Showing papers on "Plurality opinion published in 2015"

Opinion Writing in the Federal District Courts

Abstract: American trial court judges’ roles and behavior vary greatly from their appellate court brethren. One such area of difference has to do with opinion writing behavior, an area where trial judges hold a great deal of discretion in determining whether to write an opinion and, if they do, how long the opinion should be. To examine what factors determine opinion writing behavior among district court judges, this study relies on analyses of an original dataset of civil cases that terminated in eighteen federal district courts from 2000 to 2006. The results indicate that legal, hierarchical, and institutional features are critical in motivating opinion writing and opinion length and that personal factors have very limited effects. The fruits of this exercise have important implications for how we view and model the behavior of trial court judges in the future.

An Elastic Amendment: Justice Stephen G. Breyer's Fluid Conceptions of Freedom of Speech

Abstract: III. CONNECTING THE DOTS: DISCERNING TRENDS AND PATTERNS WITHIN JUSTICE BREYER'S FREEDOM OF SPEECH JURISPRUDENCE The preceding section reviewed some of the most challenging, controversial, and divisive freedom of speech disputes to come before the Court during Justice Breyer's tenure on the bench. While it is impossible to gain a perfect picture of any jurist's jurisprudence within twenty-seven cases, the decisions examined here provide at least a representative sampling of Breyer's voting and writing within this area of the law. This article now moves to a discussion of Breyer's noticeable trends, patterns, and inclinations within these cases, and an evaluation of the significance of these tendencies in the Court's freedom of speech picture as a whole. A. Overall Record In the cases examined here, Breyer voted fourteen times in favor of upholding the government's stated interests in restricting speech. (629) He voted twelve times in favor of upholding the speech at issue over the government's asserted interests in stopping that speech. (630) Lastly, he voted once to not address the speech issue at all, but rather to decide the case on grounds that did not require a judgment on the speech interests versus regulatory interests debate. (631) Of his fourteen votes in which Breyer determined that the regulatory interests outweighed the speech interests in the case at hand, seven of those votes sided with the dissenters in that decision. (632) Four of those votes were concurring opinions. (633) Only three of those votes were with the majority or controlling plurality holding in the case. (634) Of his twelve votes upholding the speech interest over the purported regulatory interests, four were dissents. (635) Four were concurring opinions, (636) and four were with the majority or controlling plurality's opinion in the case. (637) For a justice whom some commentators deem to be clearly "liberal" and whom other commentators deem to be clearly "conservative," (638) this is a surprisingly even voting distribution as to the results in cases where freedom of speech is at issue. This demonstrates that Breyer is no absolutist when it comes to evaluating freedom of speech matters. Certain Supreme Court justices, such as Hugo Black and William O. Douglas, routinely stated that the first words of the First Amendment--"Congress shall make no law"--indeed restricted Congress from passing legislation limiting the freedoms guaranteed within this amendment, including the freedom of speech, in most circumstances. (639) Some scholars observe a similar trend toward absolutism regarding freedom of speech within the present-day Roberts Court. (640) Yet Breyer, based on this sampling, does not fall into this category, although the fact that half of his "pro-restriction" votes studied here were dissents indicates that some of his fellow justices do indeed take a far more absolutist stance regarding protecting the freedoms of speech and expression. (641) On the other hand, Breyer frequently found situations in which, in his estimation, individual liberties outweighed the government's interests in restricting speech. Therefore, a more nuanced discussion of when Breyer determined that freedom of speech rights outweighed governmental interests is necessary to fully understand this justice's jurisprudence. B. An Outspoken Voice on Free Speech Breyer authored a signed opinion in twenty-two of the twenty-seven cases studied in this article. (642) Eleven of these signed opinions were dissents. (643) Eight were concurring opinions. (644) Only three represented the majority or controlling plurality opinion of the Court. (645) From these numbers, one can reasonably infer that freedom of speech is a topic that Breyer finds particularly important. Assuming that a justice will generally author a signed opinion--particularly a dissent or a concurring opinion--only on those issues about which he or she feels particularly fervent, the fact that Breyer wrote signed opinions in all but five of these twenty-seven cases demonstrates that this is an area in which he holds especially strong views. …

