Saturday, March 25, 2023
Revisiting George Orwell and Good Writing
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.
March 25, 2023 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)
Tuesday, March 21, 2023
More than "Frenemies."
I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”
I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.
Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.
The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”
I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.
How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.
So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.
That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.
(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).
March 21, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Legal Ethics, Legal Profession | Permalink | Comments (0)
Saturday, March 18, 2023
ChatGPT and Legal Writing
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.
March 18, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)
Saturday, February 18, 2023
The 2023 Justice Donald L. Corbin Appellate Symposium
On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law. This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts. The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock. You can tour the Clinton Library too!
The impressive lineup this year includes many members of the appellate bench:
- A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
- Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
- A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and Justice Piper D. Griffin of the Louisiana Supreme Court;
- Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
- An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.
Robert S. Peck, of the Centers for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors.
You still have time to register, and you can find all of the details here: https://www.pulaskibarfoundation.com/corbinsymposium.
This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium. Plus, if you have never been to Little Rock, I highly recommend a visit. Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country. See you there!
February 18, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Oral Argument, State Appeals Courts | Permalink | Comments (0)
Saturday, February 11, 2023
Rethinking First Amendment Jurisprudence
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).
February 11, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Saturday, January 28, 2023
Implicit Bias Challenged, If Not Debunked
In recent years, the concept of implicit bias – the belief that all individuals harbor unconscious biases that affect their choices and actions – has been embraced by many law schools and the American Bar Association. In fact, the ABA passed a resolution requiring law schools to provide some type of bias training. But there is one problem – implicit bias research is deeply flawed and, in fact, so flawed that its validity is now in question. Below is a summary of the flaws in implicit bias theory.
1. The Implicit Association Test (IAT) is deeply flawed.
The IAT, developed by researchers at Harvard University, purports to measure an individual's implicit biases. The problem is that there is little, if any, evidence that IAT scores actually measure unconscious bias. As one scholar states:
The IAT is impacted by explicit attitudes, not just implicit attitudes, . . . It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?
Furthermore, individuals who take the IAT are likely to achieve different scores if they take the IAT multiple times. One commentator explains as follows:
The IAT, it turns out, has serious issues on both the reliability and validity fronts, which is surprising given its popularity and the very exciting claims that have been made about its potential to address racism” … That’s what the research says, at least, and it raises serious questions about how the IAT became such a social-science darling in the first place.
Indeed, “much murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, [and] (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior.” To be sure, Tony Greenwald, who co-created the IAT, acknowledged that the IAT should not be used to predict biased behavior, stating that the IAT is only “good for predicting individual behavior in the aggregate, and the correlations are small.” Put simply, the “IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”
2. There is insufficient evidence that implicit bias – or results on the IAT – predicts biased behavior.
Empirical studies suggest that implicit biases do not necessarily cause biased behavior. As one commentator explains:
Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’
Importantly, these researchers examined “63 studies that explicitly considered a link between changes in bias and changes in actions . . . [but] they found no evidence of a causal relationship.”
3. There is no way to quantify the impact of implicit bias on biased behavior, particularly given the presence of explicit biases.
Assuming arguendo that implicit bias exists, there is no reliable way to quantify its relationship to biased behavior, if such a relationship even exists. For example, how can one distinguish between explicit and implicit biases? And how can scholars quantify or measure the impact of implicit biases when explicit bias has a demonstrable relationship to biased behavior?
These and other issues have led some scholars to question the validity of implicit bias as a predictor of biased behavior: As one scholar states:
Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.
Resolving these issues in an intellectually honest manner is critical to determining whether implicit bias bears any relationship to biased behavior.
4. Implicit bias training is ineffective.
Not surprisingly, implicit bias training is not effective in reducing biased behavior. For example, a study in the United Kingdom concluded as follows:
[A] 2017 meta-analysis of 494 previous studies of racial sensitivity training programmes found that ‘changes in measured implicit bias are possible, but those changes do not necessarily translate into changes in explicit bias or behaviour’. The Equality and Human Rights Commission published its findings in 2018, stating that ‘the evidence for [unconscious bias training’s] ability effectively to change behaviour is limited’ and that it may cause a ‘backfiring’ effect, actually making people more biased. And last year the Chartered Institute of Personnel and Development (the UK’s main HR professional body) said ‘unconscious bias training has no sustained impact on behaviour’.
Indeed, “while implicit bias trainings are multiplying, few rigorous evaluations of these programs exist,” the fact remains that “to date, none of these interventions has been shown to result in permanent, long-term reductions of implicit bias scores or, more importantly, sustained and meaningful changes in behavior (i.e., narrowing of racial/ethnic clinical treatment disparities."
Of course, these facts have not stopped the American Bar Association from requiring law schools to conduct training on implicit bias, a proposal that was rightfully met with resistance from established scholars. Perhaps this is because most law faculties are so overwhelmingly liberal that groupthink, rather than critical thinking, precludes a principled assessment of implicit bias’s validity.
Without such an assessment, claims that implicit biases impact biased behavior will continue to lack empirical support. As such, the efficacy of implicit bias training remains dubious.
Ultimately, eradicating bias and discrimination from all facets of society is a legal and moral imperative, but scholars should question seriously whether a focus on alleged implicit biases is an effective way of doing so. And in so doing, scholars should be committed to intellectual honesty to ensure that their own biases do not influence their findings.
 Lee Jussim, 12 Reasons to be Skeptical of Common Claims About Implicit Bias (March 28, 2022), available at: 12 Reasons to Be Skeptical of Common Claims About Implicit Bias | Psychology Today
 See Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and in Legal Education, available at: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education by Adam Lamparello :: SSRN.
 See The Spectator, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator
 Harvard Embraces Debunked ‘Implicit Bias’ Test that Labels You a Racist, (Jan. 22, 2020), available at: Harvard Embraces Debunked 'Implicit Bias' Test that Labels You a Racist (mixedtimes.com)
 German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All, VOX (Mar. 7, 2017, 7:30 AM), https://www.vox.com/identities/2017/3/7/14637626/implicit-association-testracism (quoting New York University Professor James Jaccard).
 Tom Bartlett, Can We Really Measure Implicit Bias? Maybe Not, CHRON. OF HIGHER EDUC. (Jan. 5, 2017), https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.
 Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Not, WASH. UNIV. IN ST. LOUIS NEWSROOM (Aug. 1, 2019), https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/
 Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea, PSYCH. TODAY (Dec. 2, 2017), https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.
 Lewis Feilder, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator
 See Tiffany L. Green & Nao Hagiwara, The Problem with Implicit Bias Training Aug. 28, 2020), available at: The Problem with Implicit Bias Training - Scientific American
 See, e.g., Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule (February 14, 2022), available at: U.S. law students to receive anti-bias training after ABA passes new rule | Reuters
 See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. Ill. L. Rev. Online 178, 179 (2020) As Professor Conklin explains:
It was not until 2015 that a robust analysis of law school ideological diversity was published (hereinafter “2015 study”). Before this, it was already well known that law school professors were disproportionately liberal—both when compared to the public at large and when compared to the overall legal profession. A study using 2013 data found that only 11% of law school professors were Republicans, compared to 82% who were Democrats. Not only do conservatives find it difficult to gain admittance into legal academia, but those who do find that they are effectively barred from the more prestigious topics, such as constitutional law and federal courts, and are instead relegated to topics such as law and economics.
 See Green and Hagiwara, supra note 12.
January 28, 2023 in Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)
Saturday, January 21, 2023
“Read Everything” Is Good Advice at Any Stage of a Case or a Lawyer’s Career
Happy 2023. I hope the new year is going well for all of you. As I began moving my students from objective office memos to the joy of appellate brief writing this month, I used a slide titled: “Read Everything.” My advice to students was to always read every part of the record, and then read all the relevant case law, and then read everything again. Thanks to a Northern District of Illinois December 30, 2022 Order in Outley v. City of Chicago, where then District Judge Gary Feinerman dismissed a discrimination case, publicly sanctioned plaintiff’s counsel, and referred counsel for possible discipline, I now have an extreme example of what happens when counsel does not read court documents, among other things. You can read the order here: Dec. 30 opinion.
First reported by Law360, the order in Outley made news for what now-retired Judge Feinerman called “the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.” Order at 2; see Andrew Strickler, “Poorest” Atty Performance Triggers Ethics Referral (Jan. 3, 2023), https://www.law360.com/pulse/articles/1561714/-poorest-atty-performance-triggers-ethics-referral. In a forty-one page order, the court carefully detailed plaintiff’s counsel’s many transgressions, including what the court characterized as extensive efforts to continue trial, repeated “intemperate” statements to the court like complaints of “get[ting] ripped a new butthole,” and interestingly, a long record of prior sanctions for the same type of antics in state and federal cases in Illinois. See Order at 3-20, 39-41.
Judge Feinerman’s order covers many instances of what he found to be attorney misconduct, which “went beyond clumsy lawyering.” Order at 33. As the order explains, plaintiff, by himself and through counsel, tried to file motions long after deadlines, made the “series of intemperate remarks” during pretrial proceedings and in motions, repeatedly violated the court’s orders in opening statement to the jury, and testified on direct examination to matters excluded by the court and claims dismissed. Order at 3-20, 39-41.
