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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Category Archives: United States Supreme Court

Head’s Up! How Long Will Federal Judiciary Funds Last?

23 Wednesday Jan 2019

Posted by Celia C. Elwell, RP in Courts, U.S. Courts of Appeal, U.S. District Courts, United States Supreme Court

≈ Comments Off on Head’s Up! How Long Will Federal Judiciary Funds Last?

Tags

CM/ECF Filing, Government Shutdown, PACER, U.S. Federal Courts

Judiciary Has Funds to Operate Through Jan. 31, United States Courts (Published on January 22, 2019)

https://www.uscourts.gov/news/2019/01/22/judiciary-has-funds-operate-through-jan-31

If you practice in any federal court, please note. Pay attention to your case’s court website and have a backup strategy. -CCE

The Administrative Office of the U.S. Courts (AO) now estimates that federal courts can sustain funded operations through Jan. 31, 2019. The Judiciary continues to explore ways to conserve funds so it can sustain paid operations through Feb. 1. No further extensions beyond Feb. 1 will be possible. The Judiciary previously had revised its estimate for exhausting available funds from Jan. 18 to Jan. 25.

*    *   *

Should funding run out before Congress enacts a new continuing resolution or full-year funding, the Judiciary would operate under the terms of the Anti-Deficiency Act, which permits mission critical work. . . . Each court would determine the staff necessary to support its mission critical work.

In response to requests by the Department of Justice, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, and others have declined to do so. Such orders are published on court internet sites. Courts will continue to conduct criminal trials.

The Case Management/Electronic Case Files (CM/ECF) system remains in operation for electronic filing of documents, as does PACER, which enables the public to read court documents.  

*    *   *

Updates will be provided as more information becomes available.

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Historical Supreme Court Cases Now Free Online.

27 Tuesday Mar 2018

Posted by Celia C. Elwell, RP in Appellate Law, Case Law, Federal Law, Library of Congress, Research, United States Supreme Court

≈ Comments Off on Historical Supreme Court Cases Now Free Online.

Tags

Hein & Co., Joe Hodnicki, Law Librarian Blog, U.S. Supreme Court

Historical Supreme Court cases now online thanks to Library of Congress (and Hein & Co.), by Joe Hodnicki, Law Librarian Blog

https://bit.ly/2GeSxLG

According to the press release, ‘More than 225 years of Supreme Court decisions acquired by the Library of Congress are now publicly available online – free to access in a page image format for the first time. The Library has made available more than 35,000 cases that were published in the printed bound editions of United States Reports. … The digital versions of the U.S. Reports in the new collection were acquired by the Law Library of Congress through a purchase agreement with William S. Hein & Co. Inc. The acquisition is part of the Law Library’s transition to a digital future and in support of its efforts to make historical U.S. public domain legal materials freely and easily available to Congress and the world.’ You can access the collection here.”

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SCOTUS Notes Has the Supreme Court Justices’ Handwritten Notes!

18 Sunday Feb 2018

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Writing, Legal Analysis, Legal Writing, United States Supreme Court

≈ Comments Off on SCOTUS Notes Has the Supreme Court Justices’ Handwritten Notes!

Tags

Joe Hodnicki, Law Librarian Blog, Legal Analysis, SCOTUS Notes, U.S. Supreme Court

SCOTUS Notes transcribes notes written by Supreme Court justices during conference meetings, posted by Joe Hodnicki, Law Librarian Blog (with hat tip to BeSpacific Blog)

http://bit.ly/2EA7cvK

We can read the U.S. Supreme Court justices’ handwritten notes during their deliberations? What will this mean for legal analysis and where do I sign up? -CCE

SCOTUS Notes is the newest crowdsourcing project under the Zooniverse platform originated at the University of Minnesota. ‘In this project, members of the public transcribe handwritten notes from U.S. Supreme Court justices. Unlike members of Congress, justices cast their votes in complete privacy during weekly conference meetings. Only justices are allowed in the Chief Justice’s conference room when they discuss, deliberate, and make initial decisions on cases that focus on some of the nation’s most pressing legal issues. The only record of what has been said, and by whom, is provided by the handwritten personal notes the justices themselves take during conference. These crucial documents detail the discussions and debates that took place in thousands of cases spanning multiple decades.’

[Emphasis added.]

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“The Presidents and the Constitution: A Living History”

25 Saturday Jun 2016

Posted by Celia C. Elwell, RP in Appellate Law, Constitutional Law, United States Supreme Court

≈ Comments Off on “The Presidents and the Constitution: A Living History”

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Constitutional Law, Gerald Ford, Ken Gormley, Presidential Pardons, Richard Nixon

The Presidents and the Constitution: A Living History, by Ken Gormley

If you are interested in constitutional law, I highly recommend this book. It was published in May, 2016, and can be found in your public library or ordered from any book store. It is an interesting discussion of presidential decisions or actions and the constitutional implications.

Here is just one example. If you grew up during the time of Watergate, you may find this particularly interesting. Like most people, I had always assumed that President Gerald Ford’s pardon of Richard Nixon gave Nixon a “get out of jail free” card. My guess is that this decision caused Ford the election to his first full term as President.

