How To Shorten Your Documents

At least in the initial drafts, efforts to keep a document concise may stifle the flow of written words.  paperIf this is true, then let the words come freely and deal with wordiness later.  Once the desired content is captured, a writer can turn to making the document shorter and otherwise more pleasing.

There are a variety of ways to shorten the draft to meet page limits:

  • Check the margins to be sure the lines extend to the full permitted width and length.  Extend the block quote margins.
  • Create Continue reading

Is Terminating an Employee for His Job-Performance-Related Testimony a Constitutional Violation?

That question arises in Lane v. Franks, No. 13-483, a Supreme Court case in which IMLA and the International Public Management Association have now filed a brief.Supreme Court

The Eleventh Circuit ruled that the termination did not trigger First-Amendment scrutiny:

No one disputes that Lane was acting pursuant to his official duties as CITY’S Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment. That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment. Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:prison

Third Circuit

  • Thomas v. Cumberland County, No. 12-3959 (Apr. 11, 2014) (in suit alleging that the County failed to properly train officers to prevent attack by other inmates, vacating the district court’s order of summary judgment for the County because a reasonable jury could find that the County acted with deliberate indifference).

Sixth Circuit

Seventh Circuit Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Second Circuit

Fourth Circuit


Supreme Court Campaign Finance Case Likely to Affect State Laws in about a Dozen States

7432008582_3c5d6429f6_nBy Lisa Soronen [We are thrilled to have a guest post from Lisa Soronen, executive director of the State and Local Legal Center.]

Last week, the Supreme Court struck down aggregate limits on individual contributions to candidates for federal office, political parties, and political action committees.

McCutcheon v. FEC will likely impact the dozen or so states that place aggregate limits on individual campaign contributions to candidates for state office. A cursory glance at state campaign finance laws regulating local elections indicates that states generally have not adopted aggregate caps meaning this decision will not affect contributions to local elections.

Federal law allows Continue reading


Mootness on Appeal

Substantially the same principles apply to actions that become moot on appeal as apply before judgment.5554035521_f6b59ccafa_n E.g., Annot., What Circumstances Render Civil Case, or Issue Arising Therein, Moot So as to Preclude Supreme Court’s Consideration of Their Merits, 44 L.Ed.2d 745 (1975); Note, Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 1672 (1970).

When an event occurs during an appeal, without the fault of the defendant, that renders it impossible for the court to grant effective relief to the plaintiff if the court should rule in favor of the plaintiff, the issue is moot and the appeal should normally be dismissed. Alvarez v. Smith, 558 U.S. 87, 89, 130 S.Ct. 576, 578, 175 L.Ed.2d 447, 451 (2009); United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36, 41 (1950). Depending on circumstances, the trial court’s decree may be vacated before the dismissal.   On vacatur or dismissal of the appeal, see U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26, 115 S.Ct. 386, 392, 130 L.Ed.2d 233, 242 (1994); NASD Dispute Resolution, Inc. v. Judicial Council of State of California, 488 F.3d 1065, 1068-69 (9th Cir.2007).  An appellate court is less likely Continue reading


Fourth Circuit: Retirement Plan Discriminates Based on Age

A County retirement-benefit plan requires an employee to contribute a percentage of his salary to the plan.Retirement

But not all employees contribute at the same rate.

Instead, an older employee must contribute at a higher rate than a younger employee who enrolls at the same time.

Does this violate the Age Discrimination in Employment Act?

The Fourth Circuit, in EEOC v. Baltimore County, No. 13-1106 (Mar. 31, 2014), said that in the case of Baltimore County’s plan, it does.

