Crime & Federalism

How Do I Find Appellate and Supreme Court Briefs?

This excellent article by Michael Whiteman provides links to several sources of Supreme Court and other state and federal appellate briefs.

The Late Richard S. Arnold on Opinion Writing

I took Judge Richard S. Arnold's death rather badly, even though I never met the man; and indeed, I didn't even know him by proxy.  The death of someone like him makes me bitter.  With so many scoundrels living, why does someone like him have to die?

I miss him because his opinions, even if reaching a disagreeable outcome, were works of legal art.  When reading his opinions, one always saw a judge truly trying to reason from premises to conclusion, rather than the modern method - find a conclusion and make your analysis match that conclusion just well enough that that you won't get reversed.  Reading one of his opinions is like looking at the Statue of David: "Is there anyone alive who could create this?"

At the 2004 Annual Meeting of Scribes: The American Society of Writers on Legal Subjects, Judge Arnold's brother, Morris S. Arnold, had this to say: 

First, his opinions are frequently conversational because they are consciously free of jargon and legal affectation. Much of what he writes is meant to be read out loud; my brother speaks directly to the reader, especially to the losing party, to explain his thinking.

I think this trait owes much to his classical training. It is reason, not authority, that matters to him. And this is why his opinions typically have so few citations and so few footnotes. Multiple citations are not just useless, but raise a suspicion that the writer really doesn’t know what he or she is talking about. Even when writing about technical cases, good writers like my brother will not allow details or dreary acronyms to overwhelm an explanation or to discourage the reader.

You can read the rest of the moving remarks here.

Why Bother Writing Clearly?

"Death," a Yale law student, wonders:

What's the point of learning how to write well when every partner who reviews your memo is just going to re-legalize it? All the nominalizations you removed will be re-inserted. The active voice will be trampled and beat back into its passive state. You will no longer use anything, certain objects will be utilized. The court will not find any statute to violate the Constitution, the statute will be held to be unconstitutional by the Court. Goodbye verbs, hello gerunds. As in: gerundizing verbs seems to be the favorite activity of partners.

You can read the full post here.

Legal Writing Blog

I'm addicted to everything writing-related.  I care about where my commas go, and I agonize over hyphen placement. (I usually misplace or omit hyphens, due to a strange mental block.)  I read style manuals for fun.  I read so much about legal writing because I'm still a technician.  I'm good with words, but a brief or blog post lacking my name doesn't scream, "Mike wrote this."  Slowly, and somewhat painfully, I'm progressing from technician to stylist.  Given that it takes ten years to master something, and given that I've been working on my legal writing for about three years, I still have a lot of learning to do.

I was pleased learn about a newish blog, "Plain Legal Writing."  Its editor, Wayne Schiess,  wrote an excellent book on legal writing, so his blog does speak with authority.  His posts are all well-written and instructive.  They're well-written enough that even if I don't soak up the post's lesson, I'll probably pick up a few good habits through osmosis.  We write what we read, after all.  Anyhow, I encourage you to read Plain Legal Writing. (Via Ray Ward).  UPDATE: Blawg Review #23 mentioned Schiess' blog last week.

Shine Your Shoes, Bluebook Your Briefs

A lawyer with polished shoes is not smarter or better prepared than a lawyer whose shoes lack polish.  Nor is a lawyer a clearer writer because he Bluebooks his briefs.  But perception rules all in the law, as Ray Ward notes in this post.

How Appellate Courts Admonish Trial Courts, and Why You Should Listen

Everyone eventually encounters an judge out to sink the client's case.  Ultimately the judge treats the lawyer or client unfairly, and the attorney appeals. 

Sadly, the appellate courts almost never criticize trial courts.  Unless the conduct is egregious and clearly demonstrable - after every inference has been drawn in favor of the trial court - the appellate court let's the misconduct slide.  But in a recent decision, the Eighth Circuit  admonished the trial court, and in doing so, gave all of us a lesson in appellate advocacy.  Joseph H. Low v. John Fahle. 

Buying Books as an Investment

Evan, commenting to a post I wrote praising Garner's Modern American Usage, wrote:

I have to pick up Garner's American Usage more often than I'd like to admit. In addition, I'm very much enjoying his book The Winning Brief, which I decided to buy after reading a post on Minor Wisdom.

I first saw The Winning Brief during my first semester of law school.  I wasn't learning anything in my legal writing class, so I decided to teach myself.  But at $50, I thought the price was steep. Besides, I told myself, "No book on legal writing is worth 50-bucks." 