When the author interviewed Gerald Ford for the book, of course Nixon’s pardon came up. Ford said that he had asked a young lawyer, Denton Decker, to research all the nuances and possible issues that might occur if Ford were to pardon Nixon. The idea of pardoning Nixon was very unpopular. Ford wanted to know what possible precedent and repercussions a pardon might mean.

Decker finds Burdick v. United States, 236 U.S. 79 (1915). Burdick holds that, if one accepts a pardon, it is an admission of guilt.

Ford sent Decker to San Clemente to Nixon’s home to present the offer of a pardon to Nixon and Nixon’s lawyer. Decker gave Nixon a Miranda warning and told him that, if Nixon accepted a pardon, it would be an admission of guilt. Nixon at first didn’t want to accept the pardon because he understood what it meant. Another issue on the table at the same time was the creation of a presidential library for Nixon’s papers, which the author says Nixon badly wanted. After first resisting, Nixon decided to take the pardon.

When Ford pardoned Nixon, he thought he had given the public exactly what it wanted. Instead, it was seen as letting Nixon off, even though Nixon was obviously guilty. When interviewed by Mr. Gormley for this book, Ford was still frustrated that the public had never seemed to understand that, by accepting a pardon, Nixon admitted his guilt.

An interesting piece of history and a good read. -CCE

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Plain English and the U.S. Supreme Court.

03 Thursday Mar 2016

Posted by Celia C. Elwell, RP in Appellate Law, Legal Writing, Plain Language, Readability, United States Supreme Court

≈ Comments Off on Plain English and the U.S. Supreme Court.

Tags

Plain English, SCOTUS Blog, U.S. Supreme Court

Plain English/Language Made Simple, SCOTUSblog

http://www.scotusblog.com/category/plain-english/

This is our archive of posts in Plain English. You may also be interested in these resources:

Supreme Court Procedure
Glossary of Legal Terms
Biographies of the Justices

Continue reading →

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So What’s Going To Happen to Puerto Rico?

14 Thursday Jan 2016

Posted by Celia C. Elwell, RP in Appellate Law, United States Supreme Court

≈ Comments Off on So What’s Going To Happen to Puerto Rico?

Tags

Lyle Denniston, Puetp Rico, SCOTUS Blog, Sovereignty, U.S. Supreme Court

Argument Analysis: Puerto Rico — Special No More?, by Lyle Denniston, SCOTUS Blog

http://bit.ly/1n4vFAC

It doesn’t happen often, but there are times when the very last words spoken by a lawyer during a Supreme Court argument sum up very clearly what the whole hour has been about.  That happened on Wednesday, when a lawyer’s closing, plaintive comment was: ‘Please do not take the constitution of Puerto Rico away from the people of Puerto Rico.’

*     *     *

That prospect was entirely opposite of what the current government leaders of Puerto Rico had sought in taking their case to the Supreme Court.  They wanted a declaration that, at least up to a point, Puerto Rico was entitled to the dignity of ‘sovereignty.’

Part of the problem in achieving ‘sovereignty,’ it appeared, is that the Court was not exactly sure what that word means. . . .  ‘

Continue reading →

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The U.S. Supreme Court, Qualified Immunity, Deadly Force, and a Car Chase.

10 Tuesday Nov 2015

Posted by Celia C. Elwell, RP in Appellate Law, Civil Rights, Excessive Force, Governmental Tort Claim Act, Qualified Immunity, United States Supreme Court

≈ Comments Off on The U.S. Supreme Court, Qualified Immunity, Deadly Force, and a Car Chase.

Tags

Excessive Use of Force, Law Enforcement, Law Librarians Blog, Mark Giangrande, Qualified Immunity

Supreme Court Action: Qualified Immunity When Deadly Force is Used By Officers During A Car Chase, by Mark Giangrande, Law Librarians Blog

http://tinyurl.com/q8m43ce

It will be interesting to see how this ruling may be applied to recent news events. –CCE

The Supreme Court issued one opinion today [November 9, 2015].  The case, Mullenix v. Luna (14-1143), decided whether a Texas state trooper (Mullenix) was entitled to qualified immunity when he fired shots at a suspect’s car during a high speed chase, killing the suspect. . . .

Continue reading →

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C-Span’s 12-Part Series on Landmark Supreme Court Cases.

15 Thursday Oct 2015

Posted by Celia C. Elwell, RP in United States Supreme Court

≈ Comments Off on C-Span’s 12-Part Series on Landmark Supreme Court Cases.

Tags

C-Span, Landmark Cases, U.S. Supreme Court

C-Span Launches New Series On Landmark Supreme Court Cases, by James B. Levy, Legal Skills Prof  Blog

http://tinyurl.com/pln73xq

I apologize for not finding this sooner. Sounds fantastic! -CCE

C-Span has launched a new, 12 part series that airs on Monday evenings at 9:00 p.m. (the series began on October 5 but I only found about it now) that profiles landmark Supreme Court decisions through 1973.