As examples of various misconduct, the court explained: “On August 31—four weeks after the extended motion in limine” deadline “and over four weeks after [plaintiff’s counsel] told Defendants’ counsel that Outley would not be filing motions in limine”—Outley “moved for leave to file instanter twenty motions in limine.” Order at 3. Moreover, “[c]orrespondence between opposing counsel as well as [plaintiff’s attorney’s] own statements make clear that [plaintiff’s attorney] knowingly and intentionally abandoned the parties’ plan to collaborate on a final pretrial order,” showing counsel’s “abdication of her responsibilities as counsel.” Order at 3-4.
For this piece, I want to highlight the impact of counsel’s admitted failure to read the court’s order on motions in limine and the defendants’ declarations. See generally Debra Cassens Weiss, Lawyer “turned in the poorest performance” he has seen in 12 years on bench, former federal judge says, ABA Journal (Jan. 5, 2023), https://www.abajournal.com/web/article/federal-judge-says-lawyer-turned-in-the-poorest-performance-he-has-seen-on-12-years-on-bench (providing a complete discussion of all key parts of the district court’s order). In response to defendants’ motions to exclude some of plaintiff’s evidence, the court “issued an order on Defendants’ motions in limine on September 16,” which “granted in part and denied in part those motions.” Order at 9. Although “Outley attached the court’s September 16 order to the emergency injunction motion he filed on September 22” and other motions, “Outley’s September 22 motions revealed that [plaintiff’s counsel] had not read the court’s September 16 in limine order.” Order at 10. In pretrial and trial proceedings, plaintiff’s counsel regularly acted as if the court had granted all of defendants’ exclusion requests “in block.” Order at 10.
In the September 22 motions, Outley claimed:
Honorable Judge Feinerman did not explain why he never took Mr. Outley’s timely Response to Defendants’ MILs [in limine motions] under consideration. He ruled straight for the granting of Defendants’ MILs., in block, without ever mentioning Mr. Outley’s Response. . . . [T]he Court never translated its thinking [on Defendants’ Motion in limine No. 13] into a ruling, instead with one swift move the Court later issued a ruling granting Defendants’ MILs in block effectively overruling its prior thinking.
But, “[a]s the September 16 in limine order made perfectly clear, the court acknowledged and considered Outley’s timely response to Defendants’ motions in limine, and it did not grant Defendants’ motions in limine ’in block.’” Order at 10.
Additionally, counsel made no timely objection to arguably late declarations filed by the defense, admitting she received them on September 13, 15, and 22, but did not read any of them before September 22, despite a September 23 trial date. Order at 11-12. Once trial began, on September 23, “the court warned” plaintiff’s attorney “at a sidebar that she was ‘going beyond what this case is about,’” and only “[a]t that time,” did counsel “claim that she had not yet seen the court’s September 16 in limine order . . .—this despite her having attached the order to a motion she filed the previous day.” Order at 12.
Perhaps this admitted failure to read led counsel to “repeatedly transgress the bounds of appropriate zealous advocacy in addressing the court,” see Order at 36, including through a
motion for declaratory relief against the judge and a judicial notice motion, both based in part on an assumption the court had granted the in limine motions in full, see Order at 5-6, 24. On the record in court and in filings, counsel often complained her client received unfair treatment, making comments like: “[I]t would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.” Order at 6. The district court found these comments and motions were “to circumvent the court’s pretrial rulings without waiting to pursue an appeal” and to delay trial, all based in part on failure to read. Order at 5-6, 24.
Despite her allegations like, “a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed,” in the end, counsel admitted she was simply not ready for trial. Order at 3, 4-5. In her own words, “I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it.” Order at 3. The court concluded: “Those words, spoken by [plaintiff’s counsel] the day before [causing] the mistrial, were completely on point.” Id.
As the court summarized: “It would be a substantial understatement to say that things did not go smoothly.” Order at 2. Had counsel read the court’s in limine ruling, perhaps she could have given her client--who the court noted had “a winnable case” depending on who the jury believed--his day in court. See Order at 5.
The ABA Journal contacted Outley’s counsel, but she “did not immediately respond” to a voicemail message or an email. Cassens Weiss, supra.
Here’s to careful reading in 2023.
January 21, 2023 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)
Saturday, January 14, 2023
What Law Students Should Know About Law Practice
One of the criticisms of law schools is that they do not adequately prepare students for law practice.
In law school, students learn legal doctrines, acquire critical thinking, argumentation, and persuasive writing skills, master IRAC/CRAC, and participate in clinics – all of which help students to obtain the knowledge and skills needed to successfully practice law. But for many years, lawyers and judges have criticized law schools for not producing practice-ready graduates, citing, among other things, graduates’ substandard persuasive writing skills, inexperience in drafting real-world legal documents, and lack of ‘soft’ skills. This criticism, as underscored by graduates at many schools, has some merit, although law schools certainly do their very best, within a limited time of three years, to provide students with the skills to practice law competently upon graduation.
Below are a few tips for students regarding what to expect – and the skills needed – when practicing law.
1. Learning to work with other people – including those you don’t like – is critical to your success.
In the legal profession – and in life – you are going to encounter people that you despise. Such individuals are not hard to identify and there are many of them in all facets of the legal profession. They typically display inflated egos, treat others disrespectfully, lack trustworthiness, have narcissistic tendencies, and are so self-absorbed that they cannot possibly appreciate an opposing argument or perspective. Nobody likes these people. Invariably, however, you will almost certainly have to work with them – or for them – in your legal career.
And when you do, the worst thing that you could do is become combative, disrespectful, or dismissive. Doing so will only hurt you – and empower them. Instead, focus on what you can control, such as your work product, your responses to their behavior, and your demeanor. If you do that and, as such, learn to work with difficult people, you will increase your value and reputation. So don’t focus on how others behave or be consumed with external circumstances over which you have no control. Focus on how you behave and conduct yourself.
2. Confidence and humility are critical to developing strong relationships with your colleagues.
Confidence matters in the legal profession.
But humility matters too.
Regardless of whether you graduate at the top of your class at Harvard, serve as your law review’s editor-in-chief, or publish in the Yale Law Journal, you will face a steep learning curve when you begin practicing law. Recognizing that – and being willing to learn from and listen to your more experienced colleagues – is essential to developing strong relationships with them and mastering the skills necessary to practice law at the highest levels. Thus, being courteous, respectful, and professional is vitally important if you want to cultivate a reputation as a good lawyer – and a good person.
In other words, personality matters. If you are a jerk who gossips about or criticizes your colleagues, boasts about your class ranking or LSAT score, or treats assistants like they are second-class citizens, you will not get very far. If you think that you are ‘right’ all the time or are overly opinionated, most people will despise you. Simply put, don’t be a jerk – the world is already saturated with them, and nobody wants to associate with those types of people. Rather, be authentic, humble, and respectful.
3. Your reputation and credibility – particularly with your colleagues and judges – are vital to your success.
Reputation and credibility are everything in the legal profession. If you lose your credibility, you lose your ability to garner the trust of your client, your colleagues, or judges. When your reputation or credibility is compromised, your career is likely irreparably damaged.
Accordingly, make sure, for example, that you work diligently to produce an outstanding work product. Always be honest, particularly when you make a mistake. Treat your clients, your adversaries, and judges with respect and civility. Be ethical and professional. And most importantly, be a nice, authentic, and decent person. As stated above, nobody likes jerks.
4. Excellent persuasive writing skills are essential.
If you cannot write persuasively, you cannot practice law effectively. Thus, at the beginning of and throughout your legal career (and life), focus on continually developing your persuasive writing skills. In so doing, read outstanding legal briefs and legal writing textbooks. Take the time to thoroughly rewrite and edit your work. Read great fiction books and apply literary techniques to your briefs where appropriate. Ask for feedback from more experienced colleagues about your writing. After all, two or three semesters in legal writing classes, while helpful, is not nearly enough to develop outstanding persuasive writing skills. Learning to write persuasively is a lifelong lesson and one that you should embrace if you want to be a great lawyer.
5. Outstanding communication skills are critically important.
Interpersonal communication, whether with a client, an adversary, or a court, is integral to your success as a lawyer. If you cannot, for example, clearly articulate arguments and explain complex legal concepts in an understandable way, you aren’t going to be successful.
Thus, you must know, among other things, how to present an argument concisely, clearly, and persuasively. You must understand that how you say something is just as important as what you say. You must actively listen to and respect others’ opinions. You have to show empathy and compassion for your client. You need to be skillful in negotiating with your adversary, present your argument in a way that convinces others to adopt your position, and have the judgment to know when compromise is appropriate.
