Tag Archive for: Scalia

Scalia’s and Garner’s New Book Suggests Principled Approach

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Readers of this blog may be surprised to know that I am a Scalia fan. Criminal defense lawyers who don’t like Jusice Scalia just don’t understand him yet. There is much to commend Jutice Scalia to a criminal defense attorney. He penned some of the most significant opinions in the last decade on the Confrontation Clause and criminal sentencing, if you are just judging him by results, which you shouldn’t do.

Results are not the reason to admire a judge (unless you are directly involved in a case and are on the winning side). In fact, you don’t have to agree with a judge’s philosophical approach to admire the judge. It is the fact that a judge has a principled approach to deciding cases that makes a judge great.

Lawyers who represent the accused on direct appeal and post-conviction and lawyers who regularly argue motions in trial courts are accustomed to judges with a philosophical-ish approach. And it isn’t textualism. It’s the approach that consists of finding a way to deny the motion or affirm the conviction because the defendant/appellant is a criminal defendant/appellant. It is the approach that looks to the State’s brief, in its 12 point Courier New glory with every other sentence in bold or italicized, to find a place to hang its hat.

So, Scalia’s and Garner’s book, which is written to encourage better judicial reasoning and decisionmaking, could be a welcome addition to the bookshelves of many judges.

Tony Mauro reviewed Reading Law: The Interpretation of Legal Texts at The National Law Journal. Mr. Mauro notes that the authors accuse judges of “loose and unprincipled decisionmaking that has tarnished the reputation of the judiciary.” And Mr. Mauro quotes a passage that seems to express the books’s central thesis:

The descent into social rancor over judicial decision is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning. … [o]ur legal system must regain a mooring that it has lost: a general agreed-on approach to the interpretation of legal texts.

Mr. Mauro notes that the book is “structured as a catalog of the canons of interpretation.” There are 57 of them in all. And the goal of it all is “to arrive at ‘one principled approach’ to interpretation through the analysis of a broad range of analytical methods.”

While many members of the public might see this book as a critique of “liberal” judicial activism or judicial legislation, it appears to be a broader critique of unprincipled judicial intrepretation of legal texts, no matter what motivates the abandonment of principle. Opinions on social issues, such as gay marriage or abortion, tend to make the news more than the daily grind of criminal cases. And it may be that the principled criminal law decision that leads to a bad factual result is the kind most likely to land on a newspaper’s front page. The 4th–6th Amendments of the Constitution die by a thousand tiny cuts. A principled approach to judging could save them.

And, with any luck, judicial readers of this new book will be just as textualist in their appraoch to the reading of transcripts, which could be the topic of another book. The abandonment of inconvenient facts in the record is every bit as big of a problem as the abandonment of the text of the law.

Adam Liptak has also reviewed the book, with an emphasis on how it might predict the outcome of the healthcare case.

Scalia/Garner’s book will hopefully cause judges to think about how they do the job of judging. Some of my favorite judges are the ones who rule on principle, even if in following that principle, they rule against me.

Great Day for 4th Amendment With Unexpected Heroes

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Yesterday, was was the best day the Fourth Amendment has had in a decade. And, while Libertarians might not be surprised who the two heroes were, others might be taken aback. In one Fourth Amendment story, the hero was Associate Justice Antonin Scalia. And in the other, the hero was tea party Junior Kentucky Senator Rand Paul. In the first story, the heroism came in the upholding of the Fourth Amendment. In the second, the heroism came in its violation. Let’s start with the story of upholding.

In an opinion authored by Justice Scalia, the United States Supreme Court unanimously held that the government must get a warrant before placing a GPS tracking device on a person’s vehicle. In reaching this conclusion, the Court held that placement of a tracking device constitutes a search. Adam Liptak, of the New York Times summarized the opinion and noted that the divided rationale for the conclusion may raise as many questions as it answers. Writing the majority opinion, Justice Scalia reasoend that “the government physically occupied private property for the purpose of obtaining information.” Others have noted that the majority’s decision to base the opinion on concepts of trespass leaves unanswered more pressing questions about expectations of privacy in the digital realm. Still, this opinion is victory for supporters of the Fourth Amendment. And it is easy for a defense attorney fighting it out in the trenches to wonder if the Fourth Amendment has been abandoned.

Also in the news yesterday was a story of Kentucky Senator Rand Paul’s run-in with TSA at an airport in Nashville. Sen. Paul set off a body scanner, with an alert to the knee area. TSA protocal calls for a frisk in this event, which the Senator refused and requested to go back through. TSA ordered him into a cubicle. When he then used his cell phone to call staffers to report that he would not make it to an event in Washington, he was told that he would be subjected to an even more intense screening. Talk about picking on the wrong guy. Writer Jerry Pournelle notes that TSA’s action violated more than the Fourth Amendment. It actually is a violation of Article I, Section 6 of the United States Constitution to arrest or detain for questioning a US Senator in his travels to attendance in a session.

The third unlikely hero in yesterday’s Fourth Amendment story was Fox News with its 6-minute interview of Senator Paul. Well worth a watch. Sen. Paul was told off the record by TSA officials that the machine is set up to randomly alert on people. So, the mandatory detention (TSA said it wasn’t a detention. Defense attorneys will recognize law enforcement’s attempts to make something not a detention simply by giving it a different label) and pat-down was required. And it was unacceptable to send him back through.

And for every story with a hero, there must also be a villain. Here, it is actually the Obama White House, that issued a statement yesterday in support of the TSA. In fact, in supporting the TSA, the White House referred to Senator Paul as “the passenger.”

I’ve been a long-time Democrat. I’ve been willing to put up with their social programs because I’ve long thought that Democrats were the best hope for my civil libertarian views and for why I do my job everyday. It was certainly a good place for my hopes during the recent Bush administration. Ron Paul’s success in this primary season, Scalia’s stance on the Fourth Amendment, Rand Paul’s stand yesterday, and Fox New’s attention to the matter, is beginning to sway me. Republicans seem to be shifting to a consistent policy on small government in their opposition to large social programs and in their opposition to the ascendancy of a government police state. Where might my vote go in November?

 

Interview with Ross Guberman, Author of Point Made: How to Write Like the Nation’s Top Advocates

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There’s a new book on my shelf. I’ve placed it right next to McFadden’s book on Georgia Appellate Practice, Aldisert’s Winning on Appeal, and Butterick’s Typography for Lawyers. That book is Ross Guberman’s Point Made: How to Write Like the Nation’s Top Advocates. Unlike many books on the subject, this one takes legal writing from the top appellate advocates and breaks their work down into techniques you can immediately begin applying to your legal writing.

I also found that many of the basic techniques also work well for oral presentations in court. Even better, this book is more affordable than most legal publications. You don’t have to go through West or Lexis. You can buy this one at Amazon for an affordable price. Ross Guberman was kind enough to let me interview him about his new book, which you will find below in a Q&A format.

And you will find below a basic overview of his book along with a couple of workflow tips for how to write excellent briefs even if you are a busy solo practitioner or a busy public defender. Even if you already have his book, you’ll find in this interview even more tips, including how to write excellent brief even if you have a huge caseload.

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