scrivener’s error


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


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.

Defense lawyers sometimes take a jaded views of some plaintiffs’ more outlandish claims of purported injury. On occasion, the defense bar may have even dreamed of filing an answer worded similarly to this one:

* * * NSFW * * *


This answer, it turns out, was never actually filed and was instead merely an inside joke that escaped into the blogosphere.

Thx to Above the Law


Some double entendres should never be put in print. See title, supra.

No, the above quote does not refer to what most non-distaff readers might assume. Instead, it actually describes a problem faced by many contemporary legal writers when attempting to sit down and write cogently.

In a recent article, Bryan Garner and others noted that the press of modern distractions, “including texting, e-mail on a desktop computer, Blackberry messages,” and–dare I say–blogs, lures lawyers into “losing concentration with what they’re writing about,” which ultimately “negatively impacts both the continuity and even the accuracy of their product.”

I, for one, think this is hogwash because … well, dangit, I lost my train of thought.

Thx to and the National Law Journal

El Jefe

Justice Scalia gave his best interview yet the other day with Brian Lamb on C-SPAN’s series, Q&A.

One of the most interesting segments was when Lamb showed Justice Scalia this clip from the Daily Show castigating his 60 Minutes appearance and his vote in Bush v. Gore, 531 U.S. 98 (2000), and then asked for his reaction.

“I watched [the Daily Show] once and that was enough.”

Justice Scalia elaborated further. First, he reminded John Stewart that President Bush was subsequently re-elected in 2004, so blaming his current occupancy of the office, the ongoing war in Iraq, or anything else derivatively-related in 2008 is specious. Second, he recounted how press studies conducted subsequent to the election found that Vice President Gore would have still lost even if he had never brought the election challenge that eventually resulted in Bush v. Gore, and the votes had been counted the way Gore sought. Third, and “penultimately,” Justice Scalia reiterated that the case only came before SCOTUS because Gore brought the suit, so it was he–not Bush or SCOTUS–who “wanted courts to decide the election.”

What was SCOTUS supposed to do when one of the parties (Bush) alleged the Florida Supreme Court had violated the federal constitution, “turn the case down for not being important enough … hardly.” Last, he also reiterated a point I have made as well that the vote finding the Florida Supreme Court violated the constitution was 7-2, not 5-4.

Justice Scalia also hinted at some future books he’d like to write, most exciting of which would be a sequel to his seminal tome, “A Matter of Interpretation: Federal Courts and the Law.”

The discussion ranged from what items are in his official SCOTUS portrait (a copy of–what else–The Federalist, and Webster’s Second International Dictionary (he doesn’t care for the Third edition)) to whether he still smokes a pipe (which he said was a very useful tool during his confirmation hearings to distract attention from what he was saying).

Thx to Convictions, WestBlog, and WSJ Law Blog

How much money does it take to start a record label? A lot I’m sure. But $360 billion?


That was the excuse given by a Fort Worth man who tried to cash a check made out for $360,000,000,000.00. He quickly lowered his monetary sights (by about 96 million times), however, posting bail for $3,750.00.

Thx to Above the Law, the FW Star-Telegram, and MSNBC

Masters of the Universe

Here are several more fascinating interviews with both Justice Scalia and Bryan Garner regarding their new book, Making Your Case: The Art of Persuading Judges.

The first three clips come courtesy of NPR‘s own Nina Totenberg, whose interview Justice Scalia and Bryan Garner was featured in three parts on Morning Edition, Day to Day, and All Things Considered.

The second interview is with Bryan Garner alone, courtesty of Thomson Reuters’ blog.

Thx to How Appealing, Res Ipsa, Westblog, and NPR

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