6. Law practice is stressful and can be all-consuming.
The legal profession is often quite stressful. Indeed, at times, the pressure can be all-consuming, such as when preparing for a trial, writing motions and briefs, reviewing voluminous discovery documents, or preparing to argue before an appellate or supreme court. Indeed, practicing law is far from glamorous, as many days and hours are spent reviewing documents and filing motions. Put simply, there’s a reason why many lawyers struggle with alcohol or drug abuse, or mental health issues. The legal profession is difficult and there is no way around that fact. If you are working in a large or medium-sized firm, your billable hours matter. Whether you can attract clients matters. Whether you win matters.
But that doesn’t mean that you have to become the legal profession’s next alcoholic or drug addict. It does mean, however, that you have to prepare yourself for this reality. In so doing, learn how to cope with stress and adversity. Organize your day and prioritize your tasks. Take care of your physical and mental health, such as by exercising every day, eating healthy, and reserving some time – even if only for an hour – to do something that you enjoy. Spend time with family and friends. And realize that you’re probably not going to change the world, that justice is truly subjective, and that life is going to present far more adversity than you expected. But if you can help your clients to achieve positive results, live a meaningful life, and find happiness, then the law is a profession that can have a noble purpose.
 See, e.g., David Segal, What They Don’t Teach Law Students: Lawyering (Nov. 19, 2011), available at: After Law School, Associates Learn to Be Lawyers - The New York Times (nytimes.com)
January 14, 2023 in Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)
Friday, January 13, 2023
Appellate Advocacy Blog Weekly Roundup Friday, January 13
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
U.S. Supreme Court News:
- The Court has yet to release any opinions from cases argued this term. Although the Court is four months into its current term, it has provided a record-setting silence with regard to opinions in argued cases. Bloomberg discussed the delay in opinions and compared it to prior terms HERE.
- The Court this week denied an application to vacate a stay in a case involving a New York law that restricts the possession of firearms in specific public locations. The trial court issued a preliminary injunction in the case, and the Second Circuit Court of Appeals issued a stay that kept the law in effect pending litigation on the merits of the challenge to the law. The Court's order, issued without opinion and without dissent, allows the stay to remain (and thus, the law) to remain in effect. The order is HERE.
- Senate Democrats are poised to push for new ethical standards for the Court after the Court faced increased scrutiny over the last year concerning such matters as financial interest in pending cases, the leak of draft opinions, and other apparent conflicts of interest. More can be found HERE.
- A helpful summary of pending criminal law and procedure cases before the Court was posted by Joel Johnson at the ABA this week. You can review the summary HERE.
Federal Appellate Court News:
- The United States Court of Appeals for the Federal Circuit heard arguments this week in a case where Apple, Google, and Intel are seeking to revive challenges to a U.S. Patent and Trademark Office policy about contesting the validity of patents before administrative judges. More can be found HERE.
- A federal appeals court in D.C. heard arguments this week in a case challenging portions of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA), a 2018 law passed to crack down on online advertising viewed as facilitating prostitution. The appellate court panel expressed skepticism about the constitutionality of language in FOSTA-SESTA that makes it a crime to operate a computer service with the intent to promote prostitution. More can be found HERE.
State Appellate Court News:
- The New Mexico Supreme Court heard arguments this week in a venue dispute in a lawsuit concerning whether wind leases overlapping with grazing leases can impact a rancher's ability to raise cattle on state trust land in New Mexico. Right now the question is really about where the arguments over the leases will take place, but the substantive issues to be addressed down the road will determine whether state law and lease contracts may allow for wind energy to be developed on land that ranchers are already leasing. More can be found HERE.
Appellate Practice Tips:
- Three Harvard Law advocates recently shared their tips and tales of their times arguing before the United States Supreme Court in an article at Harvard Law Today. The article includes recollections from Paul Clement, former U.S. Solicitor General and partner at Clement & Murphy in D.C.; Jessica Ring Amunson, partner at Jenner & Block in D.C.; and Deepak Gupta, lecturer at Harvard and founding principal of Gupta Wessler PLLC. The article can be found HERE.
- The Illinois Appellate Court, Third District, is hiring an appellate court law clerk. Details can be found HERE.
January 13, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Friday, December 16, 2022
How to Prepare Law Students for the Real World
The goal of law school should be to prepare students to practice law competently and advocate persuasively upon graduation. Below are suggestions that will help to maximize students’ success in the legal profession.
1. Use the Socratic Method.
Some legal scholars have, for a variety of reasons, criticized the Socratic method. Such criticism, however, lacks merit.
The Socratic method teaches preparation. It requires students to learn how to read cases. Additionally, it requires them to discuss these cases in class, often before a large audience. In so doing, students are often confronted with difficult legal and policy questions, which tests their preparation, communication skills, and ability to think on their feet – all of which are essential to being a competent lawyer. That’s why doctrinal courses, particularly in the first year, are so important.
Furthermore, the Socratic method helps students cope with anxiety and uncertainty. Indeed, most students do not know if their professor will call on them in class and, of course, have no idea what questions the professor will ask. Although this may engender anxiety and fear among students, that is not necessarily a bad thing. In law practice, attorneys face anxiety and uncertainty when litigating a case or preparing an oral argument before an appellate court. Helping students to cope with these feelings in a healthy manner is essential to preparing them to succeed in law and in life.
Certainly, if used improperly, such as to embarrass students, the Socratic method can be counterproductive. And the Socratic method alone is not sufficient to prepare students for law practice. But when used responsibly, the Socratic method is an essential component of legal education.
2. Expand the legal writing curriculum.
Many law schools do not devote sufficient time to training students to be competent legal writers in the real world. For example, some schools only require two semesters of legal writing, in which students draft only a legal memorandum and an appellate brief.
But in law practice, students will not only draft memorandums and appellate briefs. They will be required to draft, among other things, complaints, contracts, motions to dismiss, motions for summary judgment, interrogatories, document requests, and requests for admissions, trial briefs, mediation statements, and settlement agreements. Given this fact, law schools should train students to draft and re-draft the most common litigation and transactional documents; in so doing, students will be more prepared to practice law when they graduate.
In fact, imagine if, over three years, students were required to represent a hypothetical client in a litigation that contains issues from all of their first-year required courses, and that required them to, among other things, conduct a client interview, draft a complaint and answer, file a motion to dismiss, draft discovery documents, conduct depositions, draft a motion for summary judgment and a trial brief, participate in a trial, and draft an appellate brief. And imagine if they had to do so in the order that it would occur in practice. That would truly prepare students to practice law, and it would teach students to learn by doing.
More broadly, law schools should focus on developing their students’ writing skills, such as in classes devoted to editing, rewriting, and revising, and requiring students to draft legal documents in a variety of contexts. Doing so takes time, and certainly more than two or three semesters.
3. Require students to enroll in at least two clinics.
Law students do not learn how to practice law by memorizing legal principles and regurgitating them on an exam. They learn by, among other things, applying the law to hypothetical and real-world fact patterns, addressing counterarguments effectively, reconciling unfavorable law and facts, and crafting compelling factual and legal narratives. Perhaps most importantly, they learn by practicing like lawyers, namely, representing clients, drafting briefs, performing oral arguments, negotiating with adversaries, and exercising judgment about trial strategy and settlement.
Clinics provide law students with the opportunity to acquire these and other real-world skills, and often in a context that makes a meaningful difference in the lives of individuals who might otherwise lack access to legal representation.
For these and other reasons, law schools (and some already do) should require students to enroll in at least two clinics prior to graduation. After all, the only way to prepare for practice is to actually practice law (under supervised conditions, of course).
4. Require students to take multiple upper-level practical skills courses.
Most law schools give students the freedom to select most of their upper-level courses. This is certainly understandable, as students are interested in different areas of the legal profession and intend to pursue different paths in law practice. Having an elective-heavy curriculum, however, need not dispense with a focus on practical skills instruction, and theory and practice need not be considered mutually exclusive.
The problem with some upper-level electives is that they have no relationship to practice. For example, courses focusing on comparative jurisprudence, the original meaning of the Privileges and Immunities Clause, or the death penalty, are certainly instructive and probably quite enjoyable. But how do they prepare students for law practice? At the very least, such courses should include practical components, such as the drafting of a complaint, motion, or brief, to merge theory with practice.
After all, in medical school, students are not taking courses on the origins of contraception. They are learning how to practice medicine. Law students, too, should learn how to practice law.
5. Use “high-pressure” assignments.
The legal profession is demanding and stressful. Partners and clients have high expectations. And in many instances, lawyers are under intense pressure to produce high-quality work under severe time constraints. Indeed, many lawyers can relate to the unfortunate and all-too-common situations (often on a Friday afternoon or holiday weekend) where a partner says, “I need you to draft a motion for injunctive relief immediately and, at the latest, by Monday morning.”
For that reason, law schools should train students to excel under and cope with pressure and high expectations. For example, in upper-level courses, a professor can present students with a distinct legal question and require them to draft a memorandum or prepare for an oral argument within twenty-four hours or require them to draft a response to a motion to dismiss within forty-eight hours. Sure, this will be stressful for the students, but that’s not necessarily a bad thing. Training students about the realities of law practice will help them to become better lawyers, and to develop the mindset and mental toughness necessary to excel under pressure.
