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.

Mitra Sharafi’s South Asian Legal History Resources

Professor Sharafi’s Web on South Asian Legal History site includes a list of citation abbreviations of  law reports from the colonial era for Bangladesh, Burma (Myanmar), India, Pakistan and Sri Lanka.  It also includes a useful “Research Guide to the Case Law,”  which explains the role of precedent, details major published and unpublished sources of cases, and describes how cases were cited.

 Mitra Sharafi’s South Asian Legal History Resources

http://hosted.law.wisc.edu/wordpress/sharafi/

 

 

Keeping up with the federal courts with CourtListener

The CourtListener.com

From the website:

The goal of the site is to create a free and competitive real time alert tool for the U.S. judicial system.

At present, the site has daily information regarding all precedential opinions issued by the 13 federal circuit courts and the Supreme Court of the United States. Each day, we also have the non-precedential opinions from all of the Circuit courts except the D.C. Circuit. This means that by 5:10pm PST, the database will be updated with the opinions of the day, with custom alerts going out shortly thereafter.

This [open source] site was created by Michael Lissner as part of a masters thesis at the University of California, Berkeley School of Information.

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

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.

Unpublished opinions

A Slate piece, “Sotomayor’s Manly Man Ruling – Her bold ruling in favor of a man who claimed sex discrimination,” by Emily Bazelon, includes this paragraph on unpublished opinions:

Sotomayor agreed to issue an unsigned and unpublished opinion. The term “unpublished opinion” is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They’re shorter and often still carry less weight–they’re persuasive rather than binding precedent, in lawyer’s terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it’s hard to control. And in the 2nd Circuit, I’m told, there’s a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges’ eyes.

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

From Journal of Empirical Legal Studies, Vol. 6, No. 1, March 2009, pp. 213-39

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

Denise M. Keele, Robert W. Malmsheimer, Donald W. Floyd, Lianjun Zhang


Almost without exception, scholars have tested theories of judicial behavior by relying on published case decisions. Though understandable given the inaccessibility of unpublished cases, this focus means that scholars may be drawing conclusions regarding judicial behavior that do not accurately describe the motivational forces behind all judicial decisions. This study employed the attitudinal model of judicial behavior to empirically test whether published judicial opinions are representative of all opinions in litigation challenging the U.S. Forest Service. Results indicate that the effects of ideological preferences are different in published and unpublished opinions issued by appellate judges: judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions. At the district court level, judges did not follow their ideological preferences in either published or unpublished opinions and there was no difference between judges’ decisions in published and unpublished opinions. This research supports the contention that the process of judicial decision making in the courts of appeals differs between published and unpublished opinions and that scholars should use caution in drawing conclusions from examinations of published opinions alone.

Electronically Manufactured Law

“Electronically Manufactured Law”


Harvard Journal of Law and Technology, Vol. 22, 2008
Hofstra Univ. Legal Studies Research Paper No. 08-23

KATRINA FISCHER KUH, Hofstra School of law

We increasingly communicate and experience law through an electronic medium. Existing scholarship suggests that prior changes in the communication of law – from oral to scribal, scribal to moveable type, the widespread publication of cases – influenced the development of the law, including by contributing to the rise of basic concepts such as precedent. One element of the present shift in the communication of law is that the process by which we find the law has been transformed. Specifically, legal case research, once conducted exclusively through the use of print-based resources (reporter volumes, case digests, treatises), is now conducted primarily through searches of electronic legal databases. This Article employs principles of cognitive psychology to generate empirical predictions about how the shift from a print-based to an electronic research process changes researcher behavior and research outcomes. The Article then assesses the broader impacts of these changes with respect to the content and practice of law.

Specifically, the Article identifies three changes to the research process that are salient for predicting the broader impacts of the shift from print-based to electronic research: (1) Electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) Electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) Electronic researchers are exposed to more and different case texts than print researchers. The Article then considers these basic changes in light of principles of cognitive psychology, including the influence of labeling, categorization, and confirmatory bias on understanding, and offers empirical predictions about the impacts of the shift from print-based to electronic research.

First, the Article predicts that the shift to electronic research gives rise to “diversity in framing.” There will be greater divergence between researchers with regard to the theories and principles identified as potentially applicable to a set of facts and this will lead to greater disputes about what is in dispute. Second, the Article predicts that the shift to electronic research leads to more “tilting at windmills.” Researchers will have greater difficulty making accurate judgments about whether an argument has merit and will thus advance marginal theories and cases with greater frequency.

Each of these predicted changes gives rise to broader impacts on the law. In an adversarial system, judicial options for case resolution are largely defined – and constrained – by the theories proffered by counsel. Diversity in framing would expand judicial authority by providing judges with a wider variety of options for the resolution of disputes. This underlines the way in which counsel serve as gatekeepers by exercising independent judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require critical reexamination of the existing limits placed on lawyers in their role as gatekeepers – such as Federal Rule of Civil Procedure 11 – to prevent a waste of judicial and client resources. A follow-up article will test the “diversity in framing” and “tilting at windmills” predictions.

