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Tuesday, August 14, 2007

What's Your Favorite Bad Legal Argument?

I've meant for a few weeks to follow up on an earlier post discussing the high school in Connecticut that excluded a student from student gov't for calling school administrators "douchebags".  The school principal gave an argument that was particularly weak, as Appellate Law & Practice noted.

[S]chool leadership positions are a privilege, not a right.  "When kids are in a position of privilege, there are certain standards of behavior we expect them to uphold," she told Channel 30. "Our position stands for respect. We're just hoping kids appreciate the seriousness of any communication over the Internet."

Of course, many violations of the Constitution are denials of Thing You Don't Otherwise Have a "Right" To Have.  You have no right to an employed-at-will government job -- but you can't be fired for political speech.  You have no right to attend a particular public school within your city -- but you can't be excluded from that school because of your race (or political views).  In short, the "rights-privileges" distinction makes zero sense when the legal claim is, "I was denied XYZ privilege by a governmental body because of my [political views, race, gender, etc.]."

This got me thinking:  What's the weakest legal argument you've ever heard?  The weakest legal argument I've heard was also made by a public school.  In a case I worked on, a school district denied an individual a permit to hold a protest on school property (a grassy area that's part of a community center, not part of any school in use), property that's freely made available for many community uses -- because the first line on the permit application form asked, "Name of Organization" and the applicant was an individual, not an "organization."  The judge found that argument as bizarrely backwards (you can speak only in an "organization"???) as we said it was in our briefs.  But the school lawyer was stuck with that argument because it was the sole reason the school had given for denying the permit.

Please play along; post in the comments the worst legal argument you've ever heard.  Rules of the game:

(1) It must be a position asserted in court (orally or in a filing), not just a brainstormed argument early in the pre-litigation stages (so the principal's pre-litigation argument in the "douchebag" case wouldn't count).

(2) It must be an argument pressed by a lawyer, even if the lawyer was just making the bad argument because his/her client insisted (as in my "protest permit" case).

(3) It must be a case that you worked on, that you saw personally (as a lawyer, party, clerk, or bystander in court), or that you can document with a citation.

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» Bad legal argument contest from Appellate Law
Prawfsblawg, not only cited our post, but is holding a “bad legal arguments” contest, complete with rules. After they get some results, I was going to see if people could post the worst judicial decision of the year. But, this [Read More]

Tracked on Aug 14, 2007 1:30:05 PM

Comments

I can’t validate this with a cite, but the following is a true story about a labor arbitration. I represented a union of secretaries and paralegals at the U.S. Justice Department. One secretary wanted to move to an alternate work schedule; the union contract allowed certain alternate schedules, including the one requested, unless the manager could articulate a reasonable basis for why the alternate schedule would adversely affect the work of the office. In this case, the woman’s current schedule AND the one she requested to change to had her leaving at 5 p.m. Management's articulated objection was that her supervisor needed her to work after 5 p.m.

I told the opposing lawyer repeatedly, “she isn’t asking to change her ending time, and she already leaves at 5.” The lawyer was evasive/equivocal, which made me suspect all sorts of “surprise” tactics would come at the arbitration hearing. But there weren’t any. The supervisor testified that she wouldn’t approve this schedule because she needed the secretary to work after 5. In what was one of my favorite lawyering moments ever, on cross-examination I asked the obvious questions and saw the opposing lawyer literally bury his head in his hands at the answers. Of course the union prevailed. I’ve always wondered what the story was behind that – defending a case all the way to arbitration with an argument that a five-year old could see made absolutely no sense on its face.

On the other hand, I was forced to make an embarrassing argument or two in my time. I won’t post about that for fear an ex-client might see it. But if anyone is curious, if you see me at a conference and buy me a beer, I’ll tell you about being forced to argue the Weakest "Reverse Boys Market Injunction" Request Ever in a DC Court [a labor law type of case], and my emotional scars from the experience.