6. Focus on developing the intangibles, or soft skills.
A high IQ, an excellent LSAT score, a perfect law school GPA, or the best score on the MBE does not mean that a law graduate will be successful in law or in life. Rather, to be a good lawyer, you need the intangibles, or soft skills, that complement raw intelligence.
For example, great lawyers have emotional intelligence. They work harder than almost anyone. They have excellent judgment. They are efficient and organized. They can handle adversity and criticism, and persevere through difficult times. They know how to cooperate and collaborate with other people, including those that they do not like or who have different viewpoints. They know how to communicate with a colleague, a client, and a court. They are humble and honest. They have empathy. And they want to win.
Without the intangibles or soft skills, law graduates will likely not find success in the legal profession – or in life. As such, law schools should focus on developing the intangibles, and this can be accomplished in, for example, clinical courses, where students are required to be part of a team and represent clients in actual cases.
7. Focus on mindset development – and mental toughness.
In the legal profession and in life, students will encounter substantial and unexpected adversity. They will face unfairness and injustice. They may have to deal with the death of a family member or friend, an abusive colleague, the break-up of a relationship, or an unexpected medical emergency. These and other events, although we all hope to avoid them, will happen.
But law students are not victims. They are not oppressed. They are not powerless. Rather, they have the power – and the choice – to overcome whatever adversity they face because their choices, not their circumstances, determine their destiny.
Of course, as with developing intangible or soft skills, teaching mindset and mental toughness does not necessarily require a separate course. Rather, these lessons can be incorporated into any law school course by a professor who devotes a little time in each class to the mental, not merely the intellectual, aspect of law.
8. Have high standards.
It’s important to have empathy and compassion for students, and to support them in every way possible as they navigate the difficulties of law school. But that does not mean coddling students, which is one of the worst things an educator can do, or dispensing with high – even very high – standards. Challenging students to be their very best, offering constructive criticism, and demanding excellent work is the hallmark of a great teacher. And invariably, students will fail to meet these expectations. But failure is good thing. It presents students with an opportunity to learn and grow. Most importantly, high standards prepare students for what they will face in the real world.
9. Teach students to respect diverse viewpoints.
Diversity is a critical component of any educational institution. And among the most important aspects of diversity is teaching students to respect different viewpoints and engage in civil discourse with those with whom they disagree.
For that reason, professors should create a safe and constructive classroom environment in which all viewpoints are welcomed and respected, and where a diversity of perspectives is encouraged. One of the worst things that educators can do is to reveal their political and personal biases in a classroom (and worse, try to ‘indoctrinate’ students) because doing so stifles debate and diversity.
After all, in the real world, students will encounter – and have to work with – people that they disagree with, that they don’t like, and that have backgrounds and experiences entirely different from their own. If they cannot work with and respect such individuals, and realize that their views aren’t necessarily ‘right,’ their path to success – and humility – will be much harder.
Ultimately, traditional legal education is not broken. The Socratic Method has served students very well over the years. But a few adjustments can be made to ensure that theory and practice merge in a cohesive manner that prepares students to think and practice like lawyers, and to be good people.
December 16, 2022 in Appellate Advocacy, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)
Saturday, September 24, 2022
In Praise of the Second Edition of The Indigo Book: A Manual of Legal Citation
Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook. On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales. See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.
As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook. Additional states have their own gloss on key Bluebook rules or allow use of other manuals. Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court.
Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition. The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition. See generally Wendy S. Loquasto, Legal Citation: Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017).
Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook: https://indigobook.github.io/versions/indigobook-2.0.html. Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource. In sharing the second edition, Prof. Romig explained: “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.” The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes. Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.”
The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias. Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.” In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.
September 24, 2022 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)
Friday, June 3, 2022
Appellate Advocacy Blog Weekly Roundup Friday, June 3
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
Supreme Court News and Opinions:
This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week. Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches. As of now, the Court has more than 30 decisions still outstanding in argued cases. The Roberts Court has traditionally gotten all of its cases out by the end of June.
- More from Bloomberg
On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed. Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.
- More from SCOTUSblog
Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state. No dissents were noted.
- More from SCOTUSblog
State Appellate Court Opinions and News:
On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade. The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."
- More from the Sacramento Bee
The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program. The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.
- Details HERE
June 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)
Saturday, May 21, 2022
Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part Two
Last month, I noted two April 8, 2022 federal Court of Appeal decisions on attorney sanctions where the courts reminded us claims of experience are no excuse for improper behavior. I focused on the Fifth Circuit’s reminder: “When litigating in federal district court, it is often advisable to read the court’s orders.” Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam). This month, I’ll discuss the Seventh Circuit’s order upholding $17,000 of sanctions against a “seasoned litigator” who balked at being required to complete “demeaning” CLE classes. Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022).
Like the Fifth Circuit, the Seventh Circuit rejected an appeal of a sanctions order despite counsel’s claims of competence and experience. Bovinett (7th Cir. Apr. 8 2022); see Debra Cassens Weiss, “Seasoned Litigator” Fails to Persuade 7th Circuit that Sanction Was Demeaning and Too Harsh, ABA Journal (Apr. 14, 2022). In a Northern District of Illinois case involving use of an actor’s photo by advertisers, the district court initially dismissed many claims against the out-of-state advertisers for lack of personal jurisdiction. Bovinett at 2. Attorney Mark Barinholtz, representing the actor, then asserted the defendants had several contacts with Chicago, and the court “allowed the parties to take limited discovery about personal jurisdiction.” Id. at 2-3. The court “soon granted [a defendant’s] motion to compel discovery because [the actor’s] responses were vague and evasive.” Id. at 3. For example, Barinholtz “answered every request for admission by stating [the actor] was ‘not in possession of sufficient knowledge or information to admit or deny.’” Id. After the court entered an order compelling discovery, the actor, through Barinholtz, replied “only that [the actor] lacked ‘direct, in person knowledge’ of the subjects.“ Id. In response, the court dismissed much of the complaint and eventually granted the defendants’ motions for sanctions. Id.
The district court found several grounds for sanctions, noting “Barinholtz appeared to have made false assertions to establish personal jurisdiction, [and e]ven if he did not do so in bad faith, . . . Barinholtz inexcusably failed to investigate the jurisdictional facts.” Id. The court “ordered Barinholtz to pay about $17,000 (much less than the defendants’ [$661,000] request) to compensate the defendants for time spent on the motions to compel and for sanctions.” Id. As the Seventh Circuit explained, the district court “also ordered Barinholtz to attend 40 hours of continuing legal education: half ‘on federal civil procedure, including at least one course related to personal jurisdiction,’ and half on “professional conduct, . . . such as those offered in the Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys.’” Id.
In response, Barinholtz moved for what he styled an extension of time either “to file notice of appeal and/or to request other post-order relief,” and the district court granted the motion in part, extending the time to appeal until October 13, 2020. Id. at 3-4. Barinholtz did not immediately file a notice of appeal, but filed an October 13, 2020 “motion to reconsider in which he focused on the merits of the lawsuit and his already-raised objections to sanctions.” Id. at 4. He again argued that the court had personal jurisdiction and claimed “Rules 11 and 37 did not permit sanctions in this context, [plus] sanctions were ‘unfair’ because the defendants and Bovinett had teamed up to get Barinholtz to pay costs and fees.” Id.
Notably, Barinholtz “also insisted that the defendants deserved sanctions,” based on the alleged “teaming up” against him, “and that requiring him, a seasoned litigator, to attend legal-education courses [was] demeaning.” Id. As the Seventh Circuit explained, he “requested a reduced monetary sanction (or none at all) and fewer hours of continuing education.” Id. The district court denied the motion to reconsider, finding “Barinholtz failed to identify any legal or factual error in the sanctions ruling and instead repeated previously rejected arguments.” Id. The court declined to address what it called “these ‘disheartening’ arguments” again, “and repeated that sanctions were warranted for his ‘egregious’ conduct.” Id. Barinholtz filed a notice of appeal within thirty days of the reconsideration order, but after October 13, 2020.
The Seventh Circuit opened its order by explaining Barinholtz “incurred sanctions for repeatedly asserting baseless claims and disregarding a court order. He moved, unsuccessfully, for reconsideration and then filed a notice of appeal . . . timely only with respect to the denial of the motion to reconsider.” Id. at 1-2. According to the court: “[b]ecause [Barinholtz] timely sought and received an extension of time, his appeal was due October 13. But Barinholtz missed this deadline. And his motion to reconsider had no effect on his time to appeal sanctions. Id. Accordingly, the notice of appeal filed after October 13 was only timely for the denial of the motion for reconsideration. Id.
The court then reviewed “whether the judge unreasonably denied Barinholtz’s motion to reconsider sanctioning him,” finding no abuse of discretion. Id. at 5-6. The Seventh Circuit stressed “Barinholtz lacked a good reason for vacating the sanctions,” “did not cogently explain why his conduct was not sanctionable,” “did not demonstrate any mistake of law or fact in the sanctions order,” and also “provided no excuse or explanation—or apology—for his actions.” Id. at 5. For example, “he did not argue that he complied with the discovery order, that he had a strategic reason for repleading baseless claims (such as preserving them), or that it was reasonable to press claims against [a defendant] after it showed that it had no ties to Illinois.” Id.