*     *     *

Using C-SPAN’s signature live format of studio guests interacting with viewers and interspersed with visits to historic sites for context, the series will explore the stories of historic rulings which changed American society, the plaintiffs who sparked these cases and the justices and lawyers who were key to the Supreme Court’s review. A video-rich website will offer the series on demand along with classroom materials. Here is a two-minute video trailer previewing the series https://youtu.be/6kuc5tyborM. . . .

Continue reading →

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Supreme Court Writing Analysis – Whose Briefs Win and Why.

22 Saturday Aug 2015

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Writing, Brief Writing, Editing, Grammar, Legal Analysis, Legal Argument, Legal Writing, Persuasive Writing, Readability, United States Supreme Court

≈ Comments Off on Supreme Court Writing Analysis – Whose Briefs Win and Why.

Tags

Appellate Briefs, Legal Analysis, Legal Writing, Persuasive Legal Writing, Plain English, U.S. Supreme Court

Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence, by Alan Feldman, University of Southern California, Political Science, SSRN.com (Date posted: August 18, 2015 ; Last revised: August 21, 2015)

http://tinyurl.com/q48ywgq

This paper is a detailed analysis of what type of legal writing and briefs from 1946 through 2013 have been the most influential  with the United States Supreme Court and the lawyers who write them. Interestingly, lawyers who write short sentences in the active voice and who use fewer words than the majority of brief writers are the most successful. It is a fascinating read, and strongly recommended. -CCE

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Latest Supreme Court Opinion on Pregnancy Discrimination Claims.

28 Saturday Mar 2015

Posted by Celia C. Elwell, RP in Employment Law, Pregnancy Discrimination, United States Supreme Court

≈ Comments Off on Latest Supreme Court Opinion on Pregnancy Discrimination Claims.

Tags

Civil Rights, Employment Law, Jason Shinn, Michigan Employment Law Advisor Blog, Pregnancy Discrimination Act, Title VII

A New Day for Pregnant Employee Workplace Accommodations – Understanding the New Framework, by Jason Shinn, Michigan Employment Law Advisor Blog

http://www.michiganemploymentlawadvisor.com/category/pregnancy-discrimination-act/

Yesterday [March 26, 2015] the U.S. Supreme Court issued the much anticipated opinion in a pregnancy discrimination claim, Young v . United Parcel Service.

For context, the claim in Young v UPS arose under the Pregnancy Discrimination Act (PDA). The PDA was added to Title VII (the gold-standard in terms of civil rights law prohibiting workplace discrimination) to overcome a prior Supreme Court ruling that allowed employers to treat pregnant female workers less favorably based on being pregnant.

There are two anti-discrimination provisions under the PDA: the first prohibits pregnancy bias as a form of discrimination based on sex; the second prohibits employers from treating female employees who become pregnant different than other employees who perform the same sort of work. . . .

Continue reading →

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Patent Law’s Most Influential Supreme Court Decisions From 2005 through 2015.

12 Thursday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Case of First Impression, Intellectual Property, Patent Law, United States Supreme Court

≈ Comments Off on Patent Law’s Most Influential Supreme Court Decisions From 2005 through 2015.

Tags

Cases of First Impression, Dennis Crouch, PatentlyO Blog, Precedent, U.S. Supreme Court

Most Cited Supreme Court Patent Decisions (2005-2015), by Dennis Crouch, PATENTLYO Blog

http://tinyurl.com/mpd5ue

The list below considers all of the U.S. Supreme Court patent cases decided during the past decade (Since January 2005) and ranks them according to the number of citations.  Citation offers some insight into the influence of decisions, but is obviously limited for a number of reasons. Cases may be cited because of their importance in changing the doctrine (KSR, eBay) or simply as the court’s most recent statement of the law on an important issue (Microsoft v. i4i and KSR) or for a narrow procedural issue that applies in many cases (Unitherm). Bay’s high citation rate is also boosted because its principles have been applied broadly to injunctive relief across many areas of law. Some cases with low citation counts may also have major impacts. They may, for instance impact a small number of very important cases (Caraco) or perhaps they cause folks to change behavior so that the issue stops arising.

With this list we also have the timeline problem where older cases are more likely to be highly cited since there has been more opportunity for those cites. I Alice Corp to rise in the ranks Nautilus and Teva, on the other hand, may well flounder (based upon the Federal Circuit’s treatment of those cases thus far). . . .

Continue reading →

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How A Dental Board Decision Could Affect The Business of Practicing Law.

07 Saturday Mar 2015

Posted by Celia C. Elwell, RP in Federal Trade Commission, Government, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff, Unauthorized Practice of Law, United States Supreme Court

≈ Comments Off on How A Dental Board Decision Could Affect The Business of Practicing Law.

