rules to the novel fact pattern that a final examination will present. In other words, the facts of the cases you read during the semester are ultimately irrelevant. Thus, briefing those cases is an unnecessary waste of time.
Fourth, draft an outline that concisely summarizes the legal rules for each topic that you have studied. Do not draft a 120-page outline that summarizes the facts and holdings of every case. Rather, draft a twenty-page outline that contains only the relevant legal rules because those rules are what you will need to know for the final exam.
- Don’t worry about how you perform in class.
- Purchase the Legal Essay and Essay Writing primer.
- Take practice exams.
- Don’t brief cases.
- Purchase commercial outlines.
- Draft your own outlines.
Now, many law professors will tell you the opposite in law school. They may tell you, for example, not to purchase commercial outlines. Don’t fall for it. If you follow the approach outlined above, you will improve your critical thinking skills and maximize your chances of success in the first year.
2. Membership on Law Review (or at least a law journal) matters to employers.
At many law schools, law review membership is typically reserved for students who graduate in the top 10% of their class after the first year or who gain membership through other means, such as a writing competition.
To be sure, employers value law review membership because it signals to them that the applicant is a high-quality student. Thus, strive for membership on your law review or, at least, on a specialized journal at your law school.
3. Improve your writing and critical thinking skills.
Excellent writers and critical thinkers make excellent lawyers. From day one, focus on developing your persuasive writing skills and focus on gaining experience in drafting the most common litigation and transactional documents. Law firms and clients value immeasurably graduates who can write persuasively and whose analytical skills are second to none.
4. Develop relationships with your peers and professors.
Employers are not simply looking for quality law school graduates. They want to hire good people. No one likes a jerk, an unbearable narcissist, or someone who just can’t seem to shut up.
Put simply, your reputation is critical to your success.
As such, conduct yourself with class. Be honest. Be nice. Have integrity. Support your classmates. Listen more than you talk. Don’t gossip. Don’t base your self-esteem on what grade you received in Torts. And realize that there is so much more to life than the law.
Additionally, get to know your professors. Schedule an appointment with them during their office hours to introduce yourself, to receive feedback on an assignment, or to ask questions about the practice of law. Most importantly, if you need help, ask for it.
5. Develop a strong mindset.
In law school, there will be times when you will fail. There will be times when you fail to live up to your expectations. And there may be times when, as in life, you experience unfairness.
But that does not determine your destiny. Failure is a good thing because it enables you to learn lessons that will enhance your growth as a lawyer and as a person. Not meeting your expectations can teach you what you need to do differently in the future to achieve the result you desire. And unfairness can teach you the value of justice.
Indeed, your choices, not your circumstances, determine your destiny; how you respond to adversity is critical to whether you achieve failure or success. Put simply, how you think impacts what you believe and, ultimately, what you do.
So be sure to focus on both your professional and personal development in law school. Doing so will enable you to be successful -- and happy.
Saturday, April 1, 2023
Donald Trump has been indicted. Although this is not a surprising development, it is not a good day for the rule of law or for public confidence in our institutions.
To begin with, a grand jury indictment is not nearly as significant as some in the media would have you believe. As the saying goes, grand juries would indict a “ham sandwich” because the threshold for securing an indictment is not high, and the defense’s ability to test the prosecution’s case is limited. Furthermore, the investigation occurred in New York City, where liberals substantially outnumber conservatives, and where Trump is, to put it mildly, not admired. When you combine these factors with a district attorney – Alvin Bragg – who seems hellbent on indicting Trump (as evidenced by his public statements and legal theory) you have the perfect storm for an indictment that appears more political than principled.
Indeed, Bragg appears to care more about convicting Trump than addressing the approximately 22% increase in various crimes in New York City. As Harvard Law Professor Dershowitz, who did not vote for Trump, explains:
When a district attorney who ran as a Democrat and promised to “get” Donald Trump indicts the candidate running for president against the incumbent head of his party, he had better have a slam dunk case. Although we don't know exactly what the Manhattan grand jury indicted Trump for, it seems likely, based on what we know, that this is a very weak case which would never have been brought against anyone else.