According to the court, the trial “judge also did not err in rejecting Barinholtz’s argument that [the actor] ‘flipped’ to the defendants’ side and is now in cahoots with them to get Barinholtz to pay both sides’ costs” because the “parties’ settlement agreement states that they must bear their own costs and fees.” Id. at 6. Instead, the “amount of the sanction is directly tied to the expenses that the defendants incurred in moving to compel discovery and moving for sanctions: motions necessitated by Barinholtz’s conduct.” Id.
Finally, Barinholtz contended the court should have imposed “fewer than 40 hours of continuing legal education” based on his “decades of experience.” Id. However, the court reasoned “the requirement directly addresses the sanctionable conduct: Barinholtz raised baseless allegations about [defendant’s Chicago] involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas.” Id.
Barinholtz told the ABA Journal in an email that he is reviewing “the procedural and merits-based aspects of the ruling and its impact.” Cassens Weiss, “Seasoned Litigator.” He explained he will probably seek rehearing and stated: “In light of my many years of dedicated practice in the federal courts, 40 hours of vaguely characterized CLE not only appears to be unprecedented—but in any event, is far too harsh and unwarranted in these circumstances.” Id.
I will keep you posted on any updates in this matter, and in the Fifth Circuit’s ruling in Scott. In the meantime, both cases give us all excellent reminders about competent representation and sanctions.
May 21, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession | Permalink | Comments (0)
Sunday, May 15, 2022
A Plea for Pro Bono Service
In terms of pro bono service, our profession has a long way to go.
Model Rule of Professional Conduct 6.1 makes clear that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay." To that end, the Rule says that lawyers "should aspire to render at least fifty (50) hours of pro bono publico legal services per year."
Let's be honest, though: 50 hours is pretty paltry. If you take a two-week vacation, you can still satisfy Rule 6.1 with just one pro bono hour per week. Even for busy lawyers, that's hardly "aspir[ational]." Yet a large majority of lawyers aren't even approaching that bare-bones ethical minimum. In 2017, the ABA's Standing Committee on Pro Bono and Public Service conducted a survey of over 47,000 lawyers across 24 states. Here's what they found:
- Barely half of responding lawyers provided any pro bono services in 2016.
- Not even 20% of responding lawyers fulfilled Rule 6.1's minimum requirement.
- Roughly one in five responding attorneys reported never having provided pro bono services of any kind. (Read: Roughly one in five lawyers admitted to having committed professional misconduct.)
And the problem isn't that there's too little pro bono work to go around. The 2017 Justice Gap Report, published by the Legal Services Corporation, revealed that in 2016, 86% of civil legal problems reported by low-income Americans received inadequate or no legal assistance. And there's good reason to believe that the pandemic has exacerbated that access-to-justice gap.
As attorneys, we have a state-sanctioned monopoly on legal services. If we don't work to close the access-to-justice gap, no one will. But across the board, we are falling far short of our professional and moral obligations. We must do better.
May 15, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Current Affairs, Legal Ethics, Legal Profession | Permalink | Comments (0)
Saturday, April 16, 2022
Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part One
As a legal writing professor, I often blog about appellate work for new attorneys or law students. For my next two blogs, however, my comments definitely include newer lawyers and those of us (like me) who have lower bar numbers and years of practice experience. On April 8, 2022, the Fifth Circuit reminded an experienced attorney: “When litigating in federal district court, it is often advisable to read the court’s orders.” Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam). Also on April 8, the Seventh Circuit refused to reverse sanctions against a self-claimed “seasoned litigator,” even though the litigator claimed being required to complete basic CLE classes was “demeaning.” Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022). Both orders take pains to remind all counsel, even those claiming to be very experienced, of the duty to competently follow the law in the trial and appellate courts. This month, I’ll focus on the Fifth Circuit, and next month, I’ll discuss the Seventh Circuit.
In the Fifth Circuit case, Scott v. MEI, Inc., the district court sanctioned Dallas attorney Matthew R. Scott for misleading the court and wasting opposing counsel’s time. Scott (5th Cir. Apr. 8, 2022). Scott’s defense, in essence, was that he misread an order granting leave to file a second amended complaint. See Debra Cassens Weiss, 5th Circuit Tells Lawyer It Is “Often Advisable to Read the Court's Orders,” Upholds $1,250 Sanction, ABA Journal (Apr. 11, 2022). Like many similar orders, the district court’s order allowing amendment of several new claims granted Scott’s client only the right to file; of course, Scott needed to actually present the second amended complaint for filing in order to add the claims. He failed to do so, “assum[ing]” permission to file equaled filing. Scott at 2. Scott then missed the deadline for any additional amended complaints. Id. at 3. Nevertheless, Scott moved late to file a third amended complaint discussing the never-filed second amendment claims and the original claims. Id. When the court questioned Scott about adding new claims after missing several deadlines, Scott erroneously argued the third amended complaint would only remove claims, and would not add new issues. Id. “That kind of parlous behavior would, the [district] court reasoned, constitute misrepresentation and conduct unbecoming a member of the bar.” Id. Accordingly, the court ordered Scott to pay his opponent $1,250 as “reimbursement for ‘reasonable attorney’s fees incurred in responding’ to the untimely motion for leave to amend and to the show cause order.” Id. at 4.
Nonetheless, Scott asked the Fifth Circuit Court of Appeals for relief from the sanction, stating: “I apologize to the court for my mistakes, but I assure the court that those mistakes are not representative of my abilities as an attorney nor evidence of misconduct.” Id. Scott repeated his explanation that he misread the order granting leave to file the second amended complaint, and also claimed he had experience litigating “around 750 lawsuits” and obtained referrals from other attorneys. Id.; see Cassens Weiss, 5th Circuit. Scott also raised four grounds for reversal, including an interesting claim “that it is illegitimate for a court to order counsel to reimburse another party for a response to a court order or a party’s motion.” Id. at 5.
The Fifth Circuit began its opinion: “[w]hen litigating in federal district court, it is often advisable to read the court’s orders. They are not merely ‘the breath of an unfee’d lawyer,’ and an attorney who treats them as such does so at his own peril.” Id. at 1. The court then reasoned “[t]his entire debacle was the result of Scott’s failure to follow a court order, so the district court was well within its legal authority to take disciplinary action.” Id. at 2. The Fifth Circuit rejected Scott’s arguments on appeal as “paper-thin” and noted the claim of “illegitimacy” was frivolous and based only on Scott’s incorrect “hunch” about what the law might be. Id. at 4, 6. The court concluded: “Scott made a mistake. The district court imposed a reasonable sanction to reimburse [the opponent] for the expense of dealing with that mistake. Law, fact, and logic itself support that course of action.” Id. at 6.
I will definitely be using the “law, fact, and logic itself” line in the future, and I will write about the Seventh Circuit and its approval of a sanction requiring experienced counsel to attend a class like the “Basic Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys” next time. Until then, happy drafting.
April 16, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)
Sunday, February 27, 2022
The First Amendment and Low-Value Speech That Causes Substantial Emotional Distress
“God Hates Fags.”
“God hates you.”
Should the First Amendment be interpreted to protect this nonsense?
Some speech is so despicable – and so injurious – that it should not receive First Amendment protection. Indeed, individuals should be permitted to recover damages for emotional distress where speech:
- Intentionally targets a private and in some cases, a public figure;
- Has no social value (e.g., “God Hates Fags”); and
- Causes severe emotional distress.
Put simply, the First Amendment should not be construed to allow individuals to hurl vicious verbal assaults at citizens with impunity, particularly where such speech causes substantial harm.
By way of background, the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Of course, protecting speech is essential to ensuring liberty, autonomy, and decentralized governance. Furthermore, the right to free expression promotes a “marketplace of ideas” that exposes citizens to diverse perspectives on matters of public and political significance, which is vital to ensuring an informed citizenry and a healthy democracy.
For that reason, offensive, distasteful, and unpopular speech – particularly on matters of public concern – should receive the strongest First Amendment protection. In Cohen v. California, for example, the United States Supreme Court correctly held that the First Amendment prohibited the prosecution of an individual who entered a courthouse wearing a shirt stating, “Fuck the Draft.” Additionally, in Texas v. Johnson, the Court rightly held that the First Amendment protected flag burning. Also, in Hustler v. Falwell, the Court held that the First Amendment protected the satirical depiction of a preacher having sex with his mother in an outhouse. Likewise, in Matal v. Tam, the Court held that there is no hate speech exception to the First Amendment. And in Snyder v. Phelps, the Court held that members of the Westboro Baptist Church had a First Amendment right to display signs stating, among other things, “God Hates Fags” and “Thank God for 9/11” outside of a church where a family was grieving the loss of their son. In most of these cases, the Court’s decisions rightfully affirmed that, in a free and democratic society, citizens must tolerate speech – and expressive conduct – that is offensive and unpopular. Otherwise, the right to speech would allow the government to censor speech that it subjectively deemed undesirable. That result would be to chill speech and render the First Amendment meaningless.
