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FW: [Lis-LEAF] Do legal arguments matter?

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  • Frog Farmer
    I m posting this for the many bits of distilled wisdom I saw in it, useful to beginners or those thinking about going into court for the first time. When I
    Message 1 of 1 , Feb 28, 2009
      I'm posting this for the many bits of distilled wisdom I saw in it,
      useful to beginners or those thinking about going into court for the
      first time. When I came across something I personally use or have
      experienced as valuable, I interjected this: [1000 Frog Farmer Points].

      I think too many who go into court never consider the necessity of being
      ready to go all the way to the Supreme Court and for that reason fail to
      set up their case for appeal.

      -----Original Message-----
      From: Lis-LEAF@yahoogroups.com [mailto:Lis-LEAF@yahoogroups.com] On
      Behalf Of Jon Roland
      Sent: Thursday, February 26, 2009 10:12 AM
      To: undisclosed-recipients:
      Subject: [Lis-LEAF] Do legal arguments matter?

      The following sequence is taken from comments on the post at
      http://volokh.com/posts/1235577832.shtml , exchange between Jon Roland
      and three lawyers on whether legal arguments matter. See below the
      sentence highlighted in red.
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      Oren Kerr:


      Does the court even have authority to consider the Constitutional
      issues sua sponte?


      Refraining from considering issues not raised by the parties is only
      custom, policy and practice, not law. It is a prudential decision, for
      the convenience of the court, not a matter of jurisdiction.

      I would argue that the oath judges are supposed to take to "support this

      Constitution" (Art. VI cl. 3.) obligates them to always provide any
      missing constitutional arguments, or remand with instructions to the
      parties to provide them, or invite intervenors or /amici/ to make them.
      2.25.2009 1:39pm [1000 Frog Farmer Points - but this only holds for pro
      per defendants.]
      ______

      Jon Roland:
      I regard jurors as "judicial officers" that are also supposed to take an

      oath or affirmation to "support this Constitution", and that the failure

      to do so invalidates the jury verdict.
      2.25.2009 1:45pm [1000 Frog Farmer Points - I would be as hard on
      prospective jurors as possible in this day and age when none are my
      peers. I would disqualify them just like anyone else. I try to
      disqualify everyone and be left all alone by myself! If I look good at
      it, remaining ones run for the exits!]
      ______

      NTB24601:
      Justice Ginsburg, writing for the majority in Greenlaw v. United States,

      ___ U.S. ___, 128 S.Ct. 2559 (2008)
      <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol
      =07-330>,
      provides a strong explanation for why refraining from addressing issues
      not raised is central to the function of our judicial system:

      In our adversary system, in both civil and criminal cases, in the
      first instance and on appeal, we follow the principle of party
      presentation. That is, we rely on the parties to frame the issues
      for decision and assign to courts the role of neutral arbiter of
      matters the parties present. To the extent courts have approved
      departures from the party presentation principle in criminal cases,
      the justification has usually been to protect a pro se litigant's
      rights. See Castro v. United States, 540 U.S. 375, 381-383 (2003).
      But as a general rule, "[o]ur adversary system is designed around
      the premise that the parties know what is best for them, and are
      responsible for advancing the facts and arguments entitling them to
      relief." Id. at 386 (Scalia, J., concurring in part and concurring
      in judgment). As cogently explained:


      [Courts] do not, or should not, sally forth each day looking for
      wrongs to right. We wait for cases to come to us, and when they
      do we normally decide only questions presented by the parties.
      Counsel almost always know a great deal more about their cases
      than we do, and this must be particularly true of counsel for
      the United States, the richest, most powerful, and best
      represented litigant to appear before us.

      United States v. Samuels, 808 F.2d 1298, 1301 (C.A.8 1987) (R.
      Arnold, J., concurring in denial of reh'g en banc).

      128 S.Ct. at 2564.

      David at BMG may be correct that the court could have requested briefing

      on the constitutional question, but I find it difficult to fault the
      Tenth Circuit for following this well-settled principle.
      2.25.2009 2:51pm
      ______

      Oren:
      Jon, it seems manifestly unfair to the Constitution to create bad law by

      ruling on matters with an insufficient factual background.