I bought The Winning Brief two weeks later, after talking to a  plaintiffs' lawyers who brings in seven figures a year.  He told me:

Michael, if I had purchased this book when I first started practicing, I would be ten million dollars richer.  Don't laugh.  I am serious.  I would never hire anyone who was not familiar with every principle in this book.

I bought the book the next day, and have applied its principles on several cases (with very good results).  Some people art or play the stock market.  But perhaps the best investment a lawyer can make is using $50 to buy one book.

Capitalizing Constitutional Clauses

We know that when referring to constitutional amendments or clauses, we capitalize the clause or amendment.  Thus, our First Amendment has a Free Exercise Clause, and an Establishment Clause.  Our Fourteenth Amendment contains a Due Prcoess Clause and an Equal Protection Clause.  But what do we do when referring to more than one clause at a time?  Do we write: She filed suit under the Equal Protection and Due Process Clauses <or clauses>?  Bryan A. Garner provides the answer:

When a common noun is part of a proper name, capitalize it when the entire name appears <Mississippi River>, but not when it is separated from the proper name <the Mississippi and Missouri rivers>. 
Bryan A. Garner, Garner's Modern American Usage at 128.

Now we know what to write: She filed suit under the Equal Protection and Due Process clauses.

You are probably also wondering why I capitalize Constitution, but not constitutional.  Again, Garner tells us why:

Capitalize the adjectival form of a noun that is always proper <Keynesian economics> but not one from a noun that can also be common <congressional investigation>[]. 
Id.

And so, for purposes of this rule, we would write: Strip searching non-violent misdemeanor arrestees is not a constitutional policy.

Consider buying Garner's American Usage.  If you read good books, your writing is probably grammatical.  But we all get stuck (or get into arguments over usage) and thus need a final arbiter.  Even if you have perfect insticts and thus never have a question on usage the book is still valuable since it explains why you write what you do.  Finally, Minor Wisdom and Evan endorse it.

Danger creation in CA8

I have been writing a treatise on section 1983.  It won't be as comprehensive as Nahmod's, but it'll be more thorough than the Nutshell.  Oh, and I expect it'll take me about two years.

Anyhow, I have been writing summaries on certain aspects of the law.  In a .pdf file (and below the fold as text), you will find my latest draft on affirmative duties/danger creation in the Eighth Circuit Court of Appeals.  If you like it, I can post other summaries I have written - 1988/attorneys' fees is ready to be posted.  Just let me know if you like it.

I would also appreciate feedback on my writing style.  After all, I will want to market my treatise to legal readers.

Download danger_creation_in_the_eighth_circuit.pdf

Another reason to proofread

Imagine you write an article for a CLE seminar. It's a good article. So good that Judge Alex Kozinski finds it helpful and decides to cite it in a published opinion. Unfortunately for you, he finds a typo. And he lets us know about it. (On page 4).

Peter L. Winik, Consumer Product Safety Commission: Current Developments in Law and Practice A-4 (ABA Ctr. for Cont’g Legal Educ. Nat’l Inst. 1997) (“The CPSC takes the position that language [sic] ‘each product involved’ means each individual unit of product sold to consumers. Thus, in most cases of non-reporting, it is possible for the CPSC to argue that it can aggregate penalties up to the statutory maximum.”).

Of course, it's still very cool to get cited in a published opinion, so I imagine Mr. Winik is willing to take the bad with the very good.

Citational Footnotes?

[Ed's note: Yikes!  Today I am in the unfortunate position of disagreeing with Bryan A. Garner and Raymand P. Ward.]

It’s rare that I vocalize my disagreement with Bryan A. Garner.  But when it comes to placing citations in the footnotes, I respectfully dissent.  I have three reasons.

1. Citations are part of the legal language, and thus, the argument.
2. A little citation tells me a lot.
3. Writing that needs citational footnotes needs much more.

1. Citations are part of the legal language.
On the cases I specialize in, certain precedents are part of the language: Citing a case is saying something.  Consequently, when I am citing language from one of these cases, I want to reader to immediately know this.  Thus, I might begin an automobile suppression motion with:

Generally, the police may stop an automobile only “where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1995).

To people in the field, my citing Whren tells them the context of the stop.  The sophisticated reader knows that I am going to discuss “good faith” and “objective reasonableness.”  The newbie to criminal law will at least know - immediately - that I am citing a fairly recent Supreme Court decision.  Which brings us to Point 2.

2. Citations tell me a lot.
When I read a quotation, I want to know how old the decision is, and which court it came from.  I don’t want to glance down at the bottom of the page.  I'm no loner in wanting to know what said what and when. 

