Tuesday's news and notes

1.  Bryan Garner has a list of words you should not use in legal writing.  Here are a few from the article:

and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a "freakish fad" and an "accuracy-destroying symbol." The New Mexico Supreme Court declared it a "meaningless symbol." The Wisconsin Supreme Court denounced it as "that befuddling, nameless thing, that Janus-faced verbal monstrosity." More recently, the Supreme Court of Kentucky called it a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."
If a sign says "No food or drink allowed," nobody would argue that it's OK to have both. (Or includes and.) And if a sign says "No admission for lawyers and law students," would you argue that either could go in alone? You'd be thrown out of court.
The real problem with and/or is that it plays into the hands of a bad-faith reader. Which one is favorable? And or or? The bad-faith reader can pick whatever reading seems favorable.
I've done lots of drafting since 1987, the year when I learned how unnecessary and/or really is. I've drafted court rules, jury instructions, model contracts, car warranties and many other documents. Never once have I needed and/or. You won't either. Kill it.
herein Old-style drafters say they stick to their ways for reasons of precision. They like the here and there words—apparently unaware of the ambiguities they're creating. The problem with herein is that courts can't agree on what it means. In this agreement? In this section? In this subsection? In this paragraph? In this subparagraph? Courts have reached all those conclusions and more. Use ordinary English words: in this agreement may be two extra words, but it's more precise.

2.   The Supreme Court isn't going to change its access policies (big surprise).  From Tony Mauro:

The U.S. Supreme Court has “no plans to change” its practices on access to its proceedings, a court spokeswoman said in a letter on March 21. Court public information officer Kathy Arberg was responding to a March 9 letter from the Coalition for Court Transparency, a new group of media and public interest organizations pressing for “policies that will help the public better understand [the court’s] important work.” Addressed to Chief Justice John Roberts Jr., the coalition letter urged the court to allow camera broadcast of court proceedings or, as an “intermediate step,” same-day release of the audio of oral arguments. Under current practice, the audio of oral arguments is released on the Friday of the week in which they occur—too late to be useful in same-day or next-day news coverage. Arberg’s letter notes that “the audio recordings of all oral arguments are available free to the public on the Court’s website, wwww.supremecourt.gov, at the end of each argument week. The written transcripts of oral argument are available on the Court’s website on the same day an argument is heard. There are no plans to change the Court's current practices.” The letter was addressed to Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, a leader of the coalition. Brown said on Monday, "I am appreciative that the Supreme Court responded to our coalition’s letter. I do believe that the smallest of changes to the court’s institutional practices would increase the public’s understanding of and appreciation for the court’s work. I hope that this marks the beginning of a dialogue between the court and those of us who care deeply about press freedom and increasing transparency at our most important judicial institution.” The statement from the court came the same day that a forum on the subject of transparency at the Supreme Court took place in Washington. Co-sponsored by the coalition, New York University and the Reporters Committee, the discussion was the second in a series that went beyond issues of broadcast access to look at ways the court could respond to Information Age demands for greater openness from government. Concerns ranged from the justices’ failure to explain their recusals, to the secrecy that sometime surrounds their public appearances and speeches. Georgia State University College of Law professor Eric Segall objected to the court’s practice of not revealing which justices voted for or against granting review of incoming petitions. “That is an incredibly important vote, and there is simply no reason why we shouldn’t know it,” he said.

3.  P.J. O'Rourke has filed a great and funny brief in the Supremes (access it here).  The NY Times covers it:

That is the point Mr. O’Rourke and the libertarian Cato Institute made in their cheeky, hilarious and quite possibly counterproductive brief. They said they were “unsure how true the allegation is given that the health care law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.”

Truthiness, the brief explained, is a characteristic of a statement made “from the gut” or because it “feels right” but “without regard to evidence or logic.” The reference to “calling a mandate a tax” is, of course, a nod to Chief Justice John G. Roberts Jr.’s 2012 opinion upholding a central part of the Affordable Care Act.The guidebook for Supreme Court lawyers does not address whether it is a bad idea to mock the chief justice of the United States as you seek his vote, but that does seem to be the consensus view.The actual legal question before the justices is, as is so often the case at the court, a preliminary one. Here it is whether the anti-abortion group is entitled to sue at all. On the one hand, the Ohio Elections Commission said there was probable cause to think the group had violated the law. On the other, the matter fizzled out after Mr. Driehaus lost the election.

