How Appealing



Tuesday, April 21, 2015

How to remedy a proposed procedural amendment grounded in a mistaken assumption? Just say “never mind” or try, try again. In proposing an amendment to the Federal Rules of Appellate Procedure that would reduce the maximum size of appellate briefs from 14,000 to 12,500 words, the Advisory Committee on Rules of Appellate Procedure has, perhaps unintentionally, unleashed a maelstrom.

The lone justification for this rule change is found in the committee note to the change:

When Rule 32(a)(7)(B)’s type-volume limits for briefs were adopted in 1998, the word limits were based on an estimate of 280 words per page. The basis for the estimate of 280 words per page is unknown, and the 1998 rules superseded at least one local circuit rule that used an estimate of 250 words per page based on a study of appellate briefs. The committee believes that the 1998 amendments inadvertently increased the length limits for briefs. Rule 32(a)(7)(B) is amended to reduce the word limits accordingly.

In September 2014, Seventh Circuit Judge Frank H. Easterbrook filed a public comment addressing the word count reduction. Judge Easterbrook’s comment eviscerates the advisory committee’s justification for reducing the maximum allowable size of federal appellate briefs. According to Judge Easterbrook, no mistaken assumptions contributed to the choice of 14,000-word limit. Rather, that limit was selected knowingly and intentionally, in part to avoid precipitating the influx of word-count extension motions that any reduction in the current limit would be certain to trigger.

For quite understandable reasons, judges have become so familiar with trying to discern the intent of the drafter using the words of a provision and any formal legislative history that no one apparently realized that the answer to the mystery of “why 14,000 words?” could be obtained simply by asking the people involved in that process in the late 1990s. Most importantly, in my view, seven months have now passed since Judge Easterbrook posted his public comment on the rule change, and between then and now no one has come forth to cast any doubt on Judge Easterbrook’s first-hand explanation for why 14,000 words was selected as the limit.

Consequently, we now seem to have a rule amendment that experienced appellate advocates vociferously and overwhelmingly oppose whose lone justification appears invalid.

At least, in theory, there could be other possible justifications. Perhaps appellate judges believe that unnecessarily long, horribly written appellate briefs are causing them to work so hard that they can’t decide cases correctly. Yet no one has empirically or even anecdotally studied that possible justification, and unnecessarily short appellate briefs can also cause judges to work harder than an adequately reasoned and supported brief would necessitate.

If the word limit reduction is to be justified now by some new rationale, that rationale should be the subject of appropriate reflection and empirical study by the appellate rules advisory committee. If this proposed amendment simply isn’t scrapped, although in my view it should be, the amendment should at least be removed from the current package of rule changes and referred for additional study to potentially produce a new, valid justification for shrinking the maximum allowable word limit for federal appellate briefs.

It’s never easy to admit to making a mistake, but in this instance the appellate rules advisory committee appears to have done just that, which should mean — instead of digging-in further — either saying “never mind” or sending this amendment back to the drawing board for additional study.

Posted at 11:04 PM by Howard Bashman



“Supreme Court Limits Drug-Sniffing Dog Use in Traffic Stops”: Adam Liptak will have this article in Wednesday’s edition of The New York Times.

Robert Barnes of The Washington Post reports that “Police can’t extend traffic stop to wait for sniffing dogs, justices say.”

Richard Wolf of USA Today has an article headlined “Justices: Drug search that delays traffic stop is unconstitutional.”

Jess Bravin of The Wall Street Journal reports that “Supreme Court Curbs Drug-Sniffing Dogs During Traffic Stops; Justices continue on path of strengthening constitutional protections against ‘unreasonable search and seizure.'” You can freely access the full text of the article via Google.

And Warren Richey of The Christian Science Monitor reports that “Supreme Court says police can’t prolong traffic stops to allow for a dog sniff.”

Posted at 7:46 PM by Howard Bashman



“Same-sex marriage opponents urge Supreme Court to go slow”: Mark Sherman of The Associated Press has this report.

Richard Wolf of USA Today reports that “Gay marriage controversy focuses on children.”

Cheryl Wetzstein of The Washington Times reports that “Gay marriage opponents, advocates to rally ahead of Supreme Court hearing.”

And online at The Huffington Post, law professor Douglas Kmiec has a blog entry titled “Hey Supreme Court, Get Out of the Marriage Cases.”

