The Appellate Record

Appellate Advocacy Seminar

Kendall Gray — Tue, 15 May 2012 03:29:30 -0600

Lest you think we at the Appellate Record are all about Texas (or all about me) I wanted to put this little nugget out there for you.

The Appellate Advocacy Seminar conducted by the Defense Research Institute will take place on June 21 and 22 in Cambridge ("our fair city"), MA.

Lots of appellate lawyers and judges from all over the country will be in attendance, which is one of the main reasons I enjoy this event.

I won't be able to attend this year, but AK will be well represented by my partners Scott Brister and Cameron Pope.

AND we're sponsoring the cocktail reception. So we've got that going for us.

Which is nice.

You can download the brochure or follow the link to register.

Coming Soon:22nd Annual Conference on State and Federal Appeals

Kendall Gray — Wed, 09 May 2012 07:28:08 -0600

The legal world is just thrumming with excitement.

Why?

I'm glad you asked.

In a few short weeks Austin will play host to the rip-roaring 22nd Annual Conference on State and Federal Appeals.

And that's not all.

We at the Appellate Record will be speaking. Just look at that superstar faculty list.

I know, right? Almost more fun than someone ought to be allowed to have.

I'll pause to let you catch your breath.

If you look at the course schedule here, you'll see I have the absolute primo time slot:

3:15 on Friday afternoon.

I mean who doesn't want some luscious Supreme Court Updating to go along with a Friday afternoon coma?

The trick of course is how to give an updated Supreme Court talk when course materials are due a month before the course. We have attempted to solve the problem with a paper containing links to this blog where you'll be able to download the updated PowerPoint with up to the minute court stats and decisions on the day of the presentation.

Get the paper here, and keep it on your laptop or tablet so you can link to and download the presentation when the day comes.

This conference is the place to see all your dweebie appellate friends at least once a year. And all levity aside, it really is a must-do event if you are thinking of sitting for the board certification exam this fall.

Today Only: Free Side of Locusts With Your Trophy

Kendall Gray — Sat, 05 May 2012 03:49:46 -0600

To Cool Four Shcool

Kendall Gray — Mon, 30 Apr 2012 03:12:49 -0600

This is either a photoshop hoax, or a sign of the apocalypse.

Hat tip to Swick.co.uk

Words You Can't Say In Court

Kendall Gray — Tue, 24 Apr 2012 06:47:01 -0600

Here at the Appellate Record, we'd like to apologize for the last week. The practice of law has really interfered with the whole blogging thing.

And it's all about you, dear reader.

Actually, it's all about me, but I digress.

While I was out, the Appellate Record has been taking over the world.

Here we are listed amongst 100 Appellate Twitter Feeds to Follow. We're listed 18th. Some might say it's alphabetical, but I prefer to think we rank 18th of 100.

Then there was the Texas Lawyer Article about things you should never say in court.

Many of you sent very kind words and also very interesting e-mails about that article of practice pointers.

After the jump, confirmation from an actual juror that at least one of the practice pointers was correct.

In the Texas Lawyer commentary, I made some observations about little throw-away adverbs or phrases that make one untrustworthy to the jury or to the judge. These verbal ticks promise what you don't deliver, or try to insert a sneaky short cuts where you ought to be showing your work. What I mean are things like:

"Clearly"
"Obviously"
"Briefly"
"Just a few more questions"

Someone who read the column recently served on a criminal jury. In fact she is kind of a super juror, because she's also a lawyer coach.

I'm talking about Debra Bruce from Lawyer-Coach. After the column ran, she e-mailed me with her experience as a juror. If you don't believe that your verbal ticks can degrade your persuasive power, consider Debra's experience as a juror evaluating whether video surveillance evidence was sufficient to identify the defendant:

. . . I served as a juror recently in a criminal matter. The prosecution kept saying “clearly” and “absolutely”. It was not persuasive, and a little offensive to the judgment of jurors. It had the effect of reducing their credibility because they engaged in hyperbole. There was surveillance video in evidence, but the images were not clear enough to identify the defendant beyond a reasonable doubt. Testimony was unconvincing. The defendant was acquitted.

