Appellate Advocacy Blog

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

Tuesday, April 16, 2019

The U.S. Supreme Court and Its Political History.

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Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.

I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.

First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.

This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.

This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.

After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.

That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.

In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.

The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.

In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.

There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.

Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.

Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.

(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)

April 16, 2019 in Appellate Court Reform, Appellate Justice, Current Affairs, Federal Appeals Courts, Legal Ethics, United States Supreme Court | Permalink | Comments (0)

Monday, April 8, 2019

Obscenities & The Supreme Court

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

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

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

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

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

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

April 8, 2019 in Appellate Advocacy, Appellate Practice, Humor, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Thursday, April 4, 2019

Would the Supreme Court Be Better with More Justices?

Tinkering around with the American governmental structure has become a standard plank for campaigners during run-ups to elections. The latest structural idea some are revisiting is the number of judges on the Supreme Court. George Washington University law professor Johnathan Turley has a laid out a plan to increase the Court to nineteen. 

Turley describes this increase not as court-packing but as a cure to the partisan lock that has become fairly predictable. With more justices, this lock would be eased and the "swing-vote" would not hold so much power in close cases. Turley says the Court may still split but the swing vote would probably not be the same justice every time. In some instances, we have become accustomed to cynically saying that arguments before the Court only have to persuade one person - most recently that person was Justice Anthony Kennedy - since the other justices were so predictable. When viewed from this perspective, it does seem a circumvention of justice when one person can hold so much sway over the decisions of the Court.

Turley makes the point that the number of justices on the Supreme Court is not mandated by the Constitution. The reason we have nine today is because there were nine circuits in 1869, and that's where it has stayed for no real reason except tradition. Turley would increase the Court to nineteen, and two justices would sit on the lower courts each year in order to keep in touch with reality (Turley says "so they don’t lose touch with judging in the litigation brawl that precedes a case that rises to the Supreme Court"). In the build up to fully staff the Court, each president would not be allowed to appoint more than two justices during his entire term. Turley arrives at the number nineteen because he says that is the size of most of our appellate courts and they work well when sitting en banc. 

Glenn Reynolds, University of Tennessee law professor, agrees with increasing the Court, but actually advocates for a mega-court of fifty-nine judges! He says keep the nine already presiding, appointed by the president, and add one for every state, appointed by the state governor. Reynolds says this will allow for a more diverse bench and one not as subject to the political winds as is the smaller insular group of nine. Reynolds has also advocated for elections for the justices. He says that the Court has already become politicized, so elections to ten year terms would make the presidential election turn less on Supreme Court appointments. Several states already elect their supreme court judges (most recently Wisconsin).

Personally I remain sentimental and tend to be attached to tradition, so am not immediately interested in these proposals. But admittedly, as Turley notes, our Supreme Court is the smallest of any major nation, and the ideological lock is a real concern. Since there are no Constitutional rules about the size of the Court, and it would be only engrained practice that would need changing, revisiting the size of the Court may be an idea whose time has come.

 

April 4, 2019 in United States Supreme Court | Permalink | Comments (0)

Wednesday, March 27, 2019

What are your appellate obligations to your client following a guilty verdict and sentencing?

The United States Supreme Court has long held that criminal defendant has the right to the effective assistance of counsel through his first appeal where an appeal is provided to those who can pay for it. See Griffin v. Illinois, 351 U.S. 12 (1956), Douglas v. California, 372 U.S. 252 (1963). This assistance is not without limits. In Anders v. California, 386 U.S. 738 (1967), the Court held that counsel may not abandon a nonfrivolous appeal, but also allowed an attorney to withdraw from an appeal once the appellate court has verified that there are no nonfrivolous grounds to pursue. In Jones v. Barnes, 463 U.S. 745 (1983), the Court recognized that it is the defendant’s authority to determine whether to pursue an appeal, while it is counsel’s responsibility to make strategic choices concerning which issues to raise on appeal.

Late last month, the United States Supreme Court emphasized that a criminal defendant retains the right to an appeal, and that appointed counsel is obligated to note an appeal upon his client’s request, even if his client has waived his right to an appeal in a guilty plea. The Court has previously held that counsel’s performance is deficient when counsel “disregards specific instruction from the defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969); cf. Puguero v. United States, 526 U.S. 23 (1999)). The Court in Roe held that no showing of prejudice would be required when a criminal defendant can provide that he would have taken an appeal, but for counsel’s deficient performance in failing to consult with defendant regarding an appeal where “a rational defendant would want to appeal …, or … demonstrate to counsel that he was interested in appealing.”

