Friday, November 30, 2018

The Chief's Well-Written Weyerhaeuser Opinion

On November 27, 2018, Chief Justice Roberts issued the Court’s unanimous opinion in Weyerhaeuser v. United States Fish and Wildlife Service. Weyerhaeuser involves the Service’s designation of property in Louisiana as a “critical habitat” of the endangered dusky gopher frog. The problem, according to Weyerhaeuser, the owner of part of that property, is that no dusky gopher frogs have been observed on the site since 1965, and the current tree farm on the site has created a closed-canopy that Weyerhaeuser claims is inhospitable to the frog.

This case is particularly interesting to me because I teach and write on animal law. The opinion contains many classic Chief Justice Roberts techniques and is another example of why he is one of the two best writers on the Court.

The Description of the Dusky Gopher Frog

Chief Justice Roberts begins with a lengthy description of the dusky gopher frog:

The amphibian Rana sevosa is popularly known as the “dusky gopher frog”—“dusky” because of its dark coloring and “gopher” because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners.

The Chief is known for including this type of peripheral but interesting information in his writing and has been doing so since his time as an advocate.

As Greg Lipper (@theglipper) noted, these details add interest and encourage the reader to continue reading this “technical” opinion on statutory interpretation and reviewability of agency action. Chief Justice Roberts used the same technique when he represented Alaska in Alaska v. EPA, another technical but more complicated case involving statutory interpretation and reviewability.

And Jamie Santos (@Jamie_ASantos) is right too—including these types of details can be tricky, and Chief Justice Roberts does it very well. A brief with too many irrelevant details can come off as unfocused or campy, so this technique must be employed with great care.

A Description of “[H]ow [A]djectives [W]ork”

One issue in the case turns on the meaning of the phrase “critical habitat.” Chief Justice Roberts writes:

According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality. It follows that “critical habitat” is the subset of “habitat” that is “critical” to the conservation of an endangered species.

I love both this description and the unstuffiness of it. Many would be tempted to write “the way in which adjectives operate in the English language.” Chief Justice Roberts resists that temptation—“how adjectives work” is a wonderfully short description.

Avoiding First, Second, Third etc.

I don’t love the formulaic “first, second, third” argument markers, but they are better than nothing.* Jamie Santos noted recently, though, that replacing these markers can take writing to the next level. 

Chief Justice Roberts does this expertly in the Weyerhaeuser opinion.

There is, at the outset, reason to be skeptical of the Service's position. The few cases in which we have applied the § 701(a)(2) exception involved agency decisions that courts have traditionally regarded as unreviewable . . . .

Although the text meanders a bit, we recognized in Bennett v. Spear, 520 U.S. 154 (1997), that the provision describes a unified process for weighing the impact of designating an area as critical habitat. . . .

The use of the word “may” certainly confers discretion on the Secretary. That does not, however, segregate his discretionary decision . . . .

Section 4(b)(2) requires the Secretary to consider economic impact and relative benefits before deciding whether the exclude an area from critical habitat or to proceed with a designation….

Chief Justice Roberts’ explanation of the Court’s reasoning avoids the unimaginative “first, second, third” problem:

There is, at the outset, reason to be skeptical of the Service’s position. First, the few cases . . . .

Second, although the text meanders a bit . . . .

Third, the use of the “may” certainly confers discretion . . . .

Fourth, Section 4(b)(2) requires the Secretary to consider . . . .

While I don’t love the outcome from an animal law perspective, the opinion is interesting and the reasoning well-explained. There’s still hope for the dusky gopher frog, though—the Court remanded the case and directed CA5 to consider questions it did not answer regarding the definition of “habitat.” And even though the Court found the Service’s decision reviewable, that decision is subject to the permissive abuse of discretion standard.

*Avoid “firstly, secondly, thirdly” at all costs.

Wednesday, August 29, 2018

A Conversational Cert in the Style of Justice Kagan

As Ross Guberman and others have pointed out, conversational legal writing is becoming more and more popular. Justice Kagan is known for her conversational style—she’s said that she wants her opinions to “sound like” her and tries “very hard to make [them] understandable to a broad audience.”

I wondered if Justice Kagan’s writing style is starting to rub off on some of the advocates who appear before the Court. So I looked at a cert petition filed recently on behalf of Lamps Plus, Inc. by Andrew Pincus of Mayer Brown’s Supreme Court and Appellate practice group.

I can definitely see some of Justice Kagan’s conversational style in this cert petition, though the authors still lean heavily on formal language and sentence structure. But I like that advocates are at least attempting to move away from the stuffy formality that has plagued legal writing.