But is there no limit on what citizens can say or express?
To be sure, the Court has placed some limits on the right to free speech. For example, in Miller v. California, the Court held that the First Amendment did not protect obscenity, which is defined as speech that had no “literary, scientific, or artistic value,” and that appeals to the “prurient (sexual) interest.” One can legitimately question why speech must appeal to sexual matters to be obscene. Also, in Brandenburg v. Ohio, the Court held that the First Amendment did not protect speech that incited others to commit imminent and unlawful violence. And in numerous cases, including City of Renton v. Playtime Theatres, the Court held that states could place reasonable time, place, and manner restrictions on speech.
But outside of these limited categories, should the First Amendment protect speech regardless of how vile or harmful?
In other words, is “Fuck the Draft” the same as “God Hates Fags?” And should the First Amendment permit a magazine to publish a satire of a preacher having sex with his mother in an outhouse?
And should the First Amendment be construed to permit all speech, no matter how vile and harmful, if it targets private individuals, has no social value, and causes severe emotional distress?
Put simply, Snyder v. Phelps was wrongly decided.
As stated above, in Snyder, the Court, in an 8-1 decision, held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a church where a family was mourning the loss of their son in the Iraq War with signs that said, among other things “God Hates Fags” and “Thank God for 9/11.” The Court’s decision emphasized, among other things, that the First Amendment requires that citizens tolerate offensive speech such as that expressed by the Westboro Baptist Church.
The Court got it wrong.
When, as in Snyder, speakers target private individuals with despicable speech that has no social value and that causes severe emotional distress, those individuals should be permitted to recover damages for the intentional infliction of emotional distress.
Importantly, Justice Samuel Alito agrees and, in a persuasive dissent, explained that the First Amendment’s underlying purposes are not frustrated by allowing individuals to sue for emotional distress resulting from zero-value – and harmful – speech:
Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. He [Petitioner] is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right … They appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. 1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.
I cannot agree either.
Moreover, as Justice Alito noted, the Westboro Baptist Church had alternative avenues by which to disseminate their hateful views. As Justice Alito stated:
Respondents and other members of their church … have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.
Perhaps most importantly, Justice Alito recognized that speech can – and does – cause substantial injury, and when it does, the First Amendment should not bar recovery for the intentional infliction of emotional distress:
This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.
Justice Alito got it right. There are numerous cases where young people, after vicious verbal attacks in-person and online, committed suicide. There are countless cases of “revenge porn,” in which women discover their intimate photographs posted on the internet by a disgruntled ex-partner.
The First Amendment should not be construed to protect this nonsense the law should not turn a blind eye to the harm it causes.
To be clear, this does not mean that state governments should be permitted to criminalize such speech. It does mean, however, that private, and, in some cases, public figures should be allowed to pursue a claim for the intentional infliction of emotional distress where they are intentionally targeted with speech of no social value that causes severe and lasting harm.
This argument should not be construed to support a hate speech exception to the First Amendment. After all, how would one define ‘hate speech?” Such an exception, due to its subjectivity and arbitrariness, would undermine significantly the First Amendment’s core purpose of promoting a marketplace of ideas in which unpopular, distasteful, and offensive ideas are tolerated.
But there is a limit.
As Justice Alito emphasized in Snyder, some speech is of such low value – and so harmful – that it supports a civil suit for the intentional infliction of emotional distress. Statements such as “God Hates Fags” and “Fags Doom Nations” have no literary, scientific, or artistic value and, although not sexual, can be every bit as obscene as the most revolting sexual images. The speech at issue in Snyder and Hustler had no social value. It was utter garbage and contributed nothing to public debate or the “marketplace of ideas.” But it did cause severe – and lasting – emotional distress. Thus, in some instances, there should be a civil remedy for victims who are intentionally targeted with such speech.
Of course, some will make the slippery slope argument, arguing that any restrictions on speech other than the narrow categories already delineated will result in a chilling effect and give the government the power to restrict any speech that it deems offensive or unpopular. This argument is without merit because it assumes without any evidence that any failure to fully protect even the most injurious speech – such as “God Hates Fags” – will inevitably lead to a ban on other forms of traditionally protected speech. That view essentially prohibits restricting any speech no matter how valueless and no matter how injurious, and ignores the harm that such speech can – and does – cause.
Ultimately, free speech is an essential component of ensuring liberty and an informed democracy. Accordingly, unpopular, offensive, and distasteful speech must be welcome in a society that values diversity. But that is not a “license for … vicious verbal assault[s]” upon citizens that serves no purpose other than to degrade and demean people, and that causes substantial and often irreparable harm, including suicide.
 562 U.S. 443 (2011).
 U.S. Const., Amend. I.
 403 U.S. 15 (1971).
 491 U.S. 397 (1989).
 485 U.S. 46 (1987).
 137 S. Ct. 1744 (2016).
 562 U.S. 443 (2011).
 413 U.S. 15 (1973).
 395 U.S. 444 (1969).
 475 U.S. 41 (1986).
 See Adam Lamparello, ‘God Hates Fags’ Is Not the Same as ‘Fuck the Draft’: Introducing the Non-Sexual Obscenity Doctrine, 84 UMKC L. Rev. 61 (2015).
 562 U.S. 443 (Alito, J. dissenting) (emphasis added).
 Id. (emphasis added).
 Id. (emphasis added) (quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”).
 See, e.g., Jane E. Allen, Rutgers Suicide: Internet Humiliation Trauma for Teen (September 30, 2010), available at: Rutgers Suicide: Internet Humiliation Trauma for Teen - ABC News (go.com).
 See, e.g., Mudasir Kamal and William J. Newman, Revenge Pornography: Mental Health Implications and Related Legislation (September 2016), available at: Revenge Pornography: Mental Health Implications and Related Legislation | Journal of the American Academy of Psychiatry and the Law (jaapl.org).
 See, e.g., Claypool Law Firm, Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (Dec. 18, 2017), available at: Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (claypoollawfirm.com).
February 27, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Saturday, February 19, 2022
Writing Truly Helpful Statements of the Case, with Assistance from Bryan Garner and Justice Rutledge
In my LRW II classes last week, we reviewed persuasive Statement of Fact headings. I repeated my usual points on making the headings a bit catchy, but completely honest and logical. I reminded the students of all the notes we have showing busy judges sometimes only get a chance to skim briefs’ tables of contents, and instructed them to always include Statement of the Case headings on their Tables of Contents. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”).
In sum, I suggested students use fact headings to tell a logically-organized and persuasive story consistent with their overall theory of the case, and to only include key facts and truly needed background facts.
Then, after class, I happened to read Bryan Garner’s February 1, 2022 ABA Journal piece, Bryan Garner shares brief-writing advice from the late Supreme Court Justice Wiley B. Rutledge,
https://www.abajournal.com/magazine/article/bryan-garner-shares-brief-writing-advice-from-the-late-supreme-court-justice-wiley-b-rutledge. As Garner reminded readers he: “occasionally interview[s] long-dead authors. Another name for it is active reading. Actually, we do it all the time—taking an author and interrogating the text for all the wisdom it might yield.” In Garner’s February piece, he interviewed U.S. Supreme Court Justice Wiley B. Rutledge (1894–1949), who also served as a law school dean before sitting on the Court. Id. I highly recommend reading Garner’s whole article, but today, I am focusing on the statement of facts points.
Garner asked Justice Rutledge if he was “bothered when the opposing lawyers have widely divergent statements of the facts.” The Justice’s hypothetical reply is especially helpful for all appellate writers to remember: “The bulk of the evidence is not controversial” and thus counsel “can freely and truly summarize.” Id. As I told my students, a careful summary where parties agree can sometimes be helpful. Garner notes Justice Rutledge might say:
This [summary] often, and especially when well done, may be the most helpful, if not also the most important part of the brief. It cuts the brush away from the forest; it lifts the judge’s vision over the foothills to the mountains. It enables [the court] to read the record with an eye to the important things, intelligently, in true perspective.
In a similar vein, I often quote to my students a wise law firm founder and mentor, who regularly reminds young associates, “all we really have in law is our good name.” Bryan Garner notes how this saying can be especially true when we present facts, as any murky or possibly untrue assertion can quickly convince the court our entire brief is suspect. Id. Garner explained Justice Rutledge’s point on dealing with adverse facts this way: “Few things add strength to an argument as does candid and full admission” which “[w]hen made, judges know that the lawyer is worthy of full confidence, and every sentence he [or she] utters or writes carries force from the very fact that [counsel] makes it.” Id.
Finally, on the dreaded topic of citation, Justice Rutledge reminds us our fact sections must have careful and accurate citations, as a “great time-saver for judges” and a way to increase credibility. Id. Garner concludes his article asking for the Justice’s concluding thoughts. The Justice’s hypothetical reply is: “Make your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not least. A dull brief may be good law. An interesting one will make the judge aware of this.” One great way to add interest is to give your court clear, concise, and interesting facts.
I wish you happy drafting.