Tags

Anti-trust, Board of Dental Examiners, Federal Trade Commission, Forbes, Ken Friedman, LegalZoom Inc., Monopoly, Non-Lawyers, Unauthorized Practice of Law

Could Dental-Board Decision Unlock Lawyer Control Of State Bar Regulations?, guest post Ken Friedman, Forbes

(Mr. Friedman is the Vice President of Legal and Government Affairs for LegalZoom Inc.)

http://www.forbes.com/sites/danielfisher/2015/03/04/dental-board-decision-could-unlock-lawyer-control/

Many state regulatory agencies are controlled by active members of the very professions they oversee. Last week, this fox-and-hen-house scenario was addressed by the United States Supreme Court, which ruled that such agencies are not immune to federal antitrust laws unless their actions are actively supervised by politically accountable government officials. While the case dealt specifically with dentistry (teeth whiteners everywhere, rejoice!), the ruling will have far broader ramifications for many professions, including how the practice of law is regulated.

In North Carolina State Board of Dental Examiners v. Federal Trade Commission, the Supreme Court upheld the FTC’s ruling that the Dental Examiners violated antitrust laws when they sent dozens of ‘cease and desist’ letters to teeth whiteners, claiming that they were engaged in the ‘unauthorized practice of dentistry.’ The letters and other strong-arm tactics worked – dentists in North Carolina established a monopoly over teeth-whitening services until the FTC intervened.

The Dental Examiners monopolistic campaign was modeled after a similar, if less successful, campaign engaged by the North Carolina State Bar.

The Supreme Court’s decision will have broad positive effects throughout the country. The Court’s ruling recognizes that letting professionals enforce their own monopolies creates a ‘real danger’ that they will act to further their ‘own interests,’ rather than the public interest. These practices increase prices to the detriment of consumers while decreasing consumer choice. The Court recognized that the problem is far worse when the boundaries of the state-granted monopoly are not ‘clearly articulated and affirmatively expressed as state policy,’ and the professionals are given the power to decide what is the ‘unauthorized practice’ of their profession.

This lack of clarity is not uncommon. For example, Rhode Island opens the door to this defining the unauthorized practice of law as the ‘doing of any act for another person usually done by attorneys at law in the course of their profession.’ They list a few examples, ‘without limiting the generality of the definitions.’

The active supervision concept is important. While the requirement is ‘flexible and context-dependent,’ the Court made clear that the ‘supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it.’ The supervisor cannot be a market participant and needs to have the power to veto or modify decisions. This will require significant interaction.

Regulating the practice of law is the classic example of active market participants protecting their monopoly. In its amicus brief, the NCSB states that its authority is vested in the State Bar Council, 65 of whose 68 members are lawyers.

The threat this poses is not idle. . . .

Continue reading →

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What States And U.S. Supreme Court May Rule On Abortion In 2015.

01 Thursday Jan 2015

Posted by Celia C. Elwell, RP in Abortion, Appellate Law, United States Supreme Court

≈ Comments Off on What States And U.S. Supreme Court May Rule On Abortion In 2015.

Tags

Abortion, Jennifer Luden, NPR, State Laws on Abortion, U.S. Supreme Court

Big Question For 2015: Will The Supreme Court Rule On Abortion?, by Jennifer Luden, NPR

http://tinyurl.com/ktmqead

The new year is expected to bring yet another round of state laws to restrict abortion — and 2015 could also be the year a challenge to at least one of these laws could reach the Supreme Court.

The ongoing spike in abortion laws started after 2010, when Republicans won big in the midterms. Since then, state lawmakers have passed more than 200 abortion regulations — more than in the entire decade before. And with more statehouse gains in the fall elections, abortion opponents expect another good year.

The Two-Way

Supreme Court Blocks Abortion Rules That Closed Most Texas Clinics

‘The two states that stand out is where we are now able to stop bad legislation from happening,’ says Mary Spaulding Balch, state legislative director of the National Right to Life Committee. ‘It looks like we have a pro-life majority in the Senate in the state of New York, which could prevent a bill that Gov. Cuomo was pushing that would have expanded abortion in New York, if you can imagine.’

The same political calculus goes for Washington state, Balch says.

Then there’s Tennessee, where a new constitutional amendment denies any right to abortion. That’s expected to clear the way for a string of regulations courts previously had struck down. . . .

 

 

 

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Justice Scalia’s Interpretation of Criminal Statutes And “Rule of Lenity.”

22 Saturday Nov 2014

Posted by Celia C. Elwell, RP in Appellate Law, Civil Rights, Constitutions, Criminal Law, Federal Law, Federal Sentencing, Fourth Amendment - Search & Seizure, Law Enforcement, Research, Statutes, United States Supreme Court, White Collar Crime

≈ Comments Off on Justice Scalia’s Interpretation of Criminal Statutes And “Rule of Lenity.”

Tags

Above the Law (blog), Civil Rights, Criminal Law, Federal Criminal Statutes, Fourth Amendment, Justice Scalia, Matt Kaiser, Rule of Lenity, White Collar Crime

Scalia Weighs In On One of the Most Important Questions in the World of White-Collar Criminal Defense, by Matt Kaiser, Above The Law Blog

http://tinyurl.com/kahbnvm

Justice Scalia is not a man known for mild opinions. I hear the other Justices have voted him ‘least likely to say ‘this is a question on which reasonable minds could disagree.’

While a conservative, Scalia has done good work for those charged in criminal cases in recent years. He’s been good on Fourth Amendment issues, the Confrontation Clause, and federal sentencing.