For example, “first,” “second,” etc. are helpful markers for the reader, but they get old, especially if used too many times in a document, and they aren’t words we generally use when speaking. 

So rather than choosing “first,” the Mayer Brown team uses “to begin with”:

To begin with, the canon is inapposite . . .

And then, instead of saying “regardless,” they start the next sentence with the less formal “in any event”:

In any event, the FAA forecloses the panel majority’s reliance on a state-law canon . . .

I also enjoy the colloquial [o]n the one hand and [o]n the other hand rather than the more formal “conversely,” “nevertheless,” or “however.”

And the Mayer Brown lawyers use other language that makes their cert petition more interesting, snappy, and readable:

As the concurring Justices put it . . . (not “stated,” “said,” or a similar word)

The panel majority’s opinion cannot be squared with (as opposed to “is inconsistent with”) the settled principles just discussed.

Indeed, class arbitration is a worst-of-both worlds hybrid of arbitration and litigation. (I probably would have gone with “best-of-both-worlds hybrid.”)

The panel majority next brushed aside (instead of eschewed) the multiple portions of the Agreement demonstrating the parties’ intent to engage in traditional, bilateral arbitration.

And the “remedy” provision says nothing about (rather than “does not speak to”) the availability of a class action . . .

The Mayer Brown cert petition still does contain many “lawyer” words (“moreover” seems to be a favorite), but it feels like a step in the right conversational direction.

The Supreme Court granted the petition and will consider whether the lower court erred in interpreting an arbitration agreement to authorize class arbitration in Lamps Plus v. Varela.

You can find the petition here and coverage of the case on SCOTUSblogOral argument is set for October 29, 2018.

Tuesday, July 31, 2018

Assessing Respondent's Brief in New Prime v. Oliveira

I’ve written hundreds of blog posts, many on general legal writing tips and pedantic issues that interest hard-core legal writing fans. But what I most like now is “reviewing” briefs filed in high-profile cases.  

During the October 2018 term, the Supreme Court will hear oral arguments in New Prime, Inc. v. Oliveira, an interesting case about statutory interpretation. At issue is the Federal Arbitration Act, which does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Prime is a trucking company that first retained Oliveira’s services under an “independent contractor operating agreement” then, after Oliveira left the company, Prime re-hired him as a “company driver.” Oliveira later sued Prime for failing to pay him minimum wage, but Prime claimed that the dispute is subject to arbitration under the FAA. Oliveira disagreed, arguing that he was a worker engaged in interstate commerce who had a “contract of employment” exempt from the FAA.

The district court denied Prime’s motion to compel arbitration, holding that whether Oliveira was working for Prime under a “contract of employment” depended on whether he was an employee or independent contractor and that discovery was required to answer that question. The First Circuit found that no discovery was necessary because, after undertaking an extensive examination of the text and history of the transportation exemption to the FAA, it found that “contracts of employment” means agreements to perform work, including agreements between a company and independent contractors. Thus, the First Circuit held that Oliveira’s agreement was a “contract of employment” exempt from mandatory arbitration under the FAA.*

Oliveira’s counsel of record is Jennifer Bennett of Public Justice. His Respondent’s Brief is a solid piece of advocacy and offers some great takeaways for those interested in statutory construction or legal writing.


The use of contractions in legal writing remains controversial. Many traditionalists (the late Justice Scalia, for example) avoid contractions in legal writing, while others, including Justice Gorsuch, use them to make writing more readable and conversational:

Oliveira’s brief contains a few well-placed contractions that add interest and pizazz to the writing:

  • Courts can’t rely on laws that don’t apply.
  • And, as if that weren’t enough, Prime’s interpretation would also require this Court to hold that employers can avoid the transportation-worker exemption simply by labeling—or mislabeling—their workers independent contractors, regardless of whether they actually are.
  • But even if the parties had agreed to arbitrate this question, it wouldn’t change the outcome here.
  • If it had limited the transportation worker exemption to just those workers covered by the Railway Labor Act—a law that didn’t even exist yet— it would have disrupted the existing dispute resolution schemes, which covered all workers in the relevant industries.

Stylish Writing

Chief Justice John Roberts
Chief Justice John Roberts is one of the best, if not the best writer to ever serve on the Court. So who can blame Oiveira’s counsel for using some Robertsesque phrases and short, punchy sentences?