In the almost 20 years since that decision, however, many criminal defendants, who have pleaded guilty and, as part of their bargain, have waived their right to an appeal, have not enjoyed their right to have counsel note an appeal on their behalf. In part, I believe it is because many believed that the appeal waiver resulted in there being no nonfrivolous grounds for an appeal, and because counsel believed that no rational defendant would want to appeal and potentially lose the benefit of the plea bargain. Regardless of the rationale, last month the Court once again reminded the bar that the filing of a notice of appeal is a purely ministerial task, and that failing to do so upon defendant’s request is presumptively prejudicial. Garza v. Idaho, 586 U.S. ___ (2019) (slip op., at 14).

I understand the position taken by the government, which may not have agreed to a plea deal absent the defendant’s waiver, but I fundamentally agree with the heart of the Court’s rationale. After all, the criminal defendant is wholly dependent upon counsel when it comes to noting an appeal, although it is the defendant’s decision whether to seek that appeal. Whether counsel agrees with the defendant’s decision is of no import, at least regarding this simple task without which all hope is lost.

As the Court noted in Garza, we cannot expect a defendant to prove he would have had successful claims on appeal where the Court has recognized that the task of determining what claims to press on appeal is typically left to counsel. Id. (slip op., at 12); see also Jones, 463 U.S. 745.

If you represent criminal defendants, make sure you take the time to talk with your clients about their right to an appeal. And, whether or not they have pleaded guilty, if they ask, file a notice of appeal.

March 27, 2019 in Appellate Advocacy, Appellate Practice, United States Supreme Court | Permalink | Comments (0)

Wednesday, March 20, 2019

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

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

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

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

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

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

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

March 20, 2019 in Humor, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 5, 2019

When the law loses its way

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There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.

Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.

Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”

A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.

Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.

Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:

The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.

After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).

And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.

Not surprisingly, a long catalogue of abuses followed.

In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.

In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money -  donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.

In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.

More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.

These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.

Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.

Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.

(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)

March 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 12, 2019

Appellate Advocacy 101: On the Basis of Sex

Last night, I watched On the Basis of Sex with first-year law students.  Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972).  Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.

On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy.  The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument.  After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks.  Below are some of the lessons learned.

Appellate Practice Is a Lot of Work

Most of the movie occurs outside the courtroom.  Students saw Ginsberg meet with Moritz to discuss taking an appeal.  They saw her strategize with other attorneys about arguments.  She works with her husband, a tax attorney, and her staff and students at Rutgers Law School.  She researches, writes, and rewrites the appellant’s brief.  When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one.  She takes a settlement offer to her client.  Before oral argument, Ginsberg practices before a moot court and then before a mirror.  Ginsberg works hard.  The process takes a long time. 

Oral Argument Is a Little Scary

The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit.  Students noted how different oral argument looks from the trials they had seen on TV.  There is no jury.  A lone attorney stands before a panel of three judges.  They remarked how Ginsberg was nervous and awkward at first.  The judges directed the course of the argument.  They interrupted with questions. 

The students began to imagine what it will be like when they argue in April.  We discussed how preparation goes a long way toward easing nerves.  I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society.  I encouraged them to practice in front of a mirror like Ginsberg.  I shared that it is normal to be nervous, especially for your first argument.   

One Case Can Be Two Different Stories

The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code.  The law was clear.  Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man.  Had he been a woman, divorced, or a widower, he would have been eligible for the deduction. 

The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case.  The IRS portrayed Mr. Moritz as a tax cheat.  Ginsberg held him up as a loving and devoted son.  The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender.  Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.

During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped.  Ginsberg picked up on this point during her rebuttal.  She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change.  Students were struck by this exchange.  Each side used the same words to make two very different points.

At the end of the evening, students left our gathering excited, inspired, and a little nervous.  I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way.  Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers.  Through this movie, Justice Ginsberg is still doing just that.

February 12, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, February 8, 2019

Appellate Advocacy Blog Weekly Roundup February 8, 2019

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

The Supreme Court voted this week by a 5-4 margin to a Louisiana abortion law from going into effect pending appeal.  The law would have required abortion providers in Louisiana to have admitting privileges at nearby hospitals.  Justice Kavanaugh filed a dissent.  The Court's vote likely signals that the Court will hear the case during its next term.

Justice Ginsburg made her first public appearance since her recent hospitalization for cancer surgery, appearing Monday night at an event at the National Museum for Women in the Arts in Washington, D.C.

      

Federal Appellate Court Opinions and News:

Fifth Circuit Court of Appeals Judge James Ho authored a dissent this week in which he concluded that Title VII prohibitions on sex discrimination do not extend to prohibit discrimination against LGBT workers.

 

State Appellate Court Opinions and News:

In Texas, the chief justice of the Texas Supreme Court called this week for the state to do away with its system of electing judges by political party when he gave an annual speech to the state's legislature.

