Becoming the “compleat lawyer” the Aldisert way

From time to time I will get a call or e-mail from a proud parent whose son or daughter has been admitted to Stanford Law School.  The parent wants my advice on a book for their accomplished child to read upon the beginning of their new-found career.  A wonderful book has just come along which fits the bill perfectly:  Judge Ruggero Aldisert’s A Judge’s Advice: 50 Years on the Bench.

This slender volume packs a lot of punch.  In less than 250 pages the judge offers answers to questions that have occupied his thoughts for decades:  : “What is the bedrock of our common law system? What are trial and appellate judges really looking for? What is the logical configuration that is absolutely necessary in any legal argument? What practical challenges do judges face when deciding a case? What is the difference between the philosophy of law and a philosophy of law? What is the difference between a judge making a decision and a judge justifying it, and why does that difference matter to me?  Precedent in the law: When do you kiss it and when do you kill it?”

The judge organizes his thoughts among the following five themes:

  • Our Common Law Tradition: Still Alive and Kicking
  • Logic and Law
  • Avoiding Assembly Line Justice?
  • The “Write Stuff”
  • How Judges Decide Cases

And within these themes are found the following chapters:

The house of the law — The role of the courts in contemporary society — Precedent : what it is and what it isn’t, when do we kiss it and when do we kill it? — Elements of legal thinking — Logic for law students : how to think like a lawyer — Formal and informal fallacies — State courts and federalism — Life in the raw in appellate courts — “The seniors” suggest a solution — Brief writing — Opinion writers and law review writers: a community and continuity of approach — Reading and evaluating an appellate opinion — Philosophy, jurisprudence and jurisprudential temperament of federal judges — Making the decision — Justifying the decision.

While I know that all law students would benefit greatly from reading this book, when I first saw it our international students immediately came to mind as no other single volume that I am aware of so neatly and clearly explains the American legal system.  This book explains stare decisis better than anything else available.

Judge Aldisert writes about his particular passion — the law — with an enthusiasm that is almost exhausting.  Through this book the law student can get a glimpse of just how enormously satisfying the next 60 or 70 years of his or her life can be.

As the judge states in his Introduction:  “. . . These pages flesh out the instruments and implements of lawyers with a far-ranging ‘view from above’ with one objective in mind: to enrich the skills of these men and women so that each may bear — to borrow from Izaak Walton’s The Compleat Angler — the noble title of ‘compleat lawyer.’

This book really should be required reading for all law students, lawyers and others too.  Judge Aldisert is one of my heroes, along with others who inspire me such as Roger Ebert, Vin Scully, Tony Bennett and Keiko Fukuda (Google her)  — people who, while they may have stopped buying green bananas, they have not stopped working and never will.  These are people who make no distinction between work and play and who will be carried off the job feet-first.  They know the secret.   People who I want to be like when I grow up.

Full disclosure:  I was first charmed by Judge Aldisert when I met him during my daughter’s clerkship for him.

New to the legal lexicon: dissental and concurral

A story in today’s Daily Journal reports on the usage by Chief Judge Alex Kozinski of the 9th Circuit U.S. Court of Appeals of two newly coined (by him) words: dissental and concurral.

According to the story, “Chief Judge coins new words for failed en banc calls – Alex Kozinski coined his own words to describe a common practice,” by John Roemer,

Dissental conflates the words “dissent” and “denial” while concurral combines “concurrence” with “denial.” They are intended to replace the clunkier phrases “dissent from denial of rehearing en banc” or “concurrence in denial of rehearing en banc” used by the court.

The words are used “as shorthand descriptions of judges’ widening practice of delivering often-passionate commentary on failed en banc calls.’

So, have some fun and and search for those terms in CALR databases.

Article on Blogging by Chinese Judges

Professor Anne Sy Cheung’s article in the Harvard International Law Journal includes a couple of interesting findings that merit further investigation.

On page 267 of the article, Prof. Sy Cheung writes:
“While Blogging by judges may be an unusual phenomenon in common law countries, it is not unusual in China. In fact, more than half of the bloggers in this study wrote in their real names.”

Table 1 of the article breaks down the content of blog postings by Chinese judges.  Nearly 34% of the blog postings related to legal research.