Put simply, the case against Trump is not strong. In fact, if media reports are correct about the charge Trump is facing, it is incredibly weak. As George Washington law professor Jonathan Turley states, Bragg “is attempting to bootstrap [a] federal crime into a state case,” and “if that is the basis for the indictment … it’s illegally pathetic.” Likewise, former Whitewater deputy counsel Sol Wisenberg characterized the legal case against Trump as “preposterous.” Even some liberal commentators agree that the case against Trump is not strong. For example, Elie Mystal asserts that “the odds that the path to real justice, let alone prison time, runs through the Manhattan DA’s office still seem very, very long.”
Specifically (and again, if media reports are correct), the charge against Trump is falsifying business records, which requires, among other things, an intent to defraud. The legal theory, apparently, is that Trump falsified business records (characterizing them as legal expenses) when reimbursing Michael Cohen for paying Stormy Daniels $130,000 to conceal Daniels’ affair with Trump (to be clear, paying “hush money” to another is not, in itself, a crime). In New York, this is a misdemeanor, and it only becomes a felony “if it was in service of another crime,” which Bragg allegedly “posits is a [federal] campaign finance violation.”
Importantly, the Southern District of New York, which investigated this matter, declined to prosecute the case. Also, former Manhattan District Attorney Cy Vance, did not pursue an indictment. And for good reason. Why would a prosecutor try to convict a former president for a misdemeanor, particularly where the Southern District of New York declined to prosecute, the case is so weak, and where doing so would appear politically motivated?
None of these factors seem to matter to Bragg, a Democrat who in his campaign for Manhattan District Attorney promised to focus on investigating Trump, stating that it “merits the attention of the DA personally.” Apparently, Bragg is attempting to connect Trump’s alleged misdemeanor-level misconduct to a federal campaign finance violation, which is a felony, by alleging that the payments to Cohen constituted an illegal contribution to the Trump campaign.
Such a creative and novel legal approach suggests that Bragg is searching for some way, however untenable, to bring a felony charge against Trump. But it is unlikely to succeed. As Mark Pomerantz, a former district attorney, stated, Bragg will “have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.” In other words, the “intent to defraud” must include “an intent to commit another crime or to aid or conceal the commission thereof.” That alone will be difficult to prove, as Trump may argue that the payments were intended to prevent his wife Melania from discovering the affair, not to cover up another crime (an illegal campaign contribution).
Furthermore, if reports from the media are accurate, the primary witness for the prosecution will be Michael Cohen, a disbarred lawyer who pled guilty to, among other things, tax fraud, who served time in prison, and who has lied countless times, including before Congress. If you doubt this, listen to the statements by Robert Costello, who testified recently before the grand jury. Also, one must wonder how Trump can be prosecuted for a federal campaign violation in New York state court, why such a prosecution should be pursued when the Southern District of New York declined to do so, and where the optics of such a prosecution suggest a political motive.
Such creative lawyering (tying a state law misdemeanor to a federal felony), rather than being a legitimate purpose of the criminal justice system, suggests that the Bragg wants to weaponize the legal system to “get” Trump. As Dershowitz explains:
This is a case of targeting an individual and then rummaging through the statute books in search of a crime. Prosecutors seem to have come up with nothing under established law, then made up a misdemeanor and then piggybacked it on another alleged crime to create a felony. But one plus one does not equal 11, and zero plus zero equals zero. That is what we seem to have here.
Simply put, this is a weak case that appears as politically motivated as it gets. Indeed, it is quite concerning that, as Bragg has reduced 52% of felony charges in New York to misdemeanors, he now seeks to raise Trump’s alleged crime from a misdemeanor to a felony. Perhaps Bragg’s personal attention should be devoted elsewhere, particularly given the 22% rise in certain crimes in New York City.
Ultimately, no matter what you think of Trump, everyone should, hopefully, believe that the law should be applied in an equal and even-handed fashion. Think about it: if the defendant were anyone other than Donald Trump, would Bragg be pursuing this?
