March 2008

No we\'re not

No we're not

Last week, George Will–the Washington Post‘s longtime Pulitzer Prize-winning columnist as well as the lone conservative commentator on ABC’s This Week–published a column that began by citing to a recent law review article written by none other than SCOTX‘s newest Justice, Don Willett.

Will, whose columns Justice Willett says “helped sustain” him through many a “late and nerdy night” during law school, discussed the recent book, Who Really Cares: The Surprising Truth About Compassionate Conservatism by Syracuse Professor Arthur C. Brooks, and Justice Willett’s review of same in the Texas Review of Law and Politics, entitled An Inconvenient Truth: Conservative Behaving Charitably.

I haven’t had a chance to peruse the book, but Justice Willett’s review is an excellent overview of Professor Brooks’s study examining how the “cult of charity” is oftentimes drastically different than the “culture of charity,” and firmly divided along political and religious lines that lie in stark contrast to the delineation affixed by popular rhetoric.

As SCOTX Blog notes, it also provides an excellent opportunity to familiarize oneself with several excellent examples of website citation (to some very funny bumper stickers one might see around Austin, as evidenced above) under the increasingly important edicts of Bluebook Rules 18.2.1-2.3, thanks to the outstanding efforts of Justice Willett’s law clerk, Christine McMillan.

Thx to SCOTX Blog, Tex Parte Blog, Justice Willett, Professor Brooks, George Will, and Christine McMillan


I can’t decide whether to be freaked out by the sheer Orwellian overtones of this, or to just appreciate it for the invaluable information it now puts at my fingertips.

For several months now, Google has been rolling out a street-view function for its maps of several cities throughout the country. This feature allows you not only to see a map to an address or a satellite view of same, but to see a street-level image of the address as well.

Well, it’s now active for Austin, for better or worse.

Thx to the Austinist

Crying foul

We here at the SMSB have noted that Justice Stevens‘s opinions can sometimes read more like op-eds than jurisprudential expositions on matters of constitutional import. Hence, his stupefying majority opinion in Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007), in which he judicially declared carbon dioxide to be the cause of global warming. Massachusetts, 127 S. Ct. at 1446.

Well, one of his concurrences handed down in February actually turned into a subsequent New York Times op-ed. In Riegel v. Medtronic, Inc., Justice Stevens asserted that Justice Scalia‘s majority opinion put forward a “a policy argument advanced by the Court, not by Congress.” 128 S. Ct. 999, 1012 (2008 ) (Stevens, J., concurring in part and concurring in the judgment). Following Justice Stevens’ lead, the New York Times, in addition to the L.A. Times and others, were both quick to attribute policy motives to the Court.

Well, last week the majority author did not think it helpful the media’s cloaking of a textual, preemption decision like Medtronic with the seemingly policy-driven headline, “No Recourse for the Injured.”

In defending the media’s “echoing [of] the judgment of [Justice] Scalia’s colleague,” no less than famed jurist Richard Posner‘s son and Kirkland and Ellis Professor of Law at the University of Chicago Law School, Eric Posner, noted the similarity of the press accounts to Justice Stevens’s concurrence.

Thx to the WSJ Law Blog and Slate’s Convictions

Not Russian

Why, ” Я с места на место пастуха с склонны блог из пастбищ,” of course.

The above excerpt–“I am an itinerant shepherd with a penchant for blogging from the pasture”–is from my revealing and in-depth “about” page translated into Russian (I think) by Google at the behest of a reader located somewhere decidedly east of Texarkana.

Thx (or “spasiba”) to whoever my loyal Russian reader is and regards from Austin, Texas


Well, almost. Next to having one’s law review article cited in a SCOTUS opinion (my self-described “Holy Grail” of citation) is having one’s article discussed at oral argument.

That very thing happened to Professor Erica Hashimoto of Georgia Law School during Wednesday’s oral argument in Indiana v. Edwards (no. 07-208) at SCOTUS. While questioning the Respondent’s counsel, Justice Breyer remarked:

Now, I wanted to know the facts. And it 8 seemed to me we have a excellent, really fabulous–that this has happened, and Professor Hashimoto seems to have gone and written, done research, which we have in front of us. As I read that research, I first learned that actually the pro se defendants don’t do a bad job of defending themselves. And by and large, they do surprisingly well. And so perhaps that eliminates some of the concern.

