Author Archives: Michael Williams

Motions Practice As Catharsis

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When I was a clerk, I was often forced to slog through motions filled with flowery language, needless rhetoric, and impassioned pleas that were largely unsupported by the evidence. I used to wonder why lawyers would waste one of the most valuable resources in a judge’s chambers–time–by forcing the clerks and the judge to read all that nonsense.  I joked that we needed to apply an “Adjective Rule”: the strength of an argument is inversely proportional to the number of adjectives therein.

Of course, my frustration was a bit hypocritical, as I loved the snooty rhetoric when I was a first-year associate. I thought my motions and briefs were poetry. In reality, they mostly indulged my own ego or allowed an outlet for my emotions about a given case.

But I’m glad that I learned the lesson during my clerkship that superfluous language is generally ill-advised, as judges seem to be growing less and less patient with it. Several judges (including my former judge) have issued opinions harumphing about that kind of stuff, but I think Judge Dale Fisher of the U.S. District Court in the Southern District of California really hit the nail on the head in a recent hearing:

… I don’t know why lawyers do this, and there’s a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they’re somewhat annoying. I don’t have time for rhetoric. I’m really, really busy. Why anyone would want this job, I don’t know…

But in any event, it’s just – I don’t know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I’ve ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn’t he get to the point. So, please, in future pleadings, remember that. …

… In addition to that, I’ve been around awhile both in practice and on the bench, so I suspect I’ve seen a few more cases than you, and really, it’s not all that staggering and it’s not all that great a magnitude, so when your experience and mine differ, it just takes all of the punch out of those comments.

To make matters even worse, Counsel, your statement that the government failed to make any effort to preserve the documents is simply false. And your statements in your papers so often go beyond the bounds of zealous advocacy that I have to say your papers had very little persuasive value. In fact, as I was trying to check some of the references you made to deposition testimony, I looked at it three or four times because I thought I must be searching for the wrong page because the pages you were citing to had oftentimes no relationship to the proposition you were citing them for. You started off extremely poorly as I started reading the papers, and I had little confidence in anything you had to say as I went through them.

Bam. Just a little reminder that even the best writers should save the rhetoric for blog comments sometimes.  Motions practice is not a place for a release of emotion, for intellectual masturbation, or for a demonstration of writing prowess. Legal writing is only a means to an end.

-Michael

Has Ed Whelan Ever Read a Supreme Court Opinion? (Update: Yes, He Has)

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Update: I received a response suggesting that I was the one who missed the mark. From Mr. Whelan himself (with his permission):

As I recall it, the practice when I was a law clerk is that the reporter of decisions drafted the syllabus, for review by the authoring justice. Moreover, a long syllabus doesn’t require the difficult editing decisions that a short paragraph would require.

Touché. (Note that this approach conflicts with the publicly advertised explanation, which says only that the syllabus was “prepared by the Reporter of Decisions.”)

It’s no surprise that ultra-conservative writer Ed Whelan doesn’t like ultra-liberal law professor Erwin Chemerinsky. But a recent post misses the mark. Whelan first attacks Chemerinsky for making a “crazy” suggestion that the Supreme Court should justify its cert. denials. Whelan might be kind of right given the volume of such denials each year (although he seems to overlook that a clerk produces a memo on most every case). Yet the real weak spot of Whelan’s analysis is his second attack:

Nearly as bad is Chemerinsky’s idea that “the Court should hire a ‘clear writer’ who would boil each decision down to a single paragraph that would be released along with the ruling.” I don’t doubt that the author of the majority opinion could often do a better job setting forth clearly what the holding of the case is. But why should the justices delegate to a Court staffer the often difficult and controversial task of summarizing the ruling?

The justices, of course, already do delegate to a Court staffer “the often difficult and controversial task of summarizing the ruling.” Mr. Whelan, meet the Reporter of Decisions of the Supreme Court. Among other things, the Reporter of Decisions is tasked with preparing a syllabus that goes at the top of most Supreme Court opinions. The syllabus has one purpose (you guessed it): to summarize the decision. See, e.g., United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906) (“[The syllabus] is simply the work of the reporter, [who] gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.”).