Posted by: Joseph Slater | Aug 14, 2007 1:41:55 PM

My favorite bad oral argument is a rather infamous one, U.S. v. Johnson, a 5-minute Seventh Circuit oral argument that can be listened to online here: http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=04-2732&submit=showdkt&yr=04&num=2732. I had the honor of being present as a bystander in court for this disaster since I was clerking on the Seventh Circuit at the time and liked going to hear oral arguments if I had a few moments to kill in the morning. I was aghast.

In the argument, the attorney essentially asks the Seventh Circuit to overrule the Supreme Court's holding in Illinois v. Caballes; Volokh helpfully transcribes the key interchange in a post at his blog (http://www.volokh.com/posts/1121094750.shtml):

Judge Sykes: Any way to distinguish [Caballes]? I mean I understand that you object to the premise.
Lawyer: I hope you can find one.
Judge Bauer: Well, what you want us to do is overrule the Supreme Court.
Lawyer: I want you to help me distinguish it, Judge. I am very disturbed.
Judge Bauer: You can be disturbed on your own free time. Why are you intruding on mine?

The highpoint for me came when the lawyer attempted to exit the courtroom after the oral argument instead of returning to counsel's table.

Posted by: JodyM | Aug 14, 2007 2:23:10 PM

The lawyer who argued U.S. v. Johnson actually just this summer had his license suspended for drug abuse. According to the opinion suspending his license, he was arrested in October 2005 for attempting to buy cocaine (the infamous argument was in March 2005). He subsequently got into a drug abuse program but then relapsed in late 2006, and served a week in jail. He lives in a halfway house now and hasn't practiced law since his arrest.

(All this information is contained in the public court opinion suspending his license.)

Posted by: Anon | Aug 14, 2007 2:56:32 PM

I don’t think that the Johnson argument was bad in that way. It was inartful. It was incompetent. But, he was on the same planet as the judges. He knew what the law was. He didn’t like it. He didn’t try to distinguish it (which was the problem). I think truly “bad” arguments leave you thinking that the lawyer is simply on a different planet than every judge in the jurisdiction (and the Supreme Court), and therefore his arguments simply are unavailing. As lawyers, we specialize in converting our clients ‘positions’ (or past ‘positions’) into something that is recognizable in planet court. And, if you don’t do that, you lose.

Posted by: S.cotus | Aug 14, 2007 4:39:32 PM

In Drye v. US, the lawyer for the individual (a taxpayer) began his oral argument by pulling out a Bible and an apple. The transcript begins thus:

MR. TRAYLOR: Mr. Chief Justice, members of the Court, may it please the Court:

For our Socratic dialogue I am armed with a borrowed Gideon and the fruit. This is -- these aids go right to the jugular of this case, and the genesis of the case, which is Chapter 3 of Genesis.

What we have here is, when the serpent extended the fruit to the offeree, free will said that the offeree had a right to accept or reject the gift. Assuming that that offeree was a tax delinquent, the Government's position is that their 6321 Federal tax lien attached at the moment that the serpent extended the fruit. That is not --

QUESTION: Well, of course, the IRS was not in Paradise.

(Laughter)

The rest of the argument wasn't outrageous, but he lost 9-0.

Posted by: anon | Aug 14, 2007 5:50:19 PM

I represented one of the defendants in Young v. Matsushita Electric Industrial Co., Ltd., 939 F.2d 19 (2d Cir. 1991) (per curiam), in which the plaintiffs, American citizens represented by counsel, sought to enjoin the Japanese conglomerate Matsushita's acquisition of the movie studio MCA on the theory that they had a constitutional "right of national citizenship" that encompassed "an allegedly inherent right to recieve information on national issues by means of mass media not accountable to foreign-owned or foreign controlled entities." The plaintiffs "cited no case in support of their expansive concept of national-citizenship rights," and the Second Circuit affirmed the dismissal of their complaint. Id.

I know that pro se cases are beyond the scope here, but a few years earlier, when I clerked on that same court, I watched an argument in which the pro se plaintiff contended that the New York City subway system constituted a cruel and unusual punishment that violated the Eighth and Fourteenth Amendments. After listening to the plaintiff for a couple of minutes, the presiding judge asked a question that brought the house down: "What do you want us to do about it? Have you been in the elevators in this courthouse?"