And, at oral argument recently, on what is perhaps the most significant criminal justice issue of the day — how broadly we should interpret criminal statutes — Scalia has turned his considerable intellect again in a defense-friendly way.

How, you ask?

Whether to interpret a criminal statute broadly or narrowly is an intricate question. The ‘Rule of Lenity says that criminal statutes should be interpreted narrowly. Yet courts often read in a meta-‘Rule of Lenity’ that says that the Rule of Lenity itself should be interpreted narrowly.

Moreover, judicial review of the scope of a criminal statute is tricky. There are thousands of federal criminal statutes on the books and Congress makes more every year. About 95% of the time, people charged with federal crimes plead guilty. Courts are highly resistant to litigate the meaning and breadth of a federal criminal statute before trial, which means that challenges to the interpretation of a statute are possible in a very small number of cases.

What that means is that prosecutors’ interpretations of federal statutes are highly unlikely to be meaningfully challenged. And, when they are, generally they are interpreted broadly. . . .

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Collection of Judges’ Best Advice On Legal Writing.

08 Saturday Nov 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, 5th Circuit Court of Appeals, Appellate Law, Appellate Writing, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Editing, Legal Argument, Legal Writing, Legalese, Oregon Supreme Court, Plain Language, Readability, Texas Supreme Court, United States Supreme Court, Wisconsin Supreme Court

≈ Comments Off on Collection of Judges’ Best Advice On Legal Writing.

Tags

Appellate Brief Writing, Bryan A. Garner, Joseph Kimble, Legal Writing, Legalese, Michigan Bar Association, Plain Language

Judges on Effective Writing: The Importance of Plain Language, by Bryan A. Garner, Vol 84 Mich. B. J. 44 (February 2005)

http://tinyurl.com/kk6trum

Each quote here is a pearl of wisdom – classical and timeless. Look no further to find the heart and soul of effective legal writing. Click on the hyperlink to find the footnotes for each quotation. -CCE

I trust that, after more than 20 years, some of the Plain Language columns are worth reprinting. This one appeared in March 1994. As I noted then, the survey that Mr. Garner mentions in his introduction is the same one that we first did in Michigan, with very similar results. See the October 1987 and May 1990 columns. The judges are identified by their judicial positions when they make their remarks. —JK (Joseph Kimble)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all.

The results of that survey surprised many Texas litigators—and many changed the form of their court papers. But many more have persisted in the old, legalistic style—perhaps out of a fondness akin to what some people feel for the language of the King James Version of the Bible. Judge Lynn Hughes of Houston speaks directly to those litigators: ‘Anyone who thinks Comes now the Plaintiff is anything like the King James Version has no sense of poetry.’

Literary tastes may differ, of course, but it’s worth knowing what judges say—and have been saying for a long time—about the language we lawyers use. Following are some choice quotations I’ve recently collected. —Bryan A. Garner

Judicial Diagnoses

‘Lawyers spend a great deal of their time shoveling smoke.’ Hon. Oliver Wendell Holmes1, U.S. Supreme Court

‘[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long since disappeared from normal English discourse.’ Hon. Antonin Scalia2 , U.S. Supreme Court

‘The reason legal writing has gotten to such a low point is that we have had very bad teachers—judges who wrote years ago and wrote badly. We learned bad habits from them and their opinions in law school.’
Hon. William Bablitch3, Supreme Court of Wisconsin

Stick to the Mother Tongue

‘[The advocate] will stock the arsenal of his mind with tested dialectical weapons. He will master the short Saxon word that pierces the mind like a spear and the simple figure that lights the understanding. He will never drive the judge to his dictionary. He will rejoice in the strength of the mother tongue as found in the King James version of the Bible, and in the power of the terse and flashing phrase of a Kipling or a Churchill.’  Hon. Robert H. Jackson4, U.S. Supreme Court

‘[A]void as much as possible stilted legal language, the thereins, thereofs, whereinbefores, hereinafters, and what-have-yous. Use English wherever you can to express the idea as well and as concisely as in law or Latin. A healthy respect for the robust Anglo-Saxon appeals more than does the Latin, whether or not it is Anglicized. The home-grown product in this case is better than the imported, not to say smuggled, one.’ Hon. Wiley B. Rutledge5, U.S. Supreme Court

‘Write so that you’re understood. English is a hard language to learn, but it’s an easy language to communicate in. There’s no reason to put Latin in your brief.’ Hon. Craig T. Enoch6, Fifth Court of Appeals, Dallas

‘Don’t use legalese. It causes you to put your contentions in stale ways.’ Hon. Thomas Gibbs Gee7, U.S. Court of Appeals for the Fifth Circuit, 1974-91

‘Legalese is an impediment to clear, logical thinking.’ Hon. F. Lee Duggan8, First Court of Appeals, Houston

‘It’s easier for a judge when you’re using common usage. Judges are only human, after all.’ Hon. Carolyn Wright9, Family District Court, Dallas

Simplify, Simplify!