Silent Acquiescence on the Supreme Court

Abstract: The norm of silent acquiescence on the Supreme Court was thought to have been eviscerated in the twentieth century by certain institutional reforms and the rise of dissenting opinions. Given that silent acquiescence is difficult to observe, however, the extent to which this norm persists on the modern Court remains unclear. To overcome this observational difficulty, I analyze private memoranda exchanged by justices who served during the Burger Court. The empirical results suggest that silent acquiescence is a rare but regular occurrence on the modern Court, and is more likely to occur in comparatively unimportant cases. Notwithstanding institutional and personnel changes that limited silent acquiescence and precipitated an increase in dissenting opinions, it appears that the practice of go-along voting continued throughout the Burger Court. The results have implications for our understanding of separate opinion writing, judicial decision-making, and judicial legitimacy.

Effective Appellate Advocacy before the Federal Circuit: A Former Law Clerk's Perspective

Abstract: I first learned to appreciate the difference between effective and ineffective appellate advocacy while clerking for the Federal Circuit. In the hundreds of cases in which I read and analyzed briefs and observed oral argument during my year as a clerk, I saw lawyers who were well-prepared and effective and lawyers who were not. Indeed, I came to realize that the ineffective attorneys often made the same mistakes, (1) and that their mistakes would have been easy to remedy had the lawyers only realized they were making them. To that end, this article reviews some of the common mistakes that attorneys make before the Federal Circuit and provides some guidelines for appellate advocates who wish to avoid them. When possible, I make specific references to public statements of Federal Circuit judges that support these guidelines and practice tips. To the extent that it is relevant to effective appellate advocacy, this article provides background on the Federal Circuit's decisionmaking process, and it also provides concrete suggestions for briefing and oral argument. Some of this advice is unique to the Federal Circuit, but much of it will also be relevant to advocacy before any other court. I. THE FEDERAL CIRCUIT'S DECISIONMAKING PROCESS The Federal Circuit's internal operating procedures are available online, (2) and Chief Judge Markey outlined the court's inner workings years ago in a piece that is still useful today. (3) Any lawyer involved in a case before the Federal Circuit should consider consulting these two resources at the outset. Advocates should consider the following information a supplement to these important sources. After a Federal Circuit appeal is fully briefed, the clerk's office randomly assigns the case a three-judge panel and then distributes the briefs and other case materials to the panel about one month before the oral argument. (4) The judges read the briefs and review the record and relevant law (and have their clerks do the same) prior to the oral argument. (5) The Federal Circuit differs from some other circuits because it is the court's general policy to allow oral argument in many, if not most, of its cases. (6) Counsel typically have fifteen minutes per side in argued cases. The appellant goes first and is allowed to reserve some of that time for rebuttal. The judges, with their clerks' assistance, may prepare questions in advance of the oral argument, but some of the judges' questions may also be prompted by the statements made during the oral argument. After the oral argument, the judges hold a conference to vote on the outcome of the case (starting first with a "straw" vote) and whether to employ a precedential opinion, a nonprecedential opinion, or a judgment of affirmance without opinion under Rule 36. (7) The presiding judge then decides which judge is going to write the opinion. (8) The assigned judge writes the opinion, reviewing the briefs and sometimes the recording of the oral argument. (9) The clerks generally assist with some aspect of the preparation of the written decision. The judge then circulates the opinion to the other two members of the panel with a vote sheet, on which the other members of the panel can either agree with the opinion as written, make comments, or write further opinions. (10) After a precedential decision is approved by the panel, it circulates to the entire court for approximately two weeks, during which other judges can make comments, and then it is reviewed by the court's central legal staff for consistency with the court's body of law before it issues. (11) If the opinion is non-precedential, it circulates only to the panel before issuing. (12) A Rule 36 affirmance does not circulate to the rest of the court and generally issues within a few days of the oral argument. (13) II. THE BRIEFS I try to decide how I'm going to vote before I come into the courtroom. --Judge Michel (14) Without a strong appellate brief, it is going to be hard to win your case. …

