An Update on Intra-Divisional Stare Decisis in Washington

Back in February, the Supreme Court of Washington decided In re Arnoldwhich held that a Division of the Court of Appeals should not follow the decisions of the other Divisions as a matter of horizontal stare decisis. As I observed at the time, the Supreme Court’s distinction between inter-Division conflicts and intra-Division conflicts doesn’t find much basis in the law:

The statute does not distinguish between inter-Division and intra-Division panels. So when the Court says that “under the statute creating the Court of Appeals, conflicts are resolved not by stare decisis within that court, but by review in our court,” the Court’s ruling should apply with equal force to a three-judge panel following the prior decision of a different three-judge panel within the same Division. As I wrote previously: None of the governing statutes distinguish between inter- and intra-Division panels for purposes of stare decisis.

Last week, Chief Judge Appelwick of Division 1 decided to take the next logical step. He asserted that “[o]ne division of the Court of Appeals is not bound by the decision of another division” (citing to In re Arnold). But then he went further: “Nor is one panel of the Court of Appeals bound by another panel, even in the same division.” In re Marriage of Snider at 4 (emphasis added)

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The Bluebook and New York City

Let’s say you need a new chef’s knife. So you go to Bed, Bath & Beyond and head for the kitchen section. (That’s part of the “Beyond,” I guess.) In a fancy cutlery display you see a large selection of chef’s knives. But you don’t buy any of those. Instead, you walk right past the chef’s knives and over to the cheese knives. After perusing a bit, you buy this set:

That’s a nice set of cheese knives!

Looks pretty nice! But when you get home and start preparing dinner, the cheese knives just don’t seem to do the job. It’s a total disaster! The next morning you go back to BB&B to return the knives. “They didn’t work at all! I couldn’t even slice a tomato with these things!” you complain. “And don’t even get me started on what happened when I tried to dice an onion!”

Not surprisingly, the customer service rep at BB&B isn’t sympathetic. She calmly responds, “Sir, these are cheese knives.”

Obviously, nobody would ever do anything like that. We understand that different tools have different purposes. And you shouldn’t malign a tool for not working in circumstances for which it was not designed to work. Something clearly labeled “cheese knife” should be used for cheese, not dicing onions.

But for some reason, people malign The Bluebook for this sort of thing all the time. The most recent entry in the catalog is this piece from Judge Gerald Lebovits: Cite-Seeing Part II: The Bluebook’s New York Bloopers. Judge Lebovits pulls no punches in his critique of The Bluebook’s “mistakes”: It “fails miserably when it comes to New York citations.” “Every rule and example in the Bluebook violates how a practitioner, judge, or academic should cite New York authorities.” “The Bluebook’s rule also contradicts” various state rules and statutes. And “it’s not hard to spot incorrect examples for New York in the Bluebook.”

Yikes.

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Six Suggestions for Improving The Bluebook

So there I was on Sunday evening, October 7. A glass of scotch in hand, all ready to fill out the official Bluebook questionnaire, which would allow me to suggest improvements for the forthcoming 21st edition.

A dramatic reenactment of my preparation for the survey

But then I clicked on the link. Apparently, despite previous reassurances that the survey would be open until October 8, I was too late. The survey was already expired. 

I was not pleased.

Read the Suggestions

Just a Little Case About the Foundations of Judicial Power

The hottest new Washington Supreme Court decision is Eyman v. WymanIt has everything.

A split judgment with no clear majority decision. A debate about the proper role of the courts when dealing with unconstitutional statutes. And Washington’s indirect initiative procedure.

What’s Washington’s indirect initiative procedure?

It’s that thing, where a group of citizens can collect signatures, and then propose a statute . . . .

Okay, that’s enough of that gimmick. The case, however, is truly fascinating, and I think it’s worth a deep dive. I’m not going to focus too much on the substance of the dispute, which involves the rules regarding the initiative process. But the other two things–the lack of a majority decision and the remedial question of how to deal with an unconstitutional statute–are tied up with those rules. So there’s a bit of background work to do before we get to the good stuff. Stay with me. Continue reading

Don’t Be a Quitter! Think About Creating Stylish Citations.

Citations are like the weather: Everyone complains about them, but nobody does anything about it!

Until now.

If you’re a reader of this blog, you’re likely interested in legal writing. And you likely realize that legal writing is full of italicized text and parenthetical information and weird abbreviations that often come between sentences—the citations. I’ve previously written about citations. But I focused mostly on the isolated, narrow issue of citation format. I was interested in the citation as a citation. My take: The Bluebook, for lack of a better word, is good.

But an excellent new paper by Professor Alexa Z. Chew (of UNC School of Law) takes a much broader and more functional approach to legal citation. You should read it. Continue reading

Outrage to the Outrage in Response to the Outrage Machine

You might have heard about the Florida lawyer who opposed a pregnant attorney’s request for a continuance. Here’s the story: A defense attorney, Christen Luikart, sought a trial continuance because (or at least in part because) she is pregnant, and her due date might conflict with the trial. The plaintiff’s attorney, Paul Reid, opposed the motion. The judge held a hearing on June 4; she granted the continuance. The end.

Well, of course, that’s not really the end. Last week–a month and a half after the hearing–The American Lawyer wrote a story about the request and opposition. Above the Law followed suit with a story headlined “Biglaw Partner Accuses Small-Firm Litigator Of Using Pregnancy To Delay Trial.” Similarly, the American Lawyer story claimed Mr. Reid “suggest[ed] [Ms. Luikart] became pregnant as a ploy to delay the litigation.” A day after the story broke, Mr. Reid had been suspended by his law firm.

But that wasn’t the end either. Then came the “backlash to the backlash.” Professor David Bernstein wrote a post over at the Volokh Conspiracy entitled “The Outrage Machine Claims a Victim: A Play in Seven Acts.” The implication of Prof. Bernstein’s post is clear: Mr. Reid didn’t really do anything to warrant a suspension. But a mob of SJWs overreacted to a mundane filing, Mr. Reid’s law firm caved to the hysteria, and now a man who really didn’t do anything wrong has become the victim of “a click-bait-driven outrage cycle.”

Maybe. Continue reading

The Substance of Citation (or a suggestion for the Washington Reporter of Decisions)

Like many states, Washington has its own citation rules. The Washington Style Sheet tells Washington judges and lawyers to use The Bluebookwith a few exceptions. So, for example, instead of citing statutes with “Wash. Rev. Code” we can just use “RCW.” And we don’t need to provide the publication date or publisher for citations to statutes. Huzzah! And instead of using just P.2d or P.3d to cite Washington cases, we also use Wn. App. and Wn.2d (no space!) as additional parallel citations. Continue reading