In the court’s view, Continue reading


Newport Beach To Seek Supreme Court Review in Group-Home Case

We have tracked the Ninth Circuit case of Pacific Shore Properties, LLC v. City of Newport Beach, No. 11-55460 – see previous posts here and here. Supreme CourtThe City has now announced that it will ask the U.S. Supreme Court to review the case:

“In our opinion, the panel came up with a new theory of liability under the anti-discrimination laws that has never been recognized before, Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:FedPrac

First Circuit

Fifth Circuit


Ninth Circuit: Local Governments May Regulate Handgun Storage and Hollow-Point Bullets

The Second Amendment confers an individual right to keep and bear arms.Handgun

We know that now—after decades of uncertainty—because the Supreme Court said so in District of Columbia v. Heller, 554 U.S. 570 (2008).

But how far does the Second Amendment extend? Does it prevent a City from regulating the storage of handguns in homes or the sale of ammunition that expands upon impact, referrred to as hollow-point bullets?

In a case decided this week, Jackson v. City and County of San Francisco, No. 12-17803 (Mar. 25, 2014), the Ninth Circuit ruled that those bringing a Second-Amendment challenge to the City and County of San Francisco’s handgun and ammunition regulations were not likely to succeed on the merits.

What exactly was at issue and how did the court reach its conclusions? Continue reading


Using Short Names

Legal documents routinely identify the parties and others by full name in the early passages and then create a short name for use in the rest of the document.Typewriter Make the most of this practice by thinking things through at the beginning of a case.  Whatever short name is selected should be one that works for the entire case and any appeal. Changing the name even once adds an opportunity for confusion that cannot benefit the client.

Some factors in selecting the short name:

  • The name needs to be short, the shorter the better if other requirements are met.  If there are word limits for briefing in the trial court or, more likely, on appeal, use Continue reading

Supreme Court Denies Cert in Immigration Case

This morning, SupremeCourt2the Supreme Court denied certiorari in Frederick County v. Santos, No. 13-706, a case involving whether local officials may arrest persons for immigration violations that we discussed here. See additional coverage from The Frederick News-Post here.

(Photo courtesy of Flickr by Mark Fischer, creative-commons license, no changes made).


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:No-Loitering

Third Circuit

Seventh Circuit

Ninth Circuit Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

First Circuit

Second Circuit


Can State and Local Police Arrest for Immigration Violations?

That is the question presented in SCOTUSblog’s Petition of the Day.Supreme Court3 The Fourth Circuit ruled in Santos v. Frederick County Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013), that

absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.

Frederick County’s cert petition argues that this creates a circuit split that the Court should resolve: Continue reading


SCOTUS: Federal Government Retains No Interest in Abandoned Railroad Rights-of-Way

Congress grants a railroad a right-of-way across public land. RailroadROW

The federal government then grants the land to a private landowner, who takes the parcel subject to the railroad right-of-way.

The railroad later abandons the right-of-way.

Does the right-of-way interest revert to the federal government? Or does the parcel owner gain full and unburdened rights to the property?

This morning,  in Brandt Revocable Trust v. United States, No. 12-1173, the Supreme Court ruled 8-1 that the federal government does not retain an interest in the abandoned right-of-way.  As Chief Justice Roberts explained, Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

Second Circuit

Third Circuit


Ninth Circuit Denies En Banc Review in Newport Beach Case

The Ninth Circuit has denied the sua sponte call for en banc review in Pacific Shore Properties, LLC v. City of Newport Beach, No. 11-55460, a case that we have written about previously hereNinthCircuitJudge O’Scannlain, joined by Judges Tallman, Callahan, Bea, and Ikuta, filed a dissental, that is, a dissent from the denial of en banc review. It appears to be telegraphing that the Supreme Court should consider the case:

The panel’s opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect. Such unwarranted expansion Continue reading


Use Spellcheckers and “Replace All” With Care

Don’t ever trust a spellchecker despite how valuable it can be.

  • Many correctly spelled words are not the ones you intended.  If possible, delete common words from the dictionary that are unlikely to be correct in context, such as pubic (public), untied (United).
  • Some spellcheckers will automatically “fix” words the spellchecker identifies as wrong.  One example is tortious (correctly spelled but not in the dictionary) which is automatically changed to “tortuous” by some versions of the Word spellchecker.  Another example is “sua sponte” which has been autocorrected to “sea sponge” in some cases.  Unless your eyes are directly focused on the word at the moment it changes, you may never know that auto-correct has fixed it (and you).