Chapter 11 Bankruptcy and Cramdowns: Adopting a Contract Rate Approach

Abstract: -One of the key issues in many Chapter 11 bankruptcy proceedings is the determination of a proper interest rate that debtors must pay on secured claims existing at the time of a bankruptcy reorganization. For decades, the courts of appeals have debated the proper cramdown determination approach. In Till v. SCS Credit Corp., the Supreme Court addressed the issue in a Chapter 13 context and produced a plurality opinion endorsing a formula approach. However, there is not yet a consensus for Chapter 11 cases. This Comment argues for the adoption of a "contract rate" approach whereby courts will default to the prepetition contract rate of the secured claim. I believe this method adequately protects the creditor's lending expectations while also helping to limit the debtor-inpossession's evidentiary costs. Unlike the other approaches, the contract rate approach is more objective; courts will no longer have to consider evidential material to make a determination of the appropriate risk premiums or the existence of an "efficient market." More importantly, the contract rate approach will provide predictability and greater fairness by ensuring that similar cases are treated alike. Overall, the ease, simplicity, and fairness of the contract rate approach make it a better option.INTRODUCTIONBankruptcy law in the United States offers benefits to both debtors and creditors. Debtors are able to exit bankruptcy with a fresh start, while creditors generally get at least a portion of their money back.1 Ideally, bankruptcy provides a quick and orderly forum for debtors to pay creditors and resolve their debts. Yet, in reality, many bankruptcies are drawn into long and expensive litigation. One of the most frequently argued economic issues in bankruptcy court is the proper interest rate that debtors must pay on secured claims existing at the time of a bankruptcy reorganization.2 When the parties to the bankruptcy proceeding fail to settle upon an interest rate, the bankruptcy judge must determine and calculate an appropriate cramdown interest rate.Due to the tremendous financial impact a cramdown can have on all parties, cramdown interest rates have become "one of the most litigated, contentious and costly squabbles in the bankruptcy arena."3 The existence of cramdown interest rates stems from the bankruptcy court's "cramdown" power, which is the court's ability to confirm the reorganization plan proposed by a debtor-in-possession4 despite the objections of creditors.5 The judicial determination of this cramdown interest rate is often a decision that has significant financial ramifications both for the debtor-in-possession and for creditors.6 The cramdown interest rate may determine whether a reorganization plan is feasible, and it is certainly a key factor that secured creditors consider when deciding whether or not to accept a proposed reorganization plan. Yet, oddly enough, despite the large number of Chapter 11 bankruptcies each year7 and the need for predictability and certainty, bankruptcy courts continue to struggle with the proper determination of the cramdown interest rate a debtor-in-possession must pay on secured claims.For decades, the courts of appeals have debated the proper approach to determining cramdown rates.8 In Till v. SCS Credit Corp.,9 a 2004 case, the Supreme Court addressed the issue and produced a plurality opinion endorsing a formula approach.10 Yet because Till failed to produce a majority opinion and involved cramdown rates in the Chapter 13 context,11 the extent of its precedential value in Chapter 11 cases is limited. Ultimately, Till has leftpractitioners and courts with little guidance as to the proper method of determining Chapter 11 cramdown interest rates.12 Recent developments suggest several cramdown approaches are being applied to Chapter 11 cases, such as the efficient market and formula approaches; however, none yet commands a clear consensus.After reviewing the various methods for determining cramdown rates, this Comment argues for the adoption of a contract rate approach. …

The Riddle of Ruth Bryan Owen

Abstract: This Article recovers a lost chapter of constitutional history — the ill-fated challenge to Ruth Bryan Owen’s congressional eligibility. Owen was the brilliant (and American-born) daughter of famed politician William Jennings Bryan, and a pioneering figure in her own right. But the Expatriation Act of 1907 stripped Owen of her American citizenship when she took a British husband. Congress swiftly repealed this loathsome feature after the Nineteenth Amendment’s ratification. Yet Owen’s defeated opponent claimed that she hadn’t “been seven Years a Citizen of the United States” as the Constitution requires. Because Owen had been a naturalized citizen for only three years at the time of her 1928 election, the House faced an unenviable adjudicative dilemma: does “seven Years” mean the immediately preceding seven years, or any seven years cumulatively?Owen’s case demonstrates that the perceived clarity of even “mathematical” constitutional provisions can be shaped by purposive and pragmatic considerations extraneous to the text, considerations that often change in light of freshly received facts. This Article also presents powerful new evidence that women came to be seen as improper objects of state-sanctioned discrimination soon after the Nineteenth Amendment’s ratification. Owen’s triumph marks an important turning point in American women’s effort to achieve full constitutional equality. Because scholars have forgotten her story, they have overlooked crucial sources that might have helped provide a historically firmer basis for modern sex-discrimination doctrine. And as Owen’s case shows, historical practices repugnant to the modern constitutional order should never be accorded residual legal effect. This Article accordingly criticizes the Supreme Court’s plurality opinion in Kerry v. Din (2015) for citing the Expatriation Act to downplay an asserted liberty interest’s historical pedigree under the Due Process Clause.