 

Practice Pointers:

The ABA's Council of Appellate Lawyers publication Appellate Issues is out with its January issue.  The issue features articles about the programming during the 2018 Appellate Judges Education Institute Summit from last November.

On #AppellateTwitter this week, Ross Guberman noted an interesting split between appellate attorneys writing "this appeal presents the issue whether a court . . ." vs. ". . . the issue of whether a court . . ."
     

February 8, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Wednesday, February 6, 2019

US Reports the easy way

DyG7jQTVYAAm8jqThe official U.S. Reports versions of Supreme Court opinions have been online for a long time. Seriously: all you need to do is cruise over to the Library of Congress's site, do some scrolling and some clicking to hunt down the volume you need, then do some more clicking and some more scrolling to get to case you need. Or, for relatively recent cases, you can go to the Supreme Court's site and do a slightly less elaborate click-and-scroll dance.

It's as tedious as it sounds.

That's why I'm celebrating scotuslink.com, a nifty little online service from Orin Kerr and a dev who goes by the Twitter handle of birds five underscores (@birds_____). The concept is simple: you go to the site, plug in the U.S. Reports citation, and get routed to a PDF copy of the case. The service generates the snarly URI required to get where you need to go in the LoC or SCOTUS catalogs. No searching or scrolling required. I've found it a big time/aggravation-saver for cite-checking and for diving into oldies like Chisholm v. Georgia

A nice bonus: the design and code are great: simple, clean, and thoughtful.

Dive in.

February 6, 2019 in United States Supreme Court, Web/Tech | Permalink | Comments (1)

Friday, January 25, 2019

Appellate Advocacy Blog Weekly Roundup January 25, 2019

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court News and Opinions:

The Supreme Court is out of session for a few weeks, now that the January sitting is over, although this week saw the issuance of some orders and decisions from last week's conference.

The Washington Post reported earlier this week about how the Court has maintained a relatively "low-key term," delaying taking up a variety of divisive issues such as immigration, abortion, and sexual orientation and gender identity, while also signaling some interest in other controversial topics like transgender service in the military and the Second Amendment.  CNN had a similar story.

Earlier this week, over the objection of the four more liberal members of the Court, the Justices allowed the Trump Administration's ban on transgender members serving in the military to go into effect while the issue is litigated in lower courts.  MSNBC had a report.  CNN also reported, noting the impact the Court might have upon the 2020 Presidential election.

On Tuesday, the Court granted cert in a case involving a challenge to New York City's limits on transporting personal firearms, bringing an opportunity for the Court to provide clarity on its Second Amendment jurisprudence.  With the shifting makeup of the Court now leaning more conservative, there is speculation that the Court will create a test for handgun restrictions that invalidates many local laws.  The case is New York State Rifle & Pistol Association Inc. v. City of New York. More about the case and what the eventual ruling  might  mean for the Second Amendment and gun regulations from the Atlantic and National Review.

Federal Appellate Court News and Opinions:

The Eighth Circuit Court of Appeals recently issued a decision in a case that provided some discussion of interest to appellate advocates concerning the procedural distinction between an appeal from a decision granting summary  judgment and a decision denying a motion for reconsideration and the respective standards of review.  The case is SPV-LS, LLC v. Transamerica Life Insurance Company.  Thanks to reader Ben Rand of Harris Beach for the tip about this opinion.  According to Rand (quoting one of the firm's attorneys): "The court focused procedurally on the appellant's efforts to conflate [the decision granting summary judgment and the decision denying reconsideration and the respective standards of review], and the Eighth Circuit carefully distinguished between the separate and distinct standards of review. If there were doubts in the Eighth Circuit regarding these concepts and related standards of review, the Eighth Circuit laid them to rest in this decision."

State Appellate Court News and Opinions:

The Arizona Supreme Court was scheduled this week to hear arguments in a case concerning how far business owners can go in refusing to serve customers because of their sexual orientation.  The case presents the question of whether the owners of a business can refuse to use their talents to design custom wedding invitations and other materials if the couple is of the same gender or whether they are required to serve the couple under a city of Phoenix ordinance barring places of public accommodation from sexual orientation discrimination.  More from Tucson.com. 

Practice Pointers:

Law.com had an article this week feature #AppellateTwitter's Neal Katyal and discussing how he handles juggling multiple and back-to-back appellate arguments.

Appellate Twitter's Matthew Stiegler had a blog post this week providing advice to lawyers preparing for their first-ever oral argument.

Appellate Job Postings:

The Constitutional Accountability Center has a posting for an Appellate Counsel position.

The California Office of the Attorney General has a posting for a Solicitor General position.

