“We have put aside common sense in order to federalize conduct which we believe needs to be punished.” So writes First Circuit Judge Juan R. Torruella in a Commerce Clause-related concurring opinion issued today.

“Minnesota Supreme Court finds implied-consent law for drunken drivers constitutional; Dissenting justices accuse court of departing from Fourth Amendment”: The Minneapolis Star Tribune has this news update.

You can access today’s ruling of the Supreme Court of Minnesota at this link.

“Six applicants for state Supreme Court”: The News Journal of Wilmington, Delaware has this news update.

“Kansas lawmakers tangle over judicial reform amendments; Rivals debate work of nominating commission as biased, fair”: Tim Carpenter of The Topeka Capital-Journal has a news update that begins, “Judicial selection reformists and status quo adherents battled Wednesday about merit of state constitutional amendments to transform appointments to the Kansas Supreme Court and Kansas Court of Appeals.”

“State won’t appeal ruling on sex offender tracking”: Bob Egelko of The San Francisco Chronicle has this news update.

“Fisher requests Supreme Court hear case against UT a second time”: The Daily Texan has this news update.

“Alabama Supreme Court punts on request for ‘clarification’ of Roy Moore’s marriage order”: Brendan Kirby of The Mobile Press-Register has this news update.

You can access today’s order of the Supreme Court of Alabama, and the opinions concurring therein, at this link.

And at Politico Magazine, Eric Velasco has an article headlined “The Gospel According to Roy: The crusading Alabama chief justice has picked what might just be America’s final fight over same-sex marriage.”

“In Sort-of-Defense of Roy Moore”: Emily Bazelon has this essay online at The New York Times.

“The Supreme Court’s class action underachiever”: Alison Frankel’s “On the Case” from Thomson Reuters News & Insight has this report today.

My earlier coverage of yesterday’s Second Circuit ruling that is the subject of Frankel’s column today can be accessed here (first paragraph) and here.

“Senate passes bill to help victims of child pornography”: The Associated Press has this report.

You can access the text of the proposed “Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015” at this link.

“U.S. Appeals Court reverses birth control ruling”: Brian Bowling and Megha Satyanarayana of The Pittsburgh Tribune-Review have a news update that begins, “Certifying that they object to providing health insurance coverage for contraceptive services doesn’t place a ‘substantial burden’ on the rights of religious nonprofits, a federal appeals court ruled Wednesday.”

You can access today’s ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit at this link.

Meanwhile, in related coverage, AL.com reported last week that “EWTN argues in 11th Circuit Court against Obamacare contraception mandate.”

“Federal judges are not infallible; Don’t upend marriage, the most hallowed institution in human history”: Chief Justice Roy S. Moore of the Supreme Court of Alabama has this op-ed online at The Montgomery Advertiser.

And the newspaper has also published its own editorial headlined “Moore’s tactics make him Wallace of today.”

“Fuller case may be costly for taxpayers”: This editorial appears online today at The Montgomery (Ala.) Advertiser.

Access online the contents of the February 2015 issue of the Harvard Law Review: Via this link.

From page four of the Reed Smith LLP appellate group‘s public comment in opposition to the FRAP briefing word limit reduction proposal: Here’s one more reason to oppose the FRAP briefing word limit reduction proposal:

[T]his word reduction proposal threatens the primary tool left to parties in the system to advocate their case. Over the past decade, the Courts of Appeals have reduced opportunities for oral argument and have emphasized the importance of briefing. Now, the Advisory Committee’s proposal threatens to reduce the limit on words in this “most important” aspect of the appellate process. For the litigants in the system, these steps affect the appearance of how appellate justice is delivered.

For better or worse, means of non-verbal communication have rarely proved effective in winning appeals.

“The Chief Justice Has Never Been Pulled Over in His Life: Why John Roberts’ naivete matters to anyone who cares about policing.” Cristian Farias has this jurisprudence essay online today at Slate.

“‘Death Knell’ To Anti-Eruv Church-State Argument? 2nd Circuit’s ruling on Westhampton Beach ritual boundary likely to have wide-ranging effects.” This article appeared in The New York Jewish Week a little over one month ago reporting on a non-precedential ruling that the U.S. Court of Appeals for the Second Circuit issued in early January 2015.

Today, the Second Circuit reissued the decision as a precedential per curiam opinion.

Four new public comments have appeared online today opposing the FRAP briefing word limit reduction: You can access all of the comments that appear online thus far via this link.

In particular, I urge readers to consider the especially persuasive comment submitted by the Reed Smith LLP appellate group.

Another detailed comment, accompanied by supporting data, comes from the State Bar of Texas Appellate Section. Although everything’s bigger in Texas, it is nonetheless noteworthy that this group also opposes the word limit reduction.