Reading Amendments and Expansions of Title VII Narrowly

Abstract: INTRODUCTIONThroughout Title VII's history, Congress has amended and expanded Title VII. Often, the Supreme Court has read such amendments and expansions narrowly, even as it generally reads Title VII broadly or narrowly depending on the case before it. The Court's approach to Title VII expansions may merely indicate that the Court believes that such statutory alterations should be read only as broadly as necessary to effectuate their purposes. However, regardless of why the Court has interpreted these expansions narrowly, that the Court has done so suggests that Congress ought to consider carefully how it amends or expands Title VII in the future.This brief Essay examines how the Court has interpreted various amendments and expansions of Title VII and suggests that Congress will need to be very careful in how it expands Title VII to cover additional demographic characteristics and protect employees against all instances of discrimination Congress intends to ban. The Court's interpretations may have implications for the legislation like the proposed Employment Non-Discrimination Act ("ENDA"), which expands Title VII's coverage to sexual orientation and gender identity.1 Part I of this Essay discusses how the Court has interpreted Title VII's motivating factor test, which Congress installed as part of the Civil Rights Act of 1991 ("1991 Act").2 Part II discusses how the Court has interpreted Title VII's disparate impact cause of action, also part of the 1991 Act. Part III discusses how the Court has addressed the reasonable accommodation requirement in Title VII religion cases, which Congress installed through its 1972 Amendments to Title VII. Part IV discusses how the Court has interpreted pregnancy discrimination under the Pregnancy Discrimination Act of 1978,3 which amended Title VII.I. MOTIVATING FACTOR: READING PROOF STRUCTURES NARROWLYTitle VII prohibits discrimination by an employer against an individual "because of such individual's race, color, religion, sex, or national origin."4 However, when initially codified, Title VII did not specify how to prove that an employer had discriminated against an employee because of that employee's race, color, religion, sex, or national origin. Congress rectified that by adding the motivating factor test to Title VII through the 1991 Act.5 That test deems Title VII violated whenever an employer's decision is motivated in part by consideration of any factor deemed illegitimate under Title VII.6 However, rather than treat the motivating factor test as the causation test for all employment discrimination claims, the Supreme Court has treated the motivating factor test as a secondary and inferior way to prove causation.7 In the process, the Court has narrowed the effect of the motivating factor test and rejected its expansion outside of a narrow portion of Title VII.8A. Price Waterhouse v. Hopkins and the Motivating Factor TestCongress installed the motivating factor test in response to the Supreme Court's fractured decision in Price Waterhouse v. Hopkins.9 In that case, plaintiff Ann Hopkins was a senior manager who had been proposed for partnership at Price Waterhouse.10 Rather than being granted or rejected, Hopkins's partnership bid was held for reconsideration.11 The partners cited Hopkins's interpersonal skills as reasons for the hold.12 The trial court deemed those reasons legitimate and nondiscriminatory.13 However, other reasons also triggered the hold. Those reasons appeared to be based on discriminatory sex stereotyping.14 The Supreme Court had to determine how to analyze Title VII's causation clause when some motives for the employment action were legitimate and others were illegitimate.Price Waterhouse produced four opinions: a four-justice plurality, a concurrence by Justice O'Connor, a concurrence by Justice White, and a threejustice dissent. The plurality opinion ruled that proof that a discriminatory reason motivated the employment decision proved the elements of a Title VII violation, subject to the employer's affirmative defense that it would have made the same decision had it not considered the discriminatory reason. …