      The doctrine of waiver seems perfectly consistent with the oath in Art
      III -- one cannot violate a right that the victim does not assert as
      relevant. [1000 Frog Farmer Points] [1000 Frog Farmer Points] [1000
      Frog Farmer Points] [1000 Frog Farmer Points] [1000 Frog Farmer Points]
      [1000 Frog Farmer Points] [1000 Frog Farmer Points] [1000 Frog Farmer
      Points]
      2.25.2009 2:54pm
      ______

      Jon Roland:
      NTB24601:


      [Courts] do not, or should not, sally forth each day looking for
      wrongs to right. We wait for cases to come to us, and when they do
      we normally decide only questions presented by the parties.


      There is a fundamental problem with this policy/practice: It assumes
      that at least one party in every case has a stake in constitutional
      compliance, and will therefore defend the Constitution. However, most of

      the members of this forum can probably cite examples of where none of
      the parties had an interest in defending the Constitution, and even an
      interest on the part of all parties to violate it. In every case
      involving constitutional issues there needs to be an advocate for the
      Constitution.

      Much of what I have done in this field is file /amicus/ briefs or
      interventions where I thought the Constitution was being unrepresented.
      2.25.2009 3:01pm
      ______

      Jon Roland:
      Oren:


      Jon, it seems manifestly unfair to the Constitution to create bad
      law by ruling on matters with an insufficient factual background.

      The doctrine of waiver seems perfectly consistent with the oath in
      Art III -- one cannot violate a right that the victim does not
      assert as relevant.


      It is more unfair to decide only among two positions both of which
      violate the Constitution, and this happens often. Sometimes it comes
      only from hitting page limits, but sometimes from incompetence on the
      part of the lawyers or their clients.

      The doctrine of waiver presumes only the interests of the parties are at

      stake, but this would only work if it were not combined with the
      doctrine of /stare decisis/, a doctrine that makes every case a matter
      of public and potentially constitutional concern, and not just a private

      matter for the parties, allowing them to stand in for the public without

      being conscientious about the duties that come with that.
      2.25.2009 3:10pm
      ______

      NTB24601:
      Jon Roland:

      There is a fundamental problem with this policy/practice: It assumes
      that at least one party in every case has a stake in constitutional
      compliance, and will therefore defend the Constitution.


      I don't see the problem. A decision has no precedential value as to
      issues that are not raised. Granted, someone might mistakenly cite this
      decision for the proposition that the First Amendment does not require
      an absolute defense of truth. I don't think, however, that the danger of

      sloppy lawyering presents a good argument for changing a practice
      fundamental to the adversay system.

      2.25.2009 3:15pm
      _______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      The Constitution is not just about rights. It is also about duties.

      When the Constitution states, "The Trial of all Crimes, except in Cases
      of Impeachment, shall be by Jury;" (Art. III Sec. 2 Cl. 3
      <http://www.constitution.org/constit_.htm#con3.2.3>), it stated a duty.
      The Framers knew how to phrase that as a right, that could be waived.
      They did not do that. It was stated as a mandate, regardless of the
      wishes of the parties. One can argue that taking the word "all crimes"
      to mean "all crimes" is impractical, but the Constitution is not about
      practicality. Otherwise it would establish a dictatorship.
      2.25.2009 3:22pm [1000 Frog Farmer Points]
      ______

      NTB24601:
      Jon Roland: /The Constitution is not just about rights. It is also about

      duties./

      I don't understand how your last comment relates to this discussion.
      Could you explain further?
      2.25.2009 3:39pm
      ______

      Jon Roland:
      NTB24601:


      Jon Roland:
      There is a fundamental problem with this policy/practice: It assumes
      that at least one party in every case has a stake in constitutional
      compliance, and will therefore defend the Constitution.

      I don't see the problem. A decision has no precedential value as to
      issues that are not raised. Granted, someone might mistakenly cite
      this decision


      That is profoundly naive. In surveying the history of law I find regular

      citation to cases as precedents on issues that were not addressed by the

      court, especially if they were raised and the cases decided on another
      point. This pattern seems to be a variation of "expressio unius est
      exclusio alterius
      <http://en.wikipedia.org/wiki/Canons_of_statutory_construction>",
      applied not to constitutional or statutory construction, but to case
      analysis. It seems to have been especially used to misconstrue in Second

      Amendment cases.
      2.25.2009 4:08pm
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      NTB24601:


      Jon Roland: The Constitution is not just about rights. It is also
      about duties.

      I don't understand how your last comment relates to this discussion.
      Could you explain further?