The federal appeals court in Cincinnati dismissed the suit, saying the group no longer had anything to worry about. In earlier decisions, courts have upheld the law.But that was before United States v. Alvarez, a Supreme Court decision issued the same day as the health care ruling. It struck down a federal law that made it a crime to lie about receiving military decorations, and it cast doubt over the constitutionality of the Ohio law and similar ones in 15 other states. Mr. O’Rourke connected the dots on the first page of his brief, assuring the justices that he, his lawyers, his family members and his pets “have all won the Congressional Medal of Honor.”

Hobby Lobby case heard today, during Spring Break

While most of Miami is skiing in Colorado, the High Court is hearing an important case. From the LA Times:

 A challenge to part of President Obama's healthcare law that hits the Supreme Court on Tuesday could lead to one of the most significant religious freedom rulings in the high court's history.Four years ago, in their controversial Citizens United decision, the justices ruled that corporations had full free-speech rights in election campaigns. Now, they're being asked to decide whether for-profit companies are entitled to religious liberties.At issue in Tuesday's oral argument before the court is a regulation under the Affordable Care Act that requires employers to provide workers a health plan that covers the full range of contraceptives, including morning-after pills and intrauterine devices, or IUDs.The evangelical Christian family that controls Hobby Lobby Stores Inc., a chain of more than 500 arts and crafts outlets with 13,000 workers, says the requirement violates its religious beliefs.Some contraceptives can "end human life after conception," the Green family says. Forcing the owners to pay for such devices would make them "complicit in abortion," their lawyers say.A ruling in their favor could have an effect on tens of thousands of women whose employers share the Greens' objections to some or all contraceptives.But the case could also sweep far beyond just this one provision of Obamacare. The justices have been wary of accepting claims that religious beliefs can exempt people — or companies — from following laws that apply to everyone. The court's previous religious freedom cases usually involved narrowly focused claims from religious minorities, such as the Amish or Seventh-day Adventists.But the current court, led by Chief Justice John G. Roberts Jr., has shown a greater interest in religious freedom claims. And because the objections to the contraceptive mandate come from Catholic bishops and evangelical Christians, not small or obscure sects, the potential effect has been magnified. The Obama administration argues that if the justices allow Hobby Lobby to refuse to pay for contraceptives because of its owners' religious beliefs, the way would open for religious objections to a broad array of laws. Companies potentially could shape the benefits they offer, and perhaps even their hiring, based on their religious convictions.

Meantime, Justice Scalia is answering questions about the NSA (from Business Insider):

Supreme Court Justice Antonin Scalia got an incredibly astute question from a law student Friday night that could have huge implications for the NSA's domestic surveillance programs.The question came during a spirited Q&A curated by Brooklyn Law School's Judge Andrew Napolitano, who asked Scalia about the controversial subject of the NSA's surveillance of Americans.Scalia made it clear the issue would likely come before the high court, and he hinted he would rule that "conversations" (i.e., the conversations the government might listen to) aren't protected by the Fourth Amendment. The Fourth Amendment, Scalia pointed out, prohibits the government from searching your "persons, houses, papers, and effects" without a warrant — not "conversations."However, one student asked the justice whether data in a computer might be considered "effects" under the Fourth Amendment, an interpretation that would prohibit the NSA's capture of communications over the Internet.Scalia, who's remarkably avuncular in person, was visibly pleased by the question but said he "better not answer that.""That is something that may well come up [before the Supreme Court]," Scalia added.

Read more: http://www.businessinsider.com/justice-scalia-talks-fourth-amendment-at-bam-2014-3#ixzz2wt19p7IH

"[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute -- the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud."

That's from the dissent of a criminal case in the 7th Circuit, which voted to uphold the criminal conviction.  Weird.  Here's the entire opinion.




Lots of people are clamoring for Ruth Bader Ginsburg to retire while Obama is in office.  Slate's Dahlia Lithwick thinks they are nuts:

Arguments about Ginsburg’s political judgment almost by necessity inflect upon her judgment as a whole, and yet nobody has advanced any argument for the proposition that Ginsburg’s judgment is failing. The suggestion that the woman who engineered the ACLU’s litigation strategy in the courts, who wrote the partial dissent in the health care cases, and again in last year’s voting rights case, and in Vance v. Ball and UT Southwestern Medical Center v. Nassar, doesn’t understand real-world politics is actually pretty bizarre. Of all the sitting justices, Ginsburg is probably the least likely to simply forget to retire because it slipped her mind. (One can, on the other hand, plausibly imagine Breyer simply forgetting to step down.)