The California Academy of Appellate Lawyers also opposes the word limit reduction, as does Steven M. Klepper

A reader anticipates perhaps the best (and no doubt most impractical) solution to overly long federal appellate briefs — a word limit individually customized to each appeal: A reader emails:

Thank you for your advocacy against the word count proposal. As a long-time appellate practitioner, I share your view that the word count reduction is misguided, and I wanted to pass on one more reason why I think that is so.

The real problem with it, in my view, is it will require the courts to engage in far more micro-managing of the briefing. Right now, most of us with appellate experience treat the 14,000 word count as a real upper limit; in the vast majority of appeals, there is no reason even to approach it, and even in the more complicated appeals we should make every effort to stay within 14,000 words before asking for extra room, a request that we understand will be entertained as a matter of grace rather than right.

If this proposal goes through, I’m positive the result will be that the courts will have to deal with many more motions for extra room, and that just makes things more complicated for everyone.

I agree with the sentiment animating the proposal — that most briefs do not require 14,000 words — but I don’t think it makes sense for the courts to take on the task of being the arbiters of which briefs do require that many words and which do not. I don’t think the courts want to begin developing a jurisprudence around which appeals require more than 12,500 words, but this proposal, if adopted, will set them down that path. Whatever judges think they may gain in efficiency by reducing brief size they will surely give back in motion practice.

On the other hand, couldn’t someone — be it a federal appellate judge or clerk’s office employee — spend 10 to 20 minutes per new appeal reviewing the opinion(s) appealed from and the trial court briefing and assign a customized word limit to each and every appeal? That is no doubt the best possible solution to any problem that currently exists with overly long appellate briefs. Why instead adopt a second-best approach that only serves to penalize those appellate advocates who often handle the most complex and important appeals?

“Justice Thomas on Signaling in SSM Cases”: Richard M. Re recently had this post at “PrawfsBlawg.”

“‘Fisher II’ reaches the Court”: Lyle Denniston has this post today at “SCOTUSblog.”

How did 14,000 words become the limit for principal federal appellate briefs? The FRAP advisory committee’s official note explaining the reason for the proposed amendment that would reduce the length of a principal appellate brief offers a single justification — that the current 14,000-word limit was adopted in error and that a 12,500-word limit was the limit that should have been adopted instead when the rules switched from a page-count limit to a word-count limit.

In a public comment posted online on September 11, 2014, Seventh Circuit Judge Frank H. Easterbrook explained that no mistake was made. Rather, according to Judge Easterbrook, a 14,000-word limit was purposefully adopted. Thus, if Judge Easterbrook is correct — and in my experience he usually is — the lone official explanation offered for changing the word limit is invalid.

But, sadly, a far more nefarious issue has arisen. We expect the discussion on rule changes to be transparent, meaning that the reasons for changing a rule — be they one or many — will be revealed. A reason, and perhaps the only real reason, for the proposal to reduce the maximum FRAP briefing word limit is that at least some (and perhaps many) federal appellate judges believe that the current 14,000-word limit produces unnecessarily long briefs. Unfortunately, because the advisory committee’s note fails to mention this reason, perhaps some potential commenters do not realize that this is the issue that really deserves everyone’s consideration and discussion.

Indeed, one very influential supporter of the word count reduction proposal, in his public comment, has already played the judicial trump card — namely, only appellate judges have the necessary perspective to decide whether a reduction in the size limit for federal appellate briefs is or is not a good idea. Many will no doubt recall that precisely this same argument — judges know best — was advanced by Ninth Circuit Judge Alex Kozinski and his followers in opposing the FRAP amendment allowing citation to unpublished, non-precedential federal appellate rulings. That argument did not carry the day then, and I trust that it will not carry the day now.

One thing that Judge Easterbrook’s comment has apparently spawned is the FRAP advisory committee’s preparation of more materials about the history of the adoption of the current 14,000-word limit than any sane person might wish to review. Nevertheless, if any readers do wish to review that additional background material, I have posted it online here and here.

More FRAP word count-related reader email: A reader emails:

As a long-time federal law clerk, I agree that further “word length” restrictions are mostly a solution in search of a problem.

If one side’s brief rambled on too long without telling me what I needed to know, I set it aside for the moment and let the opposing party’s brief educate me about the case.

Sort of a ‘free market” solution to the problem, which may be what Judge Easterbrook is advocating

Beware also of unintended consequences. For example, further restricting word counts may encourage solicitation of more “amicus” briefs, to develop matters not covered as fully in the briefs of the parties.

(To truly reduce useless reading, we could start by shortening some interminable judicial opinions. Oh wait…. every sentence and footnote in there is essential. I see, Your Honor.)

The comment from Seventh Circuit Judge Frank H. Easterbrook to which I assume my correspondent is referring can be accessed here.

“Judge Damon Keith’s legacy looms large”: The Detroit News has this report.

“How Obamacare Supporters Are Plotting To Win Over Anthony Kennedy”: Sahil Kapur of TPM DC has this report.