Of course not.
Well, maybe if it were Richard Nixon.
In essence, Bragg is going after the person (Trump), not the crime. That, in a nutshell, is the point – and the problem.
After all, let’s be honest about what is happening here.
Bragg probably despises Trump. Furthermore, when (and before) Donald Trump was elected in 2016 as an anti-establishment candidate, the mainstream media hated him. Indeed, the mainstream media, which has as much, if not less, credibility than Michael Cohen, did nearly everything in its power to discredit and, quite frankly, destroy Trump, as evidenced by, among other things, the now-debunked allegations of Russian collusion.
Additionally, the establishment, including individuals such as James Comey and Peter Strzok, hated him. Furthermore, universities, which are overwhelmingly liberal and who employ professors who believe that diversity of thought is more deleterious than the coronavirus, have almost uniformly condemned Trump and unapologetically rejected a free marketplace of ideas. If you doubt this, look at what happened to Fifth Circuit Judge Stuart Kyle Duncan at Stanford Law School, where students and Tirian Steinbach, the Associate Dean of Diversity, Equity, and Inclusion, shouted down Duncan for views that they did not share. Or observe the circus-like shenanigans of students at Yale Law School, where they ridiculed Kristen Waggoner, an attorney and Supreme Court litigator. The commitment to diversity, equity, and inclusion (and free speech) obviously exists only in the abstract at these schools.
The consequences that Trump’s prosecution will have to our institutions – and the rule of law – will be substantial. The legitimacy of our institutions depends in substantial part on the perception that our elected officials apply the law equally, fairly, and even-handedly, without regard to political affiliation or personal animus. If the rule of law is perceived as a political weapon (see, e.g., North Korea, Russia), the law itself will be reduced to nothing more than a tool for politicians to use against those who threaten their power. And there is no bigger threat to liberty and equality than a rule of law that is administered based on politics rather than principle, and opportunism rather than objectivity. The rule of law – and the American people – demand much more and should accept no less.
Put differently, people need to believe that you will never be prosecuted or targeted based on what you believe, what your political affiliation is, or who you are. It should be based on what you did, and whether those actions would result in a prosecution for most, if not all, individuals, regardless of status, who engaged in similar conduct. That is simply not the case here. If the defendant were Joe Biden rather than Donald Trump, there would be no prosecution.
It's no wonder why the American people have lost faith in our institutions, academics, and elected leaders. Years ago, individuals such as Walter Cronkite, Robert C. Maynard, and Peter Jennings exemplified the standards to which journalism – and our institutions – should aspire. Now, the American people are treated to the folks at CNN, Fox News, and MSNBC, few of whom can even remotely compare to the journalistic integrity that the former individuals embodied. Even a few seconds of listening to Bryan Stelter or Joy Reid, or Glenn Beck underscores this point.
Indeed, Bragg’s conduct – and the conduct of many political leaders, prosecutors, and pundits – leads to one ineluctable conclusion.
They are political actors.
Their goal is to advance a political agenda.
And they don’t even hide it anymore.
As Professor Dershowitz stated, “[w]hat matters greatly is that DA Alvin Bragg has weaponized the justice system to target a political opponent based on a nonexistent or, at best, an extremely weak crime.”
Unfortunately, this nonsense is not without precedent.
In 1998, the Republicans spent millions of taxpayer dollars to impeach Bill Clinton (in the House of Representatives) over a consensual affair (and alleged perjury and obstruction of justice) that, while not, to put it nicely, the best exercise of judgment, could not reasonably have been construed as a high crime and misdemeanor. And Ken Starr did everything in his power to degrade and humiliate Clinton with a report laden with salacious details that no sensible person would have included. Well, here we are again: a criminal indictment against a former president and leading candidate for the Republican Party’s nomination based on an affair with a porn star. Not to mention, the United States Supreme Court manufactured out of thin air a right to abortion in Roe v. Wade, and approximately fifty years later, overturned Roe for no other reason than that the political persuasions of the Court had changed.
