Benchslappery


Mightier

UT Law Professor Schiess has an excellent discussion going on over at his Legal-Writing Blog regarding the importance of proper citation to persuasive legal writing.

By way of fair disclosure, I am an avowed adherent to the “tyranny of the inconsequential,” as insisting upon correct citation has been labeled by some less fond of the practice.

From my experience writing for and editing law journals and clerking for judges, one must of course first put forth a cogent argument. But if you then decide to let the citations take care of themselves, you detract from the credibility you have established by your reasoning. You may still win if you have the better argument or more favorable facts, but I–for one–prefer not to engender snickering in my legal reader, no matter what the outcome of the underlying case.

My background is anectdotal and the sample size insufficient from which to draw statistically significant conclusions, but in my experience, lawyers (usually older and more of the trial variety) who deride other lawyers (usually younger and more of the post-trial variety) for their insistence upon employing correct citation format do so because they wouldn’t have the faintest clue how to cite something properly if you simultaneously smacked them upside the head with the Bluebook, the Greenbook (flawed though the 11th ed. may be), and the MUS.

Moreover, those lawyers I’ve encountered who would never bother to check a citation tend to have evidenced similar diligence in their reasoning as well. Back once upon a time, when it was my job to read briefs submitted by others, it was a very rare occurrence indeed when a brief that jumped out at me as being offensively lax in its citation was inversely impressive for its thoughtful analysis. The converse was also true: rarely were briefs that shone with impeccable citation burdened by slovenly reasoning.

Accordingly, I don’t view correct citation as a nice cherry to put on top of an otherwise impressive argument, or a useful complement to cogent analysis, but instead as the most basic demonstration of one’s elemental understanding of persuasive writing. This is particularly true here in Texas, where an improper notation of the subsequent history of an intermediate appellate case can directly impact the precedential weight that must be accorded the cited case.

Once you’ve lost credibility through incorrect citation, it’s hard to get it back through unassailable logic.

Thx to the Legal-Writing Blog

OG--original guarantee

A hurriedly-compiled list of some of Justice Scalia‘s (“AS”) most cogent and bombastic (read benchslap-tastic) points is recounted below. Justice Stevens (“JPL”) wrote a dissent vainly attempting to combat AS on AS’s home court of originalist historical context, and Justice Breyer (“SGB”) authored a dissent devoted to supporting the D.C. (the “District”) gun ban itself. Notably, AS reserves his harshest criticism for JPL (calling him “dead wrong” at one point). See Dist. of Colum. v. Heller, No. 07-290, slip op. at 5-6 n.5 (June 26, 2008).

Part II of the opinion delves into amazingly intricate detail as to what is the meaning of the II Am. AS begins by acknowledging that the II Am. is divided into a prefatory clause (the “well-regulated militia” portion favored by collective right proponents) and an operative clause (the “right of the people” portion favored by individual right proponents). AS makes clear that a prefatory clause may operate to clarify the operative clause, but it cannot “limit or expand the scope of the operative clause.” Id. at 4. He chides JPL for suggesting that such a construction would impermissibly render the prefatory clause without effect, because:

[A] court has no license to make [a clause] do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

Id. at 4 n.3. Such a construction, AS explains, would illogically “cause the prologue to be used to produce ambiguity rather than just to resolve it.” Id. at 5 n.4.

AS next turns to the individual nature of the right, reminding the dissenting Justices that the other two times the phrase, “right of the people” is used in the Bill of Rights (I & IV Ams.), it is uncontested that such language confers an individual right.

Examining the substance of the right, AS explains:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search, … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Id. at 8 (emphasis added) (citations omitted).

AS positively disassembles JPL and the District’s construction of the phrase, “bear Arms:”

In any event, the meaning of “bear arms” that [the District] and [JPL] propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed …. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once:“weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Id. at 13 (emphasis added) (citations omitted).

AS was apparently less swayed by the amicus brief filed by a group of linguists than was JPL, remarking:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Id. at 15 (emphasis added).

AS is also unmoved by JPL’s creative grammatical interpretation of the II Am.:

[JPL] believes that the unitary meaning of “keep and bear Arms” is established by the [II Am.]’s calling it a “right” (singular) rather than “rights” (plural) …. There is nothing to this.

Id. at 18 (emphasis added). AS adds in a footnote:

Faced with this clear historical usage, [JPL] resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established …. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution ofthe United States” is not a whit different from a promise “to supportand defend the Constitution of the United States.”

Id. at 18 n.14 (emphasis added).