February 19, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (1)
Thursday, February 3, 2022
[Sic] It, Fix It, or Ignore It? The Rhetorical Implications of Spotlighting Another Writer’s Error
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
[Sic] It, Fix It, or Ignore It? The Rhetorical Implications of Spotlighting Another Writer’s Error
I’m teaching The First Amendment this semester, which means I’m reading very closely a lot of United States Supreme Court opinions on freedom of expression. (An aside: One of my favorite opinions for a close read of persuasive writing is Justice Alito’s dissenting opinion in Snyder v. Phelps; although I largely disagree with him on his reasoning and conclusions in that opinion, the opinion is a great example of using details and evoking emotion in support of reasoning.)
I was closely reading the majority opinion in RAV v. City of St. Paul, written by Justice Scalia, when I noticed this sentence, in which the Justice describes Respondent City of St. Paul’s argument about why its Bias Motivated Crime Ordinance did not violate the First Amendment (Scalia, writing for the majority, found that it did):
According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against.”
Appellate lawyers know the ALWD Guide to Legal Citation or The Bluebook: A Uniform System of Citation rules for using [sic]. If there is a mistake in a quotation, “such as spelling, typographical, or grammatical errors,” says the ALWD Guide, authors may use [sic] to indicate that the error is not their own but is instead part of the original quotation. Alternatively, authors may fix the error themselves, using brackets to correct the original author’s mistake. (For more, consult ALWD Guide Rule 39.6, Indicating Mistakes in the Original and The Bluebook Rule 5.2, Alterations and Quotations Within Quotations.)
Knowing these rules, I must confess that I was distracted by the [sic] in Justice Scalia’s sentence rather than confident that I understood his meaning. What exactly was Justice Scalia’s concern that [sic] was signaling? Was he suggesting that “on” should have been omitted? Or was he saying that the right word to use here was “upon”? Or was he suggesting something else altogether? And, I wondered, how did the misuse of “on” make a difference to his opinion? Or to St. Paul’s argument? Or to anything for that matter? Was Justice Scalia drawing my attention to the error just for the sake of showing that St. Paul had made an error? And, if so, why would Justice Scalia do that?
Scalia’s choice to use [sic] here rather than pursue some other alternative made me wonder: Even if a legal writer may draw attention to another writer’s error by using [sic] rather than correcting the mistake, should the legal writer do so? Answering that question requires thinking about not only about how to accurately signal a mistake in a quotation, but also about how [sic] influences the persuasiveness of the document and the reader’s perception of the writer.
The first thing to think about when considering whether to use [sic] is that [sic] has the potential to create unnecessary ambiguity and distraction. [Sic] means more than what the ALWD Guide or The Bluebook suggest. That is, although it’s true that [sic] can mean grammar or spelling error, it can also mean the presence of unexpected language or phrasing. The Redbook, in fact, suggests that [sic] can be used to indicate either an error or an “oddity” in quotation.
Miriam-Webster’s usage notes give this example. The Toronto Maple Leafs are not, in fact, the Toronto Maple Leaves. The name does not reflect a grammatical error but an unusual usage of the word “leaf.” Thus, a writer quoting the phrase “Maple Leafs [sic]” isn’t indicating a spelling error (i.e., the misspelling of the plural form of ‘leaf’) but instead is indicating an unexpected or novel usage of the word “leaf.” So, when a writer uses [sic], particularly where there isn’t an obvious error, [sic]’s meaning may be ambiguous to the reader.
In the case of Scalia’s sentence, the error of “impact on” wasn’t obvious to me, and so I was confused and distracted by its use. I thought perhaps he was pointing to a grammatical error that I didn’t recognize, or, now that I’ve checked The Redbook, I think maybe he might have been pointing out one of those “oddities” The Redbook refers to. I’m still not sure.
I researched what Justice Scalia might have meant when he wrote “impact on [sic].” The Redbook told me that “impact” as a verb is of “questionable” use, and that better choices would be “affect” or “influence.” So maybe Justice Scalia was signaling this questionable use. But both the ALWD Guide and The Bluebook say that [sic] should follow the error, and the ALWD Guide emphasizes that [sic] should be inserted “immediately after the word containing the mistake.” So, if Justice Scalia was using [sic] to indicate this disfavored usage, then [sic] should have followed “impact” rather than “on.”
Regarding the preposition “on,” The Redbook suggested that “on” is a preposition that commonly relates its object to another word based on the concept of space. So, perhaps Justice Scalia was signaling that “on” was misused in the phrase “impact on the right of free expression” because the relationship between St. Paul’s ordinance and the right of free expression is not one of space. If that were Justice Scalia’s concern, then perhaps he used [sic] to signal to the reader that a more deftly written sentence would have left out “on” and simply said “impact the right of free expression.”
But, even then, perhaps Justice Scalia was not signaling that “on” was an “error” to be fixed at all. Maybe he simply meant that “impact on” was an unexpected usage or an oddity. The Redbook offers that “[t]he use of prepositions is highly idiomatic: there are no infallible rules to guide you in deciding what preposition to use with a particular word (emphasis added). If that’s the case, then, Justice Scalia’s [sic] might have been expressing that “impact on” is an unexpected or unusual usage in the sentence’s context.
Ultimately, I wondered why Justice Scalia didn’t just change “impact on” to “[affect]” if that was his concern. Both The ALWD Guide and The Bluebook would have allowed him to do so. But I think I can understand why Justice Scalia might not want to change St. Paul’s specific word choice. If he made that kind of change, he would be doing more than addressing a simple and obvious error in the text, as he would do if he changed a comma to a semi-colon, corrected a misspelling, or changed a singular verb to a plural one. Arguably, by changing “impact” to “affect,” Justice Scalia might actually have altered the meaning of St. Paul’s argument ever so slightly. And, because he was quoting St. Paul, changing meaning is a legitimate concern.
Even after my research, I’m still not sure what Justice Scalia had in mind with “impact on [sic].” But I am sure that I was distracted by its use, and I focused more on [sic] than what Justice Scalia was saying about the merits of St. Paul’s argument. I wonder what would have happened if Justice Scalia had just left the quote alone. While I don’t have scientific proof for my suggestion, I imagine most readers would easily understand the general meaning of “impact on” as it was used in the St. Paul’s quote. It seems that the use of [sic] in the sentence attracts the reader’s attention to an unimportant point and wastes the reader’s time.
The second thing to consider when thinking about [sic]’s persuasive use is that note that [sic] can be interpreted as a sneer—it can, in a contemptuous way, needlessly call attention to others’ errors. Miriam-Webster’s usage notes refer to this as problem of “etiquette”; in the context of legal writing, we might think of it as a problem of professionalism. Miriam-Webster says that [sic] can be used to “needlessly mak[e] a value judgment on someone else’s language habits.” Even Garner’s Modern English Usage says that [sic] can be used “meanly,” as a way to show the writer’s sense of superiority. The Redbook says, notably, that [sic] “should never be used as a snide way to highlight the errors of another writer.” But Miriam-Webster points out that “sometimes pedantic condescension is precisely what [the writer is] going for.” Bottom line: don’t use a “sneering [sic].”
In the context of writing persuasively in the law, I’d take the concern about the sneering [sic] a bit further: A sneering [sic] not just about etiquette or professionalism; using [sic] to point out an error in a party’s argument can also represent an appeal to a logical fallacy, the ad hominem argument. The ad hominem argument is a fallacious argument that gets its strength from undermining a logical, reasoned argument by attacking the character of a person making the argument. This usage might be popular in situations where a writer uses [sic] to implicitly suggest that the argument contained in quotation cannot be trusted because the quote’s author is incapable of writing well. In other words, using [sic] can distract the reader from an arguments’ merit and instead implicitly suggest to the reader there is something untrustworthy about the argument because of the writing errors of the author. If it’s the case that the errors represent an untrustworthy argument, there’s nothing fallacious about using [sic]. But, when the legal writer knows that [sic] is an implicit attack on the character of another, than [sic] is a problem.
So, where does this analysis of [sic] leave the legal writer? First, it should leave the legal writer with the sense that correcting errors in other people’s writing is not only an accuracy problem but also a rhetorical one. That is, when writers choose to use [sic] or not, they make rhetorical choices. Moreover, it should leave the writer with the sense that [sic] can be either a helpful corrective or an unhelpful distraction, and that the writer needs to understand these potential rhetorical effects on the audience before making a choice about using [sic].
Here are some best practices for using [sic] to correct an error in the quotation of another writer.
- When possible, prefer not to use [sic]. Unless it really matters, don’t use [sic] to indicate an error or an odd or unexpected usage, I’d argue that Justice Scalia would have lost nothing—not accuracy, understandability, or influence--by leaving the quote from the City of St. Paul alone and avoiding [sic]. No reader would be confused that the phrase “impact on” was attributable to the City of St. Paul and not Justice Scalia. And the phrase itself is not obviously “wrong.” So, no harm, no foul.
- Prefer paraphrasing instead. If you can avoid quoting a passage with an error and a paraphrase would work just as well, do that. I think Justice Scalia could have been just as effective in his writing if he had paraphrased St. Paul’s argument like this: “St. Paul argues that the City did not intend its ordinance to affect the accused person’s free expression . . . .” Would the reader’s experience have been worse if Justice Scalia had paraphrased that portion of the quotation?