The outcome of the case didn’t turn on the prosecution’s word choice, but that certainly didn’t help the case. Those words were memorable in an unhelpful way.

Ouch! Think about that: "memorable in an unhelpful way."

Kind of like the unhelpful effect that the memory of the Hindenburg had on travel by dirigible.

It might be better not to be remembered at all.

Clearly, the next time you catch yourself falling into that little trap, remember the Hindenburg.

Announcing My Candidacy

Kendall Gray — Mon, 23 Apr 2012 04:57:27 -0600

A little chestnut from I Love Typography.

If I start droppin' my g's, please stage an intervention.

QED

Kendall Gray — Mon, 16 Apr 2012 04:53:30 -0600

If you do not understand this reference, then you may be too young to have learned the "home keys" on a machine that flung a metal ball at a ribbon impregnated with ink to make a mark on real paper.

Meddling kids.

Fonts Matter

Kendall Gray — Mon, 09 Apr 2012 04:51:04 -0600

Zivotofsky v. Clinton: Marbury Lives!

Kendall Gray — Tue, 03 Apr 2012 04:21:36 -0600

Don't you just love when Chief Justice Roberts goes all 19th Century?

I know I do.

Last week the Court had occasion to revisit Marbury v. Madison, the quintessential judicial power cage match.

In Marbury, Chief Justice John Marshall performed the best feat of judicial judo ever, purporting to restrict the court's jurisdiction, but aggregating power to the court by claiming the right to declare an act of Congress--the Judiciary Act of 1789--unconstitutional.

In Zivotofsky v. Clinton, another chief justice named John (Roberts) did his own judicial Judo. He again protected the "province of the judicial department to say what the law is." And yet, he refused to say what the law was.

After the jump, when middle east politics aren't a political question.

Where is Jerusalem?

Google Maps says it is in Israel, and the search engine even finishes the search query by supplying the name of that nation state.

But of course other political powers also claim that city, whose borders have been settled in war and unsettled in peace.

So the Secretary of State and the President don't want to make a fuss. They claim the power to recognize international boundaries, and they will only list "Jerusalem" on the passport of an American born in Jerusalem. The State Department Foreign Affairs Manuals specifically directs that passport officials not write "Israel" or "Jordan" when recording an American birth in Jerusalem.

Yes. there is a manual on such things.

Not so fast, says Congress. Congress is convinced that the 1967 war has stuck, and it enacted a statute in 2002 providing that Americans born in Jerusalem may elect to have "Israel" listed as their place of birth.

President Bush signed the law, but also issued a signing statement to the effect that this passport business intrudes on the power of the executive branch.

And then Menachem Binyamin Zivotofsky, born in Jersusalem of American parents, decided to make a federal case out of it.

The lower courts refused to decide it, calling the issue of Jerusalem's status a "political question," meaning that it was not subject to judicial resolution. Chief Justice Roberts and the majority came to a different answer, but they did so by changing the question.

To them, political status was not in issue, only the limits of Congress' legislative power:

The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” . . . This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth.

* * *

. . . The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.

Nobody disputed what the statute said or what it meant, the only question was whether Congress could control what is put on passports, or whether that was a power vested in the executive branch. If the latter, then the statute would be unconstitutional.

And courts have been doing that since John Marshall's 19th century judo throw--Marbury v. Madison:

At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” . . . That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.”

The Court then went through a detailed exposition of the constitutional arguments of both sides. Constitutional clauses and articles thrusted and parried. Angels danced on the heads of pins. It was all very unusual to spend so much time on it, though because, having determined that the courts have the right to decide the question . . . .

The Court ultimately refused to decide the question. The court said, it's best if we don't go first.