‘For a hundred years, good lawyers have been writing without all the garbage and in a simple, direct style.’ Hon. Lynn N. Hughes10. U.S. District Court, Houston

‘A lawyer should write the brief at a level a 12th grader could understand. That’s a good rule of thumb. It also aids the writer. Working hard to make a brief simple is extremely rewarding because it helps a lawyer to understand the issue. At the same time, it scores points with the court.’ Hon. William Bablitch11, Supreme Court of Wisconsin

‘When a judge finds a brief which sets up from twelve to twenty or thirty issues or ‘points’ or ‘assignments of error,’ he begins to look for the two or three, perhaps the one, of controlling force. Somebody has got lost in the underbrush and the judge has to get him—or the other fellow—out. That kind of brief may be labeled the ‘obfuscating’ type. It is distinctly not the kind to use if the attorney wishes calm, temperate, dispassionate reason to emanate from the cloister. I strongly advise against use of this type of brief, consciously or unconsciously. Though this fault has been called over-analysis, it is really a type of under-analysis.’ Hon. Wiley B. Rutledge12, U.S. Supreme Court

‘The key is to make the brief easy for the judge to follow.’ Hon. Lloyd Doggett13, Supreme Court of Texas

Cut the Verbiage

‘You want your brief to be as readable as possible . . . . If I pick up a brief of 49 and a half pages, it has a little less credibility than one that succinctly argues its points in 25 pages . . . . There’s nothing better to read than a well-written brief from a really good lawyer.’ Hon. Jerry E. Smith14, U.S. Court of Appeals for the Fifth Circuit

‘Eye fatigue and irritability set in well before page 50.’ Hon. Patricia M. Wald15, U.S. Court of Appeals for the D.C. Circuit

‘A brief should manifest conviction . . . . [That] is virtually impossible . . . if it contains an excessive number of quotations or is larded with numerous citations to the authorities. Short quotations sometimes clinch a point, but long ones fail in that objective.’ Hon. George Rossman16. Supreme Court of Oregon

‘Start in the very first sentence with the problem in this case. Put it right up front. Start early. Don’t bury it under a lot of verbiage and preliminaries.’ Hon. Nathan L. Hecht17, Supreme Court of Texas

Does Style Matter?

‘Style must be regarded as one of the principal tools of the judiciary and it thus deserves detailed attention and repeated emphasis.’ Hon. Griffin B. Bell18, U.S. Court of Appeals for the Fifth Circuit

‘Lawyers are excused from the necessity of interesting their readers, and all too often—let’s face the evidence—they take advantage of this enviable exemption.’ Hon. Jerome Frank19, U.S. Court of Appeals for the Second Circuit

‘Is good writing rewarded? I used to think it doesn’t matter much, in comparison with legal authority, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don’t even think about it.’ Hon. Murry Cohen20, Fourteenth Court of Appeals, Houston

Bryan A. Garner (bagarner@att.net), president of Dallas-based LawProse, Inc. (www.lawprose.org), is the author of many books on writing, including Legal Writing in Plain English (2001) and The Elements of Legal Style (2d ed. 2002). He is also editor in chief of all current editions of Black’s Law Dictionary. He teaches at Southern Methodist University School of Law.

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Texas Prosecutor Fired for Using Racial Remarks In “Batson Challenge.”

12 Saturday Jul 2014

Posted by Celia C. Elwell, RP in Batson Challenge, Implied Bias, Jury Selection, Trial Tips and Techniques, United States Supreme Court

≈ Comments Off on Texas Prosecutor Fired for Using Racial Remarks In “Batson Challenge.”

Tags

Batson Challenge, Batson v. Kentucky, Civil Rights, Jim Crow, Jury Selection, Negro Motorist Green Book, Peremptory Strike, Race Activist, San Antonio Employment Law Blog, Tom Crane, Trial Tips & Techniques

Travis County Prosecutor Fired Over Racial Remarks, by Tom Crane, San Antonio Employment Law Blog

http://tinyurl.com/o3m82b4

Poor choice of words, bad judgment, racially inappropriate or all three? -CCE

The ’Batson challenge’ allows a lawyer to challenge the strike of a potential jury member. The challenge is based on the decision in Batson v. Kentucky, 476 U.S. 70 (1986), which found it unconstitutional to strike a potential jury member on the basis of race. The Batson challenge does not require much. So long as the lawyer can articulate a non-discriminatory reason for the peremptory strike, then the strike will likely stand.  A prosecutor, Steve Brand, in Travis County struck a potential jury member because she was a member of the NAACP, because she wanted to be a member of the jury, and because she had a link on her Facebook page to Negro Motorist Green Book, a book for safe travel during the Jim Crow era. Mr. Brand said he wanted to avoid an having an ’activist’ on the jury and would have done the same in regard to a perceived white activist. . . .

