Using Contractions: It’s Not Wrong

contractionI’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.

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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.

Mere Dictum or Binding Alternative Ruling?

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.

Circuit Splits

4000195795_6841659fc6_bThere’s a split over the proper standard for reviewing whether an undisputed set of facts constitute persecution in asylum cases. See here at p.11 n.11.

There’s a split over whether the application of the “least sophisticated consumer” test in section-1692e claims under the FDCPA is a question of law or fact. See here at p.5.

Courts are divided over Rule 60(b)(6) motions that are based on Martinez and Trevino, and whether such motions should be granted or denied. See here at p.3.

Courts have also disagreed over what RLUIPA requires when it comes to providing prisoners access to a religious diet. See here at p.4.

There’s a split over the proper causation standard for sentence enhancement under section 2L1.1(b)(7). See here at p.4.

Courts disagree about whether limiting a defendant’s ability to cross-examine cooperating co-conspirators violates the Confrontation Clause. See here at p.4 n.1.

And there’s a split over what constitutes a fiduciary for the purposes of section 523(a)(4) (in bankruptcy). See here at p.15-17.

The Future of the Supreme Court

supreme-court-building-120628Lots of chatter out there about the future of the Supreme Court in the wake of Trump winning the presidency. Here are some of my thoughts.

First, regarding the current Court: Assuming Clinton would win the presidency, I was predicting Garland would be confirmed to fill Scalia’s vacancy and Ginsburg would retire in 2017 (maybe 2018)—with Breyer possibly retiring shortly thereafter, before Clinton’s first term was over. The Court would shift to the left with the addition of Garland, but no other shift would occur unless Clinton could win a second term. If that happened, Clinton likely would have replaced Kennedy—and maybe even Thomas—and this would have produced a second significant shift leftward. But now all of this is vapor.

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Presidential Predictions – UPDATED

Predictions are fun. I’ve made a few already, about the Supreme Court (here and here). So, with Election Day coming up tomorrow, I figured I’d go ahead and offer my predictions about the presidential race. Here’s my more conservative prediction:


And here’s my more bold prediction:


I’ll update this post with the actual results to see how I did!

UPDATE: Welp. Like everyone else, I was way off. Here are the actual results, as of 2am on November 9th:



Podcast – Appellate Dream Team

If you’re a member of the ABA and have access to its website content, you can download and listen to a podcast I recorded recently, about putting together an “Appellate Dream Team.” The podcast is based on the blog post I wrote back in June. Enjoy!

Motion to End Anarchy

2000px-circle-a_red-svgThis is a first (for me, anyway). A pro se litigant in the U.S. Bankruptcy Court in the Southern District of New York has filed a “Motion to End Anarchy.” Here’s ¶ 2:

The election rigging by Debbie Wasserman Schultz to cheat the voters for
Bernie Sanders is dwarfed only by the police murders of innocent black victims
filmed for evidence is the definition of anarchy by a lawless society. The entire
media conspiracy never mentions disqualification of Hillary for voter fraud even
when Trump claims there will be rigging again. The Constitution is glorified
hypocrisy. The lenders are in court with their hands out to collect bogus loans
made while losses are provided for embezzlement and legal fees are donated to
lawyers by the court from the stockholders while one of two psychopaths are
anointed President. Evidence and law are ignored by the courts.