Because the District Court and the D. C. Circuit believed that review was barred by the political question doctrine, we are without the benefit of thorough lower court opinions to guide our analysis of the merits. . . . Ordinarily, “we do not decide in the first instance issues not decided below.” . . . In particular, when we reverse on a threshold question, we typically remand for resolution of any claims the lower courts’ error prevented them from addressing. . . . We see no reason to depart from this approach in this case. Having determined that this case is justiciable, we leave it to the lower courts to consider the merits in the first instance.

Humble and assertive, all at the same time. Very Marshallesque.

Really?

Kendall Gray — Mon, 02 Apr 2012 04:13:16 -0600

I don't even know where to begin. I "DON'T HAVE" the WORD'S.

**hat tip to Grammar--Searching The Back Alleys Of Syntax**

Drawing Murky Lines In Shifting Sand

Kendall Gray — Tue, 27 Mar 2012 04:38:09 -0600

My head hurts.

Actually, my brain hurts.

It hurts because I've been spending more time than a Texan should watching the opinions come out of the Supreme Court of the United States. The reason for this cranial exertion is the upcoming Supreme Court update at the UT Seminar on State and Federal Appeals in June.

The cases are starting to establish a theme. The high court spends a good deal of its time drawing boundaries. For example there are boundaries:

Between state and federal power
Between legislative and executive and judicial branches
Between individual and state

At best, though, the court is drawing indistinct lines in shifting sand.

After the jump, three variations on that theme, newly released from the Supreme Court:

Sackett v. EPA, involving the power of the courts to intrude on regulatory action;
Mayo Collaborative Services v. Prometheus Laboratories, involving the line between patentable intellectual property and mere scientific principle; and
Coleman v. Court of Appeals of Maryland, involving the line between state sovereignty and federal legislative power.

If you like Kafka-esque regulatory power, legislative history, balancing tests or the word "congruence," you'll love this stuff.

Sackett v. EPA

In Sackett, the EPA claimed the right to regulate under the Clean Water Act because the land on which they wanted to build a house was sufficiently damp for sufficiently long and sufficiently close a navigable water to be considered a "wetland." The agency also claimed that it's jurisdiction to regulate (i.e., threaten) the homeowners was not subject to judicial review unless and until the homeowners were fined draconian sums of money for failing to implement the EPA's wetlands remediation plan.

Not a shock that the Supreme Court rejected this position and held that the Agency was subject to judicial review. But the test for whether review was available under the APA was suprisingly murky. Not only did agency action have to be "final" (or final enough), there had to be no "adequate" judicial remedy, and the statute could not preclude judicial review.

This last element required the court to read congressional tea leaves. One could not just rely upon the language of the statute. Justice Scalia set out the test:

Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in determining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to]its express language.” . . . The APA, we have said, creates a “presumption favoring judicial review of administrative action,” but as with most presumptions, this one “may be overcome by inferences of intent drawn from the statutory scheme as a whole.”

That kind of murk ought to be unsatisfying given the property interests at issue. Justice Alito certainly thought as much and he said it in his concurrence:

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. Bythat time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

Unthinkable, that is, to all but the EPA, the United States District Court for the District of Idaho, and the Ninth Circuit Court of Appeals. One may now need a Supreme Court specialist in addition to a general contractor when building a house.

Mayo v. Prometheus Labs

Mayo dealt with murk of a different kind--that left over in the wake of Bilski from last term. The court had GVR'd Mayo in light of Bilski, and the Federal Circuit did not get the hint. It came to the same result. To be fair, I did not find Bilski all that clear either.

The precise question in Mayo was whether Prometheus labs could patent its discovery that levels of measurable metabolites indicated whether a patient was being correctly dosed with medication for autoimmune diseases. Prometheus claimed a patent on the process of measuring the metabolites and determining the proper dose. The Mayo Clinic countered that Prometheus was just trying to patent observable, natural laws.