Here is “A Little Poem Regarding Computer Spell Checkers…” for those who would be amused and a film clip of a comic’s routine on proofreading.

Never use the “Replace All” tool without at least replacing a number of the items one at a time.  One publisher that can be nameless wanted to fix all citations to Cal without a period (as in Cal App) and replaced all throughout the manuscript without limiting the replacement to capital Cal space.  As a result, the entire manuscript was sprinkled with “Cal.ifornia,” “practical.” “cal.culated,” and so on.  Problems created with Replace All may be virtually impossible to locate.


Supreme Court Refuses To Review Immigration Housing Cases

Last year, this blog discussed three recent courts of appeals decisions involving local-housing regulations aimed at a person’s immigration status. DSC_0132

This morning, the Supreme Court denied certiorari in two of the cases,  Farmers Branch v. Villas at Parkside and Hazleton v. Lozano.

Both decisions had preempted local ordinances.

Image courtesy of Flickr by prathap ramamurthy (creative-commons license, no changes made).


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Justice

Sixth Circuit

  • Rorrer v. City of Stow, No. 13-3272 (Feb. 26, 2014) (reversing grant of summary judgment to City and against plaintiff, a terminated firefighter with a non-work-related injury, on ADA claim; affirming grant of summary judgment for City on First Amendment and ADA retaliation claims).

Seventh Circuit


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:NinthCircuit

Third Circuit

  • M.R. v. Ridley School District, No. 12-4137 (Feb. 20, 2014) (finding under Individuals with Disabilities in Education Act that for “stay put” period: (1) school district must reimburse parents for private-school costs even if parents do not file a claim for payment until after a court has ruled for the school; and (2) the parents’ right to interim funding extends through the time of judicial appeal.).

Fourth Circuit


Attend the Supreme Court Practice Seminar

Solicitor General Donald B. Verrilli, Jr.Supreme Court

Tom Goldstein.

Paul Clement.

And this blog’s own, Kira Klatchko.

This is just a small selection of the remarkable panel of speakers that IMLA and the State and Local Legal Center will feature at the Supreme Court Practice Seminar scheduled for March 4, 2014.  It will be a true “can’t miss” event. See the agenda and full list of speakers here.  Register here. And stay for the State and Local Legal Center’s 30-year annniversary reception, which you can register for here.

Image courtesy of Flickr by Mark Fischer.


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:

Seventh Circuit

Ninth Circuit


Use Space in Documents

Legal documents contain many words, often too many, but that’s not all.  Legal documents contain open space or white space between the captions and the text, as well as above, below and on the sides of block quotes, lists and bullets.Gavel  Attorneys focus on the words and sometimes pay no attention to the white space even though it can make significant difference in the readability of the document.

Unless you are working under a page limit and the burden of too much to say in too few pages, don’t feel obligated to cram your words into the smallest space possible.


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

Second Circuit

Sixth Circuit

Seventh Circuit Continue reading


Using Online Legal Dictionaries

Many legal dictionaries are available on the Internet:Dictionary


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments*:Alexandria-court

First Circuit

Fourth Circuit

Fifth Circuit Continue reading


How To Best Use Bullets in Briefs

BulletsOften a listing of specific items need not or should not be numbered.  Numbers may incorrectly indicate a hierarchy or ordering of the items.  In these cases, bullets work well.

The material presented in bullets needs to be parallel in form and format.  If one is a sentence, then all should be sentences; if one is a phrase, the rest should be similar phrases.  The bullet items should normally all be in the same tense if verbs are used.  Opening capitalization and ending punctuation (if any) should be the same.  There is no absolute right and wrong in the style. Shorter phrases lend themselves to lower case.  If any bullet will have more than a single sentence, then an initial capital and a period will be needed.