The role of the Reporter of Decisions might sound like an odd bit of trivia, but it shouldn’t be to anyone who reads a Supreme Court opinion every once in a while. The syllabus is stuck right there at the top of the first page, along with an explanation of who prepared it.

So basically all Chemerinsky is asking for is a shorter, clearer syllabus. Not so crazy at all.

-Michael

Study Abroad: Why Accrediting Foreign Law Schools Might Save the U.S. Legal Market

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A recent article in Foreign Policy touts the benefits of an education abroad. It’s cheap! It’s less competitive! U.S. students can learn a language! The teaching environment is better! All these great benefits are available to any enterprising undergraduate who’s willing to move a bit farther from mom and dad than most. It sounds like a deal that’s too good to be true.

That deal isn’t available to law students. That’s because admission to most state bars require potential attorneys to graduate from a law school accredited by the American Bar Association. And the ABA doesn’t accredit foreign law schools. So that’s that. (Well, except for those Americans that go to another country for law school and simply stay in that country after graduation.)

But should that really be the end of the story? Putting aside all the fluffy nonsense about the “increasing globalization” of law, foreign law schools present a possible solution to two perceived problems in the legal market right now: (1) the lack of attorneys for under-served (read: poor) populations and (2) the high cost of law school in general. Of course, these problems are related: students carrying high debt loads out of law school simply can’t afford to move to Barrow and set up shop.

The ABA has considered and declined to accredit foreign law schools one time before. Reading between the lines, the earlier refusal seemed to have stemmed from a fear that foreign lawyers would flood the market.

Yet that concern seems inconsistent with the ABA’s willingness to accept American law schools of all shapes and sizes, with seemingly no concern for “flooding the market.” And interestingly, neither the commenters nor the ABA seemed to focus on American students going abroad to receive their degree. Instead, the jingoistic fear was that foreign students would go to foreign schools and then come to America. Why don’t we want to open a door for our own students to enjoy a legal education while immersed in a different culture?

What’s more, for American law students, a good number of foreign law schools should have the advantage over the newbie American ones, given that foreign law schools often have well-established pedigrees and strong institutional support. Contrast that with the lower-tier American institutions that struggle to get by. Wouldn’t we rather have new lawyers coming out of UCL Law or McGill Law than University of North Texas at Dallas School of Law? Can’t we all concede that there are several Australian schools that could instantly produce some of the best international lawyers in the States? As a bonus, accrediting foreign law schools might result in more lawyers for a very particular under-served community: immigrants.

Some worry that allowing foreign entry into the ABA could result in a general decline in the quality of legal education. Such a concern could be easily addressed by requiring the ABA  to impose the same strict standards for accreditation on foreign schools as it does on domestic ones. If no foreign school passed muster, so be it.

In sum, why aren’t we giving this a closer look? What is the ABA afraid of? A cheaper, more interesting learning experience shouldn’t be limited to the wandering undergrad. It’s time for law students to get their shot, too.

-Michael

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From Maryland comes an excessive force case (Coley v. Harris, No. DKC-11-1504 (D.Md. Jan. 19, 2012) with an unusual impetus:

“The uncontroverted portion of the record reveals that the use of force was prompted by Plaintiff’s refusal to follow direct orders to enter his cell because he was upset that he did not receive a sufficient number of sandwiches.”

The lesson here is simple: never deny a man his grilled cheese sandwich.

-Michael

Why Kiobel Might Matter In This Year’s Election

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Update: Our friends over at the Alien Tort Claims Act Blog don’t agree that Kiobel could amount to anything in the next election, calling it something that might show up in ”hour three of Rush Limbaugh’s show” at best. That’s probably fair; this post was meant to be somewhat tongue-in-cheek and I didn’t mean to overstate the case’s significance. Still, it’s possible you might see some discussion of this for a few days in June when the opinion comes out. It won’t drive the election (by any means) but it might provide an interesting talking point for one news cycle.

Right now, the only people excited about the upcoming Supreme Court argument (and ultimate decision) in Kiobel v. Royal Dutch Petroleum are international law nerds. At first glance, the case presents issues only a mother scholar could love:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

But even though that sounds extraordinarily technical, the facts of the case actually might provide fodder for some explosive campaign rhetoric.