January 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, January 11, 2019

Appellate Advocacy Blog Weekly Roundup Friday, January 11

WeeklyRoundupGraphic

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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

The Supreme Court heard arguments this week in Franchise Tax Board of California v. Hyatt.  The case, in which microchip inventor and multimillionaire Gilbert Hyatt alleged that a California tax board investigator had harassed him by peering through his windows and examining his trash, has been before the Court before. In 2003, the Court denied immunity to California’s Franchise Tax Board.  In 2016, the case was before the Court again, and at that time the Court split 4-4 on the question of whether to overrule Nevada v. Hall, a precedent that allows one state (and its agencies) to be sued in another state’s courts.  After a remand on damages, the case is now back, and with a full number of Justices, the Court will this time answer the question of whether to continue the precedent of Nevada v. Hall or overrule it.  Aside from the specific issue of states being sued in other states' courts, the case also holds implications for how the current makeup of the Court views precedent and the advisability of overruling it.

Read More:

This week’s SCOTUS101 podcast featured discussion about Justice Ginsburg’s absence from oral argument, Justice Kavanaugh’s first opinion, and an interview with #AppellateTwitter’s Sean Marotta.

Listen:

This week’s practice pointers come courtesy of the 2018 edition of the Georgia Bar Journal, in which #AppellateTwitter’s Chief Judge Dillard of the Georgia Court of Appeals was interviewed.  Tessa talked about it at length in her post on this blog earlier this week.

Read More:

January 11, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, November 2, 2018

Appellate Advocacy Blog Weekly Roundup Friday, November 2

 

WeeklyRoundupGraphic

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 Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court Opinions and News:

The Supreme Court has proposed a number of revisions to the Court’s Rules and has invited public comment.  Among the highlights are proposals to lower the maximum word count on merit briefs and tighten filing deadlines.  See more HERE.  

This week the Court denied entry to court to a tribal leader wearing a headdress, making headlines.   Read the story HERE.  The tribal leader, Yakama Nation Tribal Council Chairman JoDe Goudy, was attempting to enter court to hear arguments involving a treaty between his tribe and the federal government, and he insisted on wearing his tribal regalia.  Representatives of the Court indicated that Goudy had been notified ahead of time that head coverings are only permitted in the courtroom for religious or medical reasons.

Justice Sandra Day O’Connor’s announcement that she is withdrawing from public life in the wake of early onset dementia continues to ripple through the legal community; her impact on the American legal landscape really can’t be overstated.  The Washington Post had this opinion piece.  

 

State Appellate Court Opinions and News:

On Thursday this week, the Nebraska Supreme Court heard oral argument in a case involving the Keystone XL Pipeline.  A link to video stream is available HERE

State courts involved in impeachment battles may mark a worrying new trend to challenge judicial independence and legitimacy:  Story HERE.

November 2, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

Special thanks to Alison Doyle for her help with this blog post.

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, September 27, 2018

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.

In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.

Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.

Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.

So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.

Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.

First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”

The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”

To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.

I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.

Special thanks to Alison Doyle for her help with this blog post.

[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).

September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

Wednesday, September 12, 2018

Jacobi & Sag on The New Oral Argument

As First Monday approaches, SCOTUS watchers would do well to follow SCOTUS OA, a blog launched in August by Tonja Jacobi of Northwestern Pritzker School of Law and Matthew Sag of Loyola University Chicago School of Law. Simply put: Professors Jacobi and Sag are doing fascinating things with a remarkable dataset built around the text of every SCOTUS oral argument since 1955.

Their most recent post, on Judge Kavanaugh and the polarized Court, delves into a topic they explore more deeply in a forthcoming article in the Notre Dame Law Review: the change in the dynamics of SCOTUS oral arguments in the last two decades. As veteran advocates and Court watchers have often observed, oral argument has changed over the last few decades: justices increasingly have dominated, advocates have less opportunity to unspool their arguments free from interruption, justices are engaging with advocates less to gather information and more to persuade their colleagues, and so on. Empirical work comparing oral argument dynamics in the 1960s and 2000s -- this piece by Barry Sullivan and Megan Canty and this by James Carter and Edward Phillips -- has confirmed this. But observation, anecdotes, and well-analyzed slices don't tell a comprehensive story of when and how things changed. And they can't tell us much about why.

Enter the work of Professors Jacobi and Sag. They analyze (as a starting point) more than 1.4 million speech episodes in over 6,000 cases over the last 55 years. And yes: oral argument at SCOTUS has changed. Justices are more active. More judicial advocacy, less judicial inquiry. OK: we know that. But the story the data tell is deep and rich, far more interesting than "Scalia's the reason" or "Breyer started asking a question in 1995 and hasn't finished it yet." For example: the number of questions justices ask per case hasn't varied much from 1960 to 2015. But the justices are saying about twice as many words per argument in the last couple of decades, taking up about 13 minutes more per sixty-minute argument than they used to (and, no, it's not all Breyer). So what's going on? In short: judicial advocacy. Less inquiry, more commentary. Jacobi and Sag develop the point brilliantly. And they demonstrate that the shift in dynamic wasn't simply a gradual evolution or one that can be tied to a change in Court personnel. It happened, they show, in 1995. In happened because, they argue, of political polarization embodied in and brought on by the Contract-with-American Congress

The SCOTUS OA team updates the blog on Monday mornings. I'll be hitting refresh as they do.

