Justice Scalia's concurrence in Lamb's Chapel v. Center Moriches Union Free School District is one of my favorite "spooky" opinions and perfect for the Friday before Halloween:
As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman,
conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so....
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will....Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
Happy Halloween!
Friday, October 30, 2015
Tuesday, October 27, 2015
A "Brief" Analysis in Hurst v. Florida
It’s Supreme Court
season again! In response to positive feedback from last year’s posts on
Supreme Court briefs, I’m going to be posting my thoughts on briefs filed in
some of this year’s most high-profile cases.
Timothy Lee Hurst |
A death penalty case,
Hurst v. Florida, was argued earlier
this month. Hurst was convicted of murder and sentenced to death. That sentence
was overturned by the Supreme Court of Florida, and Hurst was re-sentenced,
again to death. Under Florida law, the jury is charged with rendering an
“advisory sentence,” but the ultimate sentencing decision is left to the judge.
Hurst challenges the constitutionality of Florida’s sentencing laws.
Seth Waxman is the
primary author of Hurst’s brief. Waxman was Solicitor General from 1997 to
2001, has logged more than 70 arguments before the Supreme Court, and has won
previous death penalty cases before the Court. He is one of the nation’s most
well-respected appellate advocates, and his brief—as expected—is stellar.
Facts that Make
You Go Hmmmm
Good advocates know
the power of helpful facts, even those that don’t speak directly to the issues on
appeal. Through good drafting, Waxman gets the following helpful facts before
the Court:
The jury voted for
death by a slim 7-5 majority. The jury deliberated for less than 2 hours in
deciding to recommend a death sentence.
Hurst suffered from
brain damage consistent with fetal alcohol syndrome, had “below average
adaptive functioning skills,” and borderline intelligence (an IQ somewhere
between 69 and 78). At the time of the crime, Hurst was 19 years old but had to
be “reminded to take care of himself…and to bathe and dress appropriately.” Two
defense psychologists testified that Hurst was “mentally retarded,” yet the
judge rejected Hurst’s claim that his mental retardation barred the imposition
of death under Atkins.
Theme
Waxman’s brief
contains several themes, one of which is apparent from the introduction: “Florida’s death penalty sentencing scheme, whereby juries provide only an
advisory role, is unconstitutional.”
By my count, the term
“advisory” appears nearly 20 times in the brief. Waxman hammers home his theme
time and again: “Florida juries play only an advisory role. Unanimity, and the
deliberation often needed to achieve it, is not necessary; only a bare majority
vote is required to recommend a death sentence.”
Waxman highlights the
constitutional problems with Florida’s death penalty sentencing laws in several
ways:
(1) To
recommend death, a jury must find at least one statutory aggravating factor.
Florida presented two in Hurst’s case, but Florida law prohibits using a
special verdict form that would reflect the jury’s vote on each aggravating
factor. Thus, three jurors could have voted for death based on one factor and
four could have voted for death based on the other factor, meaning that each
aggravator could have been rejected by two-thirds of the 12 jurors.
(2) The
judge makes the ultimate sentencing decision and actually holds a separate
hearing after the jury has recommended a sentence. At this hearing, the judge
may consider evidence not presented to the jury and may find the existence of aggravating
factors not presented to the jury.
(3) Florida’s
system goes against “centuries of practice recognizing unanimous verdicts,” “departs
from the uniform position of the federal system and 49 other States in capital
and non-capital cases,” and goes against the “bedrock principle that the jury
system is predicated on meaningful deliberations, which a simple-majority vote
cannot safeguard.”
Seth Waxman, from his days as SG |
These arguments hit
the law-trained reader hard. We know the importance of jury trials, of
requiring a finding of guilt beyond of a reasonable doubt, and of requiring
unanimity. Yet the Florida scheme seems to fly in the face of all those
foundational principles—A judge decides a death sentence and can base the
decision of evidence the jury never heard? Florida requires unanimity to
convict a defendant of murder but not to recommend a death sentence? Florida prohibits
special verdict forms that would tell a defendant which aggravating factor(s)
mattered to the jury? Florida is the only state that thinks this sentencing
scheme is proper?
Even to the most
critical reader, Waxman’s arguments are hard to ignore.
Short Sentences
I’ve talked numerous
times before about the power of short sentences. They can be used to emphasize
a point, break up dense prose, and add interest. Waxman peppers his brief with
these beauties:
Hildwin does not survive those later
decisions.
That is the case
here.
Apodaca was wrong when it was decided.
Similar logic applies
here.