Over at the Atlantic, professor Garrett Epps has just written in defense of Ginsburg. You should read the whole piece, but two important points he makes are worth repeating: Ginsburg plays a crucially important role in the Roberts Court as the senior justice on the liberal bloc, not just in terms of assigning opinions but in terms of writing them. If anything, Ginsburg has been stronger in recent years than ever and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action, and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensible. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate. That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important that the justice herself. Ginsburg, like Antonin Scalia, is writing those dissents for law students, for the case books, and for Congress. Not all justices are created equal in that regard.

Epps’ other point is that knowing when you’ve stayed at the court too long is a complex and deeply personal inquiry, and that many of the justices who overstayed their time were blind to their own illnesses and failings. Others left before they should have. But of all the justices now at the court, Ginsburg strikes me as the least isolated, the least self-involved, and the least likely to surround herself with sycophants telling her to stay on. Ginsburg is not a Justice who reads no newspapers, vacations alone, or hides out from the world. Her travel and speaking schedule is punishing. She is as deeply connected to the world around her as she has always been.

OK people, have a wonderful spring break.

Great event for trial lawyers

The local Federal Bar Association has a great event this Monday for trial lawyers.

Kerri Ruttenberg of Jones Day will be speaking on how to create and use demonstratives. It's worth your time. From the FBA website:

Cutting-Edge Trial Techniques: Effective Use of Technology and Design of Visuals- March 24, 2014, 11:45am at Holland and Knight

The Women's Iniative proudly presents "Cutting-Edge Trial Techniques: Effective Use of Technology and Design of Visuals" featuring Kerri Ruttenberg, a Partner at Jones Day in Washington D.C. Based on her 15 years of trial experience, including working with graphic designers and interviewing jurors, Kerri is nartionally renown for her CLE programs on the effective use of graphics and visual presentations in the courtroom. Space is limited!

Justice Kagan says be happy!

From the AP:

Supreme Court Justice Elena Kagan says the happiest lawyers are those who find a way to make a difference in other people's lives.

The high court's youngest justice says the feeling of making a difference in the world is what makes people enjoy going to work every day.

Kagan spoke Monday to graduating students at Georgetown University Law Center.

Kagan said she was inspired by working as a law clerk for Justice Thurgood Marshall, who convinced her that a meaningful career for lawyers meant making a difference "in something bigger than themselves." She said she loved being a lawyer because of the intellectual puzzles it presents and the fact that people can use the law to help others.

According to the feds, maybe the former Hialeah Mayor took this a bit too far (via the Herald):

Former Hialeah Mayor Julio Robaina had a reason he wanted to be paid in cash secretly on a high-interest loan to a convicted Ponzi schemer: He was spending the money on his mistress and needed to keep it secret from his wife, according to federal prosecutors.

Prosecutors claim that Robaina was paid more than $300,000 in cash by his close friend, Luis Felipe Perez, now in prison after pleading guilty to running a $45 million jewelry-investment scam. But in court papers, the prosecutors don’t identify the alleged mistress on whom Robaina spent the cash payments.

The new evidence — hidden from public view since last month because of a federal court order —surfaced in the criminal tax-evasion case against Robaina and his wife, Raiza, on Monday, after a magistrate judge granted the Miami Herald’s request to unseal certain documents.

“The government expects its evidence to show that the cash interest payments were delivered to defendant Julio Robaina, rather than defendant Raiza Robaina,” prosecutors wrote in a previously sealed February filing.

Federal Clerk charged in Dewey & LeBoeuf scandal

The New York Times has this very interesting (and sad) article here:

How did a 29-year-old with an impeccable record, someone who had never even taken an accounting course, end up as an accused mastermind of what the Manhattan district attorney, Cyrus Vance Jr., called “a massive effort to cook the books” of the once-giant law firm? And how did he get there without realizing he should hire a lawyer?