September 12, 2018 in Oral Argument, United States Supreme Court, Weblogs | Permalink | Comments (1)

Thursday, September 6, 2018

Kavanaugh Hearings Continue for the Third Day

The Kavanaugh hearings are entering their third day. The place to be to receive thoughtful commentary on Supreme Court happenings is SCOTUSblog. They will be live blogging today's confirmation hearings starting shortly after 9 am eastern. You can find the live stream here. The commentary found on SCOTUSblog is always well balanced if not entirely objective. But even posts that contain a specific point of view do so in a serious, transparent, and respectful way. This is in contrast to how most of us receive our news today. We have to sort through lots of superficial explicit and implicit bias. Some bias is easy to see, some not so much. It's a really unfortunate state of affairs.

There is a surprising contrast to the commentary on the hearings and the facts behind the nominee's voting record. The interesting fact that emerged from the hearings yesterday was how frequently Judge Kavanaugh's opinion aligned with Judge Merrick Garland's opinion. Garland was President Obama's nominee following the passing of Justice Scalia. Judge Garland's nomination was not taken up by the Republican Senate in the election year, so there was no chance for public debate as Kavanaugh is now experiencing. The somewhat shocking statistic is that Judge Garland and Judge Kavanaugh, who both sit on the D.C. Circuit Court, actually voted together 93% of the time: "Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh, while Judge Kavanaugh joined 28 out of 30 of Judge Garland’s rulings." Each judge was nominated by an opposing political party, and yet the large majority of their opinions are in congruence with each other. 

The existence of that fact is bit astonishing when compared to the partisan debates we hear from our news sources. More than anything it appears to show that our appellate court judges work hard to find consensus and perhaps our judicial system is not in as much peril as we are sometimes cajoled into believing.

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

Thursday, August 30, 2018

Thinking Thursdays: Making Citations Stylish

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

*****

Professor Alexa Chew’s forthcoming article, Stylish Legal Citation, asks whether legal citations can be stylish. Spoiler alert: The answer is yes.

What is a “stylish” citation? It is a citation that is “fully integrated with the prose to convey information in a readable way to a legal audience.” For law-trained readers, well-written citations communicate substantive information about the authorities that support the assertions in the text and the degree of support that the authorities provide. And when citations are well-written, they can “enhance the writer’s experience in the way that well-written prose can.” On the other hand, poorly written citations make it difficult for legal readers to understand the prose. As a result, readers will either skip over the citations or “slow to a painful crawl.”

What makes a citation “unstylish”? Professor Chew groups poorly written citations into two categories: “bumpy” citations and “presumptuous” citations. Bumpy citations interrupt the prose rather than working with it, while presumptuous citations communicate information that the reader expects to see not in the citation but in the prose. Bumpy and presumptuous citations are problematic in and of themselves, but identifying them can also help readers identify other writing problems.

In spite of the communicative role that citations play in legal writing, there is very little guidance about how to cite stylishly. Most legal writing texts don’t treat citation as a facet of legal writing style at all; as a result, they provide little to no advice about how to incorporate citations well. Similarly, many legal writers treat citations as an afterthought—a “separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the ‘real’ words in their documents.”

So, how can you make your citations more stylish? Professor Chew describes a three-part system that any legal writer can follow, focusing on: (1) choosing what to cite; (2) writing the citation; and (3) revising to tie together prose and citations.

Professor Chew begins by providing advice on choosing what authority to cite and how many authorities to cite. She then provides guidance on writing the citation itself—choosing the citation placement, signal, and parenthetical content. As Professor Chew explains, these decisions should not be based on the Bluebook (or any other citation guide). Instead, they “should be driven by your understanding of the prose and its substantive relationship to the cited authority.” Finally, she provides advice on how to tie together the prose and the citations, i.e. how to identify the bumpy or presumptuous citations (which might also be signs of other writing problems) so that you can fix them.

There is one legal writing style expert who does provide guidance about citations—Bryan Garner. But the guidance that he provides isn’t about how to make in-line citations stylish because he views citations as “impediments to stylish legal writing.” Instead, Garner argues that writers should use footnotes instead of in-line citations.