Next week I’ll
discuss Florida’s response brief in Hurst
v. Florida.
Friday, October 23, 2015
Thought For the Day
On storytelling in law:
"Plotting is important in any legal storytelling. It is crucial in legal advocacy that can best be understood as the battle of competing stories in the courtroom." But "even where the legal storyteller is an appellate judge who is purportedly retelling a story 'objectively,' merely presenting the facts in a simple linear chronology, she inevitably constructs the trajectory of a purposeful plot to reach a predetermined outcome."
--Philip N. Meyer, Storytelling for Lawyers
Happy Friday!
"Plotting is important in any legal storytelling. It is crucial in legal advocacy that can best be understood as the battle of competing stories in the courtroom." But "even where the legal storyteller is an appellate judge who is purportedly retelling a story 'objectively,' merely presenting the facts in a simple linear chronology, she inevitably constructs the trajectory of a purposeful plot to reach a predetermined outcome."
--Philip N. Meyer, Storytelling for Lawyers
Happy Friday!
Tuesday, October 20, 2015
On Point: A Review of Point Taken
I’m a big fan of Ross Guberman’s
work. I’ve previously reviewed
two of his books, Point Made and Deal Struck.
Ross’ latest, Point Taken, is an
instruction manual on opinion writing. I’m a believer that simply telling
others how to be good writers isn’t effective—you have to show them through
good (and bad) examples. And that’s exactly what Point Taken does.
Ross has selected some of the best snippets
from the world’s best judicial opinion writers to teach and inspire readers. In
Point Taken, Ross breaks opinions
into three main parts—the introduction, the facts, and the legal analysis—and
offers strategies for drafting each. He suggests, for example, situations where
writers might want to use a “succinct and unresolved” introduction versus a
“succinct and resolved” introduction. Ross offers many examples, then shows
readers how to draft each type.
For fact sections, Ross helps opinion
writers decide which facts—and how much detail—to provide to further the
writers’ purposes. Again, he offers contrasting examples, from England’s Lord
Denning, Judge Patricia Wald, Judge Posner, Judge Kozinski, and many others.
Ross then moves to the “meat” of
every opinion—the analysis. How should the writer organize the analysis? How
much analysis should the writer offer? How should the writer address
counterauthority and counterarguments? Ross answers these questions, and more,
all the while giving interesting examples of analyses from trial and appellate
judges both here and abroad.
In the second half of the book, Ross gives
readers his style must-haves, such as variations in sentence length and form,
parallelism, seamless transitions, and 16 key phrases to remove from writing
(e.g., with respect to, with regard to, assuming arguendo). For the more
ambitious writers, Ross also offers his style nice-to-haves, which include
metaphors and similes, analogies, and rhetorical devices, such as word
repetition (e.g., John Roberts’ “The way to stop discrimination on the basis of
race is to stop discriminating on the basis of race.”). Finally, Ross ends with
a short chapter on dissenting opinions.
As expected, many of Ross’ tips and suggestions
apply equally to brief writers and opinion writers—the value of introductions
and headings, the importance of accuracy in the recitation of facts, and the
need to fully analyze the authority, just to name a few. So even though Point Taken targets opinion writers,
it’s good reading for all legal writers.
As they were in Ross’ first book, Point Made, the good examples Ross
offers in Point Taken are varied and
entertaining (e.g., the 7th Circuit’s Pull My Finger® Fred case—yes, it’s about
exactly what you think it is), making the book both enjoyable (seriously!) and
informative. Point Taken is a quick
read at around 300 pages and well worth your time.
You can read an excerpt from Point Taken here.
Friday, October 16, 2015
Supreme Court Fixes Two Major Issues With Its Opinions
At the start of the new Supreme Court session, the Court announced that it is fixing two major problems with prior opinions: post-release edits and link rot.
Supreme Court pundits had complained about the Court's prior practice of revising post-release opinions without notifying the public of the changes. According to a study conducted by Harvard professor Richard J. Lazarus, these alternations were not all aesthetic. Some were substantive changes to facts and reasoning.
Adam Liptak wrote about this issue in The New York Times in May and apparently the Court listened. Post-publication changes will now be noted in a new column on the charts of opinions and altered material will be highlighted.
And link rot has long been a problem. A 2013 study showed that nearly half of all links in Supreme Court opinions no longer work. The Court will now preserve online content cited in its opinions and make that content available on its website.
These changes are wonderful improvements and, I think, evidence that the Supreme Court is willing to alter its procedures to improve its opinions and its transparency. Who knows--maybe cameras in the courtroom are the next frontier!