Source: LSN Legal Education Vol. 5 No. 53,  12/16/2008

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Marquette Law Review, Vol. 92, 2009
NSU Shepard Broad Law Center Research Paper No. 08-012

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

 

Unpublished opinions have become a fact of life in the federal circuit courts. Over eighty percent of all opinions issued by the federal circuits in the last few years have been designated “unpublished.” The meaning of that designation has changed, however, since the birth of the limited publication plans. In the mid-1970s, the federal circuits adopted plans that sought to make some of their decisions unpublished, uncitable, and even non-precedent. That system has unraveled. Unpublished decisions are now routinely published in both commercial and public databases. Federal Rule of Appellate Procedure 32.1 now makes these decisions citeable. What remains is the most critical issue – whether denying these decisions’ precedential weight is Constitutional. This issue was never addressed directly when the circuits’ limited citation plans were put into place; it was viewed as a “morass of jurisprudence” that was better off avoided. Yet, several potential Constitutional infirmities with the practice of declaring some opinions non-precedential have been identified. This is ultimately an issue to be determined by the Supreme Court.

This article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, examines the Supreme Court jurisprudence on this issue. It examines what the Court has ruled, what petitioners have argued, and what individual Justices have stated in scholarly writings and separately written opinions. The Court has never accepted the circuits’ assertion that these cases lack precedential value, but neither have they granted certiorari and addressed the issue directly. The Constitutionality of denying unpublished decisions precedential value is ripe for Supreme Court review. Given the fundamental nature of the issue, litigants ought to vigorously seek certiorari and the Court should grant it.

 

Source:  LSN Law & Courts Vol. 2 No. 55,  09/29/2008

The Ethical Conundrums of Unpublished Opinions

Here’s a new, all-you-ever-wanted-to-know plus more article about unpublished/depublished/non precedential/etc. decisions:

“The Ethical Conundrums of Unpublished Opinions”

Shenoa L. Payne

44 Willamette Law Review 723-760 (2008 )

INTRODUCTION

I. BACKGROUND AND HISTORY OF UNPUBLISHED OPINIONS

   A. The Emergence of Unpublished Opinions

   B. The Original Justifications for No-Citation Rules

   C. The Electronic Availability of Unpublished Opinions

   D. The Debate over No-Citation Rules: The Loud Roar from the Eight Circuit

   E. The Treatment of Unpublished Opinions by State Courts and Federal Circuits

II. DEPUBLISHED OPINIONS: WHEN DECISIONS MOVE FROM PRECEDENT TO SECRET

   A. The Depublication Process in the California Courts

   B.  The Changing the Message Behind Depublicaton

   C.  The Criticisms of Depublication

   D.  The Counterarguments

   E.  The Alternatives to Depublication

   F.  The Responsibilities of Lawyers Regarding Depublication and Precedent

III. FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A REAL CHANGE?

   A.  Background

      1. The Value of Unpublished Opinions

      2. The Necessity of Unpublished Opinions for Busy Courts

      3. The Increased Costs of Legal Representation

   B. The Text of Federal Rule of Appellate Procedure 32.1

   C. Is Federal Rule of Appellate Procedure 32.1 a Real Change?

IV. COURTS SHOULD BE REQUIRED TO GIVE UNPUBLISHED OPINIONS THE RESPECT THEY ARE OWED.

   A. Skidmore v. Swift & Co.

   B.  Considerations that Give an Unpublished Opinion “Power to Persude,” if not “Power to Control”

      1. Factually Indistinguishable Cases

      2. Issued by the Same or a Controlling Court

      3. Concerns a Unique Question of Law or Fact

      4. Possesses Other Factors that Give it Power to Persuade, if not Power to Control

   C. The Goal of Uniformity

   D. Guidance for Attorneys

   E. Judicial Accountability and Judicial Efficiency Concerns: A Good Balance

V. SOME PRACTICAL IMPLICATIONS

   A. Why Do Attorneys Want to Use Unpublished Opinions?

   B. Can Attorneys Provide Competent Representation Under No-Citation Rules?

   C. Are Attorneys Able to Provide Diligent Representation in the Face of No-Citation Rules?

   D. Can an Attorney Argue Points Based on Unpublished Opinions Without Bringing a Frivolous Claim?

   E. Does an Attorney Ethically Have to Cite an Unpublished Opinion Contrary to His or Her Position in   Jurisdictions Where No-Citation Rules are Banned?

   F. Is Ignoring Unpublished Opinions in Criminal Cases a Violation of the Constitution?

CONCLUSION

With the availability of unpublished opinions, the original reasons for no-citation rules no longer justify their continued existence. In the face of a long and heated debate, FRAP 32.1 is a step  toward appropriately addressing the problems associated with unpublished opinions. Citation to unpublished opinions is extremely important. However, FRAP 32.1 is extremely limited and allows unpublished opinions only to reach the very bottom tier of precedent, which does not require courts to give unpublished opinions any particular weight.

Courts should employ a uniform rule requiring a Skidmore type deference that gives unpublished opinions respect when due based on four factors: (1) if the facts are indistinguishable; (2) if the unpublished opinion is issued in the same or a controlling court; (3) if the opinion addresses a unique question of law or fact not addressed in published opinions; and (4) all those other factors which give it power to persuade, if lacking power to control. Such a rule would bring uniformity to the treatment of unpublished opinions across federal circuits, give strong guidance to attorneys in assessing their cases, and balance the concerns of judicial efficiency and judicial accountability.

Attorneys face real ethical conundrums even though FRAP 32.1 has prohibited no-citation rules in federal circuits. Attorneys are still bound to (1) local federal rules for unpublished opinions issued prior to January 1, 2007 and (2) the rules of the state courts in which they practice. This means that attorneys must carefully consider their ethical duties of competence, diligence, candor toward the tribunal, the appearance of frivolous claims, and also consider whether they are violating their duties of effective assistance of counsel owed to criminal defendants. Until a uniform rule is in place, such as requiring a Skidmore type deference, attorneys will continue to face challenging ethical conundrums in relation to unpublished opinions.