What’s more, it is nearly impossible to have a civil conversation with those with whom you disagree or to debate issues with others in an atmosphere of civility and respect. Alvin Bragg’s decision makes this situation worse, not better and makes the country more divided, not united. Put simply, Trump’s indictment is an unsurprising, quite unoriginal, and obviously predictable continuation of this unfortunate chapter in American history.
Ultimately, almost anyone can respect the rule of law, promote diversity of thought, and remain committed to fairness when they are surrounded by people who agree with them. But true leaders – and people with character and integrity – have the courage to be fair to every citizen, particularly the ones that they despise, just like the First Amendment depends on tolerating speech that you find offensive.
That is what the rule of law – and a society dedicated to liberty, fairness, and equality – demands, and what every citizen deserves.
That includes Donald Trump.
 Toni Messina, Criminally Yours: Indicting a Ham Sandwich (Feb. 8, 2016), available at: Criminally Yours: Indicting A Ham Sandwich - Above the Law
 Of course, this is based on the media reports regarding the legal charges that Trump will face. The indictment may contain facts and charges that make the case stronger.
 Alan Dershowitz, Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution (March 31, 2023), available at: Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).
 Steven Nelson, Democrats Giddy at Trump Indictment, But Legal Experts Warn Case is Weak (March 30, 2023), available at: Democrats giddy at Trump indictment, but legal experts warn case is weak (nypost.com)
 See Elie Mystal, Donald Trump Has Been Indicted/ Don’t Get Your Hopes Up (March 30, 2023), available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation
 National Review, The Reckless Trump Indictment (March 31, 2023), available at: Reckless Donald Trump Indictment | National Review (emphasis added) (brackets added).
 See Mystal, supra note 6, available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation
 Jeremy Herb, Kara Scannell, and John Miller, Inside the Long and Winding Road to Trump’s Indictment (April 1, 2023), available at: Donald Trump: Inside the long and winding path to a historic indictment | CNN Politics
 See Kara Scannell, New Manhattan DA Alvin Bragg Pledges to Focus on Trump Investigations (Dec. 20, 2001), available at: Alvin Bragg: New Manhattan DA pledges to focus on Trump investigations | CNN Politics (emphasis added).
 Jose Pagliery, Manhattan DA Insiders Worry the Trump Hush Money Case is Weak Sauce (March 29, 2023), available at: Manhattan District Attorney Insiders Worry the Trump-Stormy Daniels Alvin Bragg Hush Money Case Is Weak Sauce (thedailybeast.com)
 Mark Joseph Stern, The Big Problem with the Trump Indictment (March 30, 2023), available at: Alvin Bragg’s indictment of Donald Trump is full of challenge and promise. (slate.com).
 See Laura Nahmias and Daniel Samuelsohn, Michael Cohen Sentenced to 3 Years in Prison (Dec. 12, 2018), available at: Michael Cohen sentenced to 3 years in prison - POLITICO
 See Bart Jansen and Kevin Johnson, Lawyer Assails Trump Grand Jury Witness as ‘Liar on Revenge Tour,’ (March 20, 2023), available at: Robert Costello undercuts Michael Cohen in Trump grand jury probe (usatoday.com)
 Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).
 See Melissa Klein, NYC Convictions Plummet, Downgraded Charges Surge Under DA Bragg (Nov. 26, 2022), available at: Convictions plummet, downgraded charges surge under Manhattan DA Bragg (nypost.com) (emphasis added).
 See Chelsia Rose Marcius and Eh Shanahan, Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell (January 5, 2023), available at: Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell - The New York Times (nytimes.com)
 See Tony Perkins, The Numbers that Prove How Much the Mainstream Media Hate Trump (Dec. 14, 2017), available at: The Numbers That Prove How Much the Mainstream Media Hate Trump (frc.org)
 See Philip Ewing, Mueller Report Finds No Evidence of Russian Collusion (March 24, 2019), available at: Mueller Report Finds No Evidence Of Russian Collusion : NPR
 See Bradley Evans, ADF General Counsel Harassed at Yale Law School Event (March 21, 2022), available at: ADF General Counsel Kristen Waggoner Harassed at Yale Law School Event | Alliance Defending Freedom (adflegal.org)
 Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).