When appropriate, a short caption can introduce each bullet. Continue reading


Seventh Circuit: City May Not Close Adult Bookstores

Closed signMay a city require adult bookstores but not other establishments to close between midnight and 10am every night and all day Sunday?

In Annex Books v. City of Indianapolis, No. 13-1500 (Jan. 24, 2014), the Seventh Circuit said no. It struck down the City of Indianapolis’s requirement, which a district court had previously upheld. Although the City claimed that the restriction would lead to fewer armed robberies at or near the bookstores, the court held that ”cities must protect readers from robbers rather than reduce risks by closing bookstores.” In the court’s view, “[t]hat the City’s regulation takes the form of closure is the nub of the problem.”

First, the court found that the evidence supporting the City’s justification is “weak as a statistical matter”: the data “do not show that robberies are more likely at adult bookstores than at other late-night retail outlets.”

Second, the court noted that although Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Second Circuit

  • McColley v. County of Rensselaer, No. 12-2220 (Jan. 21, 2014) (affirming that whether officer and County were entitled to qualified immunity for alleged Fourth-Amendment violation arising out of search-warrant-application omissions turned on genuine issues of material fact, and concluding therefore that the court lacked subject matter jurisdiction).

Fourth Circuit

  • Corr v. Metropolitan Washington Airports Authority, No. 13-1076 (Jan. 21, 2014) (finding that tolls paid by drivers on the Dulles Toll Road are user fees not taxes, and that their collection by airport authority does not violate Virginia Constitution and motorists’ due-process rights).

Seventh Circuit Continue reading


Why You Should Vary Sentence Length

Attorneys often write exhaustive and exhausting sentences.  Attorneys may not be the worst offenders, as Wikipedia cites Jonathan Coe’s 2001 novel The Rotters’ Club as containing a 13,955-word sentence. Typewriter In Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011), the court criticized a complaint with at least 23 sentences with 100 or more words, including sentences of 385, 345, and 291 words.  Average sentence length should be 18 to 20 words, and Word will tell you that, along with other readability indicators.

Some sentences have to be relatively long, but long sentences should be interspersed with short ones.  Long sentences often can be made more comprehensible with the use of bullets or numbered lists.  Sentences that are initially long when drafted can be revised into two or several shorter sentences.

Why does it matter?  Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments. NYcourt

Second Circuit

Sixth Circuit

(January 13, 2014, through January 17, 2014)

Credit: Image courtesy of Flickr by Tracy Collins (creative common license, no changes made)


Supreme Court Calls for Further Analysis of Tax Case

This morning, the Supreme Court called for the views of the United States Solicitor General (“CVSG”)SupremeCourt2 on whether the Court should grant cert in Comptroller of the Treasury of Md v. Wynne, No. 13-485. The case concerns how the dormant commerce clause limits local taxation.

The Court uses the CVSG procedure with respect to only about 10 petitions a year. It indicates at least some degree of interest: the chances of a cert-grant increase significantly in such cases.

IMLA and its partners filed the only amicus brief in the case, which we discussed here.

(Photo courtesy of Flickr by Mark Fischer, creative-commons license, no changes made)


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments. They include two unsuccessful due-process challenges — one to speed-camera programs, the other to booking fees:Gavel

Second Circuit

Fourth Circuit

Seventh Circuit Continue reading


Can State and Local Governments Establish Buffer Zones? SCOTUS To Decide.

Local governments often establish fixed buffer zones to eliminate congestion and to ensure public safety. Does the First Amendment require a significant change in current local practices?Barricade

Next Wednesday, January 15th, the Supreme Court will hear arguments in a case that could address that question. McCullen v. Coakley, No. 12-1168 concerns whether a Massachusetts law that bars entering or remaining within a 35-foot radius of a reproductive-health-care facility violates the First Amendment. The First Circuit upheld the law as a reasonable, content-neutral limit.