Appendix IV lists the most common legal research question asked by the judges:

1. Copies of laws, regulations, and rules as well as comments on them.
2. Comments and opinions on draft legislation.
3. Criticizing the Rules of Payment of Court Fees issued by the State Council in December 2006.
4. Researches on a broad range of topics, such as compensations for damages to person happened in schools, the principle of innocence, problems of the Property Law of the PRC, role of the procuratorate, land system and land reform, citizens’ rights and freedom, real estate development and house transactions, labor disputes including payment of wages and salaries, and compensation for damages to accidents at work, and introduction of the spiritual compensation to civil suits collateral to criminal proceedings (some of these researches have been published in journals by the writer, blog owner).
5. Discussions on the tradition of Chinese culture and law.
6. Copies of court decisions that have come to effect.
7. Judicial interpretations issued by the Supreme People’s Court.
8. Routine work of the courts.
9. Introduction of Western legal theory, thought, and practice.
10. Questions and answers for various post-followers.

Exercising Freedom of Speech Behind the Great Firewall : A Study of Judges’ and Lawyers Blogs in China
Harvard International Law Journal
Vol. 52 , April 2011
http://www.harvardilj.org/2011/04/online_52_cheung/

In you are interested in legal research issues in China, don’t forget about the Chinese and American Forum on Legal Information and Law Libraries Conference in Philadelphia in July. Information on program sessions and speakers is available at
http://cafllnet.org/annual-conference/

The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts

From the just-received Volume 2010, Issue 1, Spring University of Illinois Journal of Law, Technology & Policy, at page 51:

The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts

by Casey R. Fronk

Abstract:

Since the early 1960s, computerized legal research technology has enabled judges and their law clerks to access legal information quickly and comprehensively. Particularly for appellate judges, who rely on wide-ranging legal research when writing opinions, this technological change has had special resonance. This Article attempts to quantify the effects of computer- assisted legal research on the federal judiciary by empirically analyzing citation patterns over the past fifty years. The results of this analysis suggest that the digitization of legal research has had statistically significant effects on the amount and style of citation in judicial opinions. Although the average number of cases cited in opinions has doubled between 1957 and 2007, the number of cases cited only in string citations has decreased by nearly the same percentage. This Article argues that such results can be explained by a basic economic theory of judicial citation in which judges respond to the decreasing cost of opinion production by discarding string citation for more effective communicative techniques.

Conclusion:

This Article proposes that a simple microeconomic approach can describe judicial citation practices over the last fifty years.  It provides empirical evidence that judges use citations in part as a communication device, and that the cost of legal research is intimately connected with the effectiveness of this communication (and therefore with judicial citation patterns).  The empirical results in this Article not only demonstrate the effectiveness of the microeconomic approach in describing  judicial opinion style, but also provide a foundation for future research into the effects of judicial ideology on citation practices.

Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1

“Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1”

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Adoption of the Federal Rule of Appellate Procedure 32.1 has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential. However, local rules of the Courts of Appeals are widely varied on these characteristics. The most fundamental jurisprudential question: “what is law?” has varying answers across a supposedly uniform federal system. From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.

This article, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, examines the federal judiciary’s desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions. It then categorizes and analyzes the circuits’ local rules regarding publication, citation, and precedent in the wake of Federal Rule of Appellate Procedure 32.1. Finding significant discrepancies between circuit local rules in each of these three categories, the article argues for truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.

 

Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009

Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations

“Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations”

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Denying precedential status to unpublished opinions muddles the already unclear law surrounding qualified immunity. Government officials may claim qualified immunity as a defense to claims that they have violated a person’s civil rights. The test is whether they have violated “clearly established law.” The federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations, argues that unpublished opinions are ideal sources for determining what law is clearly established. The article reviews the purpose of both civil rights actions against government officials and the qualified immunity defense available to such officials. It also analyzes the characteristics of unpublished opinions and finds them, by definition, to be ideal sources to help determine the clearly established law. It then examines the circuit courts’ variation in the use of unpublished opinions in their qualified immunity analyses. Finally, it proposes a resolution to this problematic circuit split through jurisprudential or rulemaking means. Opinions that are issued as unpublished are by definition clearly established law; opinions that make new law or expand or contract existing law must be published under the federal circuit rules. Denying precedential status to unpublished opinions has relegated these opinions to a second class status, which is unjustified and unconstitutional, but also obfuscates their inherent suitability to demonstrate clearly established law.

