Crime & Federalism

This excellent article by Michael Whiteman provides links to several sources of Supreme Court and other state and federal appellate briefs.

I took Judge Richard S. Arnold's death rather badly, even though I never met the man; and indeed, I didn't even know him by proxy.  The death of someone like him makes me bitter.  With so many scoundrels living, why does someone like him have to die?

I miss him because his opinions, even if reaching a disagreeable outcome, were works of legal art.  When reading his opinions, one always saw a judge truly trying to reason from premises to conclusion, rather than the modern method - find a conclusion and make your analysis match that conclusion just well enough that that you won't get reversed.  Reading one of his opinions is like looking at the Statue of David: "Is there anyone alive who could create this?"

At the 2004 Annual Meeting of Scribes: The American Society of Writers on Legal Subjects, Judge Arnold's brother, Morris S. Arnold, had this to say: 

First, his opinions are frequently conversational because they are consciously free of jargon and legal affectation. Much of what he writes is meant to be read out loud; my brother speaks directly to the reader, especially to the losing party, to explain his thinking.

I think this trait owes much to his classical training. It is reason, not authority, that matters to him. And this is why his opinions typically have so few citations and so few footnotes. Multiple citations are not just useless, but raise a suspicion that the writer really doesn’t know what he or she is talking about. Even when writing about technical cases, good writers like my brother will not allow details or dreary acronyms to overwhelm an explanation or to discourage the reader.

You can read the rest of the moving remarks here.

"Death," a Yale law student, wonders:

What's the point of learning how to write well when every partner who reviews your memo is just going to re-legalize it? All the nominalizations you removed will be re-inserted. The active voice will be trampled and beat back into its passive state. You will no longer use anything, certain objects will be utilized. The court will not find any statute to violate the Constitution, the statute will be held to be unconstitutional by the Court. Goodbye verbs, hello gerunds. As in: gerundizing verbs seems to be the favorite activity of partners.

You can read the full post here.

I'm addicted to everything writing-related.  I care about where my commas go, and I agonize over hyphen placement. (I usually misplace or omit hyphens, due to a strange mental block.)  I read style manuals for fun.  I read so much about legal writing because I'm still a technician.  I'm good with words, but a brief or blog post lacking my name doesn't scream, "Mike wrote this."  Slowly, and somewhat painfully, I'm progressing from technician to stylist.  Given that it takes ten years to master something, and given that I've been working on my legal writing for about three years, I still have a lot of learning to do.

I was pleased learn about a newish blog, "Plain Legal Writing."  Its editor, Wayne Schiess,  wrote an excellent book on legal writing, so his blog does speak with authority.  His posts are all well-written and instructive.  They're well-written enough that even if I don't soak up the post's lesson, I'll probably pick up a few good habits through osmosis.  We write what we read, after all.  Anyhow, I encourage you to read Plain Legal Writing. (Via Ray Ward).  UPDATE: Blawg Review #23 mentioned Schiess' blog last week.

A lawyer with polished shoes is not smarter or better prepared than a lawyer whose shoes lack polish.  Nor is a lawyer a clearer writer because he Bluebooks his briefs.  But perception rules all in the law, as Ray Ward notes in this post.

Everyone eventually encounters an judge out to sink the client's case.  Ultimately the judge treats the lawyer or client unfairly, and the attorney appeals. 

Sadly, the appellate courts almost never criticize trial courts.  Unless the conduct is egregious and clearly demonstrable - after every inference has been drawn in favor of the trial court - the appellate court let's the misconduct slide.  But in a recent decision, the Eighth Circuit  admonished the trial court, and in doing so, gave all of us a lesson in appellate advocacy.  Joseph H. Low v. John Fahle. 

Evan, commenting to a post I wrote praising Garner's Modern American Usage, wrote:

I have to pick up Garner's American Usage more often than I'd like to admit. In addition, I'm very much enjoying his book The Winning Brief, which I decided to buy after reading a post on Minor Wisdom.

I first saw The Winning Brief during my first semester of law school.  I wasn't learning anything in my legal writing class, so I decided to teach myself.  But at $50, I thought the price was steep. Besides, I told myself, "No book on legal writing is worth 50-bucks." 

I bought The Winning Brief two weeks later, after talking to a  plaintiffs' lawyers who brings in seven figures a year.  He told me:

Michael, if I had purchased this book when I first started practicing, I would be ten million dollars richer.  Don't laugh.  I am serious.  I would never hire anyone who was not familiar with every principle in this book.

I bought the book the next day, and have applied its principles on several cases (with very good results).  Some people art or play the stock market.  But perhaps the best investment a lawyer can make is using $50 to buy one book.

We know that when referring to constitutional amendments or clauses, we capitalize the clause or amendment.  Thus, our First Amendment has a Free Exercise Clause, and an Establishment Clause.  Our Fourteenth Amendment contains a Due Prcoess Clause and an Equal Protection Clause.  But what do we do when referring to more than one clause at a time?  Do we write: She filed suit under the Equal Protection and Due Process Clauses <or clauses>?  Bryan A. Garner provides the answer:

When a common noun is part of a proper name, capitalize it when the entire name appears <Mississippi River>, but not when it is separated from the proper name <the Mississippi and Missouri rivers>. 
Bryan A. Garner, Garner's Modern American Usage at 128.

Now we know what to write: She filed suit under the Equal Protection and Due Process clauses.

You are probably also wondering why I capitalize Constitution, but not constitutional.  Again, Garner tells us why:

Capitalize the adjectival form of a noun that is always proper <Keynesian economics> but not one from a noun that can also be common <congressional investigation>[]. 
Id.

And so, for purposes of this rule, we would write: Strip searching non-violent misdemeanor arrestees is not a constitutional policy.

Consider buying Garner's American Usage.  If you read good books, your writing is probably grammatical.  But we all get stuck (or get into arguments over usage) and thus need a final arbiter.  Even if you have perfect insticts and thus never have a question on usage the book is still valuable since it explains why you write what you do.  Finally, Minor Wisdom and Evan endorse it.

I have been writing a treatise on section 1983.  It won't be as comprehensive as Nahmod's, but it'll be more thorough than the Nutshell.  Oh, and I expect it'll take me about two years.

Anyhow, I have been writing summaries on certain aspects of the law.  In a .pdf file (and below the fold as text), you will find my latest draft on affirmative duties/danger creation in the Eighth Circuit Court of Appeals.  If you like it, I can post other summaries I have written - 1988/attorneys' fees is ready to be posted.  Just let me know if you like it.

I would also appreciate feedback on my writing style.  After all, I will want to market my treatise to legal readers.

Imagine you write an article for a CLE seminar. It's a good article. So good that Judge Alex Kozinski finds it helpful and decides to cite it in a published opinion. Unfortunately for you, he finds a typo. And he lets us know about it. (On page 4).

Peter L. Winik, Consumer Product Safety Commission: Current Developments in Law and Practice A-4 (ABA Ctr. for Cont’g Legal Educ. Nat’l Inst. 1997) (“The CPSC takes the position that language [sic] ‘each product involved’ means each individual unit of product sold to consumers. Thus, in most cases of non-reporting, it is possible for the CPSC to argue that it can aggregate penalties up to the statutory maximum.”).

Of course, it's still very cool to get cited in a published opinion, so I imagine Mr. Winik is willing to take the bad with the very good.