Local governments have filed two important amicus curiae briefs in the case.

First, IMLA joined the National League of Cities, National Association of Counties, the International City/County Management Association, and the U.S. Conference of Mayors in a brief urging the Court to respect state and local governments’ need to establish buffer zones to protect public safety. The brief offers a number of examples Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Happy New Year to all of our readers.

Last week was a slow one for the courts. The only significant action for local governments came from the Ninth Circuit:



Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from December 23, 2013, through December 27, 2013:

Seventh Circuit

Ninth Circuit

Eleventh Circuit


IMLA To Hold Supreme Court Practice Seminar

Be sure to check out details of the Supreme Court Practice Seminar that IMLA and the State and Local Legal Center will host on March 4, 2014. Lisa Soronen, executive director of the State and Local Legal Center, has invited some remarkable Supreme Court practitioners. It is a can’t-miss program for anyone intersted in the Court. You can register here.


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from December 16, 2013, through December 20, 2013:

Sixth Circuit

Seventh Circuit

Eighth Circuit Continue reading


Ninth Circuit: City Requirement That Cell-Tower Company Obtain Voter Approval Upheld

When T-Mobile sought to place a cell tower in a park owned by the City of Huntington Beach, California, the City granted the company all the regulatory approvals it required. But the City also informed T-Mobile that before it would finally lease the company the rights to the City property that it needed, the company must first obtain approval from City voters, under an amendment to the City charter known as Measure C.CellTower

T-Mobile refused. It claimed that Section 332(c)(7) of the Communications Act, 47 U.S.C. § 332(c)(7),  preempts this City requirement.

Is T-Mobile correct?

Not according to the Ninth Circuit, which decided Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) last week. The court ruled that because Section 332(c)(7) “applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner,” it does not preempt this local requirement, which concerns only how the City may lease its property.

Enacted in 1990, Measure C states: Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from December 9, 2013, through December 13, 2013:

Sixth Circuit

Seventh Circuit

Ninth Circuit


SCOTUS Confirms that Younger Abstention Is Appropriate in Only Three Exceptional Circumstances

In a unanimous decision released Tuesday, the U.S. Supreme Court held that federal abstention under Younger v. Harris, 401 U.S. 37 (1971) applies in only three “exceptional circumstances.”  The Court previously identified those exceptional circumstances in New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (NOPSI) (1989). This week, it confirmed, in Sprint Communications, Inc. v. Jacobs et al., that Younger abstention extends no further. Supreme Court

The Court reaffirmed that Younger abstention is appropriate, and federal courts should defer to state courts, only when faced with:

  1.  “state criminal prosecutions,”
  2. “civil enforcement proceedings,” or
  3. “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”

If none of those exceptional circumstances is present, the federal courts may not invoke Younger abstention.

As we discussed previously, Sprint involved two separate actions that Sprint Communications, Inc. initiated against members of the Iowa Utilities Board (IUB), one pending in Iowa state court and the other in the U.S. District Court for the Southern District of Iowa.  In both actions, Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from November 25, 2013 through December 6, 2013:

Second Circuit

Fourth Circuit

Seventh Circuit

Ninth Circuit



Ninth Circuit: Officer Removed After Raising Safety Issues Does Not Have First Amendment Claim.

If a public employee reports departmental-safety concerns to his supervisor, and the employee is removed from duty for raising those concerns, does the employee have a viable First Amendment retaliation claim?Policecar

In Hagen v. City of Eugene, No. 12-35492 (Dec. 3, 2013), the Ninth Circuit ruled that a public employee did not have a viable First Amendment claim under the particular circumstances there. The court ruled that, viewing all the evidence in the light most favorable to the employee, he was speaking as a public employee, not a private citizen.

The case involved a City police officer, Brian Hagen, who noticed that members of his SWAT team were often firing their weapons accidentally and negigently. Hagen tried to make his concerns about the team ”as public as possible” by sending e-mails and raising the issue  in meetings. Eventually, Hagen was removed from the K-9 team.