At bottom, Kiobel could be thought to confront two fundamental issues: (1) the rights of aliens to enjoy certain protections in U.S. courts; and (2) the accountability of corporations for acts that caused injury. Those issues touch upon some raw feelings, driven by xenophobia, anti-corporatism, and general distrust of the Supreme Court. Either way the case goes, it’s likely to stir intense political feelings:

  • If the court rules that corporations may not be held liable under the Alien Tort Statute, we’re likely to see a mini-replay of the Citizens United furor. The decision would fit neatly into the narrative that the Roberts court cares more about the interests of corporations than individuals. I can already imagine President Obama giving a speech about the Court’s unwillingness to place limits on the acts of corporations, whether those limits come in the form of campaign spending law, basic human rights laws, or otherwise.
  • If the court rules that corporations may be held liable under the Alien Tort Statute, then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc. Then again, Arizona v. United States might provide a better platform for anti-immigrant rants than Kiobel.
  • If the court simply punts and says that the Alien Tort Statute does not apply extraterritorially, I don’t think anybody will care. Some people will scream about judicial activism, others will applaud the court’s judicial restraint. For its part, the Alien Tort Statute will be dead, squashed like a roach under the jackboot of judicial fuddyduddyness.

Personally, I think it’d be kind of nice to see candidates sparring on things of substance (like Kiobel) rather than spitting the same ‘ole sound bites. But that’s probably too much to ask for.

-Michael

Getting it Wrong: A Lesson from a Law Professor’s Blog

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Update: A few minutes after I wrote this post, the blog post I discuss below was edited to better reflect Scalia’s opinion in Maples v. Thomas. In particular, the post now correctly reflects that Scalia would’ve rejected relief “because he believed the Maples was still technically represented in the case,” while adding a new argument that “[t]he record demonstrates that a gap occurred in representation.” Glad we cleared that up.

Blogging is supposed to be fun. In a perfect world, here’s what would happen: you post something interesting and insightful up for the world to see, everyone compliments you on your incredible intelligence, and you can be happy that you added something useful to the world. In the real world, here’s what often happens instead: you post something empty (or perhaps something insightful that turns out to be wrong), anonymous internet trolls leave angry comments eviscerating your work, and you leave wishing you had spent all that time you invested with a stiff drink rather than wasting it on your crappy blog post.

These problems can only get worse when people write about things falling outside their traditional areas of expertise. Susan and I, for instance, write about anything that catches our attention for a moment, which may be something we each know very little about. Even the title of our blog acknowledges the broad sweep of what we talk about here. As a result, we sometimes stumble off track and screw things up.

Recognizing I’m not an expert on many subject matters I write about here, I always try to do two things: (a) acknowledge when I’m wrong, if someone tells me; and (b) never write a post in a heavy-handed, “why doesn’t this person already know this” kind of way.  (I’ll admit there have been exceptions to this rule.)

The importance of a bit of humility in blogging is nicely illustrated by a recent blog post from law professor qua pop culture legal icon Jonathan Turley. The post excoriates Justices Thomas and Scalia for their recent dissenting opinion in a habeas case, Maples v. Thomas.  As it turns out, Professor Turley’s bluster seems to be based on a fundamental misunderstanding of the decision.

[A digression to explain the case. The Maples case presents a procedural issue only a criminal nut could love: what constitutes "cause" sufficient to excuse procedural default? SCOTUSBlog's Plain English column explains it well:

When he first challenged the constitutionality of his death sentence at the state level, Maples thought (as he later told courts) that he had “won the lottery” because he was represented by two lawyers from a prestigious New York law firm.  Unfortunately for Maples, after his New York lawyers filed his brief in the state trial court but before the court issued a decision ruling against him, both of those lawyers left the firm for other jobs, without notifying the court.  So when the court mailed the decision to the lawyers, the mailroom at the New York firm simply returned the unopened envelopes to the court (marked “Returned to Sender”).  As a result, Maples missed his chance to appeal the court’s ruling, which in turn led federal courts to reject his constitutional claims on the ground that they were procedurally defaulted – that is, that he had not given state courts a chance to consider them.

Ok, now back to the law professor's post.]