Under the Mayo Clinic's argument, that is a bit like trying to patent how to apply the Pathagorean Theorem. The rule is

“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” . . . . And monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it.

In order to be patentable, you need something more.

“‘While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.’”

Maybe it's just because I am an arts and crafts major, but I confess that, when an issue is close to the line, I can't tell what that "something" might be. In fact, the Court recited two cases, one having that certain je ne sais quoi and one lacking it. I did not see much difference in the "quoi" between the two and still don't.

A little help?

Coleman v. Court of Appeals of Maryland

Coleman asks whether Congress had the power under the 14th Amendment to abrogate state sovereign immunity and require states to give employees time off for "self care" under the Family Medical and Leave Act. If the legislation has a sufficient nexus to conduct transgressing the Fourteenth Amendment Congress has that power. If not, it doesn't.

So how do you measure the nexus? Piece of cake. A balancing test with words like "tailor" and "proportionality" and "congruence."

To ensure Congress’ enforcement powers under §5 remain enforcement powers, as envisioned by the ratifiers of the Amendment, rather than powers to redefine the substantive scope of §1, Congress “must tailor” legislation enacted under §5 “‘to remedy or prevent’” “conduct transgressing the Fourteenth Amendment’s substantive provisions.” . . . .

Whether a congressional Act passed under §5 can impose monetary liability upon States requires an assessment of both the “‘evil’ or ‘wrong’ that Congress intended to remedy,”. . . and the means Congress adopted to address that evil . . . . Legislation enacted under §5 must be targeted at “conduct transgressing the Fourteenth Amendment’s substantive provisions.” . . . And “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

So just dig into the legislative history and the lack of congruence is clear, right? Self-care has nothing to do with gender discrimination like time off to have a baby or to care for a sick child. At least Justice Kennedy and the majority thought not.

Except using the exact same test, all the members of the Court who might actually have experienced gender discrimination (all the female justices) thought that it passed with flying colors. They (along with Justice Breyer) marshaled the legislative history and made a convincing case.

And to Justice Scalia, that was exactly the problem. The test was unworkable and the outcome depended entirely upon one's own point of view:

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in turn is because that flabby test is “a standing invitation to judicial arbitrariness and policy-driven decision making,” . . . Moreover, in the process of applying (or seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. . . . This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.

Conclusion

So three cases in need of clarity. Three cases in need of a line. Lines we have, or marks at least. Clarity? Not so much.

San Antonio Bar Association Appellate Section

Kendall Gray — Wed, 21 Mar 2012 10:14:05 -0600

This post is a bit over due, but I promised the gathered throng at the San Antonio Bar Association to upload my PowerPoint presentation.

So enjoy "Don't Be Ugly" about how to make your brief more persuasive through good typography and document design.

Of course, the most important thing is not the presentation itself, but the resources behind the presentation. Those resources are:

"Typography For Lawyers"by Matthew Butterick
"Painting With Print" by Ruth Anne Robbins
And the Seventh Circuit's "Requirements And Suggestions For Typography In Briefs And Other Papers" (catchy title, that)

Enjoy.

Nerdiana Squared

Kendall Gray — Tue, 20 Mar 2012 04:17:31 -0600

The only thing better than typographic humor is typographic pun humor.

From the nice folks at BuzzFeed.

My Mentor, Vinny

Kendall Gray — Mon, 12 Mar 2012 04:46:24 -0600

My, campers. How time flies.

Twenty years ago, this week, that den of liberal depravity called Hollywood produced a pearl.

Twenty years ago, this week, 20th Century Fox released "My Cousin Vinny."

You know what this means? Many of the associates at my firm were not old enough to see this movie without their parents in tow when it came out.

Yeah. Think on that for a minute.

I would never have thought that it had been that long, but the nice folks at the Abnormal Use Blog pointed it out. They are generating some nationwide blawgbuzz about the anniversary.