 

Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009

2 new working papers on judicial opinions

“Judges and Their Editors”

Albany Government Law Review, Forthcoming
University of Missouri School of Law Legal Studies Research Paper No. 2009-18

DOUGLAS E. ABRAMS, University of Missouri School of Law

This essay discusses the roles of personal law clerks, central staff clerks, and Reporters of Decisions in editing judges’ opinions at the drafting stage. “The overarching lesson [is] that by submerging pride of authorship during an opinion’s gestation and by weighing editorial input with an open mind, judges secure in their craft advance the interests of justice.” The essay also discusses the constraints imposed by the ABA Model Code of Judicial Conduct on the circle of persons a judge may consult without giving the parties advance notice. The essay is adapted from Prof. Abrams’ address to the international meeting of the Association of Reporters of Judicial Decisions in Halifax, Nova Scotia on August 7, 2009.

 

“Sports in the Courts: The Role of Sports References in Judicial Opinions”

DOUGLAS E. ABRAMS, University of Missouri School of Law
Villanova Sports and Entertainment Law Journal, Forthcoming
University of Missouri School of Law Legal Studies Research Paper No. 2009-19

In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

 

Source:  LSN: University of Missouri School of Law Legal Studies Research
 Paper Series Vol. 4 No. 4,  08/20/2009

Internet Materials in Opinions: Citations and Hyperlinking

From The Third Branch

July 2009, Vol. 41, Number 7, p. 9

 

Internet Materials in Opinions: Citations and Hyperlinking

The Judicial Conference has issued a series of “suggested practices” to assist courts in the use of Internet materials in opinions. The recommendations follow a pilot project conducted by circuit librarians who captured and preserved webpages cited in opinions over a six-month period.

The Internet often seems to pervade everyday life, giving us answers, matches, recommendations, definitions, and citations. But the information on the Internet can be as ephemeral as yesterday’s blog entry. Websites can change or disappear altogether.

“Judges are citing to and using Internet-based information in their opinions with increasing frequency,” Judicial Conference Secretary Jim Duff wrote recently to chief judges. “Unlike printed authority, Internet information is often not maintained at a permanent location, and a cited webpage can be changed or deleted at any time. Obviously, this has significant implications for the reliability of citations in court opinions.”

The Judicial Conference Committee on Court Administration and Case Management (CACM) began the pilot project, conducted by circuit libraries, and received and endorsed the recommendations of an ad hoc working group of circuit librarians. In approving those recommendations in March 2009, the Judicial Conference agreed that all Internet materials cited in final opinions be considered for preservation, while each judge should retain the discretion to decide whether the specific cited resource should be captured and preserved. The Conference directed the Administrative Office to work with the CACM Committee to develop guidelines “to assist judges in making the determination of which citations to preserve.”

The guidelines suggest that, if a webpage is cited, chambers staff preserve the citation by downloading a copy of the site’s page and filing it as an attachment to the judicial opinion in the Judiciary’s Case Management/Electronic Case Files System. The attachment, like the opinion, would be retrievable on a non-fee basis through the Public Access to Court Electronic Records system. When considering whether to cite Internet sources, judges are reminded that some litigants, particularly pro se litigants, may not have access to a computer.

The Judicial Conference also recommended that the Judiciary avoid including in final opinions working hyperlinks that lead directly to materials contained within commercial vendor databases to prevent a stated or implied endorsement or preferential treatment. To the extent that a court determines that such hyperlinks are to be used in opinions, it is recommended that an appropriate disclaimer be provided.

A Brief History of Opinion Writing (the book)

There’s a new book that all law clerks and law clerk wannabees might want to read.  It is:  Opinion Writing, 2d edition by Judge  Ruggero J. Aldisert.

Ordering information can be found here.

West Publishing Co. commissioned Judge Aldisert (Chief Judge Emeritus, Senior U.S. Circuit Judge, U.S. Court of Appeals for the 3d Circuit) to write the book.  It was never sold but utilized by West as a public relations gesture. Despite never being made commercially available, there are 144 libraries in WorldCat that hold copies.  West sent the book to  all federal judges and to state appellate judges, and as new judges came on later each new judge received a copy.  This practice continued for over 15 years, but after West was bought by Thomson, the new owners decided a few years back to stop the practice.  Rights were transferred back to the judge and the second edition is being published by AuthorHouse.

Full disclosure:  My daughter clerked for Judge Aldisert and assisted with the production of the book.  So I know it’s really good!

From the publishers description:

This book is a guide to opinion writing. It is written for every judge at every level and for all law clerks. Every trial and appellate judge, including the author of this book, can profit by learning how to improve his or her work product. This book provides a tool to do just that. Separated into four parts – Theoretical Concepts Underlying an Opinion, The Anatomy of an Opinion, Writing Style and Opinion Writing Checklists – the second edition of Opinion Writing distills the author’s nearly 50 years of experience on the bench into a handbook on the judge’s craft.