A Ninth Circuit decision will not be very persuasive to the Fourth Circuit, and vice versa.  Thus, the reader should immediately know whether the decision is precedential, and if not, how persuasive it should be.  Indeed, I think our citations can sometimes be a bit longer.  Thus:

A criminal defendant may bring an as-applied challenge to a federal law enacted pursuant to Congress’ commerce power.  United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003)(Kozinski, J.).

3. Writing that needs citational footnotes needs much more.
Raymond Ward cites this creature as a candidate for a citational footnote makeover: 

Over the years, the Supreme Court has outlined three possible exceptions to the general rule that monetary remedies are legal claims: (1) restitutionary awards, see, e.g., Terry, 494 U.S. at 570, 110 S.Ct. at 1348; Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 1839, 95 L.Ed.2d 365 (1987); Curtis, 415 U.S. at 196 n. 11, 94 S.Ct. at 1009 n. 11; (2) money awards incidental to equitable relief, see, e.g., Tull 481 U.S. at 424, 107 S.Ct. at 1839; Curtis, 415 U.S. at 197, 94 S.Ct. at 1010; and (3) discretionary money awards. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 442-43, 95 S.Ct. 2362, 2384, 45 L.Ed.2d 280 (1975) (Rehnquist, J., concurring); Curtis, 415 U.S. at 197, 94 S.Ct. at 1010. See also Robert L. Strayer, II, Project, Asserting the Seventh Amendment: An Argument for the Right to a Jury when Only Back Pay Is Sought under the Americans with Disabilities Act, 52 Vand.L.Rev. 795 (1999).

That “sentence” sucks.  And its author needs to return to first principles before we can say he or she needs to use citational footnotes.  Applying these first principles will give the author the fix she needs.

First, more than two items in a series deserve a list.  Thus, I would write:

Generally, monetary remedies are legal claims.  However, the United States Supreme Court has recognized three important exceptions:
(1) restitutionary awards (Tull v. United States, 481 U.S. 412 (1987);
(2) monetary awards incidental to equitable relief (Id. at 196 n. 11);
(3) discretionary money awards (Albemarle Paper Co. v. Moody, 422 U.S. 405, 422-43 (1975)(Rehnquist, J., concurring).

Do the citations look so awful now?

Second, the author does not provide a parenthetical for one of his sources.  Thus, I would write:

The reader may also consult Robert L. Strayer, II, Project, Asserting the Seventh Amendment: An Argument for the Right to a Jury when Only Back Pay Is Sought under the Americans with Disabilities Act, 52 Vand.L.Rev. 795 (1999) (saying, doing, collecting, or standing for whatever).

I admit that my way for doing things takes up a lot of space, but that comports with my third rule: White space is nice.  I feel much less intimidated - which matters to this writer more since I began wearing glasses - by written work that provides my eyes a lot of time to pause.

I also imagine that writing that uses string citations requires citational footnotes.  But that makes me wonder: Why are you using those strings?

A compromise?
Unfortunately, many courts require parallel citations to sources.  In those jurisdictions, a hybrid citation would improve things.  Thus:

Tull v. United States, 481 U.S. 412, 424 (1987)[fn1]

[1]107 S.Ct. 1831, 1839, 95 L.Ed.2d 365 (1987).

Three ways

At Holy Cross College, one Jesuit teacher demanded that his students:

[Write] three different translations of Juvenal's Satire X: one for the the school-teacher, one for the editor of the New Yorker, and one for the streets. Evan Thomas, The Man to See: Edward Bennett Williams, at 31.

This seems like solid advice for legal writers: You should be able to phrase your legal arguments for the United States Supreme Court, for your local bar journal, and for an indigent criminal defendant. If we understand legal writing this way, we might ask: If someone can not understand you, whose fault is it?

The Winning Brief

At issue in Roper v. Simmons is whether the Eighth Amendment prevents the government from executing people for crimes they committed while 16 or 17 years old.  Thus, the Court must determine whether executing people for crimes they committed while they are young violate "evolving standards of decency."  Some argue that a 16 or 17 year old does not fully appreciate his acts, and as such, should not be subject to the ultimate punishment.  Orin Kerr writes: "One of the interesting questions potentially implicated by the case is whether people who are 16 and 17 tend to make less mature judgments than adults."

My first, emotional response was, "Of course it's wrong to execute people for crimes they committed at such a young age.  Kids are different."  But my emotions are not relevant.  My feelings about the death penalty in general are not relevant.  Like it or not, the Eighth Amendment does not prohibit the death penalty.

