Thursday, March 2, 2017

Contrasting Introductions in Kolbe v. Hogan

The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.

This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.

Not this majority opinion. It starts with a literal bang:

On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR-15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. 

Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom's sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.

Both before and after Newtown, similar military-style rifles and detachable magazines have been used to perpetrate mass shootings in places whose names have become synonymous with the slaughters that occurred there — like Aurora, Colorado (twelve killed and at least fifty-eight wounded in July 2012 in a movie theater), and San Bernardino, California (fourteen killed and more than twenty wounded in December 2015 at a holiday party). 

In the early morning hours of June 12, 2016, a gunman killed forty-nine and injured fifty-three at the Pulse nightclub in Orlando, Florida, making it the site of this country's deadliest mass shooting yet. According to news reports, the Orlando gunman used a Sig Sauer MCX, a semiautomatic rifle that was developed at the request of our Army's special forces and is known in some military circles as the "Black Mamba." 

Other massacres have been carried out with handguns equipped with magazines holding more than ten rounds, including those at Virginia Tech (thirty-two killed and at least seventeen wounded in April 2007) and Fort Hood, Texas (thirteen killed and more than thirty wounded in November 2009), as well as in Binghamton, New York (thirteen killed and four wounded in April 2009 at an immigration center), and Tucson, Arizona (six killed and thirteen wounded in January 2011 at a congresswoman's constituent meeting in a grocery store parking lot).  

In response to Newtown and other mass shootings, the duly elected members of the General Assembly of Maryland saw fit to enact the State's Firearm Safety Act of 2013....

Why does Judge King introduce the case with these facts? Because they speak to the legislature’s intent in enacting the FSA. But also because they are a striking reminder of the specific harms the legislature was attempting to address. Judge King could have provided much less detail (“In response to several mass shootings across the country, the General Assembly saw fit to enact . . . .”) but by including details about these specific mass shootings, his majority opinion reflects what I’ll call the “anti-automatic rifle position” of many liberals; that is, the belief that the right to own automatic and semiautomatic rifles is not protected by the Second Amendment and that automatic and semiautomatic rifles enable those inclined to violence to inflict more harm than would be possible without those rifles.

Notice too that Judge King doesn’t provide the shooters names, only the types of weapons used and the carnage inflicted. This is intentional—he wants the reader to focus on the firearms and the acts themselves, not the perpetrator.

Lewis F. Powell, Jr. Courthouse
Fourth Circuit Court of Appeals
Contrast that introduction with the dissent’s introduction, which reflects what I’ll call the “pro-gun position” of many conservatives; that is, the belief that the Second Amendment protects the rights of citizens to bear arms of their choosing and that the harms inflicted by mass shootings are attributable to the people who perpetrate them, not the firearms used. Judge Traxler, writing for the dissent, begins:

Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

If you look carefully at this introduction, you’ll notice that the word “Government” (with a capital G) appears four times in the first three sentences. This, too, is intentional and reflects the federalist position that small government is preferable and government should stay out of citizens' lives to the extent possible. Conservatives generally fear government intrusion into many parts of their lives (healthcare, religion, etc.), and the repetition of the capital-G Government highlights the dissenting judges’ belief that the majority opinion represents further unacceptable intrusion.

Judge Traxler also highlights legal activities that citizens might engage in with these weapons, rather than the illegal activities that spawned the FSA, which the majority highlights. And consider his use of the term “eviscerate,” which has a much stronger connotation that a similar term, “destroy.”

Regardless of your thoughts on the correctness of the decision, the introductions in both the majority and dissenting opinions reflect the tone, tenor, and positions of the (highly divided) left and right.  

You can find the complete opinion here.

Sunday, February 5, 2017

I Spy a Spy's Guide

Even though the Style Manual and Writer’s Guide for Intelligence
Publications was de-classified in 2012, I just came across this concise writing manual used by the nation's intelligence agents. The Guide has some great intel for writers, and its general tips include:
  • Keep the language crisp and pungent; prefer the forthright to the pompous and ornate
  • Use abbreviations sparingly
  • Be frugal in the use of adjectives and adverbs; let nouns and verbs show their own power
  • Be aware of your reading audience; reserve technical language for technical readers

Helpful sections detail capitalization and other rules for:
  • Government entities
  • Geographic terms
  • Numbers (mixed-numbers, expressions of value, percentages and time phrases)
  • Latin abbreviations

Most of the Guide’s rules are consistent with those recommended for legal writers. For example, the Guide endorses the use of an apostrophe and an s to indicate possession where a word ends in an s sound (e.g., Texas’s argument).

