Our band of merry travelers, known affectionately as #AppellateTwitter, has been in the news recently. In case you missed it, first there was some coverage of our crew at Above the Law. Then U.S. Law Week did a story on us, which was cross-posted at Bloomberg BNA. Then Today’s General Counsel did its own little blurb referring to the Law Week article. Then Law.com ran a story about us.
And to cap it all off, Judge Dillard (@JudgeDillard) actually cited #AppellateTwitter in a footnote to one of his judicial opinions.
I found 25 cases from the past 10 years, involving labor or employment claims, where Judge Gorsuch wrote the majority opinion. Here’s a quick overview of how those cases turned out.
A bill (HB 1761) has been proposed in the Texas Legislature to change the Texas Supreme Court’s appellate jurisdiction. Below is my explanation (and first impression) of what the bill would do.
There’s a split over what exactly unauthorized access means, in violating the CFAA. See here at p.13.
There’s a split over what law applies (state or federal) in determining the validity of a contract’s forum-selection clause. See here at p.5.
There’s an intra-circuit split in the Sixth Circuit, as well as a split across circuits, over the proper standard of review for Rule 404(b) evidence. See here at p.14 & n.4.
Circuits disagree over whether an ADEA plaintiff must “reasonably pursue,” “complete,” or merely “start” the administrative process, to “exhaust” administrative remedies before filing suit. See here at p.9.
There’s a split over whether the probate exception, which applies to diversity jurisdiction, also applies to federal-question jurisdiction. See here at p.3-4.
There’s a split over whether an arbitration agreement may require the resolution of labor disputes on an individual basis (i.e., no class arbitration). See here at p.20-21.
Circuits disagree over “whether the rationale of Martinez/Trevino extends to ineffective assistance of direct appeal counsel.” See here at p.10-11.
And there’s a split over whether independently exculpatory Brady material must be disclosed before a plea. See here at p.7-8.
A good way to teach (and to learn) good writing is by demonstration. So, in an attempt to demonstrate how to improve the first two paragraphs of a motion, I’m just going to show you what the two paragraphs looked like before and after the revision.
There’s a split over whether “double counting” is permitted in the context of enhancing a criminal sentence. See here at p.15 n.7.
There’s a split over whether, in its de novo review of naturalization denials under 8 U.S.C. § 1421(c), a court should give Chevron deference to agency interpretations. See here at p.7.
In the context of the “public authority” defense against criminal prosecution, there is a split over whether the defendant must show that the government official had actual authority to authorize the act or merely apparent authority. See here at p.7 & n.2.
There’s a split over whether debtors can simultaneously maintain Chapter 7 and Chapter 13 bankruptcy proceedings. See here at p.5.
There’s a split over whether the Bankruptcy Code allows an injunction against refiling for more than 180 days. See here at p.8.
There’s a split over whether the bankruptcy estate may recover from a debtor or transferee under § 542 if the debtor or transferee was in possession of property of the estate at some time during the pendency of the case, but no longer is in possession of that property at the time that the turnover adversary proceeding or motion is filed. See here at p.12.
The Tenth Circuit has taken a side in the split over the definition of a “criminal case,” for purposes of applying the Fifth Amendment protection against compelled statements and self-incrimination. See here at p.8-13.
There’s a split over whether the “plausibility” standard for reviewing the sufficiency of a complaint also applies to affirmative defenses. See here at p.5-6 & n.3.
And there’s a split over whether there is a combined 25% cap on attorneys’ fees awarded under 42 U.S.C. § 406(a), or if the cap applies only to fees awarded under § 406(b). See here at p.2 n.2.
The last couple months have been busy. In addition to the holidays, I argued at the Fifth Circuit; published two articles at The Huffington Post (here and here); produced a podcast episode on appellate practice for the ABA’s Sound Advice series; gave a presentation to the Dallas Bar Association (about the post-election Supreme Court and Trump’s list of possible nominees); participated in a panel discussion about e-briefs and legal writing at the annual meeting of the Council of Chief Judges of State Courts of Appeal (in North Carolina); was cited on SCOTUSblog and the Appellate Advocacy Blog (both here and here); and was quoted by Bloomberg (here, here, here, and here), CNN, and the Winnipeg Free Press.
This month I’ve got an article forthcoming in Texas Lawbook (about the Garland fiasco and Trump’s possible SCOTUS nominees); I’ll be in Austin on January 20, leading a workshop on legal writing at Lawyer Forward; and I’ll be in Utah January 21-24.
I’ve been wanting to write this post for some time. Inherited wisdom says you can’t use contractions in legal writing because it’s too informal. Poppycock. There’s nothing wrong with using contractions. Like anything else (e.g., em dashes, semicolons, commas, capitalization, boldface for emphasis), you shouldn’t over-use them. But contractions are a perfectly acceptable tool to include in your legal writing toolbox. Don’t believe me? Let’s consult the authorities.
Judge Gorsuch of the Tenth Circuit is in the news lately as a short-lister for the Supreme Court vacancy. (See here and here, and my previous post here.) Gorsuch would be a great pick and a fitting replacement for Justice Scalia because, like Scalia, Gorsuch is known for his clean, incisive, and sometimes witty or colorful writing.
Almost two years ago (2/15), Gorsuch wrote an en-banc opinion in United States v. Rentz that I saved because it provides a great example of using sentence diagramming to facilitate statutory interpretation. In other words, it’s a great example of using a visual image to advance an argument.
Rentz is about criminal sentencing and interpreting section 924(c). Here’s a screenshot from the opinion:
I’ve done this in a case involving contract interpretation, and it can be very effective—especially when dealing with a complicated statutory or contract provision that contains lists or has lots of subordinate clauses. It’s also the sort of thing I could see Scalia doing. (Seriously, he probably did it numerous times over the 30 years he sat on the Court, and I’m just not remembering those opinions.)
Anyway, while everyone’s talking about the SCOTUS vacancy and Gorsuch as a short-lister, I thought I’d throw this out there as something to remember in your brief writing. And the whole opinion is worth reading for examples of good writing.
This is useful and good to know. In the Fifth Circuit, “alternative holdings are binding precedent and not obiter dictum.” Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991), abrogated on other grounds by Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181 (5th Cir. 1995); see Perez v. Stephens, 784 F.3d 276, 281 (5th Cir. 2015) (citing Pruitt for this proposition). In other words, a decision that is not necessary to support the ultimate ruling, and all stated alternative rationales for a given result, have precedential value. Pruitt, 932 F.2d at 465 (citing cases). I haven’t checked to see how this plays out in other circuits, but in the Fifth (at least) you can rely on alternative rulings and rationales.