The only relevant issue is whether, as a legal matter, the Eighth Amendment prohibits the executions of men and women who killed while young.  Applying the legal standard of "decency" (yes, folks, that is what constitutes a legal standard before the Supreme Court) is trickier, but I still concluded such executions were wrong.  Until I read this brief.

Alabama's Solictor General (and friend of Feddie) puts forth the most compelling argument for giving juries the ability to sentence young people to death that I have ever seen.  Rather than telling me that the Constitution allows a jury to sentence someone to death for acts committed while young, he shows me that these "children" knew quite well what they were doing.

General Newsom tells the story of six murders.  These murders were committed by 16 and 17 year old men.  These murders show that although youngsters may not - as a class - appreciate their acts; evil is often blooms fully in young people.  The story of Timothy Davis is particularly illustrative:

Timothy Davis -- Age 17. Sixty-eight year old Avis Alford was working alone in her grocery store in Coosa County, Alabama, when Timothy Davis (17) entered. Davis proceeded to rob, sodomize, and brutally murder Mrs. Alford -- stabbing her 17 times in the back with a common steak knife.

Shortly after police discovered Alford's nude body, Davis, along with his wife and mother, came to the scene and told police that he had earlier found Mrs. Alford's body and that he had panicked and fled. He further said that he had gotten blood on his clothing from lifting her body and had returned home to change before making a report of the murder. Finally, Davis stated that he had seen two black men leaving the area after he discovered the body; when pressed, Davis could not give a description of either one.

Human sperm was recovered from Mrs. Alford's rectum. A stain composed of the combination of human sperm, fecal matter, and tissue from the inside of the rectum, was recovered from the crotch area of the underwear Davis had been wearing.  Blood stains matching Mrs. Alford's blood type were also found on the inside of Davis's jeans and splattered across his motorcycle helmet. Davis later admitted the crime to a fellow inmate while awaiting trial.

General Newsom's brief is so brilliant because it is so trusting.  He trusts me to realize for myself why Davis is evil.  Not only did Davis rape and kill someone, but he appealed to prejudice by blaming two black men.  Instead of telling me that "Davis is a bad man," he shows me.  He lets the fact speak for themselves.

Newsom's brief might also persuade one of the swing votes, Justice Kennedy.  Lyle Dennison reported:

A spare, 14-page legal brief took on more importance Wednesday as the Supreme Court spent an hour exploring the constitutionality of executing juvenile murderers. The brief, submitted on behalf of six states, appeared to have a significant influence on Justice Anthony Kennedy, whose vote could turn out to be crucial when the Court decides the issue. The document seeks to make a single point: 16 or 17 year olds are fully capable of committing heinous murders, and doing so with full awareness of the moral choice they made.

If Justice Kennedy (or Justice O'Connor) finds that the Eighth Amendment does not prohibit executing people for crimes committed while young, I would not only understand him, but I would agree.  I changed my mind.  And I did so because of one man's writing.

UPDATE:  Douglas Berman at Sentencing Law & Policy dicusses the brief's effectiveness:

Though the facts of the murder cases in the Alabama brief are compelling, what really makes the brief effective is its framing of the issue before the Supreme Court in terms of individual cases. Such a framing is not inappropriate, since the Supreme Court is being asked to preclude the application of the death penalty in any individual case involving a juvenile offender. But, of course, the issue before the Court in Roper could be (and perhaps should be) framed in more systemic terms.

Please read Prof. Berman's full post here for more details.

No writs of erasure in the Seventh Circuit

"A Writ of Erasure is not among those remedies that are 'agreeable to the usages and principles of law' and authorized by 28 U.S.C. §1651(a), the All-Writs Act." So writes Judge Frank Easterbrook in this opinion.

Ninth Circuit appellate resource

The relevant standards of review for cases in the Ninth Circuit is available here. (Via Criminal Appeal)

If anyone knows of a similar resource for other state or federal courts, please let me know.

Virtual porn brief

Download virtual_porn_brief.pdf

Motion to Dismiss in Hobbs Act Case

I just found this wonderfully written motion to dismiss in a Hobbs Act case that covers the major themes relating to the federalization of crime.  It's very well-written and researched.  It begins:

Mr. Defendant stands charged of various offences, the most significant of them brought before this Court under the Hobbs Act.1 Counts one and two of the Indictment refer to the death of Mr. during a robbery at his home, in Ponce, Puerto Rico, in which approximately $500.00 were stolen and which allegedly were the proceeds from a gasoline station in Peñuelas, Puerto Rico.