My favorite part of the Guide, though, is the Word Watchers List of “possibly troublesome words” and how to deal with them. What terms should be under surveillance according to the intelligence community? Words such as:
  • Altogether, all together: Altogether means all told or completely. All together means in unison
  • Assure, ensure, insure: Assure applies to persons (to assure a leader of one’s loyalty). It alone has the sense of setting a person’s mind at rest. Use ensure to mean make certain (to ensure a nation’s security). Insure means to cover with insurance.
  • More than, fewer than, over, under, during, while: Over and under describe location; use more than and fewer than with numbers. For time, use during, from, or while except when the time reference is indefinite or vague. The system has improved during the past year. Inflation is up 10 percent from a year ago. But: Relations between the two nations have improved over time. Living conditions have changed over the centuries.

I love the Word Watchers entry on “verbal overkill” and the suggested substitutes:

Extra words are burdensome to the reader and should be avoided. Here are some samples of  verbal overkill and a simple substitute for each:

    are in a position to (can)           
    it is highly likely that (probably)
    at that point in time (then)                    
    it is possible that (may)
    at the present time (now)                     
    never before in the past (never)
    currently in progress (going on)          
    subsequent to (after)
    due to the fact that (because)              
    the majority of (most)
    in regard to (about)                              
    the manner in which (how)
    in the event that (if)                             
    whether or not (whether)
    in the near future (soon)

The Guide also includes a helpful list for spelling and compound words (antiestablishment but anti-American).

The most pressing question: What does the Guide say about Oxford commas?

Oxford commas are "the rule for CIA publications."

Luckily, the Guide is now available for us non-agents and won’t self-destruct! Uncover it for yourself here.

Friday, January 13, 2017

A Deplorable(s) Brief

After a long blogging hiatus, I’m back with a review* of an amicus brief filed in Lee v. Tam, currently pending before the Supreme Court.  

A brief background of the case:  The Lanham Act, which governs federal trademarks, prohibits registration of any mark that  “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” 15 U.S.C. 1052(a).

Simon Shiao Tam and his bandmates were denied a federal trademark registration for their band, The Slants. The United States Patent and Trademark Office’s denial of the registration application was based on its finding that The Slants’ name is disparaging to Asian-Americans. The Federal Circuit Court of Appeals held that the PTO’s refusal to register disparaging marks, including The Slants, is unconstitutional viewpoint discrimination. The Supreme Court granted cert, and the case will be argued on January 18, 2017.

The Slants
Photo by Gage Skidmore

The Cato Institute filed an amicus brief on behalf of a group that describe themselves as a “basket of deplorable people and organizations.” This entertaining description makes sense in light of the amici’s interest in the case:

Amici are committed to preserving free expression and pushing people out of their comfort zones. This case concerns amici because we all say things that some people find offensive or even disparaging—but it’s not the government’s role to make that judgment.

The deplorables brief, authored by Ilya Shapiro and Thomas Berry, reads like an op-ed. The authors’ conversational style (in the vein of Justice Kagan?) makes the brief eminently readable. Below I highlight a few of the (many) parts of this brief that I like and find interesting and effective.**  

The Question Presented

I love the straightforwardness and simplicity of the Question Presented:

Does the government get to decide what’s a slur?

While parties can’t get away with a one-sentence QP that fails to provide the relevant law, amici can. Compare the amici’s QP with Tam’s, which is straightforward as well (though a little more detailed):

The disparagement clause in section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), prohibits the registration of a trademark that “may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The Questions Presented are:

1. Whether the disparagement clause bars the registration of respondent’s trademark.

2. Whether the disparagement clause is contrary to the First Amendment.

3. Whether the disparagement clause is unconstitutionally vague under the First and Fifth Amendments.

Authorities Cited

The deplorables’ eclectic list of authorities includes (in no particular order):

Plessy v. Ferguson, 408 U.S. 593 (1972)
Seinfeld, The Yada Yada
Dred Scott v. Sandford, 60 U.S. 393 (1856)
Chris Rock, Rock This
Merriam-Webster’s Dictionary
Barack Obama Speech on Father’s Day, June 15, 2008
Jim Goad, The Redneck Manifesto (1997)
South Park, With Apologies to Jesse Jackson
N.W.A., Straight Outta Compton
Elizabeth Wurtzel, Bitch: In Praise of Difficult Women (1998)

The deplorables don’t feel constrained by traditional legal sources; certainly they cite relevant case law, but considering the breadth and distinctiveness of some authorities cited, we see the authors’ point that the disparagement clause’s prohibition affects Americans of many different races, genders, and heritages.


The use of images in briefs is currently in vogue (to the extent that anything in law can be considered in vogue), and the authors of the deplorables brief don’t disappoint, using an image of Flying Dog Brewery’s Raging Bitch Belgian-Style IPA to demonstrate the long history of legal disputes over “edgy” brand names.