According to several criminal defense lawyers I spoke to this week, Mr. Warren became caught up in an increasingly common prosecutorial tactic. Mr. Warren may have been naïve, but he thought he was being questioned as part of a civil Securities and Exchange Commission investigation. He thought he might be a witness, and thus did not need a lawyer. Only too late did it dawn on him that he might be a target of a criminal investigation. The defense lawyers said prosecutors were increasingly using so-called parallel investigations to insert criminal investigators into what their targets thought were civil proceedings.

“It’s a serious threat to civil liberties, and people should know about it,” said Thomas J. Curran, a criminal defense lawyer in New York and a former prosecutor under the former Manhattan district attorney Robert Morgenthau. “Now, this is going on all over the country.” While this isn’t illegal or technically improper, “It’s dangerous,” Mr. Curran said. “They’re using civil proceedings to advance their criminal investigations. It’s a real threat to the cherished right to counsel.”

Judge Carnes wrote this money laundering guideline opinion, which has the following intro:

An application note to the guideline that governs the calculation of the offense level for money laundering instructs courts to consider only the money laundering offense itself and not the underlying crime that generated the money that was laundered. See United States Sentencing Guidelines § 2S1.1 cmt. n.2(C) (2013).1 In this case the district court in calculating the guidelines range mistakenly considered the defendant’s role in the drug conspiracy that generated the dirty money. As a result, the defendant received a higher adjusted offense level and guidelines range than he might have received if the application note to § 2S1.1 had been followed. That mistake and the resulting miscalculation must be laundered out of the sentence in a resentence proceeding.

Oh, and Happy St. Patrick's day:

Happy Pi Day!

Judge Posner is cranky.  From Alison Frankels' blog:

The acerbic judge was at his worst – or best, depending on your perspective – in an opinion Wednesday that’s already become an instant classic. Posner mocked the brief filed by a car crash victim and her lawyer, who were found in civil contempt for failing to deposit $180,000 in a trust account while they fight over the money with a union healthcare fund, as “a gaunt, pathetic document” with a grand total of 118 words of argument (including citations). He said the conduct of the crash victim and her lawyer was “egregious” and “outrageous,” and directed the trial judge presiding over their dispute with the union fund to consider throwing them in jail for contempt until they’ve come up with the $180,000. Posner suggested that the Justice Department might also be interested in the case, and then, to boot, scolded the trial judge, U.S. District Judge Joan Lefkow of Chicago, for permitting the case to drag on as “the stench rose.”

Judge Huck visits the 9th Circuit

The Recorder covers the story here (ht Vanessa Blum):

A San Diego lawyer's claim that virtual auctioneer eBay breaches its contract with millions of sellers ran into a marble wall Wednesday in a Ninth Circuit courtroom.
Roy Katriel is trying to bring a class action against eBay Inc. on the ground that the company helps bidders obtain the lowest sale price possible, despite promising in its user agreement to remain neutral in all transactions.
"What they put in the agreement is very specific. They said, 'We are not involved in the actual transaction,'" Katriel told the court Wednesday. "Now it turns out they are."
Under eBay's process, bidders enter the maximum they're prepared to bid. The company's software then discloses only so much as necessary to beat the previous high bid. So if a user authorizes a $50 bid, and the previous high bid is only $40, the user gets the item for $41. That shortchanges sellers, Katriel alleges in Block v. eBay.
There's one glaring problem with his argument. "Doesn't everybody who enters a bid on eBay understand what the system is?" Judge Stephen Reinhardt asked.
***
The third member of the panel, visiting U.S. District Judge Paul Huck of Florida, sounded even more skeptical than Reinhardt and Farris. He compared eBay to a mediation neutral that simply shuttles offers back and forth between parties, with "no dog in the fight."
But, Katriel argued, if a party told the mediator, "I'll pay up to $80, but try to get it for me for less ... he'd be working on your behalf."
Cooley partner John Dwyer, representing eBay, had a far easier time. In fact, he faced zero questions during his 10-minute argument. He said eBay's user agreement "strongly recommends" that users also read about the automatic bidding process, which can be accessed via a drop-down menu. "He never alleges they were misled about how the automatic bidding system works," Dwyer said.
The statement about staying out of the bidding process is only a limitation of liability that makes clear eBay isn't acting as a fiduciary like some traditional auction houses, he said. "What it's saying is, 'Hey, if you think you're with Christie's or Sotheby's, you're not.'"