Posted by: Anon | Aug 14, 2007 6:00:04 PM

The City of Chicago was once sued on the theory that its sponsorship of Halloween-related activities was an unconstitutional establishment religion -- the religion allegedly established in Chicago, as I recall, was Wiccan.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Aug 14, 2007 6:06:50 PM

This is more bad logic than bad legal argument but it was made by an attorney in a motion submitted to my judge (only the names are changed):

"Jones in his deposition denied ever mentioning Smith's age at any time and testified that he never had any criticisms of Smith. This evidence, taken in the light most favorable to Smith supports the inference that Jones's complaint about Smith to Smith's boss were about Smith's age."

Posted by: anonymous law clerk | Aug 14, 2007 6:08:51 PM

Lawrence v. Texas. I worked on it and was there for the oral argument.

The attorney from Texas OPENS with the following argument: Lawrence can't argue that the sodomy statute discriminates against homosexuals because he hasn't proven that he is a homosexual. Just because he was found (and arrested) having sex with a man and has claimed in his pleadings that he is gay doesn't PROVE that he is actually a homosexual.

It was a brilliant moment with Justice Scalia interrupted him, paused, and suggested that he might want to move onto another argument.

Good times.

Posted by: Lindsay | Aug 14, 2007 7:02:52 PM

I don’t think pro se arguments should count.

The Lawrence v. Texas argument regarding whether he can prove he is a homosexual or not is not completely out there, since there is a conceptual difference between the state of BEING a homosexual, and committing homosexual acts. For instance, at the moment, I don’t think it is clear whether a state could ban consensual anal sodomy between “straight” men. Likewise, it is unclear the extent to which a declaration that one IS a homosexual is protected by the 1st, which is an issue pending (in part) before the First at the moment.

The Halloween argument, while wrong, is grounded in the same logic that, say, Jesus display might constitute an establishment of religion. Of course, this is all about line-drawing. Santa is okay because he has been secularized, but parts of the pagan or druid rituals might have become secularized as well.


Posted by: S.cotus | Aug 14, 2007 7:09:46 PM

Here's a union vs management story where management decided that the prior signed pay agreement did not mean what it clearly stated in plain language:

http://www.patenthawk.com/blog/2006/08/cheapskate_pto.html

They were overruled by an arbitrator several times.

Posted by: Patent Examiner | Aug 14, 2007 7:16:21 PM

As A/V support in a law firm, I see a lot of trials and participate in a lot of trial teams. Thankfully the worst argument ever did not come from my side of the courtroom. The worst argument I have ever seen was a Plaintiff's no evidence motion... at the close of the plaintiff's case. I've never seen a judge overrule a motion quicker or with more force, once he realized that the plaintiff was sincere.

Posted by: Phelps | Aug 14, 2007 7:35:19 PM

I'm reminded of a famous Austrlian film called, The Castle. If you haven't seen it you should.

When asked by an Australian Appellate Court what part of the constitution they should rely on to overrule a decision of a town condeming a piece of property in an exercise of eminent domain (the town wanted to expand the airport), fictional lawyer Dennis DeNudo randomly pointed them to a provision of the constitution that involved intellectual property rights.

When one of the judges asked what that particular provision had to do with anything, DeNudo just shrugged and said, "I don't know. It's the vibe."

Since then, I understand from my ozzie lawyer friends that, the "it's the vibe" has made its way into common disource in Austrlian legal circles.

Posted by: Susan Franck | Aug 14, 2007 7:40:59 PM

I cant find a cite (just searched westlaw), but attended oral argument in the second circuit last summer wherein the plaintiff was forwarding an argument that a certain regulation of the airwaves (I believe EPA, may have been FCC) violated the Third Amendment as it forced him to house government actors.....