Professor Chew rejects Garner’s critique of in-line citations because it is based on “the premise that writers aren’t up to the challenge of skillfully incorporating citations into their texts in a way that readers can follow.” Using footnotes may avoid some citation problems and may eliminate visual clutter, making it easier for writers to spot poorly written prose. However, it creates other writing problems. Even if citations are moved to footnotes, legal readers can’t ignore them because the citations convey necessary information about the authority that supports the assertions in the text. As Justice Scalia, Garner’s co-author, noted, moving citations to the footnotes thus “forces the reader’s “eyes to bounce repeatedly from text to footnote.” And weaving the details from the citations (such as the case name, court, and date) into the text might solve that problem but creates a new one in that it overemphasizes information that often isn’t worth emphasizing and makes the prose more awkward.

Instead, Professor Chew encourages legal writers to embrace in-line citations. In-line citations give the reader control over how much attention they pay to the citations by skimming them over or reading them in more detail. In general, readers pay less attention to citations than they do to prose, and this allows citations to be placed “right next to the propositions they support, at the reader’s point of need.” As a result, “in-line citations can convey information ‘almost subliminally’ as readers’ eyes speed across them.”

Professor Chew’s article fills an often-overlooked gap in the legal style literature, and it does so in a practical way. I encourage students, professors, and practitioners to read Professor Chew’s article for more detail, especially the “how tos” of making citations more stylish. I didn’t need much convincing about the importance of citation to legal writing, but Professor Chew’s article still made me think more deliberately about the role that citations play in good legal writing. And for those of you who teach legal writing (whether first-year or upper level), her article also makes the case for better integrating citations into the legal writing curriculum. Finally, if, like me, you can’t get enough of Professor Chew’s writing on citations, don’t miss her Citation Literacy article.

August 30, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, July 18, 2018

The Supreme Court & Stare Decisis: What Difference Can One Justice Make?

This is my second post in what I hope will be a series about overruling & the Supreme Court.

As we hurdle toward confirmation hearings for Brett Kavanaugh, public discourse has continued to center on stare decisis: will the post-Kennedy Roberts Court undo significant chunks of precedent.

If it did, this would mark a change for the Roberts Court. As I mentioned in my last post—and as Jonathan Adler discusses more fully at the Volokh Conspiracy—the Roberts Court has overruled precedent less frequently than its predecessors.1 The slowdown began in the 2007 term, the first in 50 years where the Court didn’t overrule a single precedent. From the 2007 term through the 2016 term, the Court overruled itself nine times. That is, by modern measures, a stately pace: the Rehnquist, Burger, and Warren Courts averaged 2-3 undoings per year.

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So can a small change in personnel shift the stare decisis dynamic of the Court? Recent history provides an obvious example: the retirement of Felix Frankfurter and the appointment of Arthur Goldberg (and later Abe Fortas). The Warren Court has an evidence-based reputation for aggressively overruling precedent. Chief Justice Warren’s tenure was bookended by major overrulings, from Brown v. Board of Education in his first term to Chimel v. California and Brandenburg v. Ohio in his last.

But the Warren Court’s story on stare decisis is a tale of two Courts. From the 1953 through the 1961 term, the Court overruled itself only 10 times, a pace of barely over once per year. This rate was slower than the Court’s under Warren’s predecessor, Fred Vinson, and slower than that of any subsequent Court until the post-2006 Roberts Court.

And then came the 1962 term. Bang: six undoings. Then six more in 1963. Then 24 times from the 1965 through 1968 terms. From the 1962 through 1968 terms, the Court overruled precedent an average of 5+ times per term.

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What changed? Felix Frankfurter. Justice Frankfurter was, of course, a leading advocate of judicial restraint (though his voting record, on some issues, tells a more complex story). And one can certainly see signs of Frankfurter’s resistance to the impending Warren Court revolution: he dissented in precedent-altering cases regarding the exclusionary rule (Mapp v. Ohio) and the one-person/one-vote doctrine (Baker v. Carr). When he retired, the dam broke: President Kennedy appointed Arthur Goldberg, and milestone undoings like Gideon v. Wainwright, Miranda v. Arizona, and Katz v. United States followed.

We see a similar shift in 1937. In Charles Evans Hughes’s first seven terms as Chief Justice, the Court overruled precedent six times. But in has last four terms, it undid itself 17 times. The shift coincided with a significant change in personnel: Willis Van Devanter, one of the conservative Four Horseman, retired; he was replaced by Franklin Delano Roosevelt’s first appointment, Hugo Black.

