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
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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

The Washington Court of Appeals and the Case of the Missing Findings of Fact

In State v. Yallup, Division 3 of the Court of Appeals provides some advice to parties on what to do if the trial court does not timely enter findings of fact. I was not aware of this being a big problem, but apparently it is—especially when the trial judge retires to “spend much of [his] time at sea” before the findings can be entered. Here’s the Court of Appeals’ full discussion of the issue in Yallup along with recommendations to counsel faced with this problem in future cases: Continue reading

Zombie Horizontal Stare Decisis in the Washington Court of Appeals

If you read this blog, you know that the Washington State Supreme Court recently rejected horizontal stare decisis among the Divisions of the Court of Appeals. They were pretty clear about it:

We reject any kind of “horizontal stare decisis” between or among the divisions of the Court of Appeals.

In re Arnold, 410 P.3d 1133, 1139 (Wash. 2018). Any kind! That’s pretty vehement.

When the Court issued Arnold, I was a bit confused. The Supreme Court seemed concerned that a Division should not feel “bound” by another Division. But the Court of Appeals in Arnold never said it was bound. Instead, it was just following its sister Division for prudential reasons.

Which brings us to today’s Court of Appeals decision from Division 1 in State v. Sullivan. The Sullivan court does not cite Arnold, but it does rely on precedent from another Division. Here’s the Court of Appeals rejecting one of the appellant’s arguments:

Sullivan offers no evidence that the jury failed to deliberate as a whole. Instead, Sullivan’s argument relies entirely on speculation, arguing “it is safe to assume one or more jurors left the jury room. . . , if, for no other reason than to use a bathroom” during the two hours of deliberations. “[S]peculation that a juror may have left the jury room during deliberations . . . is insufficient to warrant review under RAP 2.5(a)(3).” State v. St. Peter, 1 Wn. App. 2d 961, 963, 408 P.3d 361 (2018).[n2]

And here’s the problem. The Sullivan court relies on St. Peter and only St. Peter for this point of law. But St. Peter is not a Supreme Court case. It’s not even a case from Division 1 of the Court of Appeals. Instead, St. Peter was decided by Division 3.

Continue reading