Friday, July 5, 2019
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 New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies. Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage. Gundy is such a defendant, did not register, and was charged and convicted as a result. He challenged Congress’ delegation as impermissible. As the article notes, the Court has long allowed Congress broad authority to make such delegations. In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board. The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate. The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.
FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy. The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case. Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.
The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is." He's now the longest-serving member of the Court and the senior associate Justice. On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty.
Federal Appellate Court Opinions and News:
In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website. The case was Oberdorf v. Amazon.com. More from the CA3blog.
State Appellate Court Opinions and News:
The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt. The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents. The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder. In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm. More here.
Practice Tips and Pointers:
Wednesday, September 12, 2018
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.
Thursday, May 10, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
The big news this week in field of law and typography was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.
But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.
Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones. In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.
Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead. You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.
And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.
So, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?
 Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).
 There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.
May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)
Thursday, June 12, 2014
Following the Adam Liptak piece on Professor Richard Lazarus' new study, that I mentioned in my last post, a clever coder has developed a way to monitor, identify, and publicize any changes to U.S. Supreme Cout opinions. David Zvenyach, general counsel to the Council of the District of Columbia, has launched @SCOTUS_servo, to help identify any changes. The Twitter feed reports the result of comparison of the prior verison of court opinions to those now appearing. The code that does this, a crawler, checks every five minutes for a change and makes an automated post to the Twitter account reporting any change that has been made. Zvenyach then makes a manual tweet detailing and highlighting the actual change.
This is a useful service for forcing transparency regardless of how important any individual change might be to the followers of@SCOTUS_servo. More details available at this Gigaom post by Jeff John Roberts.