Hagen claimed that the City and senior officers had retaliated against him for exercising his First Amendment rights. Continue reading


Fourth Circuit: Can a County Limit Waste Disposal to Public Landfills?

A County ordinance provides that waste generated in the County can be disposed at only a single location – a publicly owned landfill:Landfill

The dumping or depositing by any person at any place other than at the designated facilities of any acceptable waste generated within the County is prohibited.

The County crafted the ordinance to further many public benefits: to conserve resources, to prevent pollution, and to protect the public health, safety, and well-being. For the public landfill, the ordinance also ensured a revenue stream.

But for a private landfill operator located just two miles from the County line, the ordinance was a real problem. The ordinance led to a significant decrease in its business.

The operator sued the County. It argued that the County ordinance violates the dormant-commerce clause and the equal-protection clause of the federal constitution. Is the operator correct?

In Sandlands C&D LLC v. County of Horry, No. 13-1134 (Dec. 3, 2013), the Fourth Circuit ruled against the operator. It upheld the district court’s grant of summary judgment for the County.

Applying the Supreme Court’s decision in United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 346 (2007), the court ruled that Continue reading


Seventh Circuit: Indianapolis Smoking Ordinance Is Lawful

A City ordinance bans smoking in most bars and taverns.

Does this violate bar owners’ federal constitutional rights?

Not according to the Seventh Circuit’s decision in Goodpaster v. City of Indianapolis, No. 13-1629, released today.Nosmoking

The court rejected the bar owners’ evidentiary claims and state-law claims. It also found that the ordinance does not violate the owners’ substantive due process rights:

Because it does not infringe a fundamental right, the smoking ordinance will stand if it passes rational basis scrutiny. . . .The bar owners have failed to meet this heavy burden. There are numerous reasons the City may have chosen to limit smoking in enclosed public spaces, and the bar owners have failed to disprove all of them. Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from November 18, 2013 through November 22, 2013:

First Circuit:

Seventh Circuit:


Want To Write Like Justice Kagan?

We’ve talked before about how Justice Kagan is one of the Supreme Court’s most interesting writers. A thoughtful new article by Laura Krugman Ray, Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions, builds upon that topic by exploring some of Justice Kagan’s most effective writing tools. Here are a few that make Justice Kagan’s work so reader-friendly:Official Informal Portrait choice

Kagan often opens a sentence with a direct invocation to the reader:

  • Consider first what the two statutes tell a slaughterhouse to do”
  • Imagine the converse of the statute described above”
  • Pretend you are financing your campaign through private donations.”

She uses a ”generous sprinking” of informal and even colloquial diction:

Continue reading


First Circuit: Does a Local Government Have Authority To Regulate Foreclosures?

Many cities have struggled with the effects of foreclosures.

But given the complex mix of state laws that often governs the issue, how much authority do local governments have in this area?

A First Circuit case, Easthampton Savings Bank v. City of Springfield, No. 12-1917 (Nov. 22, 2013) addresses that question.Foreclosure

Six banks sued the City of Springfield, Massachusetts, after it had adopted two foreclosure ordinances. The ordinances require:

  1. banks to maintain property during the foreclosure process and to provide a $10,000 cash bond to the City; and
  2. banks and homeowners to engage in a mediation prior to foreclosure.

The banks claimed that the City’s requirements violated the Contracts Clause of the federal constitution and various provisions of Massachusetts law. Although the district court had entered judgment for the City, the First Circuit ruled on Friday that it was not yet prepared to do the same — at least not until the Massachusetts Supreme Judicial Court had the chance to weigh in. The First Circuit therefore certified the dispositive state-law questions to that court.

Image courtesy of Flickr by Kevin Dooley.