Saturday, March 25, 2023
This semester, I am lucky enough to be teaching a seminar I designed on bias in legal analysis and writing. The class has been a delight, and I am impressed every week by my thoughtful and dedicated students.
In one of our sessions, I proposed using George Orwell’s writing rules, along with his broader concerns with “Doublespeak” and “Big Brother,” to add clarity and remove bias from writing. Several of my students have included these ideas in the class papers they are drafting, and I hope these tips help you draft as well.
In his pre-1984 essay, Politics and the English Language, Orwell proposed six rules on using English, and he repeated these in later works as well. Many commentators have discussed using the rules for clarity, but I believe we can also combat bias with these ideas.
Here are Orwell’s rules, as summarized by Judith Fischer in her article Why George Orwell’s Ideas About Language Still Matter for Lawyers, 68 Mont. L. Rev. 129, 135 (2007):
(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print.
(ii) Never use a long word where a short one will do.
(iii) If it is possible to cut a word out, always cut it out.
(iv) Never use the passive where you can use the active.
(v) Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
(vi) Break any of these rules sooner than say anything outright barbarous.
See also Austin Wayne Schiess, Writing a Brief the George Orwell Way, 14 App. Advoc. 6, 6-6 (2001).
How can we use these rules in appellate writing?
- Avoid Cliches. Fischer notes: “Think out of the box” and “avoid cliches like the plague.” 68 Mont. L. Rev. at 137. But seriously, some cliches are racist and many are unclear. Remove them from your writing as much as possible.
- Prefer Shorter Words. I am old enough to remember when courts imposed motion and brief page limits, long before word limits. I recommend reading your own work as if you have page limits and word limits. This can help you remove legalese, redundant wording, and unneeded long terms. In his blog, Demian Farnworth suggests practicing by using only monosyllabic words. The monosyllabic approach can add many words and decrease clearness, but it is a fun way to practice writing with shorter terms. See https://copyblogger.com/short-sentences/ (Oct. 19, 2015).
3. Be Concise & 5. Avoid Jargon. (I’ve already blogged about Rule 4, Use Active Voice, often.) Use concision as an enemy of bias and obfuscation. As Justice Ginsburg reminded us, our readers “simply don’t have time to ferret out one bright idea buried in too long a sentence.” Remarks on Appellate Advocacy, 50 S.C. L. Rev. at 567 (1999). One way to practice being concise and removing jargon is by reviewing any manual for a small appliance in your home. Review these manuals for lengthy clauses and odd technical jargon. My family’s favorite is our toaster manual, which often uses five words where one will do, and adds confusing technical details like “LED light indicator surround ring” for what is in fact the “toasting” light. Finding these lengthy and confusing terms around the house will help you edit for concision in your briefing.
- Use Common Sense--Break Any of these Rules If they Reduce Clarity. Recently, I learned there is reasonable debate about exactly what Winston Churchill said regarding ending a sentence in a preposition. Nonetheless, we know he said something close to: “This is the sort of English up with which I will not put.” See https://brians.wsu.edu/2016/11/14/churchill-on-prepositions/. We can follow our own common sense, like Churchill and Orwell. As another example, sometimes one longer clause reads better than a series of short, choppy sentences. Let’s follow rules on clarity above all else.
Are these rules enough? Orwell did not think so, as evidenced by his concern over “Doublespeak” and obfuscation. To follow Orwell, therefore, we should make sure our words say what we mean. While this sounds simple, any experienced appellate writer knows editing takes time and effort. I hope Orwell’s rules help in this editing task.
Monday, March 20, 2023
GPT-4 Just Passed the Bar Exam. That Proves More About the Weakness of the Bar Exam Than the Strength of GPT-4.