You can see explanations of the new procedures in the What's New section of the Court's website.
Supreme Court pundits had complained about the Court's prior practice of revising post-release opinions without notifying the public of the changes. According to a study conducted by Harvard professor Richard J. Lazarus, these alternations were not all aesthetic. Some were substantive changes to facts and reasoning.
Adam Liptak wrote about this issue in The New York Times in May and apparently the Court listened. Post-publication changes will now be noted in a new column on the charts of opinions and altered material will be highlighted.
And link rot has long been a problem. A 2013 study showed that nearly half of all links in Supreme Court opinions no longer work. The Court will now preserve online content cited in its opinions and make that content available on its website.
These changes are wonderful improvements and, I think, evidence that the Supreme Court is willing to alter its procedures to improve its opinions and its transparency. Who knows--maybe cameras in the courtroom are the next frontier!
You can see explanations of the new procedures in the What's New section of the Court's website.
Tuesday, October 13, 2015
Oldies
I'm working on grading student memos this week, so in lieu of new content, I'm posting links to some of my favorite, interesting, or helpful older posts.
Drafting Statements of Jurisdiction and Venue
Lebowski on Law
Making the Most of Motions for Reconsideration
A Material World
Parentheticals
Standards of Review
Tale of a Tragic Torontonian (in honor of the Blue Jays)
Using Bullets and Numbers in Briefs
Drafting Statements of Jurisdiction and Venue
Lebowski on Law
Making the Most of Motions for Reconsideration
A Material World
Parentheticals
Standards of Review
Tale of a Tragic Torontonian (in honor of the Blue Jays)
Using Bullets and Numbers in Briefs
Tuesday, October 6, 2015
I Do Not Think It Means What You Think It Means
English is difficult. Many English words have nuances that escape even native English speakers. And many words sound similar but mean very different things. In my experience, these are some of the words most misused, especially by lawyers.
Appraise and Apprise. To appraise something is to assess its value. To apprise is to inform. The jeweler appraised the diamond and apprised the seller of the diamond's value.
Disinterested and Uninterested. Disinterested means unbiased, not lacking interest. That's uninterested. You might ask a disinterested party to mediate your case, but if you want him to mediate the case pro bono, he'd likely be uninterested in your offer.
Hung and Hanged. Hung means suspended. Hanged is an older form of capital punishment.
Imply and Infer. These words aren't interchangeable. They aren't antonyms in the strict sense, but they do, in a way, have opposite meanings. To imply is to suggest but not state outright. To infer is to guess based on context clues. Thus, a speaker will imply and a listener will infer based on the speaker's implication.
Ironic and Coincidental. Irony is a disconnect between actual events and what's expected. If you travel to Utah to ski, and there's no snow in Utah, but snow at your house, that's ironic. A coincidence occurs when seemingly unrelated events happen simultaneously. If you make a last-minute trip to Utah to ski and your friend also decides to travel to Utah to ski at the last minute, that's coincidence.
Practicable and Practical. Practicable means easy to perform or put in practice. Practical means many things, including sensible and suitable. A practical solution to a problem may not always be practicable.
Appraise and Apprise. To appraise something is to assess its value. To apprise is to inform. The jeweler appraised the diamond and apprised the seller of the diamond's value.
Disinterested and Uninterested. Disinterested means unbiased, not lacking interest. That's uninterested. You might ask a disinterested party to mediate your case, but if you want him to mediate the case pro bono, he'd likely be uninterested in your offer.
Hung and Hanged. Hung means suspended. Hanged is an older form of capital punishment.
Imply and Infer. These words aren't interchangeable. They aren't antonyms in the strict sense, but they do, in a way, have opposite meanings. To imply is to suggest but not state outright. To infer is to guess based on context clues. Thus, a speaker will imply and a listener will infer based on the speaker's implication.
Ironic and Coincidental. Irony is a disconnect between actual events and what's expected. If you travel to Utah to ski, and there's no snow in Utah, but snow at your house, that's ironic. A coincidence occurs when seemingly unrelated events happen simultaneously. If you make a last-minute trip to Utah to ski and your friend also decides to travel to Utah to ski at the last minute, that's coincidence.
Practicable and Practical. Practicable means easy to perform or put in practice. Practical means many things, including sensible and suitable. A practical solution to a problem may not always be practicable.
Friday, October 2, 2015
LOUD NOISES!
I just found this cute cartoon from David Mills. So true!
Reminds me of one of my favorite scenes from Anchorman
Happy Friday!
Reminds me of one of my favorite scenes from Anchorman
Happy Friday!