The Senate Goes “Nuclear” on Nominees for District and Appellate Courts

Yesterday, in a move with significant implications for appellate practice, the U.S. Senate modified its filibuster rules to allow a simple majority to approve individuals nominated to serve on district and appellate courts. This is likely to have a direct impact on President Obama’s recent nominees to the D.C. Circuit: Patricia Millett, Nina Pillard, and Robert Wilkins.

Ezra Klein provides 9 reasons why the change is a huge deal as a general matter. And Steve Klepper of the Maryland Appellate Blog suggests that the change may also have a significant impact on circuit judges thinking of retiring or assuming senior status. See his post here.



Does the Dormant Commerce Clause Prohibit a State from Taxing All of Its Residents’ Income?

A recent cert petition raises an important question about how the federal Constitution limits State and local taxing authority.

In Maryland State Comptroller of the Treasury v. Wynne, the Maryland Court of Appeals held that the dormant Commerce Clause requires every state and subdivision to give its residents a full tax credit for all income taxes that they pay in another state or subdivision. The U.S. Supreme Court has never applied the dormant Commerce Clause to reach that result, and it appears to conflict with cases in other states. Not surprisngly then, the Maryland State Comptroller of the Treasury has asked the Supreme Court to take the case.

This week, IMLA joined the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, and the Maryland Association of Counties in filing an amicus brief supporting the petition. The brief argues that the decision violates basic principles of federalism, and is inconsistent with the State’s sovereign powers to tax its residents.

We’ll continue to monitor the case and will bring you any updates.


How To Order Your Arguments

As a very general rule, arguments in a brief should appear in order of descending power or importance.  A judge may stop reading on reaching a clearly winning argument or on deciding that the opening briefing is so weak as not to justify more time.  Either way, there is no benefit in saving the best for last.  There are a few exceptions:

  • Jurisdictional arguments normally go first, even if they are not the strongest.  If the jurisdictional argument is a winner, the court has no power to rule on the remaining arguments.  A judge may not appreciate having to read pages of substantive arguments before reaching a dispositive jurisdictional point.
  • Other arguments that will be dispositive if accepted, like statute of limitations, should appear early in the brief on the same reasoning.
  • Arguments that raise the rights of absent third parties often should lead.  A court will not rule on the merits in the absence of an indispensable third party, so it makes sense to resolve early whether the third party must be joined.
  • Very short arguments might be offered early even if they are not the strongest.  This depends on the relative strength and the characteristics of the various arguments.  A short argument that accurately and fairly casts the opponent in a negative light might be made early so that the remaining arguments are seen in that light.  A weak and technical short argument is best left to the end or omitted.
  • The number and complexity of the facts required to present the argument may affect the placement.  A judge may absorb all the facts at once, in an opening presentation, or a judge may more easily absorb an initial overview of the facts followed by briefing of specific arguments and the facts relevant to those arguments.
  • Some arguments build on an earlier argument or make sense only after an earlier argument. Look for any logical connections that impact the ordering of the arguments.

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from November 11, 2013 through November 15, 2013:

First Circuit

Second Circuit

  • Lynch v. City of New York, No. 12-3089 (Nov. 15, 2013) (affirming summary judgment for NYPD in Fourth-Amendment challenge to City policy requiring breathalyzer test for any officer whose firearm discharge results in death or injury; testing under the policy is a reasonable “special needs” search).

Seventh Circuit

D.C. Circuit


Supreme Court Housing-Discrimination Case Settles

One of the significant Supreme Court cases affecting local governments this term has been resolved through settlement. The case is Mount Holly v. Mt. Holly Gardens Citizens in Action. It asked whether a plaintiff bringing a claim under the Fair Housing Act must show intentional discrimination, or whether a “disparate impact” is sufficient.

This marks the second time that the Supreme Court has granted certiorari on the question but then not been able to resolve it. Magner v. Gallagher was also settled last year.