      It is my position that, having taken an affirmation to "preserve,
      protect, and defend the Constitution", I, and all other citizens
      (whether they take the oath or not), are obliged to put constitutional
      compliance ahead of their private interests whenever they appear in any
      court, regardless of personal consequences, and that any attorneys who
      might represent them do the same.
      2.25.2009 4:15pm [1000 Frog Farmer Points - if they want to play
      outside constitutional authority, fine, but count me out!]
      ______

      NTB24601:
      Jon Roland:


      In surveying the history of law I find regular citation to cases as
      precedents on issues that were not addressed by the court,
      especially if they were raised and the cases decided on another
      point.

      If the issue was raised and not addressed by the court that's entirely
      different. In those cases, there may be some validity to drawing an
      inference from the court's silence. That's not the situation that we are

      discussing. In this case, the issue was not raised and, consequently,
      nothing can be inferred from the court's silence on the issue.

      I, too, have frequently seen attorneys citing to decisions for issues
      that were not raised in them. Attorneys often make bad arguments in
      their efforts to zealously represent their clients. I don't think that
      is a sound argument for departing from the fundaments of the advocacy
      system.

      In surveying the history of law I find regular citation to cases as
      precedents on issues that were not addressed by the court,
      especially if they were raised and the cases decided on another
      point.

      Staples' first amendment rights are personal to the corporation. If
      Staples chooses to waive those rights, that doesn't undermine the United

      States Constitution. As I mentioned above, the court's decision will
      have no precedential value on issues that were not raised. All that
      Staples is doing is foregoing one avenue of defending itself from an
      expense.

      Furthermore, I strongly believe that sua sponte decisions do more to
      undermine the values of our Constitution than failure to address an
      unraised issue ever could.

      I worked as a law clerk in state appellate courts for many years. Back
      then, I was inclined toward a rather expansive view of what issues were
      presented. As a litigator, I sometimes cringe inwardly at the memory.
      Little exasperates me more then when a court invents and develops an
      argument that my opponent never raised. Not only does this cast the
      court improperly in the role of advocate, it also deprives me and my
      client of a fair opportunity to respond.

      Due process is justice; in absence of divine intervention, the closest
      we can approximate to "true justice" is to follow uniform rules and give

      both sides to a controversy a fair opportunity to present their cases.
      When a Court decides issues on its own initiative (save in a few rare
      situations), the Court strikes at the heart of justice in our society.
      2.25.2009 4:53pm [1000 Frog Farmer Points - you dopmplain when they do
      it for the other side, especially the gov't, but you demand "rights sua
      sponte" by paper and they almost have to comply, in my opinion]
      ______

      zuch (mail <mailto:zuch@...>) (www
      <http://leastdangerousbranch.blogspot.com>):
      Jon Roland:

      /The Constitution is not just about rights. It is also about duties.

      When the Constitution states, "The Trial of all Crimes, except in
      Cases of Impeachment, shall be by Jury;" (Art. III Sec. 2 Cl. 3), it
      stated a duty. The Framers knew how to phrase that as a right, that
      could be waived. They did not do that. It was stated as a mandate,
      regardless of the wishes of the parties./

      Ummmm ... you can waive your right to a jury trial.

      Cheers,
      2.25.2009 5:49pm
      ______

      Oren:


      It is my position that, having taken an affirmation to "preserve,
      protect, and defend the Constitution", I, and all other citizens
      (whether they take the oath or not), are obliged to put
      constitutional compliance ahead of their private interests whenever
      they appear in any court, regardless of personal consequences, and
      that any attorneys who might represent them do the same.


      And if the Judge, bound by that oath, believes in good faith that the
      right to present Constitutional arguments to a court can be waived by
      failure to raise the issue at the appropriate time?

      This is not about substantive Constitutional rights, it's about whether
      the Courts can require litigants to present their cases in an orderly
      fashion.
      2.25.2009 6:20pm
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      NTB24601:


      I, too, have frequently seen attorneys citing to decisions for
      issues that were not raised in them. Attorneys often make bad
      arguments in their efforts to zealously represent their clients. I
      don't think that is a sound argument for departing from the
      fundaments of the advocacy system.