The Court determined that Maples’ lawyers had abandoned him, providing cause for his procedural default. Scalia and Thomas dissented. This, Turley says, is deplorable:

Scalia dismisses the confusion and lack of involvement of the attorneys who tried to retrieve Maples’ procedural rights. However, once again, procedural requirements must be tempered by some notion of basic justice and fairness. The jurisprudence of these justices appear to be impenetrable by such values. It is the triumph of procedure over justice.

Trouble is, Scalia never once concluded that abandonment is insufficient to establish cause to overcome procedural default. In fact, Scalia expressly agreed “that a habeas petitioner’s procedural default may be excused when it is attributable to abandonment by his attorney.” Scalia dissented because of a factual disagreement with the majority’s conclusion that Maples had been left without counsel. In Scalia’s view, Maples was still represented by the firm of Sullivan and Cromwell as a whole and by a few other individual attorneys who had also represented him. Thus, there was no “abandonment,” but only attorney error. Basic attorney error is something long-recognized as insufficient to establish cause. Scalia’s opinion closes by noting that Maples’ case could therefore provide sufficient cause only if the Court undid its own case law and made all attorney error sufficient to establish cause.  (It is this final explanation that Professor Turley seems to take out of context.)

Scalia’s fine factual distinction may be weak to many, but the point is that he does not reject abandonment as a grounds for relief. He does not insist that procedure triumphs over justice in every case. Professor Turley seems to have overlooked this subtle but important distinction.

I flag all this as a cautionary tale. Blogging is often sold as a no-lose situation, especially for practitioners looking to draw in clients by flashing their intelligence. But blogging is a difficult and dangerous undertaking. Even the best sometimes misread cases or misunderstand doctrine. And when that happens in a blog post, there’s nowhere to hide. The wolves come out out of the shadows to pounce. There is blood. Things get messy. Keep that in mind when you sit down at your keyboard with plans to show the world how smart you are.

…Now go ahead and tell me all the ways I’m wrong.

-Michael

Rick Santorum’s Inconsistent Position on Abortion?

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Rick Santorum isn’t a fan of abortion. At least over the past few years, he’s taken a “maximialist” position on the issue, arguing that abortion should only be permitted when the mother’s life is in danger. No exception for rape. No exception for incest. And anything after conception counts as a life. He feels so passionately about the issue that he’s called for a constitutional ban. If he gets the chance to appoint judges, he’ll make sure to appoint only those who are willing to overturn Roe v. Wade.

Of course, some people have already noted that Santorum once felt differently. On Meet the Press this morning, he was asked about his willingness–as recently as 2005–to allow for abortion in instances of rape and incest. Others have attacked him for supporting Senator Arlen Specter, who was pro-life during his time in the Senate. Still, that amount of waffling didn’t keep Santorum from attacking other candidates when they showed signs of “weakness” on the issue.

But while Santorum is looking for a big win in Iowa on the basis of his “pure” conservative, pro-life position, a deeper look into his past suggests he wasn’t always so extreme on the issue. In 1990, for instance, Santorum had a much more equivocal tone in The Pittsburgh Press:

Santorum said he had always opposed government funding of abortions, but “beyond that I tried as much as I could to dance around the issue, not really take a position on it.”

The article goes on to say that Santorum actually supported abortions in the same circumstances as those permitted by Roe (i.e., after viability). As a “progressive conservative,” he even wrote a white paper (later withdrawn) that outlined that position. He withdrew it only after “education” and “soul-searching.”

Continue reading →

Perceived Rule Constraints and the Public’s Distrust of Atheism

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A while back, a Gallup poll found that only 45 percent of Americans would be willing to elect an atheist as President. That spurred a further study at the University of Oregon and the University of British Columbia that found, perhaps unsurprisingly, that religious “believers” generally don’t trust atheists. Interestingly, though, atheists don’t even seem to trust themselves:

“What we find is that unlike typical in-group vs. out-group phenomena — like racism or nationalism — nonbelievers do not end up trusting their own kind more,” [Professor Azim] Shariff said. “While the degree to which someone’s belief in God — particularly the belief that being watched by this God makes people act better — did affect the strength of people’s distrust of atheists, those people who did not identify with a religion still tended to find believers to be more trustworthy. This makes sense both in terms of the mechanism we are suggesting underlies the effect — people trusting those who fear supernatural punishment — and in terms of atheists not being a strong and coherent in-group, in and of themselves.”