The “jurisdictional hook” to prosecute this events in the Federal forum is an allegation that the robbery of that money affected the interstate commerce and thus violated the Hobbs Act, 18 U.S.C. 1951.

If the money was indeed stolen is uncertain from the evidence produced in discovery so far by the United States. On the police report of the officer responding to the emergency, dated July 9, 1997, it is stated that no property was stolen. Cooperating co-defendant , has stated that no money was stolen from the house of Mr Blank.  On the other hand, two years after the facts, on October 14, 1999, and after being interviewed by the FBI, the son of the victim alleged that some money (approximately $500) had “disappeared”. Notwithstanding this discrepancy, which ultimately is an issue for the Jury, this Motion approaches the subject assuming that the $500.00 were indeed stolen.

As will be discussed below, defendant contends that this Court lacks jurisdiction over Counts One and Two of the Indictment, since the Hobbs Act was not violated. The central issue will be if under United States v. Lopez, and its progeny, Section 1951(a) applies to robbery directed against private individual in their homes.

For Wordsmiths

One of the most frustrating things about having a large vocabulary is witnessing people ignorantly and arrogantly misuse words.  Lawyers and law students tend to horribly misuse words.  What is worse, they are so smug in their misuse.  Indeed, these "wordsmiths" feel superior to me because I use plain language.  Obviously, someone who speaks in simple terms does so because he or she can not use fancy language.  But I digress.

If you enjoy language or Bryan A. Garner you might want to join his word "tip of the day" list.  Each day you can received gems like the one noted below. 

I'll String You a Song...

A fierce debate dealing with the continuing viability of the rule of law wages.  If you thought the terrorist trifecta was important, well, you ain't seen nothing yet.  Let me provide a summary.

The Uncivil Litigator took umbrage at a partner's suggestion that he provide pinpoint citations in an appellate brief. 

In response, The Curmudgeonly Clerk wrote that "[t]here is a special ring of Hell reserved for attorneys who submit motions to the courts sans the appropriate pin citation."  Shots were fired.  I wrote: "When I read a brief citing a legal proposition that does not include a pinpoint citation and the actual language from the opinion, I assume the party is lying. [ ] Generally people who make these broad statments didn't read the case."  (Comment 1, 6:12 p.m.)

UCL, seeking to avoid that special ring in Hell decided to "sit in silence no longer."  He cited specific examples from the Hamdi case in support of his proposition that "it is perfectly acceptable to cite to a case without using a pin cite on every single occasion."  He also defended his practice on the ground that pin cites are impractical when one is using string citations.  (Comment 2, 8:30 p.m.) ("[I]f I choose to cite 4 cases in support of the same general proposition, following 1 cite which I analyze in detail in a given motion, do I have the time to make sure each one is pin-cited? No.").  Gasp!  UCL uses string cites? 

But I offered a solution.  If UCL would quit using string cites, then the issue of using pin cites becomes moot.  (Comment 6, 9:27 p.m.) ("[I]f we ixnay the string cites, then pin cites within the string cites are no longer an issue. Sans string sites!")

UCL "couldn't disagree [ ] more" with my comment.  (Comment 7, 11:03 a.m.)

Well, what do y'all think?  Are string cites a waste of time, or a necessary way to butress your legal position?  Should a party stringing citations provide a pin cite at each leg of the centipede?  Please take your comments over to the origional discussion.

Legal Writing

This article provides excellent advice on how to read and clearly restate statutory language.  The bulk of his article deals with interpreting and restating this regulation:

No executive-level state employee, head of a principal department, head of an independent state agency or member of the legislature, or their immediate family members, shall have, at or following the effective date of this Act, a financial interest in or be employed, directly or indirectly, by any Licensed Gaming Entity, Licensed Casino Gaming Entity, applicant for such licenses, or any holding, affiliate, intermediary or subsidiary company thereof, during his or her status as an executive-level state employee, head of a principal department, head of an independent state agency or member of the legislature and for two (2) years following termination of such status.

On a related note, Professor Volok is soliciting ideas for the next edition of his book on academic legal writing.  He writes:

I hope to put out a second edition of my Academic Legal Writing book eventually. If any of you have used it, can you suggest any changes, or let me know what you'd like to see added? Please let me know, at volokh at law.ucla.edu. And if you run a legal Weblog that has some law student readers, and could pose this question to them, I'd be very much obliged. Many thanks in advance.

Please help him if you can.  After all, he has never asked for a donation of anything other than ideas.