      It wouldn't if judges refused to let them get away with that, but all
      too often those bad arguments find their way into precedents that take
      constitutional jurisprudence away from constitutional fiedlity like the
      walk of a drunken sailor. (
      See Markov process <http://en.wikipedia.org/wiki/Markov_process>.)
      2.25.2009 7:10pm
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      zuch:


      Jon Roland:
      When the Constitution states, "The Trial of all Crimes, except in
      Cases of Impeachment, shall be by Jury;" (Art. III Sec. 2 Cl. 3), it
      stated a duty. The Framers knew how to phrase that as a right, that
      could be waived. They did not do that. It was stated as a mandate,
      regardless of the wishes of the parties.

      Ummmm ... you can waive your right to a jury trial.


      Yes you can. You can also waive your right (really privilege) to vote,
      but that doesn't relieve officials of the duty to hold an election. The
      language of the Constitution is clear, and that language means a jury
      trial whether the defendant wants one or not. It is the duty of the
      court, under that provision, not of the party, to try by jury.
      2.25.2009 7:15pm
      ______

      Oren:


      Yes you can. You can also waive your right (really privilege) to
      vote, but that doesn't relieve officials of the duty to hold an
      election.


      No, but, having failed to vote on Nov 2nd, you cannot show up at the
      county clerk on Nov 9th and demand your right to vote.

      Nor can the county clerk, on Nov 9th, having noticed that you didn't
      exercise your right to vote on the 2nd, give you another chance to do
      so. In fact, after you've failed to vote at the proper time, there isn't

      anyone in the entire country that can go back and "vindicate" that
      right. It's gone.

      2.25.2009 7:22pm
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      Oren:


      And if the Judge, bound by that oath, believes in good faith that
      the right to present Constitutional arguments to a court can be
      waived by failure to raise the issue at the appropriate time?


      Having a duty does not absolve one of that duty just because one has a
      good faith belief one doesn't have the duty. He might be correct for
      contractual or statutory rights, but constitutional rights deserve
      special attention.


      This is not about substantive Constitutional rights, it's about
      whether the Courts can require litigants to present their cases in
      an orderly fashion.


      And the oath requires judges to instruct litigants to be diligent in
      arguing constitutional issues, and to enforce those instructions
      appropriately. If they refuse, the judge has the duty to proclaim that
      the case shall not be cited as a precedent.
      2.25.2009 7:25pm
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      Oren:


      No, but, having failed to vote on Nov 2nd, you cannot show up at the
      county clerk on Nov 9th and demand your right to vote.


      No, and once the jury has rendered its verdict a party can't re-open and

      retry the case with arguments he chose not to make to the jury when it
      had the chance. But the Constitution still requires that there be a jury

      there hearing such arguments as the parties choose to make.
      2.25.2009 7:33pm
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      stombs:


      Isn't the problem here a "prudential" one, rather than
      Constitutional? By declining to rule on a question not raised, the
      court ensures further litigation and the waste of time and
      resources.


      We need a Latin maxim for "kicking the can down the road".
      2.25.2009 7:51pm
      ______

      NTB24601:
      Jon Roland: /It wouldn't if judges refused to let them get away with
      that, but all too often those bad arguments find their way into
      precedents ..../

      No judge is going to be persuaded by those arguments. Judges already
      predisposed to rule a certain way might rely on them to bolster their
      decision, but in those situations the argument isn't really making a
      difference anyway.

      Even if you don't agree with me on this point, the proper remedy
      shouldn't be to get judges to raise more issues sua sponte. The remedy
      should be to get judges to adhere more faithfully to the actual
      holdings.

      /....but constitutional rights deserve special attention./

      Indeed, they do. Judges should exercise particular care before delving
      into a constitutional issue. That's an argument for avoiding a
      constitutional question that has not been fully briefed. Its not an
      argument for sua sponte decisions.
      2.25.2009 7:52pm
      ______

      NTB24601:
      stombs: /If the matter is clearly going to be decided on 1st Amendment
      grounds in the end, why not dispose of it now? /

      Three standard answers come immediately to my mind:

      1. The issue has not been fully briefed, meaning that the decision will
      be the product only of the law clerk assigned to it by the authoring
      judge. By contrast, a fully briefed issue will be thoroughly researched
      by two adversarial law firms as well as the judge's chambers.

      2. Disposing of an issue sua sponte is fundamentally unfair to the
      parties. The parties have a right to expect that the court's decision
      will be based on the issues presented to it.