Transcript of March 26, 2008 Oral Argument in Indiana v. Edwards, Cause No. 07-208, 35:7-15.

Congratulations to Professor Hashimoto on this fantastic recognition of her work.

Thx to the
Volokh Conspiracy


Ok, this is admittedly not the most riveting topic for late on a Friday afternoon, but so be it.

A recent exchange over at Professor Wayne Schiess‘s legal-writing blog has spurred me to opine regarding the comparative merits of drafting multi-sentence, 75-word issues in one’s issues presented, as opposed to sticking to the more traditional, single-sentence issue favored of old.

The new approach–labeled the “deep issue” and favored by none other than the tireless and brilliant Bryan Garner and Professor Schiess (who is the Director of the UT Law legal-writing program)–aims to reduce the awkward, cluttered phrasing that oftentimes results when lawyers try to cram too much into a single-sentence issue presented.

However, I have despised the advent of the deep issue for many years now because I view it as defeating the very purpose of appellate briefing.

The point of appellate writing is to distill complex legal issues down to a cognitively-manageable subset. Hence, appellate briefs should strive to raise only a few (3-5) issues upon review instead of the 20 that seemed important at trial (at least to trial counsel).

My view is that deep issue briefing is lazy and sloppy because it forces the reviewing court to distill the salient issue from the opus presented by the advocate–in essence to do the drafting work the attorney should have done. Foisting one’s singular function as an appellate attorney onto the appellate panel members you seek to persuade does one’s clients no favors.

And confining an issue presented to a single sentence is not–by definition–awkward, it just takes a little more effort and skill to get there. A commenter to one of Professor Schiess’s posts makes the great point that:

A block of single-spaced, multiple-sentence issues can be a chore to read. By contrast, if only the key issue is presented Garner-style and the others are single-sentence (and designed just to convey the general idea and preserve error), you have a much better shot at having the Court remember how you want them to frame the key issue.

Moreover, the selective use of single-sentence sub-issues helps to clearly delineate the hierarchy and magnitude of the issues presented.

By way of example, every brilliant legal opinion you’ve ever read always had a knack for boiling each question on appeal–no matter how complex the case–down to a single, incisive sentence. If the Court is already going to draft such a sentence from the briefing, why not ingratiate one’s clients to the Court by providing a reasonable, succinct starting point for the Court’s subsequent efforts?

Thx to Professor Schiess’s legal-writing blog, and Bryan Garner for his innumerable contributions to the art of legal writing


Behold the sheer idiocy that is the bureaucracy. Some poor woman taking the short flight from the dusty plains of Lubbock to the vapid refuge of Dallas was forced by Transportation Safety Administration (TSA) screeners to remove two nipple piercings with pliers before she was allowed to board.

W, w, w, what?

What possible security risk could piercings–no matter how ill-advisedly placed–pose to a domestic U.S. flight? The answer is, “none,” as evidenced by the TSA’s allowing this woman to board the flight with her navel ring still intact. The TSA issued this statement in its [lame] defense:

Our security officers are well-trained to screen individuals with body piercings in sensitive areas with dignity and respect while ensuring a high level of security.

Really? Where did that “dignity and respect” come in exactly in this case? When the TSA screener refused the woman’s offer to display her piercings to a female officer in private to resolve the matter, when the TSA agents handed her a pair of friggin’ pliers to rip out her piercings before being allowed to board the thirty minute, well-known terrorist target that is the commuter flight between Lubbock and Dallas, or when she heard snickering from the male TSA officers as she cried in pain while struggling to remover her piercings with an implement you use to fix barb-wire fence?

Well, this woman has apparently now hired Gloria Allred, who can always be counted on to garner enough press coverage to make life very uncomfortable for the TSA, both in and out of the courtroom.

Thx to
HotAir and ABC News

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