Eight Tips for Successful Proofing

Careful proofing is as important as excellent writing.  Errors and omissions slip into briefs so easily, especially if several people are working on it.  There are many good tips for proofing, all best employed a day or more after the writing is done:

  1. Print and proof the document in hard copy;
  2. Read the document aloud, forcing yourself to acknowledge each word, or read with your finger pointing at each word;
  3. Never try to proof for everything at once—proof the text, then the headings, then the caption and ending;
  4. Proof separately for any attachments, exhibits, appendices or other separate matters that need to be with the document—are they there, are the numbers correct, is each what the text says it is?;
  5. Always do the math—if the document contains any calculations, do them again; add up the columns; do the subtraction; be sure the numbers are correct in the right alignment;
  6. Check proper names, company names, addresses, and the like.  Be especially sure the names of the judge and your client are spelled correctly.  Judge MacBride does not appreciate being identified as Judge McBride.
  7. If you know you make a recurrent type of error, search for it separately.  You may be able to have the computer spellchecker catch many types of errors, such as pubic for public and trail for trial, by removing the word that is likely to be undesirable from the dictionary.
  8. Don’t trust the auto-correct dictionary.  For several years, for example, the dictionary in one major word processor automatically corrected “tortious” into “tortuous.”  Unless your eye is on the word at the moment it auto-corrects, you are unlikely to discover the substitution until it is embarrassing.

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from November 4, 2013 through November 8, 2013:

Seventh Circuit


Seventh Circuit: Glance After Officers Open Wrong Apartment Door Not “Search”

In Balthazar v. City of Chicago, No. 12-3378 (Nov. 8, 2013), the Seventh Circuit addressed an interesting Fourth-Amendment question: is it a “search” for officers to mistakenly open the wrong apartment door and glance inside? Judge Posner said that in this case, it likely was not:

Police forced open the door of a residence by mistake, realized their mistake immediately (in fact before the door opened—for remember that Beckman tried to check the forward motion of the battering ram), and left immediately. With the door open in front of him he couldn’t have avoided seeing into the apartment without closing his eyes (which would have been dangerous). But having learned before looking that it was the wrong apartment, he wasn’t using his eyes to search for anything. Seeing can be searching, but isn’t always. Even before the door fell open, Beckman knew there was nothing to search for in the plaintiff’s apartment. . . . If you know you’re in the wrong place—a place you’re not authorized to search or want to search—the unavoidable glance through the open door is not a search.


Practical Citation Rules

There are many citation styles one could use in writing briefs—The Bluebook, The Redbook, the University of Chicago Manual of Legal Citation, the California Style Manual, and so on.  One is not inherently superior to another.  If the court that will consider the brief has a required style, then that ends the matter.

The fundamental rules for good citations are a very few:

  • citations must provide everything the reader must know to locate the source;
  • citations need to be simple, easy to understand and remember; and
  • citations in a single brief need to be consistent in format and presentation.

Every deviation from consistent citation style that is not obviously justified by some immediate need to provide additional information is a distraction to the reader.  Every distraction pulls the reader away from the brief’s goal (affirmance or reversal).

Despite the various instructions to use supra and infra, it is better to give full citations to cases every time that you cannot use Id.  The benefits are several:

  • you can move sections of the brief around freely when you realize that a later argument is stronger than first thought or logically belongs earlier in the brief.  There is no need to search for the parts of citations omitted when supra is used.
  • the court can see which circuit and court decided the case.  If you spend the extra time to locate authority in the same circuit, why lose the benefit of that information in the second citation?
  • using supra doesn’t save that much space anyway.

Abbreviations are another place where you may decide not to follow the rules too strictly.  Consistency in abbreviations may be more important than perfection in abbreviating in accordance with a long list of hundreds of terms.  Abbreviate when you really get some benefit, such as Mgmt. instead of Management, and when the abbreviation is common, such as Ins. for Insurance and Co. for Company.  Memorize the 20 or 30 words that are worth abbreviating consistently in case names and write all others out in full.  This approach allows your writing to flow without having to look up an abbreviation or think about whether to abbreviate words in a citation.