After the jump is my little contribution.

For those of you unfamiliar with the movie, first, I'm sorry you have been living under a rock for two full decades. You have missed out on all the cultural references and allusions of this cinematic masterpiece.

The plot: a classic northern/southern/red state/blue state tale set in a small town in Alabama. "Two New Yorkers are accused of murder in rural Alabama while on their way back to college, and one of their cousins--an inexperienced, loudmouth lawyer not accustomed to Southern rules and manners--comes in to defend them." (Internet Movie Database).

As preposterous as it seems, one can imagine a northeastern governor in such a town saying "y'all" and talking about grits and stuff. I know. Could never happen.

Aside from Marisa Tomei's deservedly Oscar winning performance as the out-of-work-hairdresser/fiance/automotive expert, we are also treated to many invaluable life lessons and practice pointers during the film

First, the importance of first impressions and acting "lawyerly" before the bench--treating the court with the dignity and respect that it deserves:

Or the importance of punctuality, lest the court suspect that you're "on drugs."

When speaking to the jury, be direct and to the point--but not too direct.

Don't ask a witness--especially an expert witness--a question to which you do not know the answer:

Enhance the persuasive power of expert testimony by heightening drama: "I would LOVE to hear DIS."

And most of all, one must gracefully balance the pressures of work with the home front whilst in trial:

Vincent Laguardia Gambini, you are my mentor. Nay, you are my real American hero. 20 years on, this film still has it.

Yes, [West] Virginia, There Is A Supremacy Clause

Kendall Gray — Wed, 07 Mar 2012 04:14:02 -0600

Yes, West Virginia, there is a Supremacy Clause. It exists as certainly as Congress and taxes and purse strings exist.

And that goes for you too, Montana and Pennsylvania and California.

In a quartet recent opinions the court asserted federal power, twice in unanimous opinions whacking errant state supreme courts for stepping out of bounds.

After the break a brief discussion of:

Marmet Health Care Center, Inc. v. Brown, holding that states may not carve specific classes of claims out of the Federal Arbitration Act;
PPL Montana, LLC v. Montana, holding (remarkably) that river segments that you can't navigate are non-navigable and thus federal;
Kurns v. Railroad Friction Products, holding that an 85-year-old, field preemption case, which likely would be decided differently today, nonetheless preempts a claim for alleged asbestos exposure resulting in mesothelioma;and
National Meat Association v. Harris holding that California's slaughterhouse regulations were preempted by the Federal Meat Inspection Act.

Enjoy!

The blockbuster case for the October 2011 term probably has to be Obamacare---er, The Affordable Healthcare Act case. But court's docket is full of cases delineating federal legislative power.

In Marmet, the West Virginia Supreme Court held as a matter of public policy that nursing home injuries and deaths were non-arbitrable, notwithstanding arbitration clauses in the admission agreement. The West Virginia court (of Caperton v. A.T Massey Coal Co. fame) characterized the Supreme Court's interpretation of the FAA and its preemptive scope "tendentious" and "created from whole cloth."

But see, there is a reason the high court is called the SUPREME court. And "tendentious" or not, precedents are precedents. Cranky old Judge Per Curiam set them straight:

The West Virginia court’s interpretation of the FAA was both incorrect and inconsistent with clear instruction in the precedents of this Court. The FAA provides that a “written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction. . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. The statute’s text includes no exception for personal-injury or wrongful-death claims. It “requires courts to enforce the bargain of the parties to arbitrate.” . . .
As this Court reaffirmed last Term, “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” . . . That rule resolves these cases.

In PPL Montana, the question was who owned the riverbeds. Navigable means Montana does, so it could tax the utility that had been operating hydroelectric dams on them for years. Non-navigable means the feds do, so that the state could not impose the taxes.