And the price is right too:

Hard Cover: $29.95
Paperback: $19.95

Writing the book on citing unpublished and non-precedential opinions

Today’s mail brought Volume 10, Issue # 1 (Spring 2009) of The Journal of Appellate Practice and Procedure.  This issue contains Professor David R. Cleveland’s book-length (116 pages) article “Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions.”

The Foreword to the issue notes that “Professor Cleveland’s article about Rule 32.1 follows both Judge Arnold’s famous comment about unpublished opinions, which ran in our second issue, and the series of Anastasoff-related articles that appeared in our Volume 3, Issue 1.”

Professor’s Cleveland first posted this piece to the Legal Scholarship Network as a working paper, which can be found here, with this abstract:

In the mid-1970s, the federal judiciary fundamentally changed the nature of precedent in the United States federal courts. It did so quickly and quietly: first, by issuing decisions as unpublished and not citeable, and then, by denying these decisions precedential status. Every opinion issued in this fashion deprives the law of a valuable precedent and ignores common legal conceptions of how our law works. While the recently enacted Federal Rule of Appellate Procedure 32.1 restores the ability to cite to these decisions, it does nothing to address the more critical issue of whether these decisions can be denied precedential weight, and even if so, whether they ought to be denied such value. This Article advocates a return to full precedential status for all federal court decisions based on Constitutional and community-based principles. Publication limits and citation bans have fallen away in light of modern technology and jurisprudential concerns. The related practice of issuing non-precedential opinions should likewise be ended. The practice is outdated at best and constitutionally infirm at worst. Moreover, it flies in the face of American legal and lay concepts of how our justice system works. Quite simply, the federal courts ought to recognize that they are bound by what they have done in the past and that they must apply, distinguish, or overrule those precedents rather than simply ignoring them.

The article’s table of contents shows the wide range of coverage Professor Cleveland gives to his topic:

I. Background

II. Introduction

III. History of Publication and Precedent

   A. Ancient Publication and Precedent

   B. Early English Publication and Precedent

   C. Modern English Publication and Precedent

   D. Early American Publication and Precedent

IV. Modern American Publication and Precedent

   A. Comprehensive Publication and the Concern It Engenders

   B. The Birth of Limited Publication Plans

   C. Recent Technological Developments in Publication

   D. Citation and Precedent in the Federal Courts of Appeals Prior to Rule 32.1

   E. Rule 32.1

V. The Debate Over Precedential Status of Unpublished Decisions

   A. Criticisms of the Premises of Limited Publication, Citation and Precedent

   B. Premises Supporting the Prevention of Comprehensive Publication

   C. Premises Supporting a Bar on Citation to Unpublished Decisions

   D. Premises Supporting the Denial of Precedential Status to Unpublished Decisions

VI. Current Status of the Article III Debate

   A. Equal Protection

   B. Due Process

   C. Pragmatic Objections to Precedential and Proposed Solutions

VII. Conclusion

And here’s the conclusion:

     Whether by constitutional case decision or by the adoption of a new Federal Rule of Appellate Procedure, the practice of issuing non-precedential opinions should be ended.  Failure to recognize every decision as precedential represents and perpetuates a serious problem in our judicial system because the practice conflicts with both our constitutional and community values.

     Evidence suggests that unpublished opinions are already published.  They have long been researched despite the rules against their citation, and they are now fully citeable under Rule 32.1.  Unpublished decisions are already being published, researched, and cited because they are perceived to have precedential value within our legal system.  This value should be recognized rather than denied.

     The Supreme Court has aptly cautioned in another content that ‘[l]iberty finds no refuge in a jurisprudence of doubt.” [footnote omitted]  Yet  for over three decades, the federal courts’ policy of creating “non-precedential precedents” [footnote omitted] has increasingly fostered a jurisprudence of doubt.  After three decades of limiting the publication, citation, and precedential effect of their opinions, federal courts are still carefully avoiding the “morass of jurisprudence” [footnote omitted] involved in closely examining the precedential status of unpublished opinions.  However, the winds have changed.

     The limitation of publication now exists in name only.  The limitation of citation has been removed by Rule 32.1.  The limitation on full precedential status for all decisions of the federal courts of appeals, initially instituted to help realizer the gains believed to flow from the other two limitations, is the last remaining vestige of a flawed and failed experiment.  The practice of deciding ex ante which cases join the body of precedent and while do not should be abandoned.  Both the dictates of American constitutional law and the traditions of the American legal community require it.

 

A related article by Professor Cleveland, “Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System,” was noted here.