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29 Sunday Jun 2014

Posted by Celia C. Elwell, RP in Abortion, Appellate Law, First Amendment, United States Supreme Court

≈ Comments Off on

Tags

Abortion Buffer Zone, American Civil Liberties Union, Civil Rights, Concurring Opinions Blog, First Amendment, Judge Posner, Massachusetts, McCullen v. Coakley, Ronald K.L.Collins, Walter Dellinger

FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case, by Ronald K.L.Collins, Concurring Opinions Blog

http://tinyurl.com/lj44njo

Mr. Collins shares excerpts from nine commentaries on the U.S. Supreme Court’s recent ruling in McCullen v. Coakley, which removed the “buffer zone” around abortion clinics in favor of First Amendment rights of those who protest abortion. -CCE

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The U.S. Supreme Court’s Recent Cell Phone Ruling.

28 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Android Phones, Appellate Law, Blackberry Phones, Cell Phones, Fourth Amendment - Search & Seizure, iPhones, Legal Technology, Search Warrants, United States Supreme Court

≈ Comments Off on The U.S. Supreme Court’s Recent Cell Phone Ruling.

Tags

Cell Phones, Fred Barash, Judge Learned Hand, Search Warrants, U.S. Supreme Court, Warrantless Search, Washington Post

The Scary Part Of The Supreme Court’s Cellphone Ruling, by Fred Barash, The Washington Post

http://tinyurl.com/oa2t6te

That Supreme Court ruling on cellphones was supposed to be reassuring. The government needs a warrant to search your phone, the court ruled.

But read Riley vs. California more closely and it’s just a little scary — particularly for those who pay little attention to what’s on their smartphones. If you don’t think your phone exposes your life-all of it-take it from the nation’s highest court.

Your phone, says the court, is your life. Cracking it open is even more revealing than rummaging through your home, which the Fourth Amendment’s protection against unreasonable searches was designed to protect. . . .

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Can You Buy A Gun For Someone Else?

16 Monday Jun 2014

Posted by Celia C. Elwell, RP in Appellate Law, Gun Control Laws, Second Amendment, United States Supreme Court

≈ Comments Off on Can You Buy A Gun For Someone Else?

Tags

BloombergBusinessweek, Gun-Trafficking, Justice Kagan, Justice Scalia, Law Enforcement, Paul M. Barrett, Second Amendment, Straw Purchaser, U.S. Supreme Court

Supreme Court Is One Vote Away From Wrecking Gun-Trafficking Prosecutions, by Paul M. Barrett, Politics & Policy, BloombergBusinessweek

http://tinyurl.com/msbaoh2

Sometimes what the Supreme Court almost does is more striking than what it says in its majority opinion. Such is the case with today’s 5-4 ruling that federal agents may go after a ‘straw’ purchaser who buys a gun for someone else, even if both people are legally eligible to own firearms.

What’s amazing about this decision is that four dissenting members of the court—led by Justice Antonin Scalia—were prepared to rule against the federal government in a fashion that would have undermined countless prosecutions of alleged gun traffickers. To put this more starkly: The Supreme Court is one vote away from judicially nullifying one of the most common tools U.S. law enforcers use to deter and punish criminals who send other people into gun stores to purchase firearms and circumvent the federal background-check system. . . .

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U.S. Supreme Court’s New Pleading Standards For Qualified Immunity.

27 Tuesday May 2014

Posted by Celia C. Elwell, RP in Appellate Law, Excessive Force, First Amendment, Governmental Tort Claim Act, Qualified Immunity, United States Supreme Court

≈ 1 Comment

Tags

Excessive Force, First Amendment, Iqbal, Qualified Immunity, Supreme Court, Twombly

SCOTUS Decision in Wood v. Moss: Guidance on Pleading Standards?, by Adam Steinman, Civil Procedure and Federal Courts Blog 

http://tinyurl.com/pvgjemj

Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.

In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. . . .

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Supreme Court Judges Really Use Dictionaries To Determine Legislative Intent?

26 Monday May 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Appellate Law, Judges, Legal Analysis, Legal Dictionaries, Legal Writing, Legislative History, References, United States Supreme Court

≈ Comments Off on Supreme Court Judges Really Use Dictionaries To Determine Legislative Intent?

Tags

Adam Liptak, Good Legal Writing, Legal Dictionaries, Legal Writing, Legislative History, New York Times, Statutes, Tiffany Johnson, U.S. Supreme Court

Look It Up! Or Not…, by Tiffany Johnson, Good Legal Writing

http://goodlegalwriting.com/2014/04/14/look-it-up-or-not/

I always encourage my students to look up any words that confuse them as they read opinions.  But this 2011 New York Times article  cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench.  Check out this excerpt:

In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like ‘prevent,’ ‘delay’ and ‘report.’ Over the years, justices have looked up both perfectly ordinary words (‘now,’ ‘also,’ ‘any,’ ‘if’) and ones you might think they would know better than the next guy (‘attorney,’ ‘common law’).

All of this is, lexicographers say, sort of strange. . . .

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Revisiting Civil Rights Case Mendez v. Westminster.

17 Saturday May 2014

Posted by Celia C. Elwell, RP in Appellate Law, Segregation, United States Supreme Court

≈ Comments Off on Revisiting Civil Rights Case Mendez v. Westminster.