Posted by: Portia | Aug 14, 2007 7:51:20 PM

I wrote a respondent's brief on a juvenile dependency case. The main thrust of the parent's argument was that because the trial court judge mentioned, almost as an aside, that the placement he was making would be in the interest of the minor, that he applied a "best interests" standard instead of the correct standard. (2006 Cal. App. Unpub. LEXIS 10785).

An aside of my own: meth addicts do not make great parents...

Posted by: Bev | Aug 14, 2007 7:59:25 PM

Do pro se litigants count?

When I was clerking in federal district court, we got a lawsuit filed by a prisoner against another prisoner. The cause of action? Plaintiff paid defendant $500 for cocaine. Defendant never delivered it.

Posted by: Mike Anderson | Aug 14, 2007 8:25:16 PM

Phelps, “No evidence” motions, as you put them, are always made at the close of evidence. Sure, they might not seem meritorious, but they are substantive arguments that are reviewed on appeal.

Patent Examiner, People always disagree as to “plain language.” In fact, I would say that most of the time both parties claim to rely on the “plain language” of something or other.

Posted by: S.cotus | Aug 14, 2007 9:07:44 PM

S.cotus, I think what Phelps said was that the "no evidence" motion was made not at the close of evidence but at the end of the plaintiff's case in chief, i.e., before the defense had an opportunity to present any evidence.

As far as the Texan's Lawrence argument not being completely out there, I wonder what you would require as proof of homosexuality. Surely Lawrence would back up his allegation that he was homosexual with testimony. That coupled with the fact that he was caught doing what even you concede is a homosexual act seems enough to me. Your comment also forces me to ponder whether consensual anal intercourse can occur between "straight" men. While I tend to believe that sexuality is not typically black or white, that there is a continuum from straight to bi to homosexual along which people fall when it comes to their gender preferences for sex, I think by definition that a male consenting to anal sex with another male is not "straight."

I do, however, completely agree with your plain language point.

Posted by: Jim Green | Aug 14, 2007 9:35:27 PM

Not a legal argument, but a baseball one. In a piece at ESPN.com Steve Phillips argued (paraphrasing) "Sammy Sosa should be in the Hall of Fame because he didn't use steroids. How do we know he didn't use steroids? We know because he corked his bat. The fact that he cheated on that occasion means he didn't cheat on other occasions."

That man spent seven years running the New York Mets. Good grief.

Recap here: http://www.firejoemorgan.com/2007/06/yikes.html.

Posted by: The Blog Lebowski | Aug 14, 2007 10:20:06 PM

Jim, I am not saying that the “is he gay” argument is correct. I am saying, however, that this issue was not resolve pre- or post-Lawrence, and I can’t give you a way to resolve it.

Your pondering about straight men having gay sex sounds like something out of Dan Savage, and I think I probably need to show you why it is not an easy legal problem. But, let me change the scenario a bit: straight women having lesbian sex. Of course, “straight” women have “lesbian” sex in college, and it is considered normal and cool and a part of popular culture. Do these attention-seekers have the same type of standing to challenge a law that restricts their behavior, even though they will likely admit that they are doing it “just for fun” or “a phase.” (Note: I have been told by mature women that, yes, their attention-seeking behavior was, “a phase” and I am not making this up. If people think that I am just being obnoxious, I can refer them to popular culture references to "Lesbians Until Graduation" and the like. So, let's not deny it. Okay?) I could argue that Lawrence doesn’t apply to them, because Lawrence applies to people with more of a commitment to homosexuality – I guess in the same way that people claiming their right to practice a their religion has been burdened could be made to show that they are not just doing it for attention.

Indeed, now that you mention it, I am not quite sure how Lawrence applies to bisexuals, either.

Posted by: S.cotus | Aug 14, 2007 10:50:12 PM

The main reason the argument in Lawrence was a bad argument was that the attorney was attempting to make a standing argument about the petitioners' standing to challenge their own criminal convictions.

It also made no sense given that (a) it was undisputed until oral argument -- in the Supreme Court -- that Lawrence and Geddes were homosexuals, and (b) the main question presented was about conduct, not status (i.e., the substantive due process question was about the right to engage in the conduct of sodomy, not the right to be a homosexual).