We certainly can’t attribute these shifts entirely to changes in a single justice. In both instances, winds of change were already blowing, Just before Justice Van Devanter retired in 1937, the Court famously reversed course on the constitutionality of state minimum wage laws; perhaps Justice Owen Roberts’s change of position would have left the dam broken even without the Black-for-Devanter swap. And perhaps, as Frankfurter-era decisions like Mapp v. Ohio and Baker v. Carr suggest the Warren Court revolution would have rolled on even with Justice Frankfurter on the Court; indeed, many of the post-Frankfurter overrulings were by lopsided votes.

Still: a key change of personnel on a closely-divided Court can alter the dynamics of stare decisis.

So will this happen on a Kavanaugh-for-Kennedy Court? Perhaps not, at least in ways that bust the y-axis on a graph. As Professor Adler notes, the Roberts Court to this point has been the Kennedy Court. The Court’s overrulings are part of this story: when the Roberts Court has overturned precedent, it almost always has been because Justice Kennedy wanted to do it. The Court has, if one counts aggressively, overruled precedent 19 times. Justice Kennedy assented to the overruling 16 of those times (he dissented twice in Roberts-Court overrulings; in one case, he concurred in the judgment, but did not endorse the undoing of precedent). Several of these times, Justice Kennedy was in the majority in a 5-4 decisions. And, while several of these decisions skew conservative (think Citizens United), others were not (think Obergefell).

As Professor Adler points out, Justice Kennedy was not a disciple of judicial restraint. So it’s entirely possible, even with a shift in Court personnel that will be transformational on many issues, that the Roberts Court’s complex incrementalism will continue. Doctrinal change: yes. Frontal assaults on stare decisis: maybe not.

But we can safely say one thing: there will be overrulings next term. I’ll talk about that in my next post.

  1. Professor Adler bases his analysis on a list produced by the Government Publishing Office. That list is a bit incomplete: it does not, for example, include any cases from the October 2006 term, in which the Court overruled precedent four or five times, depending on how one classifies Parents Involved in Community Schools v. Seattle School District No. 1. The Supreme Court Database aggressively codes PICS as “altering precedent,” apparently because of Justice Breyer’s musings in dissent (“What has happened to stare decisis?”) and the Chief Justice’s rebuttal that the justices were not “tacitly overruling” Grutter v. Bollinger. For classification purposes, I think the Supreme Court Database gets this one wrong. Justice Breyer’s “tacit overruling” criticisms are mostly targeted at portions of the lead opinion where Chief Justice Roberts wrote for a four-justice plurality. And both the Chief and Justice Kennedy’s concurring opinion take pains to distinguish rather than alter Grutter. ↩︎

July 18, 2018 in United States Supreme Court | Permalink | Comments (1)

Monday, July 16, 2018

New SCOTUS Nominee

While I was out of town visiting family (and staying far away from computers) the country had some big appellate news!  Justice Anthony Kennedy announced his retirement from the Supreme Court, giving President Trump his second Supreme Court nomination.  One week ago today, President Trump announced that he was nominating D.C. Circuit Judge Brett Kavanaugh to fill the vacancy.  Judge Kavanaugh, a former Kennedy clerk, has served on the D.C. Circuit for 12 years.

While I know that Judge Kavanaugh has lots of supporters, I was surprised by the pick for two main reasons.  First, Judge Kavanaugh is very connected to the Bush II administration, having served as White House Staff Secretary.  His wife also worked in the Bush administration.  Second, and relatedly, Judge Kavanaugh's long time service in D.C. seems to connect him to the "swamp" that President Trump disavows.  However, those two issues didn't seem to bother the President, and Judge Kavanaugh got the nod over other potential front runners including Judge Hardiman, Judge Barrett, and Judge Kethledge.

It hasn't taken long for the battle lines to be drawn in the Senate.  My email has been flooded with information and stories about Judge Kavanaugh.  His detractors seem to focus on hot button social issues and whether Judge Kavanaugh will be too deferential to the president.  His supporters point to his long, respected record on the D.C. Circuit and the praise that he has received from his law clerks and others.  It remains to be seen whether Judge Kavanaugh will be confirmed.  I have heard some speculation that he could have trouble with some of the more moderate Republicans (or perhaps with Sen. Rand Paul).  However, there are a lot of Senators from "red" states who are up for reelection.  They might feel pressure to support the President's pick.

Apart from the politics of the Kavanaugh nomination, I am struck by how much the Supreme Court has changed in the last 13 years.  When I graduated from law school in 2005, the Court had not changed in composition in over 10 years.  In the 13 years since I graduated, we have seen five new justices (and that number will be six if President Trump's pick is confirmed).  New justices mean a younger court too! The institution has changed some too, with new required e-filing.  Perhaps we will even see cameras in the courtroom in the next 10 years.

For the present though, we will watch and wait to see if Judge Kavanaugh is confirmed in time for the Court's October 2018 term. It should be an interesting summer!