Posted at 7:36 PM by Howard Bashman



“Stephen Breyer’s New Book Will Confront Global Challenges”: Tony Mauro has this post today at “The BLT: The Blog of Legal Times.” You can freely access the full text of the post via Google News.

Posted at 6:08 PM by Howard Bashman



How one might attend a federal judicial rules committee’s meeting as a member of the general public to observe: Let’s say, hypothetically, that you are interested in a pending federal judicial rule change (perhaps you have possibly even written way more about it than anyone else, although thankfully plenty of other influential people agree with your position) and, through sheer happenstance, the advisory committee in charge of the proposed amendment will be holding a public meeting just a stone’s throw away from where you work and live to further consider the proposed amendment’s fate.

Fortunately, as noted here:

Committee meetings are open to the public, except when a committee — in open session and with a majority present — determines that it is in the public interest to have all or part of the meeting closed and states the reason.

Of course, knowing that the meeting will occur in Philadelphia, PA on a certain date provides a useful start, but Philadelphia is a big place. The Federal Register helps narrow it down from potentially anywhere within the fifth largest city in the United States to a single building located in that city. However, that building contains 26 floors and numerous meeting rooms, courtrooms, and offices.

The Federal Register also provides a contact phone number in Washington, DC. And the person who answers the phone at that number is more than happy to tell you where in the building in question the meeting will occur. After a few more phone calls in which the person who answered the phone will helpfully seek to correct the original location provided with the nearly correct actual location, you will receive the phone number of a person on the scene in the building in question located in Philadelphia who will not only provide the actual correct location of the meeting, but who will also offer to ensure that an extra seat is present in the room now that an observer is expected to attend. A day or so later the person in Washington, DC will call again to ask with whom you are affiliated, so that “the records” can reflect that. And either the helpful person in Washington, DC or the helpful person on location in Philadelphia will point out that if you arrive before the meeting’s already very early start time of 8:30 a.m., a continental breakfast will be provided, in which even a public observer is apparently welcome to partake.

And that’s at least one person’s version of how one might attend a federal judicial rules committee’s meeting as a member of the general public to observe.

Posted at 5:55 PM by Howard Bashman



“Inside the Connecticut Supreme Court”: You can view the video from this past Sunday’s broadcast of “Face the State” from Eyewitness News 3 in Hartford, Connecticut via this link.

Posted at 3:16 PM by Howard Bashman



“Too-Long Brief Dooms Banking Patent Appeal At Fed. Circ.” Kat Greene of Law360.com has an article (subscription required for full access) that begins, “A trick straight out of high school English class cost Pi-Net International Inc. its bid to save three patents in its suit against JPMorgan Chase & Co. over online banking applications when the Federal Circuit dismissed its appeal Monday because a brief was too long.”

According to yesterday’s order of a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, “Appellants attempted in their first corrected brief to create ‘words’ by squeezing various words together and deleting the spaces that should appear between the words.”

Let this be a lesson to readers in the unlikely event that the Federal Rules of Appellate Procedure are amended to reduce the maximum size of appellate briefs from 14,000 words to 12,500 words — you can’t defeat the word count limit by turning four words into.only.one.word.

The next step in the FRAP amendment process takes place in Philadelphia two days from today, and I will be attending that meeting of the Advisory Committee on Rules of Appellate Procedure so that I can report first-hand to this blog’s readers on what transpires.

Posted at 1:52 PM by Howard Bashman



“High court limits drug-sniffing dog searches during traffic stops”: David G. Savage of The Los Angeles Times has this report.

Lawrence Hurley of Reuters reports that “U.S. top court curbs police drug-sniffing dogs in routine traffic stops.”

Greg Stohr of Bloomberg News reports that “Police Can’t Extend Stop for Dog Sniff, U.S. Supreme Court Says.”

Lori Pilger of The Lincoln Journal Star reports that “U.S. high court says police can’t extend stop for dog sniff in Nebraska case.”

Josh Gerstein of Politico.com has a blog post titled “SCOTUS: Police can’t extend traffic stop for dog sniff.”

The Hill has a report headlined “Supreme Court: Cops can’t hold suspects to wait for drug-sniffing dog.”

Chris Geidner of BuzzFeed News reports that “Supreme Court Limits Police Dog Sniffs After Traffic Stops.”