The Montana Supreme Court was apparently untroubled by the fact that hydroelectric dams are often built where one finds falls and fast moving water, nor that Lewis and Clark had to portage those very sections of the river due to impassable rapids that they described in their journals. Lo and behold it held in favor of its own taxing authorities.

But Justice Kennedy set them straight, citing enough ancient law to make the point (none too gently) that Montana was not only wrong now, it had been wrong for a couple of hundred years at least:

The Montana Supreme Court discounted the segment-by-segment approach of this Court’s cases, calling it “a piecemeal classification of navigability—with some stretches declared navigable, and others declared nonnavigable.” 355 Mont., at 440–442, 229 P. 3d, at 448–449. This was error. The segment-by-segment approach to navigability for title is well settled, and it should not be disregarded. . . .

* * *

Applying its “short interruptions” approach, the Montana Supreme Court decided that the Great Falls reach was navigable because it could be managed by way of land route portage. . . .The court noted in particular the portage of Lewis and Clark’s expedition. Ibid. Yet that very portage reveals the problem with the Montana Supreme Court’s analysis. Leaving behind their larger boats, Lewis and Clark transported their supplies and some small canoes about 18 miles over land, which took at least 11 days and probably more. See Lewis and Clark Journals 126–152; 9 Journals of the Lewis & Clark Expedition 173; Dear Brother 109. Even if portage were to take travelers only one day, its significance is the same: it demonstrates the need to bypass the river segment, all because that part of the river is nonnavigable.

Kurns involved a plaintiff complaining of asbestos exposure while servicing and maintaining railroad engines. The Locomotive Inspection Act did not itself contain a preemption clause, but an 85-year-old precedent, Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926) found that Congress intended to exclusively occupy the field of the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.

Justice Thomas, writing for the majority applied the precedent to the plaintiffs' claim, which would not have even been scientifically recognizable when the statute was passed. But for me the interesting thing was Justice Kagan's concurrence, which applied stare decisis, even while recognizing that the case might have come out the other way if the court were to consider preemption of that federal statute as a matter of first impression:

I doubt this Court would decide Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926), in the same way today. The Napier Court concluded that Congress had “manifest[ed] the intention to occupy the entire field of regulating locomotive equipment,” based on nothing more than a statute granting regulatory authority over that subject matter to a federal agency. Id., at 611. Under our more recent cases, Congress must do much more to oust all of state law from a field. . . . Viewed through the lens of modern preemption law, Napier is an anachronism.

But Napier governs so long as Congress lets it—and that decision provides a straightforward way to determine whether state laws relating to locomotive equipment are preempted.

Unlike the Locomotive Inspection Act, the Federal Meat Inspection Act in the National Meat case does have a preemption clause, which precludes states from imposing requirements that are “within the scope” of the FMIA, relate to slaughterhouse “premises, facilities and operations,” and are “in addition to, or different than those made under” the FMIA. Notwithstanding an extensive structure of federal regulations, California attempted to dictate what slaughterhouses must do with pigs that cannot walk.

Justice Kagan, writing for the court in this case, held that the state scheme was preempted, using a very practical approach: (1) the federal statute was to be exclusive, and (2) the state requirements are different from the federal ones.

The FMIA’s preemption clause . . . prevents a State from imposing any additional or different—even if non-conflicting—requirements that fall within the scope of the Act and concern a slaughterhouse’s facilities or operations. And at every turn §599f imposes additional or different requirements on swine slaughterhouses. . . . In essence, California’s statute substitutes a new regulatory scheme for the one the FSIS uses. Where under federal law a slaughterhouse may take one course of action in handling a nonambulatory pig,under state law the slaughterhouse must take another.

Much of the rest of the opinion demonstrates in detail how slaughterhouses would be required to take one specific course of action under the federal act an another under state law.

So, four contests between state and federal power. So far, the score is:

Feds: 4

States: 0

Healthcare is still to come, involving both federalism and ennumerated powers. Is the federal government going to bat 1000?