      3. When a court makes new law on a constitutional issue, the court is
      acting in a fundamentally undemocratic fashion. Unlike statutory
      interpretation, a decision on a constitutional issue can not be
      overruled by the legislative (i.e., democratic) process. Consequently,
      courts should decide cases on constitutional grounds only where
      necessary. In this case, there is a very good chance that the court will

      never have to make a constitutional ruling, depending on the findings by

      the jury.
      2.25.2009 8:06pm [1000 Frog Farmer Points - google "Ashwander Rules" to
      learn the rules your case must conform to in order to be heard by the
      Supreme Court.]
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      NTB24601:


      Jon Roland: It wouldn't if judges refused to let them get away with
      that, but all too often those bad arguments find their way into
      precedents ....

      No judge is going to be persuaded by those arguments. Judges already
      predisposed to rule a certain way might rely on them to bolster
      their decision, but in those situations the argument isn't really
      making a difference anyway.


      Real judges don't just do one or the other. Many will be poised on the
      edge and the presence or absence of an argument can encourage or
      discourage how they might go.

      But you seem to be focused on using /sua sponte/ motions to "dispose" of

      an issue. I am arguing for using them to remand and instruct to develop
      the missing arguments. That is a different matter. It is not "disposing"

      to do that.
      2.25.2009 10:06pm
      ______

      NTB24601:
      Jon Roland: /Real judges don't just do one or the other. Many will be
      poised on the edge and the presence or absence of an argument can
      encourage or discourage how they might go./

      Not in my experience drafting opinions for judges or litigating before
      them. In my experience, most judges decide how they want to rule and
      then, after deciding, look for case law to support the decision they've
      already made. (So the trick is to first convince the court that it wants

      to find in your favor and then give them the case law that allows them
      to do so.) I doubt that any judge who is thoughtful enough to truly keep

      an open mind before looking to the case law would be snookered by an
      argument that relies on an opinion where the issue in question wasn't
      raised.

      /But you seem to be focused on using sua sponte motions to "dispose" of
      an issue. I am arguing for using them to remand and instruct to develop
      the missing arguments. That is a different matter. It is not "disposing"

      to do that./

      That's essentially what the Court of Appeals accomplished here by
      flagging the issue in a footnote then reversing and remanding.

      There are occasions when its appropriate for a court to ask the parties
      to submit supplemental briefing on an important issue. Even that ought
      to be done with caution though. It will inevitably favor one party over
      the other. As the U.S. Supreme Court explained in Greenlaw, 128 S.Ct. at

      2564, it is simply not the courts' role to "sally forth each day looking

      for wrongs to right." That's the role of litigants and academics.
      2.25.2009 11:11pm
      ______

      Jon Roland (mail <mailto:jon.roland@...>) (www
      <http://constitutionalism.blogspot.com>):
      NTB24601:


      In my experience, most judges decide how they want to rule and then,
      after deciding, look for case law to support the decision they've
      already made.


      So it doesn't matter what are the legal merits of the parties or how
      they argue their case? Most laypersons already suspect that, which is
      why the selection of judges has become so political. But even if our
      arguments have no hope of making the difference, we at least have the
      duty not to make it easy on the judges.


      There are occasions when its appropriate for a court to ask the
      parties to submit supplemental briefing on an important issue.


      Such as whenever there are constitutional issues that aren't being
      adequately argued by one side or the other. But about the only way this
      could favor one side would be if the Constitution does, in which case
      the court should favor the party.
      2.25.2009 11:22pm
      ______

      NTB24601:
      Jon Roland: /So it doesn't matter what are the legal merits of the
      parties or how they argue their case?/

      Briefing makes a difference (and oral argument makes a difference when
      the court makes a ruling from the bench without the benefit of briefs).
      IMHO, though, you are in trouble if you are relying on the strength of
      your legal arguments and your precedents. You'd better be able to
      convince the court in a one-page summary of your argument and your
      statement of the facts that "justice" lies on your side.

      I'm not claiming that all judges are like that, but I am saying those
      who are more thoughtful won't be persuaded by opinions that don't
      actually address the issue in question.

      /Such as whenever there are constitutional issues that aren't being
      adequately argued by one side or the other./

      If its a constitutional issue necessary to their opinion, then yes. If
      they can avoid the constitutional issue by concluding that the parties
      waived or failed to raise it, then its better for the court to respect
      our democratic process and avoid the issue.
      2.26.2009 12:12am
      ______

      -- Jon
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