And Courhouse News Service reports that “High Court Divided on Delayed K-9 Search.”

Posted at 1:22 PM by Howard Bashman



“Loretta Lynch Confirmation Block Lifts as Senators Agree on Sex Trafficking Bill”: Jennifer Steinhauer and Emmarie Huetteman of The New York Times have this news update.

Posted at 1:08 PM by Howard Bashman



Access online today’s rulings of the U.S. Supreme Court in argued cases: The Court today issued rulings in two argued cases.

1. Justice Stephen G. Breyer delivered the opinion of the Court in Oneok, Inc. v. Learjet, Inc., No. 13-271. Justice Clarence Thomas issued an opinion concurring in part and concurring in the judgment. And Justice Antonin Scalia issued a dissenting opinion, in which Chief Justice John G. Roberts, Jr. joined. You can access the oral argument via this link.

2. And Justice Ruth Bader Ginsburg delivered the opinion of the Court in Rodriguez v. United States, No. 13-9972. Justice Anthony M. Kennedy issued a dissenting opinion. Justice Clarence Thomas issued a dissenting opinion, in which Justice Samuel A. Alito, Jr. joined in full and Justice Kennedy joined in part. And Justice Alito issued a dissenting opinion. You can access the oral argument via this link.

In early news coverage, The Associated Press has reports headlined “Justices: Police can’t extend traffic stop awaiting drug dog” and “High court: Energy companies must face price fixing claims.”

And Lawrence Hurley of Reuters reports that “Supreme Court says antitrust claims over natural gas prices can proceed.”

Posted at 10:05 AM by Howard Bashman



“Court: San Juan Capistrano’s tiered water rates are illegal, may hinder conservation.” The Orange County Register has this report.

Bob Egelko of The San Francisco Chronicle reports that “Appeals court rejects higher water rates for big users.”

The San Diego Union-Tribune reports that “Water rate scheme struck down; Orange County case could have statewide impact amid drought.”

The Los Angeles Times reports that “Appeals court throws out San Juan Capistrano’s tiered water-use rates.”

The Sacramento Bee reports that “Brown calls tiered-water ruling ‘a straitjacket’ for conservation efforts.”

And The Associated Press reports that “California court ruling could limit drought fighting tools.”

You can access yesterday’s ruling of the California Court of Appeal for the Fourth Appellate District, Division Three, at this link. Justice William W. Bedsworth wrote the opinion of the court on behalf of a unanimous three-judge panel.

Posted at 9:44 AM by Howard Bashman



“Updates in Judge Mark Fuller ‘Wife Beating’ Case: Criminal charges dismissed as expected; More testimony heard by 11th Circuit panel; Senate seeks update; Calls for impeachment persist.” Brad Friedman had this post last night at “The Brad Blog.”

Posted at 9:23 AM by Howard Bashman



“Meet The Couples Fighting To Make Marriage Equality The Law Of The Land”: Amanda Terkel, Kate Abbey-Lambertz, and Christine Conetta of The Huffington Post have this report.

Posted at 9:20 AM by Howard Bashman



“Justices Hear Second Round of Arguments on Case Hinging on Phrase’s Meaning”: Adam Liptak has this article in today’s edition of The New York Times.

David G. Savage of The Los Angeles Times reports that “Supreme Court may reconsider what is ‘violent felony’ in ’80s-era law.”

Richard Wolf of USA Today reports that “Justices may declare criminal law ‘unconstitutionally vague.’

Jess Bravin of The Wall Street Journal reports that “Supreme Court Scrutinizes Armed Career Criminal Act; Justices to decide if 1980s-era law triggers excessive sentences.”

And Lawrence Hurley of Reuters reports that “Justices weigh white supremacist’s challenge to sentencing law.”

Posted at 9:14 AM by Howard Bashman



“Meet The ‘Accidental Activists’ Of The Supreme Court’s Same-Sex-Marriage Case”: Nina Totenberg had this audio segment on yesterday evening’s broadcast of NPR’s “All Things Considered.”

Posted at 7:52 AM by Howard Bashman



“At Supreme Court, Holder’s Justice Dept. Routinely Backs Officers’ Use of Force”: Matt Apuzzo and Adam Liptak will have this article in Wednesday’s edition of The New York Times.

Posted at 7:50 AM by Howard Bashman