But perhaps punishment isn’t the whole story behind the distrust of atheists by believers and atheists. Perhaps religion provides something else important, especially in the political context: “rules” and predictability, even if artificial.

Most religions–at the least the biggies in America–offer a certain creed, a few particular mandates, or some simple (or not so simple) rules to live by. Of course, these “rules” are sometimes what attract people to religion in the first place. But from the outside looking in, those same rules offer a degree of predictability because we expect religious adherents to follow them. As a result, we might (at least think) we know what we’re getting.

Of course, the savvy religious follower can probably find a way to justify whatever he or she is doing within their own religious framework. And it’s a step of faith to believe that the rules will produce good results.

But nevertheless, the stabilizing force of religious-based rules or principles might explain why, for instance, politicians make reference to religion when offering a new initiative or advancing an argument. They want to assure us they’re playing by the rules, as Obama did in a 2006 AIDS Day speech:

We should never forget that God granted us the power to reason so that we would do His work here on Earth – so that we would use science to cure disease, and heal the sick, and save lives.

Atheists, on the other hand, play by the rules of “reason” and “independent thinking.” Those rules are not available at Barnes & Noble. Those rules are hard to define at any general level, requiring individual assessment (which calls for time and effort). In the minds of believers, those rules might not function as rules at all.

So perhaps it’s not as simple as wanting those we trust to be answerable to the Big Guy/Girl/People. Perhaps its really about wanting stability through constraints, even those constraints are imposed by a First Century radical Jewish sect.

-Michael

Posner Joke Costs Taxpayers $19

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Update:  Reuters is now reporting on Posner’s use of these pictures. Apparently he doesn’t ask for permission to use them and doesn’t pay for them.

Remember the Department of Justice’s much-criticized $16 muffin? How does that compare to a $19 joke (and not a very good one at that)? A recent opinion from Judge Posner gives us reason to ask.  The Wall Street Journal Law Blog explains:

Last week, the good folks at Above the Law and How Appealing put us on to an opinion by Judge Richard Posner of the 7th Circuit in which he compared a Houston lawyer to an ostrich.

The money quote: “The ostrich is a noble animal, but not a proper model for an appellate advocate.” To illustrate his point, Posner included an image of one of these noble animals with its head buried in the sand. Below it, he added another photo of a guy in a suit with his head buried in the sand[.]

The Law Blog shows a picture of “guy in a suit,” but I’m not going to show it here. Why? Because I don’t want to pay the royalty fees, as the suited man picture is apparently a stock photo. So that means one of two things: either Posner is a copyright pirate (unlikely) or he went out and bought the right to use the picture just to make the joke. Assuming he doesn’t have a Shutterstock membership, that means he plopped down $19 for the pic.  Interestingly, however, Posner may have thrust the picture into the public domain by using it in his opinion, as judicial opinions themselves are uncopyrightable and exist in the public domain.

Regardless, I continue to insist that Posner’s best use of a picture in an opinion is (and forever will be) this one [see footnote]. If he paid money for that one, I forgive him.

-Michael

First Thing We Do, Let’s Retrain All The Lawyers

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Newt Gingrich has an idea: implement an aggressive program of tort reform. Not exactly novel or particularly worthy of note. But Newt’s a nice guy and he’s not unreasonable. So he proposes additional step that does raise some eyebrows: he wants to retrain the lawyers that would be rendered obsolete by his reform. No word yet on what they would be retrained to do. Apparently Newt was too busy answering questions concerning whether the idea (and some of his others) were “serious proposals.”

But it’s an interesting thought experiment, isn’t it? If we were to find ourselves with a glut of unemployed lawyers (hypothetically, of course), what could we use them for? Perhaps:

  • Janitorial services: Lawyers are comfortable cleaning up the messes of others;
  • Librarians: Lawyers are at home amongst large collections of books;
  • Bloggers: Lawyers are skilled at writing rambly (often incoherent) pieces of writing read by few; or
  • Telemarketers: Lawyers love to talk.

Any other professions that could use the services of reformed attorneys?

-Michael

Unrelated note: Newt has an interest in international law! As part of his “Day One” plan, Newt emphasizes that “[e]ach sovereign nation, under international law and custom, may designate its own Capital.”  Ummm … interesting.