Those interested in legal writing continue to debate the use of contractions in motions and briefs. Some, like me, eschew them, while others believe they’re acceptable when used sparingly and purposefully. The drafters of the depolorables brief are in the latter group; the brief is full of contractions, many of which make the writing pop:

The PTO has inserted itself into a cultural debate. It’s no secret that for centuries, people have used language to ridicule and debase.

From its very beginnings, rock music has made parents uncomfortable, school teachers cringe, and officials riled up. It wouldn’t be rock music if it didn’t.

Rather than promoting an offense-free marketplace, the goal of the trademark system is quite simple: for people to know what they’re buying.

Short openings

Brief writers sometimes use lengthy introductory phrases that detract from rather than support their arguments. Shapiro and Berry chose short openings to help them get to their points quickly:

But the suppression of political speech is not the only problem arising from the disparagement clause.

Of course many in the African-American community continue to disagree with comedians’ decision to use racial epithets.

And as the Federal Circuit pointed out, “the PTO [has] admitted that ‘[t]he guidelines for determining whether a mark is scandalous or disparaging are somewhat vague and the determination of whether a mark is scandalous or disparaging is necessarily a highly subjective one.’”

Once again, the PTO would have us believe that although linguists, historians, and pundits disagree, everyone who works at 600 Dulany Street in Alexandria magically acquires the power to settle these debates.

Some cool, little-used words

Generally, a brief isn’t the place to show off a large vocabulary. In my opinion, the use of too many $10 words smacks of grandiloquence. But a few carefully placed gems, like these in the deplorables brief, can spice up prose:

The Slants have chosen a name that, through its insouciance, expresses something about their music—and the government’s jejune label of “disparaging” fails to capture the many levels of communication inherent in that name.

For several reasons, we are less sanguine that such a neutral and objective arbiter of true disparagement can be found anywhere, let alone in the federal government.

Short, punchy sentences

Short sentences provide a nice contrast to longer, dense ones. The authors use short sentences sparingly but effectively:

It gets complicated. And that’s the point. The disparagement clause places an unconstitutional condition on those who consider the use of an edgy or taboo phrase to be part of their brand.

Perhaps the NAACP is right that the term colored is “outdated and antiquated but not offensive.” But this raises the question: At what point between 1910 and the present would the PTO have ceased granting registration to marks using “colored”? Once again, there is no clear answer.

Interesting asides

These asides would be too cutesy for the parties’ briefs, but they work in the folksy deplorables brief.  

Indeed, under the government’s own proposed rule, any service that Congress or a local legislature is “not obligated to provide”—which is literally the case for every service19—could be selectively withheld on the basis of speech.

19 Actual, non-Biden sense of the word “literally.” See, e.g., Alexandra Petri, Literally, Joe Biden, Wash. Post, Sept. 7, 2012,

In the 1970s, both Stanford and Dartmouth voluntarily changed their mascots from the “Indians” to the (difficult-to-make-into-a-costume) incorporeal colors “Cardinal” and “Big Green,” respectively.

Amici, and all others who sometimes find themselves lumped into a basket of deplorables—now that’s a great band name!—urge the Court to let people judge for themselves what’s derogatory.

Interested in reading the deplorables brief for yourself? You can find it here.

You can find Tam's brief (cited above) here and the other briefs and coverage of the case over at SCOTUSblog. 

Note: Overlawyered’s Water Olsen describes the deplorables brief as perhaps the “most not-safe-for-work amicus brief in Supreme Court history.” The brief is full of obscene language, so view at your own risk!

* Occasionally I “review” briefs from high-profile cases, but I use the term “review” loosely. I rarely highlight areas of potential improvement (to the extent there are any), instead focusing on the parts of briefs that I find effective.   

**And while we’re talking disparagement, I refer to this brief as the “deplorables brief” throughout the post. I don’t think the amici care about my opinion or would be offended anyway, but just so we’re clear, this description isn’t meant to suggest that I find the amici deplorable.

Thursday, August 4, 2016

Legal Writing Pet Peeves

I was involved in an interesting Twitter discussion recently about legal writing pet peeves. Both law professors and practitioners alike chimed in to create the list. So what are some common pet peeves among those who judge the writing of students and young associates?

--Starting sentences with: “It is important to note that” (@ksilverkelly), “Due to the fact that” (@daniel_l_real), and “There is/are” (@ladylegalwriter)

--Using double negatives (@katrinajunelee)

--Failing to use affect and effect properly (katrinajunelee)

--Employing rhetorical questions (Who likes those?) (@djsziff)

--Using “however” in multiple consecutive sentences (@aerwrites) and failing to properly punctuate when using “however” mid-sentence (@ladylegalwriter)

-- Employing unnecessary parentheticals to define terms (@5thcircappeals)

Other pet peeves of mine include:


--using too many nominalizations (which leads to wordiness)

--failing to spell-check and proofread (They are not the same thing!)

--failing to follow local rules

--employing over-the-top language

What do you think of the list? What would you add?