It's official: AI has passed the Uniform Bar Exam. GPT-4, the upgraded AI program released earlier this week by Microsoft-backed OpenAI, scored in the 90th percentile of actual test takers.
"Guess you're out of a job," my wife said when I told her the news.
Maybe she's right--unless, of course, the bar exam isn't actually an effective measurement of minimum competence to practice law.
That's the open secret of the legal profession. Bar exams do test a small handful of core legal skills, such as critical reading and basic legal analysis. But they're downright abysmal at measuring the multitude of skills that separate competent and incompetent lawyers, such as legal research, writing ability, factual investigation, crisis response, communication, practice management, creative problem solving, organization, strategic planning, negotiation, and client management.
I am hardly the first commentator to draw attention to this issue. In Shaping the Bar: The Future of Attorney Licensing--which should be required reading for anyone interested in the attorney-licensing conundrum--Professor Joan W. Howarth says this:
Bar exams are both too difficult and too easy. The exams are too easy for people who excel at multiple-choice questions. Wizards at standardized tests can pass the bar with little difficulty, perhaps with a few weeks spent memorizing legal rules, without showing competence in a greater range of lawyering skills or any practice in assuming professional responsibility.
And, bar exams are too difficult for candidates who do not excel at memorizing huge books of legal rules. An attorney would be committing malpractice by attempting to answer most new legal questions from memory without checking the statute, rules, or case law. Leon Greene, the dean of Northwestern Law School in 1939, observed that "there is not a single similarity between the bar examination process and what a lawyer is called upon to do in his practice, unless it be to give a curbstone opinion." The focus on memorization of books of rules was silly in 1939, but today it is shockingly anachronistic, as attorneys asked for "curbstone opinions" would be carrying a complete law library on their phones. Extensive rule memorization makes bar exams less valid, meaning that they test attributes not associated with competence to practice law. Law graduates who would be great lawyers--too many of whom are people of color--are failing bar exams because they cannot drop everything else for two months to devote themselves to memorizing thick books of rules.
Against this backdrop, is it really a surprise that a literal learning machine beat 90% of the human test takers?
Predictably, the National Conference of Bar Examiners quickly issued a press release once the news broke about GPT-4 acing its exam. The NCBE said that human attorneys have unique skills, gained through education and experience, that "AI cannot currently match." And, on that score, I wholeheartedly agree. But that raises the question many of us have been asking for years: If "skills," "education," and "experience" (not mass memorization, regurgitation, and fact-pattern recognition) are what set the best lawyers apart, why aren't we using those qualities to measure minimum competence?
Saturday, March 18, 2023
ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.
The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”
Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests. Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.
What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.
1. Law students need to learn how to think critically.
Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.
ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”
That, again, is the point – and the problem.
Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.
Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.
2. Law students need to learn how to write competently and persuasively.
It is no secret that judges and lawyers often criticize law graduates for their poor writing skills. The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.
This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.
To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.
To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.
Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’
Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work. This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.
Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court. As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.
Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.
Simply put, you cannot replace an intelligent, thinking human being.
 See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business
 Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.
 Kelly, supra note 1.
 See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)
 Kelly, supra note 1.
Monday, February 27, 2023
After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.
1. Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.
2. Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.
3. Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.
4. Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.
5. Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.
6. Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.
7. Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony. They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.
8. Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).
February 27, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (2)
Saturday, February 11, 2023
The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.
But shouldn’t there be a limit?
Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?
The answer to both questions is yes.
Think about it:
- Should people be permitted to hurl racist slurs at minorities? No.
- Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
- Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
- Should people be allowed to depict horrific acts of animal cruelty? No.
- Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
- Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
- Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
- Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.
Such speech should be banned everywhere and in any circumstance for three reasons.
First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.
Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.
This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever. Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.
Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection. Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.
Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.
The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse. In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.
These decisions were wrong.
The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.
Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.
If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.
 413 U.S. 15 (1973); 395 U.S. 444 (1969).
 485 U.S. 46 (1988).
 562 U.S. 443 (2011).