 

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

Sunday, July 8, 2018

The Undoing Project*

With Justice Kennedy's retirement and confirmation hearings for his soon-to-be-named replacement looming, public discourse is thick with talk of stare decisis. Will/should a post-Kennedy Court overrule Roe v. Wade (or, more accurately, the "central holding" of RvW that survived Planned Parenthood v. Casey)? Obergefell v. Hodges?

I won't try to answer these questions (and, of course, neither will the nominee). And I can't begin to address, in anything short of of roomful of treatises, the complexities of the customs and law of precedent. But as the summer grinds on, I'd like to devote a few of my posts here to judicial undoing: the circumstances, process, and advocacy of overruling.

This post will get things rolling with a simple point: undoing is part of the regular—albeit not routine—order of the United States Supreme Court. Counting can get tricky, but we can say with confidence that the Court has overruled its own precedent well over 200 times.1 According to the Government Publishing Office, the Court overruled itself 236 times heading into the October 2017 term; that number is now 238 or 239, depending on how one accounts for what the Court did to Korematsu v. United States in Trump v. Hawaii. According to the Washington University Supreme Court Database, the Court has formally altered precedent 251 times heading into OT 2017. 2

Of course the stories behind these numbers often fascinate. Including the stories of the advocacy: of Thurgood Marshall and the NAACP Legal Defense Fund in Brown v. Board of Education, of summer associate John Hart Ely’s extensive work on brief in Gideon v. Wainwright, of Seattle associate Jeffrey Fisher’s brilliant briefing in Crawford v. Washington (during the same term that he argued—and won—another blockbuster, Blakely v. Washington), of Ruth Bader Ginsburg in Duren v. Missouri (Chief Justice Burger: “Mrs. Ginsburg, you may lower the lectern if you would like.”).

And there are stories in the numbers themselves. One can, crudely, track the shifts in the role of the federal judiciary from the we’re-not-undoing-much-because-there’s-not-much-to-undo Marshall Court (3 overrulings in 34 years) to the fast-pace undoings of the post-Frankfurter Warren Court (34 overrulings between 1962 and 1969). One can find, as Jonathan Adler did in a recent post at the Volokh Conspiracy, data that might give us insight into what comes next: the Roberts Court, particularly since the overruling-heavy 2006-07 term, has overruled precedent at a significantly slower pace than its postwar predecessors. Although that might change. Occasionally, the data appear to tell the story of a shift in personnel. From 1954 to early 1962, the Warren Court overturned precedent relatively slowly. But then, in the wake of the wrenching decision in Baker v. Carr (listen to this episode of the More Perfect podcast), Felix Frankfurter suffered a stroke and retired from the Court. He was replaced by Arthur Goldberg. It’s quite fair to say that the two justices were polar opposites on issues of judicial restraint. Perhaps it’s coincidence, but the Warren Court more than tripled its rate of overruling after the shift.

In my next few posts, I'll dig more into the Supreme Court and judicial undoing: the first times, the last times, the next times, and so on.

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  1. This doesn't count the first, quite famous, non-judicial undoing of a SCOTUS decision: the first post-Bill of Rights amendment to the Constitution. In 1793, the Court in Chisholm v. Georgia held that Article III, section 2 of the Constitution abrogated state sovereign immunity and thus authorized a federal court sitting in diversity to hear a war-debt claim by citizens of South Carolina against the state of Georgia. Reaction was swift: by early 1795, Congress approved and twelve states ratified the Eleventh Amendment, which clarified that the judicial power "shall not be construed" to extend to diversity actions brought against states. Other constitutional amendments have directly undone decisions of the Court: see, for example, the Sixteenth Amendment (authorizing Congress to impose income taxes; overturning Pollack v. Farmers Loan & Trust Co.), the Twenty-Sixth Amendment (lowering the voting age in state and federal elections to 18; overturning Oregon v. Mitchell), and the Section One of the Fourteenth Amendment (extending state and national citizenship to all persons born or naturalized in the United States and subject to its jurisidicion; overturning Dred Scott v. Sandford. ↩︎
  2. The actual number of cases overruled is higher, as the Court occasionally will overturn a line of precedent. In June, for example, the Court in South Dakota v. Wayfair overruled Quill Corp. v. North Dakota and National Bellas Hass Inc. v. Illinois Department of Revenue on the issue of state taxation of out-of-state retailers. Quill thus occupies a rare place in the world of bizarro stare decisis: it both overturned precedent (Bellas Hass, in part) and was itself overturned. Also on the whiplash list is National League of Cities v. Usery (overruling Maryland v. Wirtz; overruled by Garcia v. San Antonio Metro. Transit Authority. ↩︎

July 8, 2018 in Appellate Procedure, United States Supreme Court | Permalink | Comments (0)