Tags

Brown v. Board of Education, Civil Rights Act of 1964, Francisco Macías, In Custodia Lexis, Law Librarians of Congress, Segregation, Separate But Equal, U.S. Supreme Court

Before Brown v. Board of Education There Was Méndez v. Westminster, by Francisco Macías, In Custodia Lexis, Law Librarians of Congress

http://tinyurl.com/lplvmwa

As I wrote about earlier in the blog, the case Hernández v. Texas was decided just two weeks prior to Brown; but there is another little-known case that was instrumental for the American civil rights movement: Méndez v. Westminster. While many scholars of educational desegregation assure us that the beginning of the end of the ‘separate but equal’ doctrine was set underway with Brown v. Board of Education. It could be argued that the beginning of that end may actually date back seven years prior, Méndez v. Westminster, which ended the almost 100 years of segregation that had remained a practice since the end of the U.S.-Mexico War of 1848 and the signing of the Treaty of Guadalupe Hidalgo. The end of the U.S.-Mexico War gave rise to ‘anti-immigrant sentiments [that] resulted in increased measures to segregate Mexican-Americans from so-called ‘white’ public institutions such as swimming pools, parks, schools, and eating establishments.’. . .

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More on Link Rot.

27 Sunday Apr 2014

Posted by Celia C. Elwell, RP in Appellate Law, Legal Technology, Link Rot, United States Supreme Court

≈ Comments Off on More on Link Rot.

Tags

All Tech Considered, Citations, Legal Writing, Link Rot, NPR, Perma CC, U.S. Supreme Court, URL

Stopping Link Rot: Aiming to End A Virtual Epidemic, by NPR Staff, All Tech Considered, NPR

http://n.pr/QTrCGp

I have mentioned perma.cc and the problem of link rot before. It is a good solution but not quite perfected. When I have used it here on this blog, it is not always reliable, which is disappointing for something that shows such promise. Hopefully all the kinks will be worked out soon. -CCE

Just about anyone who’s gone online has encountered the message: ‘Error 404’ or page ‘Not Found.’ It’s what you see when a link is broken or dead — when the resource is no longer available.

It happens all across the Internet, on blogs, news websites, even links cited in decisions by the Supreme Court. It’s called link rot, and it spreads over time as more pages die.

These are natural deaths; links die when the server where the page first lived has closed for business, or a filter is blocking access. It’s annoying on sites like Buzzfeed and Gawker, but it’s worse when links go rotten on judicial decisions or works of scholarship.

Jonathan Zittrain, professor of law and computer science at Harvard University, says that’s a serious problem.

‘It’s extraordinarily bad for the long-term maintenance of the information we need, say, to understand the law,’ says Zittrain, who helped create Perma.cc, a service to help judges, authors and scholars preserve links indefinitely. . . .

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Today’s U.S. Supreme Court Opinion on Affirmative Action.

22 Tuesday Apr 2014

Posted by Celia C. Elwell, RP in Appellate Law, United States Supreme Court

≈ Comments Off on Today’s U.S. Supreme Court Opinion on Affirmative Action.

Tags

Affirmative Action, Higher Education, Michigan, Michigan Constitution, Minorities, Public Universities, SCOTUS Blog, U.S. Supreme Court

Evening Round-Up: Schuette v. Coalition to Defend Affirmative Action, by Kali Borkoski, SCOTUSblog

http://tinyurl.com/m8nung8

I have not yet read the entire opinion, as well as all of the separate opinions. This post provides links to many others that have already analyzed this decision and who wrote what. -CCE

This morning, a divided Court upheld an amendment to the Michigan constitution that prohibits the use of affirmative action by public universities in admissions.  Justice Kennedy announced the judgment of the Court in an opinion that was joined by the Chief Justice and Justice Alito.  Justice Scalia filed an opinion, concurring in the judgment only, that was joined by Justice Thomas, while Justice Breyer filed his own opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion (joined by Justice Ginsburg) and summarized her dissent from the bench. . . .

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Journalist’s Guide to Federal Courts.

17 Thursday Apr 2014

Posted by Celia C. Elwell, RP in Bankruptcy Law, Courts, U.S. Courts of Appeal, United States Supreme Court

≈ Comments Off on Journalist’s Guide to Federal Courts.

Tags

Administrative Office of the U.S. Courts, Bankruptcy Courts, Federal Appellate Courts, Federal Courts, Federal District Court, Journalists

A Journalist’s Guide to the Federal Courts, Administrative Office of the United States Courts

http://www.uscourts.gov/News/JournalistsGuide.aspx

Federal judges and the journalists who cover them share much common ground. One clear area of mutual interest is accurate and informed coverage of federal courts. A Journalist’s Guide to the Federal Courts is intended to assist reporters assigned to court coverage. It is the media who inform and educate the public about the courts, spark discussion and debate about their work, instill public trust and confidence in the institution and its function, and help protect judicial independence. These are worthwhile and important pursuits.

There are justifiable and distinct differences between the three branches of government and the access they grant the news media. Most of the work of federal courts is performed in open court and decisions, and in most cases court filings are available on the Internet. This primer is aimed at helping reporters who cover federal appellate, district, and bankruptcy courts – the cases, the people, and the process.

Download full report (pdf)

 

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