- If paraphrasing won’t work, prefer to fix the error. When an error must be corrected, or the error is distracting, correct it according to the ALWD Guide and The Bluebook rules rather than use [sic]. Frankly, correcting the error is a kinder, more professional thing to do. The Redbook agrees: “[I]t is better to correct those minor mistakes using brackets.” There are some instances, however, where correcting an error in a quote may not be the best option. For example, you may not want to put your words in the mouth of your opponent. In that case, [sic] might be best. But, if the exact words aren’t that important, don’t quote the problematic content in first place. Paraphrase instead.
- If nothing else works, use [sic]. If rigorous accuracy in representing the original quotation is a must, then use [sic]. For example, rigorous accuracy might be needed when quoting statutes. Another situation that would call for using [sic] to indicate errors in a quotation might be when a legal writer is quoting written or transcribed witness testimony. If altering the testimony might be viewed as unethical or deceptive, then use [sic]. But don’t use [sic] repeatedly to indicate the same error by the same quoted author; one [sic] should be enough to put your reader on notice of the repeated mistake.
Thanks for reading! What are your thoughts on [sic]?
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
February 3, 2022 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (3)
Sunday, January 23, 2022
Disparity's Relationship to Discrimination
Anyone with a conscience (or a pulse) knows that discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity, is abhorrent and has no place in a civilized society. Indeed, inequality of opportunity and access is antithetical to the very freedom, liberty, and dignity that the Constitution requires and that every human being deserves.
But disparate outcomes among groups do not always reflect discrimination.
In his book Discrimination and Disparities, Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution, argues persuasively that disparate outcomes are often attributable to non-discriminatory factors. Indeed, as Sowell notes, even in the absence of discrimination, disparate outcomes among groups nonetheless result, thus undermining the conclusion that disparity reflects discrimination.
I. Disparity does not equal discrimination.
Disparities among groups do not always reflect discrimination because: (1) in many contexts, the disparity is attributable to other factors; (2) disparities exist within groups for reasons unrelated to discrimination; (3) disparity still results when objective and non-discriminatory measures are used to evaluate performance; and (4) disparities exist because individuals and groups self-select into different professions and make different life choices.
A. In many areas, disparity cannot be attributed to discrimination.
Disparities exist everywhere. For example:
The majority of law professors identify as liberal, and conservatives comprise a distinct minority on most law school faculties.
The majority of legal writing professors are female.
The overwhelming majority of individuals convicted of violent crimes are men.
The majority of nurses are female.
The majority of professional football and basketball players are African-American.
The majority of professional baseball players are white.
The majority of methamphetamine users are white.
Let’s analyze just a few of these examples. Do these facts suggest that the National Football League and National Basketball Association are discriminating against whites? Of course not. Do they suggest that law enforcement officers are racially biased against white methamphetamine users? No. A more plausible explanation is that whites predominantly use and sell methamphetamines. Do they suggest that law schools discriminate against conservative faculty candidates? According to one study, the answer might be yes. And this illustrates the broader point: academics, courts, and policymakers should distinguish between those instances where disparity results from discrimination and those where it does not. In other words, they should use empirical data to exclude other possible causes of disparate outcomes rather than assuming that such outcomes reflect discrimination.
Put simply, identifying a disparity in a particular context proves nothing.
B. Disparities exist within groups based on cultural and other factors unrelated to discrimination.
The disparity narrative disregards the fact that disparate outcomes occur within groups. For example, a study of individuals with an IQ in the top 1% discovered widely disparate levels of achievement within this group. What did social scientists identify as the reason for the disparity?
The quality of a person’s family upbringing.
Likewise, income disparities exist within racial groups for reasons that discrimination cannot explain. Sowell explains as follows:
[I]n 2012 the US poverty rate for Jamaicans was reported as 14.8 percent, Ethiopians 19.7 percent, and Nigerians 12.8 percent. All the rates were significantly lower than the rate of 28 percent for blacks as a whole.
Additionally, “these three ancestry groups had significantly lower rates of poverty and higher median incomes than the Hispanic population.” Sowell further states:
How were these people of color, often without the benefit of growing up in America, able to clear the “barriers” of a discriminatory “system” far better than other people of color? Culture unquestionably plays a role in income and poverty disparities, even in situations comparing people of color where “discrimination” can be ruled out.”
Furthermore, regarding income inequality, “examining the average age differences among different demographics can explain away a portion of the income inequality that intellectuals proclaim exists due to discrimination.” Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”
In other words, not all – or even most – disparities are reducible to racism
C. When objective and non-discriminatory measures are used, disparate outcomes still result.
In many instances where objective and non-discriminatory measures are used to evaluate performance, disparity still results. For example, from 2001 to 2012, the home run leader in the American League had a Hispanic surname. From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry. In 2012, sixty-eight of the top 100 marathon runners were Kenyan. The best-selling brands of beer are made by people of German ancestry. And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.
Does this mean that the NFL is discriminating against African American kickers? Of course not.
D. Disparities result because individuals self-select into different professions.
Within and among groups, disparities result because individuals self-select into different professions and, more broadly, make different life choices. As Sowell explains:
There are many decisions wholly within the discretion of those concerned, where discrimination by others is not a factor—the choice of television programs to watch, opinions to express to poll takers, or the age at which to marry, for example. All these show pronounced patterns that differ from group to group.
To be sure, “[a]mong the many reasons for gross disparities in many fields, and at different income levels, is that human beings differ in what they want to do, quite aside from any differences in what they are capable of doing, or what others permit them to do.”
Simply put, in many instances, disparate outcomes have nothing to do with discrimination.
II. The solution – use empirical data to exclude non-discriminatory causes of disparity.
As stated above, discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity is reprehensible. But that doesn’t mean that disparate outcomes always reflect discrimination.
As Sowell notes, some disparities result from non-discriminatory factors and thus have no relationship to inequality or injustice. As such, scholars and policymakers should avoid assuming that disparity reflects discrimination. Instead, they should rely on empirical data to exclude other causal factors, thus more firmly supporting their arguments. In so doing, scholars will likely discover that some disparities reflect discrimination and some do not. This is the first step toward embracing an intellectually honest and fact-driven approach to solving the problems affecting the United States and to improving the nation’s discourse on matters of public policy.
 See Thomas Sowell, Discrimination and Disparities (Basic Books, 2019), available at: Amazon.com: Discrimination and Disparities: 9781541645639: Sowell, Thomas: Books; see also Coleman Hughes, The Empirical Problems With Systemic Racism, available at: Coleman Hughes: The Empirical Problems with Systemic Racism - YouTube
 See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)
 See Legal Writing Professor Demographics and Statistics : Number Of Legal Writing Professors In The US (zippia.com)
 See Gender and Crime, Differences between Male and Female Offending Patterns, available at: Gender and Crime - Differences Between Male And Female Offending Patterns - Categories, Women, Crimes, and Arrests - JRank Articles
 See Registered Nurse Demographics and Statistics (2022), available at: Registered Nurse Demographics and Statistics : Number Of Registered Nurses In The US (zippia.com)
 See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista
 See Professional Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics : Number Of Professional Baseball Players In The US (zippia.com)
 trends of meth use by ethnicity and gender by www.drug-rehabs.org
 See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. ILL. L. REV. ONLINE 178, 179 (2020) (emphasis added)
 See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube
 See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)
 See id.
 See id.
 See id.
 See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review
 See id.
 See id.
 See id.
 See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)
 See id.
 See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review
 See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube
January 23, 2022 in Appellate Justice, Appellate Practice, Books, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)
Monday, January 3, 2022
2022 & The Marble Place Blog
Robert has already welcomed 2022 in his post yesterday. He provided some predictions regarding several big cases before the Supreme Court this year. Two other big cases, which address federal vaccine mandates, will be heard this Friday. I suspect we will get an expedited decision in those cases given the effective dates of the policies.
Speaking of the Supreme Court, noted Supreme Court journalist Tony Mauro has a new blog that he has aptly named The Marble Palace Blog. He recently blogged about the most recent issue of the Journal of Appellate Practice and Process, which addresses what judges can do to ameliorate the divisions in our country. Tony was one of the authors I recruited to write a preface for the issue, which I discuss here.
In his post, Tony pulls key excerpts from seven diverse pieces. Each excerpt offers a tangible step that lawyers and judges can take to address the cultural and political divisions in our country. While some of the steps would take much political capital to institute (a non-partisan nominating commission for federal judges and justices), others are simple in theory (be role models and civil, even when you disagree).
Given the hot button issues that the Court has to decide this year--guns, abortion, vaccine mandates, presidential privilege--we know that there will be ample opportunity to practice some of the steps outlined by Tony and the authors of the special issue. I hope we as lawyers (and judges for our judicial readership) take seriously our responsibility to serve as role models for our communities.
Happy New Year!
January 3, 2022 in Appellate Advocacy, Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)