Unsurprisingly, when JPL attempts to broadside AS on his own turf—that of interpreting legislative history—AS is blunt: “[JPL] flatly misreads the historical record.” Id. at 30. I think the most revealing barb aimed at JPL by AS is also the most prescient. Replying to JPL’s insistence that commentary subsequent to the ratification of the II Am. somehow bore upon the understanding of those who ratified it, AS is brilliant (as usual):

Before proceeding, however, we take issue with [JPL]’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task …. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding …. “Postenactment legislative history,” … a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.

Id. at 32 (emphasis added). In one fell swoop, AS calls out the jurisprudentially liberal wing of the Court’s central tenet of juristic philosophy. Masterful.

AS easily sweeps aside JPL and the District’s contention that United States v. Miller, 307 U.S. 174 (1939) could be read to support only a militia’s right to bear arms because:

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen …. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Id. at 50 (emphasis added).

One of my favorite passages is a subtle dig at JPL’s professed concern for the judiciary at the expense of the citizenry:

As for the “hundreds of judges,” … who have relied on the view of the Second Amendment [JPL] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

Id. at 52, n.24 (emphasis added). Game … set … match.

AS concludes by discounting the faux concern raised by SGB that the majority opinion “leav[es] so many applications of the right to keep and bear arms in doubt,” reminding his colleague that:

[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.

Id. at 63 (citations omitted).

AS’s second-to-last sentence in the opinion is a skillfully-drafted and subtle rebuttal of the use of the Court by his jurisprudentially liberal colleagues—past and present—to juristically abrogate the Constitution based on modern constructions of ancient legal precepts. In it he concludes that, while the political or cultural viability of the II Am. in modern society:

[I]s perhaps debatable, … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Id. at 64 (emphasis added).

Also of note, AS cites not to just one, but two three of Professor Volokh‘s articles in the majority opinion. That is a very rare honor indeed, but also an undisputedly well-deserved one by Professor Volokh. See id at 3, 11 n.8, 24.

Also, one of the cites is to Texas’s very own Review of Law & Politics, congrats.

* * * UPDATE * * *

More quotes from the majority opinion less of the benchslapping variety can be found at SCOTUSBlog.

Thx to the Heller majority, and as always, to Justice Scalia for his intellect and wit

El Jefe

One might as well treat Justice Scalia‘s dissent from last week’s majority opinion in Boumediene v. Bush, Nos. 06-1195 & 06-1196 (June 12, 2008) as an addendum to his recent legal writing tome with Bryan Garner, largely and frustratingly unavailable here in Austin.

This is because it illustrates how to write a scathing yet persuasive dissent that will likely be viewed by future Justices and Court observers in much the same jurisprudential light as Justice Jackson‘s dissent from the majority opinion in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) is now seen, which famously rebuked the majority’s condoning of the internment of U.S. citizens of Japanese descent during WWII.

Justice Scalia’s dissent is masterful both in its tone and its construction. Part I lays out the policy fallout from the decision (i.e., the practical, real-world implications). Part II excoriates the majority’s attempt to brazenly recast the governing precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950). Part III traces the juristic history of the writ of habeas corpus from its codification in 1679 Britain to the present day, and explains why the majority’s decision is such a stunning departure from the entirety of Western common law previously construing and defining the boundaries of the writ.

As far as the text itself, no paraphrasing can do it justice. Below are selected excerpts from the opinon.

The classic first sentence:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

Boumediene, slip op. at 1 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.). And then, the meat of Part I:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Id. at 2. Talk about “plain language,” you can’t get much plainer than that.

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the namesof 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.

Id. at 4-5 (citations omitted). After recounting the bromide four of the five-Justice majority in Boumediene previously offered in Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (Breyer, J., concurring in part, joined by Kennedy, Souter, and Ginsburg, J.J.)—namely that “[n]othing prevents the President from returing to Congress to seek the authority [for trial by military commission] he believes necessary”—Justice Scalia curtly observes:

Turns out they were just kidding.

Boumediene, slip op. at 5 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisonersin this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Id. at 6. Ouch.

It is both irrational and arrogant to say that the answer [to the question of “whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims”] must be yes, because otherwise we would not be supreme.

Id. at 18. Calling out his colleagues for their juristic arrogance. And from the final paragraph:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And the most sobering, bold, and blood-chilling line I think I may have ever read in a SCOTUS dissent, the last line cautions:

The Nation will live to regret what the Court has done today.

Let’s hope not.

