Problems of Textualism

Take the sentence “I never said she stole my money.” This sentence has at least seven possible (and different) meanings. But the changes in meaning aren’t conveyed through the text; they’re conveyed through emphasis —something you can’t discern from the text alone.

Just look at the different meaning each sentence conveys:

Continue reading

5 Tips for Writing Briefs for Tablets

I’ve been invited to sit on a panel at the annual meeting of the Council of Chief Judges of State Courts of Appeal, this November. Our panel will discuss how we should write differently for screens because we read differently on screens.

I’m sure I was invited to participate based on an article I wrote back in 2014, called “5 Tips for Writing Briefs for Tablets.” So, if you want a taste of what I’m going to talk about in November, go check out that article.

Circuit Splits

ccsplits1There’s a circuit split over collecting legal fees in social-security-benefits cases. I didn’t know that. See here at pp. 2-3.

There’s also a split over what “order” means under section 401(b) of the FCA. See here at pp. 12-13.

There’s a split over whether a district court must make factual findings at Batson‘s third step. See here at p. 20.

There’s a split over the proper standard of review for appellate courts in FOIA cases. See here at pp. 14-16.

And the First Circuit has provided a long discussion of (and taken a side in) the split over the “reasonableness” of detaining aliens during removal proceedings. See here at pp. 12-23.

Choosing the Right Word

img_0750Adverbs and adjectives are not a sign of good persuasive writing. If you find yourself using lots of adverbs or adjectives to get your point across, you’re probably making bad word choices. Why? Because adverbs modify verbs, and adjectives modify nouns—and if your verbs and nouns need modifying, then they probably aren’t the verbs and nouns you should be using.

Continue reading

“Duty” and the Constitution

df8f8073-4210-48b8-8a1f-afd643e59e7d[I posted some thoughts at HuffPo last week. I’ve revised and polished those thoughts slightly, and reposted them here.]

There’s been a lot of back and forth over “constitutional duties” lately. Smart people on both sides are digging up historical sources (some better than others) to support their arguments. One side claims the Senate has a “constitutional duty” to consider Merrick Garland’s nomination to the Supreme Court, and the other side claims no such duty exists. And this got me thinking about “duty” and the Constitution.

Continue reading

A Matter of Emphasis

Screenshot 2016-01-21 11.32.36I took an informal poll on Twitter, and here are the (blurry) results:

Honestly, I was a little surprised—but not too surprised. Writers in all forms have commonly, maybe even traditionally, used italics to emphasize a word or phrase in the text. But I guess I thought more people would recognize boldface not merely as an alternative but as the preferable alternative.

Continue reading

Mullenix v. Luna

Opinion boxSteed, J., dissenting.

Construing the facts in the light most favorable to the plaintiff, as we must, here’s what happened:

Israel Leija, Jr., sped away from police onto an empty country highway. (There was a warrant for his arrest from a motion to revoke his misdemeanor probation.) Officers coordinated their pursuit. Spike strips were strategically placed at three locations on the empty road ahead. In short, Leija’s apprehension seemed imminent. There was no perceivable risk of harm to the public because the highway was deserted. There was no risk of harm to other officers because they were either pursuing at a safe distance or off the road, awaiting Leija’s encounter with the spike strips. And there was certainly no risk to Officer Mullenix, who was perched alone on an overpass, like a sniper.

Continue reading

Citations in Text or Footnotes?

bluebook_zps66db260aI’m a fan of Bryan Garner’s. I really am. And as a former English professor, I endorse much of what Garner the Guru has to say about legal writing. Most of the time, you should listen to him. But Garner has published an article exhorting lawyers and judges everywhere to “cut the clutter” in their legal writing by moving their case citations out of the body and into the footnotes. And as a practicing attorney I have to say: I think this is bad advice.

Continue reading

Why the GOP Should #GoWithGarland

At HuffPo, I provided a rundown of the GOP’s options in the face of Obama’s Supreme Court nomination, and explained why the best option is to #GoWithGarland.