  • So too here. Regardless of whose “contracts of employment” are exempt from the statute, the definition of “contracts of employment” remains the same: agreements to perform work.
  • But that too makes no sense. Congress’ goal was to avoid disrupting “developing” and “established” dispute resolution schemes. Circuit City, 532 U.S. at 121 (emphasis added). If it had limited the transportation worker exemption to just those workers covered by the Railway Labor Act—a law that didn’t even exist yet—it would have disrupted the existing dispute resolution schemes, which covered all workers in the relevant industries.
  • For one thing, the exemption is narrow. It applies only to arbitration clauses in transportation worker’s employment contracts—it doesn’t apply to other kinds of contracts or other kinds of workers.
  • First, Prime argues the Court should avoid the issue altogether by holding that courts must rely on the FAA to compel arbitration of the question whether the FAA applies in the first place. That makes no sense.

I also love the colorful and descriptive language Oliveira’s counsel uses:

  • Prime’s sky-is-falling rhetoric . . .
  • Prime recites an imaginary parade of horribles it claims will result . . .
  • Prime seizes on the fact that one of the ways in which “employee” was used was as a term of art denoting a common-law master-servant relationship.
  • Prime attempts to salvage its counterintuitive reading of the statute by arguing that the canon against surplusage somehow requires that the applicability of the transportation-worker exemption be determined solely by the terms of the contract.

Statutory Construction Arguments

Oliveira’s statutory construction argument is well-supported, well-organized, and strong.

To support the arguments regarding the plain meaning of “contracts of employment,” Oliveira's counsel relies on Supreme Court precedent, non-binding precedent, dictionary definitions contemporary with the enactment of the FAA, other federal and state statutes that used the term “contracts of employment” to include agreements with independent contractors, and additional secondary sources including agency documents and treatises.

Oliveira’s counsel then shoots down Prime’s argument that “employee” is a term of art and “contracts of employment” is equivalent to “contracts of employees” by explaining the multiple meanings of the term “employee” at the time the FAA was passed and outlining the etymology of the word “employ.”  Further, Oliveira’s counsel attacks Prime’s reliance on the statutory construction canon of ejusdem generis and the canon against surplusage and explains why these canons cannot be used to change the plain language of the FAA. Oliveira’s counsel also outlines the purpose of the FAA’s transportation workers’ exemption to show that Prime’s proposed interpretation of “contracts of employment” would frustrate Congressional intent.

Finally, Oliveira’s counsel dismantles Prime’s argument that the First Circuit’s reading of the statute creates bad policy, instead showing that Prime’s reading of the FAA creates problems that are avoided by applying the plain meaning of the phrase “contracts of employment.”

This myriad approach is very effective. Discerning the plain meaning of statutes is the golden rule of statutory construction, but Oliveira’s counsel isn’t content to simply argue plain meaning. Instead, she shows why the plain meaning is clear and why other methods of statutory interpretation do or should lead to the same result.

Minor Criticisms

Oliveira’s brief is good, but a few details stuck out to me (in a negative way) as I was reading.

Oliveira’s counsel writes: “This obvious truism is no different for the FAA.” A truism is something obviously true, so “obvious truism” is a tautology.

I love a few well-placed sentences that start with “and” and “but”—they are so much more lively than those that start with “additionally” and “nonetheless.” But too many “and” and “but” sentences sound repetitive after a while. In the Summary of the Argument alone, four sentences begin with “and” (including two on a single page) and two sentences begin with “but.” I’d have used “and” and “but” more sparingly.

Oliveira’s counsel also relies heavily on “artificial” emphasis in the form of italics in certain places in the brief. I don’t mind a few italic or underlined words here and there for emphasis, but overemphasizing words and phrases has the opposite effect. Take the paragraph below, for example. I don’t think these italics (which I’ve also bolded for easier reading) add anything—the language would have been just as effective without them:

Prime does not cite a single source contemporary with the FAA that says otherwise. Instead of looking to the ordinary meaning of the statutory text when the FAA was enacted in 1925, Prime relies on a dictionary published in 2014. And rather than the actual phrase Congress used—“contracts of employment”—Prime relies on a different term—the word “employee.” But statutes are interpreted according to their ordinary meaning at the time they were enacted—not a century later. And they are interpreted in accordance with the meaning of the words Congress actually used, not similar-sounding words it didn’t. While the word “employee” in 1925 had multiple common meanings, the phrase “contracts of employment” had only one: agreements to perform work. The employment status of the worker was irrelevant.

These minor critiques aside, Oliveira’s brief is an interesting read and worth your time.

You can find coverage of Oliveira and read the briefs at SCOTUSblog.

*By way of full disclosure, I joined an amicus brief primarily authored by Nantiya Ruan in which the amici, as statutory construction scholars, urge the Court to uphold the First Circuit’s ruling.