The Unanimous Washington Supreme Court to Ziff: “You Are Wrong”

Well, not quite. They didn’t call me out by name. But still… Yikes.

Last month I wrote about In re Arnold, a then-pending case in the Washington Supreme Court involving stare decisis and the state’s intermediate Court of Appeals. I argued that the Supreme Court should stay out of it. Let the Court of Appeals figure out its own rules for stare decisis. Or perhaps the Supreme Court could use the rulemaking process or recommend that the legislature clarify the Court of Appeals’ structure so that stare decisis could work more smoothly.

The Supreme Court did not take my advice. In a unanimous opinion (!) the Court dove right in, holding that a Division of the Court of Appeals should not follow the decisions of other Divisions. I can appreciate the Court’s desire to resolve this problem. But unfortunately, I think the Court’s decision raises more questions than it answers. Here are a few: Continue reading

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Stare Decisis and the Consubstantiality of the Washington Court of Appeals

You know the line about a bad restaurant: “The food is terrible. And the portions are so small!” Well, this is the blog version of that restaurant. It’s not a good post. And it’s so long.

Here’s my excuse: This post is about a currently pending case in the Washington Supreme Court that seeks to set a rule of stare decisis for the state’s intermediate court of appeals. So things get abstract pretty quickly. This is a case about the law about law about law. Yup, you read that right: It’s meta-meta-law. First we’ve got the substantive law: the three-part test, the scienter requirement, the proper jury instruction, the meaning of the statutory term, &c. That’s the law. And then there’s stare decisis—i.e., the law about that law. A court might disagree with a prior decision on the substantive law. The applicable rule of stare decisis tells the court whether or when the court gets to depart from that substantive law. But who determines the relevant rule of stare decisis? And on what basis is that rule determined? That’s the law about the law about the law. And it gets a bit messy.

But first, some background…

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My Review of The Bluebook: The Reviews Are In!

Well, our long national nightmare is over. The Spring 2017 volume of the Journal of Legal Education has hit the digital newsstands; this volume includes my review essay on the latest edition of every lawyer’s favorite citation guide, The Bluebook. Early reviews of my essay have been uniformly… mediocre:

“[David Ziff] reviews the Bluebook”
Ryan Calo, UW School of Law

“Why?”
— 
Cristian Farias, Huffington Post

“Everybody knows The Bluebook sucks. What this article presupposes is—maybe it doesn’t?”
Ron FisherLatham & Watkins

“I nearly puked but I’ll still read it”
Sasha Moss, R Street Institute

“Scariest thing I’ve seen today… by far!”
Eric Segall, Georgia State University College of Law

“Anyone who wrote a 27 page book review of the Bluebook is not to be trusted.”
Jim Tyre, Electronic Frontier Foundation

Okay, so maybe those reviews are not great. But I’m pretty sure they were offered in the playful spirit shared by the essay itself. Seriously. I figured I couldn’t take myself too seriously while writing a 27-page book review of a legal citation manual. So while I certainly intended the essay to raise some important issues, I also tried to make it a fun read. I hope you enjoy it!

A Quick Post on Keyboard Shortcuts

I’ve noticed a few folks tweeting about their keyboard shortcuts for legal writing symbols, likely related to this new keyboard for lawyers. Seriously! If you’re not already using custom keyboard shortcuts in MS Word, you should be. Here’s one way to easily insert commonly used symbols into your legal writing (if you use MS Word):

1. Pull up the “Symbol” window as if you’re going to insert a symbol. Here, I’m pretending to create a shortcut for the symbol μ, because my imaginary law practice includes many briefs involving the coefficient of friction.

symbol-1

See how the “Shortcut key” is assigned as “Alt+0181”? What the heck is that? Well, we can change it by clicking on the “Shortcut Key” button. Continue reading

In Praise of Statutes (and Statues)

Today is the first day of winter quarter (or Winter Quarter, depending on how you feel about it) here at the University of Washington School of Law. For my 1L Legal Analysis, Research, and Writing class, that means we turn from common law (which we covered in the fall) to statutes. I really like this quarter, and I start the class with a general lecture on how to think about statutes. I figured some of that might be interesting to y’all out there on the interwebs, so here goes….

I think it’s easy to underestimate the difference between (1) reading and understanding case law and (2) reading and understanding statutes, especially for first-year students. During the entire fall quarter, my class discusses common law doctrines, reads cases, argues about holdings, makes predictions based on dicta, etc. When reading a case, determining the holding is partially based on what the court says, but much of it is based on the reader’s own reading between the lines. Sure, the court said any family member could recover, but that case involved a biological father-daughter relationship. Same result for a great-grandmother? What if they lived together? What about a step-father? What if they are estranged? You know the game. Testing a holding—narrowing it down to the relevant facts—is a huge part of the first quarter. And it takes a long time for many students to get into that mode of thinking.

And then—record scratch—we introduce statutes. The familiar “Okay, but what does that really mean?” method of analysis doesn’t quite work on statutes. Students comfortable divining and then applying abstract principles from a series of cases are in for a rude awakening when attempting to apply that divination skill to a statute. “Yes, the statute says ‘prevailing party,’ but what that really means is….” Nope. It means “prevailing party.” Words matter for statutes in a way they don’t for cases.

I like to illustrate the point with two different statues (yes, statues, not statutes). Here’s a familiar one:

https://commons.wikimedia.org/wiki/File:Cudrefin-justice.jpg

Fontaine de la Justice via Wikimedia Commons

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A Legal Writer’s Response to the Washington Post on Trump

This article in the Washington Post asks: How should the media respond when Donald Trump says something without any basis in fact, like his recent “millions of people who voted illegally” tweet? Here’s how the author describes the problem:

At first, a disturbing amount of that coverage just passes along what Trump is saying, particularly in headlines and brief mentions on television, which often take the form of “Trump says world is flat.” Then the news media find their footing a bit and begin explicitly calling him out for the falsehood. But the more it ends up looking like an argument between Trump and the media, the more that even Republicans who are skeptical of Trump will get pulled to his side, because they’ve long been invested in the idea that the media are hopelessly infected with liberal bias.

I’m not a reporter. I have no experience writing for a newspaper. But this problem immediately brought to mind a similar problem I dealt with as a lawyer: What to do when opposing counsel says something irrelevant, wrong, objectionable, or otherwise problematic in a brief? I think the tactics I used (and other lawyers use!) in that situation might be a helpful framework for thinking about media responses to baseless claims from politicians. Continue reading

The Boy Who Cried Wolf

There once was a shepherd boy who sat on the hillside watching the village sheep. One day he saw an animal approaching. He wasn’t quite sure what it was, but it looked like a wolf. So he took a great breath and sang out, “Wolf! Wolf! A Wolf is coming for the sheep!

"Angry Wolf" by Tambako The Jaguar, via Flikr

“Angry Wolf” by Tambako The Jaguar, via Flikr

Some of the villagers came running up the hill to help the boy drive away the wolf. When they got to the top of the hill, they too saw an animal that looked like a wolf. These villagers joined the boy and continued to yell.

But most of the villagers remained at the bottom of the hill. “That’s no wolf,” said the villagers who remained. “That’s just a kind old dog. He’s not going to hurt anything.

The villagers at the top of the hill were unable to drive the animal away—whatever it was. Perhaps the other villagers were right. After all, most of the sheep were unharmed by the animal. Only a few were eaten. Continue reading