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:

Fontaine de la Justice via Wikimedia Commons

Continue reading


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

Everybody Hates The Bluebook: An Example

I’m taking a break from post-election thoughts to write about something much less upsetting: The Bluebook. I recently wrote a 27-page book review of the 20th Edition. Seriously. You should check it out.

In the review, I argue that many critiques of The Bluebook don’t critique the actual book. Rather, they seem to be upset about something altogether different, with The Bluebook just providing an easy target for their scorn.

An instant classic of the genre appeared today in Above The Law. An in-house lawyer offers a recommendation to future in-house lawyers: “Burn Your Bluebook.” Yikes! Look, I admit I’ve never worked as in-house counsel. And I wouldn’t be surprised if in-house lawyers rarely used The Bluebook. But the complaints in the article have almost nothing to do with The Bluebook. You could burn (or not burn) pretty much anything and you’d have just as much of an effect on the problems outlined in the article, since the author’s dispute is not with The Bluebook as a citation guide. Rather, the author seems to dislike providing any legal authority whatsoever in his memoranda. That’s fine! But that has nothing to do with The Bluebook, which contains rules to follow for when you do want to cite to legal authority in your memoranda. Continue reading

Judge Posner vs. Professor Dorf on Legal Writing

In the Autumn issue of the Journal of Legal Education, Professor Michael Dorf reviews Judge Richard Posner’s Divergent Paths. And Judge Posner responds. Judge Posner’s book, Professor Dorf’s review, and Judge Posner’s response are all worth reading in full, but I’d like to highlight a few parts that might be of particular interest to legal writing professors.

Judge Posner’s book is highly critical of legal writing professors, who he claims teach law students to write in a jargon-filled, Latin-peppered, opaque style. This was news to me, and contrary to the way I teach, the way my colleagues at UW School of Law teach, every legal writing text I’ve ever read, and every discussion I’ve had with other legal writing instructors. I’ve yet to meet someone who tells their students to end a memo with quod erat demonstrandum. Continue reading

Adventures in Assigning Peer-Review Partners (Warning: Contains Math)

I like to assign peer reviews for my 1L Legal Writing class. Generally, the course’s collaboration rules don’t let students help each other with their final graded assignments. But I make an exception for in-class peer review.

Anyway, this quarter I wanted to try something different: I wanted each student to have two peer review partners, instead of just one. So at the end of the class before the peer review I randomly assigned each student two different partners. Everyone exchanged papers with their two partners and read their two partners’ papers before the next class. My plan was to then break the peer-review class into two separate periods. During the first half of class each student would meet with one partner and discuss each other’s papers. And then during the second half of class each student would meet with the other partner and discuss each other’s papers.

The idea was that everyone would be discussing papers during the entire class, and no student would need to meet with their partner after class. Nice and easy! But perhaps you can see the problem. I’d like to think I would have seen it if I’d thought about it for a second. Oh well.  Continue reading

New Details Call Washington’s Carceral “Take-Backs” into Question

We have new information on exactly how the Washington Department of Corrections is rounding up people it had mistakenly released from prison. This excellently reported article in the Seattle Times by Lewis Kamb and Joseph O’Sullivan provides the details, which answer some of my previous questions. Whether the answers are comforting…. that’s another matter. Here’s how the article starts:

The phone call came midway through her shift as a waitress at a roadside casino. Three armed officers had shown up at her mother’s Issaquah home, looking for Rachel Patterson. Now, a state corrections officer was telling her to surrender.
“He explained we miscalculated your time and basically told me if I don’t turn myself in immediately, I would be in more trouble,” Patterson said.
For three months, Patterson, 29, had been free; a three-year prison sentence for felony assault was behind her. And she’d been doing well, she said: She landed a job, passed all drug tests, hadn’t committed any new crimes.
Then came the call, and within a few hours, Patterson was wearing a red jail uniform and under a “no-bail hold.”

On the process she received before her re-incarceration:

“They didn’t fingerprint me, gave me no paperwork, nothing,” Patterson said last week of her return to state custody. “Now I’m sitting here and no one’s answering my questions. They haven’t told me where I’m going, or how long I’ll be in for.”

On the legal authority for these “arrests,” according to the Washington DOC:

The warrants are technically “escape warrants” that don’t require a judge’s order, [a DOC official] said. While “there’s no intention on our part of prosecuting an escape,” the warrants can go nationwide and allow for extradition from other states . . . . (emphasis added).

So no judge is involved in the issuance of a warrant. But what about after the arrest? Does the re-incarcerated person get counsel, a hearing, anything? No. As the DOC official explained:

Once apprehended, offenders do not get a due-process hearing or legal counsel, [the official] said.
“These (cases) have already been adjudicated,” she said. “You’re under our jurisdiction and we need to apprehend you.”

On its own, that lack of process and judicial oversight may sound unfair. But the biggest legal issue might come from another information revealed by Kamb and O’Sullivan regarding the statements made by DOC officials to individuals before their release.

When the DOC first started rounding folks up, I wrote generally about the law of carceral take-backs. Whether the government has a right to re-apprehend a person it released might depend, not on the fairness of the re-incarceration process, but on the representations the government made to the person while he was in prison. Here’s what I wrote then, based on a review of the case law:

So can the government be estopped from re-incarcerating a prisoner after release? Maybe, if the government’s own wrongdoing caused a mistaken representation to the individual that he was entitled to release, if the individual had no reason to doubt the government’s representations, and if the individual relied on those representations in resuming his normal life.

At the time, I didn’t have any information about the sorts of representations the released individuals had previously received. But now I do. Again, from Kamb and O’Sullivan:

Patterson . . . was transferred in March to the Washington Corrections Center for Women in Purdy, where she said a DOC employee went over her remaining sentence with her. Patterson said the staffer told her she’d be out in about six months — almost a year early.
“I asked, are you sure? I’ve got two enhancements, 24 months. I have to do hard time on that,” she said she told him. “ I asked him like three or four times, and he got annoyed and was like, ‘Yeah, yeah, yeah, I’m sure.’ ”
. . . . Patterson said she didn’t think twice about being released without conditions.
“As far as they told me,” she said, “I was done.” (emphasis added).

And another example of repeated DOC representations:

Likewise, David Jennings, an offender let go at least seven months early and returned to custody last week, said he “triple-checked” his sentence with corrections staff before his release in August. (emphasis added).

Are these sorts of representations sufficient to estop the government from re-incarcerating folks under Johnson and Green (discussed here)? I’m not sure. But so far, no court has had a chance to answer that question, and the re-incarceration process does not seem to permit any judicial involvement. Time will tell.