Sentence Diagramming

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.

SCOTUS Recap & Predictions

TexasBarToday_TopTen_Badge_VectorGraphicThe Supreme Court has completed its October sitting, having heard arguments in 8 cases. I’ve already talked about the first 5 cases in a previous post. Read on for a recap of the other 3 cases argued this month, and for predictions about how those cases will be decided…

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SCOTUS Recap & Predictions

supreme-court-building-120628The Supreme Court kicked off its 2016 Term by hearing arguments in five criminal cases. Read on for recaps, predictions, and even a few practice tips…

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5th Circuit Decisions

Criminal defendant who pleaded guilty, then appealed his conviction based on his attorney’s failure to tell him he would be deported, could not show he had been prejudiced by this failure because, (1) just before accepting his plea, the judge told him he would likely be deported, and (2) he could not show he was likely to obtain a more favorable result by going to trial. United States v. Batamula (No. 12-20630) (en banc).

Defendant successfully defeated trademark claims in what should have been characterized as an “exceptional case” under Octane Fitness LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014); therefore, Defendant was entitled to remand for reconsideration of awarding legal fees under the Lanham Act. Baker v. DeShong (No. 14-11157).

Three officers used stun guns repeatedly on a man who was running away, then used physical restraints and stun guns again while the man was on the ground. The officers then hog-tied the man (against PD policy). When EMS paramedics arrived, the man had no pulse and wasn’t breathing. He died the next morning at the hospital. But the officers had qualified immunity because no right was violated and no unreasonable or excessive force was used. Pratt v. Harris County, Texas (No. 15-20080).

Sullivan v. Abraham

Opinion boxSteed, J., dissenting.

The text matters. Words matter. Punctuation matters. But we have to ask ourselves: At what point does a devotion to strict textualism become an elaborate game of pretend?

Here, the Texas Legislature clearly stated the meaning it meant to convey in this particular provision of the Texas Citizens Participation Act. But the majority has decided that the most reliable indicator of the Legislature’s intended meaning is not what the Legislature said about its intended meaning. Instead, under the guise of textualism, the majority has decided that the clearest indicator of the statute’s intended meaning is the Legislature’s comma usage.

I cannot bring myself to join the majority in pretending that the Texas Legislature was so purposed and precise in its punctuation that it meant to undo its stated intentions by omitting a comma. Therefore, I must respectfully dissent.

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5th Circuit Decisions

Caltrops tossed out of a fleeing truck and disabling law-enforcement vehicles (by puncturing tires) are “dangerous weapons” for purposes of sentence enhancement. United States v. Olarte-Rojas, No. 14-41408 (Apr. 29, 2016).

The transfer of a tax lien does not constitute an extension of “credit” that is subject to TILA. Billings v. Propel Fin. Servs., LLC, No. 14-51326 (Apr. 29, 2016).

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:

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“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.

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