* * * UPDATE * * *

For a fascinating examination of the Boumediene decision, see Professor John Yoo‘s op-ed in this morning’s Wall Street Journal. This article is all the more interesting because Justice Scalia cites in his dissent to a memo Professor Yoo authored while at the Office of Legal Counsel that relied upon the then-accepted interpretation of Eisentrager. See Boumediene, slip op. at 3 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

* * * UPDATED UPDATE * * *

It is humorous to note that Justice Scalia “sics” the Justice he has publicly acknowledged as the best writer ever to sit on the Court, Justice Jackson, for the former Justice’s use of the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” Id. at 9. So strong is Justice Scalia’s dislike for this phrasing that he has stated its use makes the author sound “illiterate.”


Thx to Justice Scalia for his incomparable wit and eloquence.

Boo-yah

Today’s SCOTX orders contain a little gem noted by both the Texas Appellate Law Blog and SCOTX Blog.

In In re Roberts (No. 05‑0362) (orig. proceeding) (per curiam), the Court (J. Johnson not sitting) dryly observes that:

[T]he only harm involved is a 30-day delay. By contrast, this original proceeding has now delayed the case for four years …. By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments.

Kudos to the authoring Justice of this one: very subtle yet very effective.

Thx to the Texas Appellate Law Blog and SCOTX Blog

The only time you\'ll find Texas on the left

1963 UT Law graduate and U.S. Western District Judge James Nowlin issued a deposition scheduling order yesterday that is one of the best (if not the only) examples of football benchslappery I’ve ever seen.

pig soooey
Hook \'em

Thx to Tex Parte Blog and Volokh

The booking photo says it all

This blog’s newfound buddy, Adam “[Gee, maybe I’m not so] Bulletproof” Reposa, is–unfortunately–back in the news.

Tex Parte Blog just came across the ad mentioned here a few months ago and used quite effectively by the prosecution as an exhibit at Reposa’s trial for demonstrating an alternative hand sign for “contempt.”

Reposa has filed a writ of habeas corpus with the Texas Court of Criminal Appeals complaining his 90-day contempt sentence is excessive. In his writ, Reposa alleges that he was denied due process and due course of law when “Judge Davis declined to follow criminal procedure in ascertaining applicant’s guilt” by allowing the state to introduce evidence of extraneous conduct, i.e., the ad mentioned above from something called Whoopsy magazine, which is apparently distributed in some Austin clubs.

Of course it is.

In a letter sent by one of Reposa’s attorneys to the State Bar‘s Advertising Review Committee responding to the committee’s letter that threatened to report Reposa to the State Bar’s grievance committee, Reposa’s counsel justified the ad (presumably with a straight face) by stating:

If one was acquainted with Mr. Reposa when he was 11 years old, then they might connect this parody with him, but otherwise, no casual reader would regard this parody as an advertisement for a specific lawyer.

No, of course not. Except for the fact that the ad repeatedly mentions it references an Austin DWI attorney who has given himself the moniker, “Bulletproof.” It just so happens that there’s only one Austin DWI attorney–or any attorney in the state for that matter–who [in]famously holds himself out with the nickname “Bulletproof.”

Surely no one could connect those disparate dots?

Thx to Tex Parte Blog, Texas Lawyer, and Awesomeness For Awesome’s Sake

Appellate nirvana

Ever since I’ve been licensed, I’ve never understood the infatuation with garishly-large jury verdicts. Trial lawyers seem to bray about and tout them as a measure of the validity of the plaintiff’s claims, ignoring that such victories are illusory until confirmed upon appeal, where the arbiters are less easily swayed by factors unrelated to the law and merits of the case.

The only jury verdict I’ve ever considered worth bragging about is Joe Jamail’s $10.53 billion jury award ($7.53 billion in actual damages and $3 billion in punitive damages) on behalf of Pennzoil against Texaco, because it is the only one of such magnitude of which I am aware that was largely upheld on appeal (the trial court’s $3 billion punitive award was reduced to $1 billion). See Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 774, 866 (Tex. App.–Houst. [1st Dist.] 1987, writ ref’d n.r.e.).

Today, the sister court of the Houston appellate court that upheld the Pennzoil verdict smote down another large jury verdict initially touted as a huge win for the plaintiff.

In 2005, a Texas jury awarded a Vioxx plaintiff $24.5 million for mental anguish and economic losses and $229 million in punitive damages, in total, over a quarter-billion dollar verdict.

Whoopee.

Texas’s punitive damage caps automatically lowered the punitive award from $229 million to $26.1 million–quickly lopping off some $200 million of the jury’s award.

Well today, the Fourteenth Court of Appeals ended all the jubilation that may have existed over the once mighty jury verdict, reversing same and rendering judgment that the plaintiff take nothing on legal sufficiency grounds.

From a quarter billion to zero.

Thx to How Appealing, WSJ Law Blog, and the Texas Appellate Law Blog

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