On The Road With The Appellate Record

Kendall Gray — Mon, 05 Mar 2012 10:10:27 -0600

If you're in the San Antonio area, be sure to come out this Thursday and get a heaping helping of the Appellate Record, live and in person.

I'll be speechifying to the San Antonio Bar Association Appellate Practice Section.

Thursday, March 8, 2012.

12:00 Noon, Club Giraud

"Don't Be Ugly: Maximizing Persuasion Through Good Typography and Document Design.”

$20 for Appellate Practice Section members

$22 for nonmembers.

Approved for .75 in MCLE credit.

The Power of Grammar

Kendall Gray — Mon, 05 Mar 2012 08:22:38 -0600

In belated celebration of National Grammar Day, which was yesterday.

Nobody celebrates it like Grammar Girl, with her quick and dirty tips for better writing.

English Teacher Arrested for Defacing Public Property

Kendall Gray — Tue, 28 Feb 2012 04:33:31 -0600

This smile brought to you by the nice folks at The Classy Geek.

Don't Be A Block Quote Fundamentalist

Kendall Gray — Fri, 24 Feb 2012 04:16:41 -0600

I just love kicking a hornet's nest.

OK, so two comments is hardly a hornet's nest, but to be fair I did get several e-mails about the whole block quote thing.

Recall that in a recent post I basically called block quotes the lazy man's way to avoid thinking--telling the court what the cases say instead of arguing what the cases mean.

And then I said judges don't read block quotes.

I basically said they should never be used.

And I stand by all of that. You should never use block quotes.

Never.

Never, that is, unless you really should use a block quote. No need to be a fundamentalist about such things.

After the break, the Gospel According To The Appellate Record on when you should use block quotes.

So, when should you use block quotes? The key is found in the reasons not to use them. Most of the time a block quote detracts from your main purpose because it just reveals what a source says, not what it means.

So the converse is true. A block quote might be important when what something says is more important at that particular moment than how it should be understood.

When might that be? How about:

The very first statement of a statute in a statutory construction case;
The initial statement of a clause that is subject to a contract construction dispute; or
A key question and answer in testimony that disposes of a disputed issue.

Notice anything about these examples? They're essentially factual. I find this kind of interesting because I use footnotes in different ways for a fact section or in legal argument for largely the same reason.

Even the statutory and contract examples are factual:

This is what the statute says
This is what the contract says

There you go, court. You don't need to put the brief down to pull the contract or the statute. You have the text in front of you. Now we will argue about what the text means.

What about a key case? Block quoted?

Probably not.

Sure, you could quote a key case, but most of the time, if your dispute has any complexity at all, there isn't going to be a silver bullet case on all fours. You're going to have to string some authorities together and make an argument. You're going to have to get down and dirty about what the cases mean.

In that case, block quoting something risks overselling a precedent that really isn't dispositive. And quoting something in a block instead of quoting in text while applying it to your facts just invites the court not to read the quote at all.

So, here are my rules of thumb:

Avoid block quotes for legal authorities.
Concentrate instead on what the authorities mean rather than just repeating what they say.
Consider a block quote for key factual matters.
If your brief has more than two block quotes, step back and figure out what is really key. There aren't that many keys, because if everything is key, then nothing is key.
Don't block quote anything the court already knows. That is not helpful.

And finally, for the associates who subscribe to the blog, if you bring me a motion with Rule 56 or something similarly familiar taking up space in block quotes, you will be hung.

Then you'll be fired.

I jest.

Mostly.

Learn Your Apostrophe's--Its Important

Kendall Gray — Tue, 21 Feb 2012 04:19:24 -0600

In the English Grammar System the people are represented by two separate, yet equally important groups; the poorly-educated masses who insert unnecessary apostrophes and omit required ones, and the police who investigate these crimes and arrest the offenders. These are their stories.

A chuckle to start your week from Dan Milberg, from whom you can buy all kinds of nifty Grammar Police gear.