Posted by: Lindsay | Aug 14, 2007 11:06:25 PM

"Under challenge to address declining academic
performance in the age of globalization, American public
education finds itself—even at a time of war—as a vitally
important subject in the unfolding democratic conversation
about the Nation’s future."

So opens the Argument section to Ken Starr's brief in the Bong Hits 4 Jesus case. He invoked globalization, which is weird. But the real humdinger is that the School should win the case because we are in a time of war. Now, if we were at peace, the schools argument would be obviously much, much weaker.

Posted by: RMCACE | Aug 14, 2007 11:16:10 PM

I can't name the client or the case, especially as it's ongoing, but an attorney that graduated from a T10 school made the argument, in sworn testimony, that he could neither confirm or deny our allegations about what an arbitration provision in a contract read because he said, "I never read the EDRP [Employment Dispute Resolution Procedure], so I couldn't tell you what it says." The attorney for the plaintiff, whom I worked for, followed up with a ton of questions that, if the client of the defense counsel read would fire his butt and have immediate grounds for malpractice - from sworn testimony in court no less.

Long story short the arbitration clause was held unconscionable, and the judge, in her opinion, questioned the sanity of the Defense lawyer's testimony.

Posted by: Daniel Leathers | Aug 14, 2007 11:16:47 PM

Reno v. Condon. It's unconstitutional for the federal government to regulate state sale of driver's license information, but not unconstitutional to regulate state operation of airports, or state sales of natural gas, or state regulation of electricity markets because ... um, well, just because.

http://www.oyez.org/cases/1990-1999/1999/1999_98_1464/argument/

(Start the audio at 33:04)

Posted by: Bruce Boyden | Aug 15, 2007 12:54:07 AM

I observed this as an extern in federal district court in L.A. It was a Monday morning, the beginning of the civil motion calendar. We had a plaintiff whose case had been going nowhere for about 2 years while he burned through a several lawyers. An employment case as I recall. Plaintiff was asking for a lot of money. Each lawyer came of board for just so long as it took to figure out the plaintiff was full of it, then withdrew. I believe this was the fourth lawyer, and he was like the odd man out in a game of musical chairs. When the music stopped and the court wasn't granting any more extensions--this guy had to explain why defendant shouldn't get SJ.

As a preemptive strike against the notion that this was a fee-driven case, the guy argued (and I paraphrase): "I've been practicing law for more than 20 years, your honor, and if all I cared about was making money, then I wouldn't be driving (pointing vaguely at a courtroom wall) a SEVEN year old BMW."

Everybody in the courtroom lost it--me, the clerks, the CRD, the lawyers in the gallery, as well as the judge. Did I mention this was in L.A.?

Posted by: Jason | Aug 15, 2007 1:01:35 AM

The Due Process Clause contains substantive rights.

Posted by: James | Aug 15, 2007 2:28:58 AM

Easy choice. A Regent University law school graduate was up on disciplinary charges before the Virginia State Bar for improper conduct regarding his estranged wife. Many e-mails documenting the improper conduct. Called his wife the "whore of Babylon," as I recall, and then it went downhill from there. Said that the Virginia Beach Circuit Court, which was hearing their divorce case, was a "pagan court," and chastised her for bringing their dispute between Christians to a "pagan court."

When before the VSB, continued his unrepentent, obstreporous behavior,and wound up calling the Virginia State Bar, which was pondering his fate, a "pagan tribunal."

Guess what? He lost. The pagans took his law license. No doubt he chalked it up to religious discrimination, and went on to his next career as a snake handler.

Don't have the cite but I'll find it in the morning -- good reading.

Posted by: Virginian | Aug 15, 2007 2:51:32 AM

Lindsay, While of course criminal defendants can challenge their own convictions, the state was arguing that they couldn’t use whatever facts were present in the record to assert a constitutional argument based on their status as homosexuals. I imagine this is akin to, say, criminal defendant convicted of marijuana possession, who made no effort below to assert a medical necessity defense, trying to assert that the law is unconstitutional because he had such a necessity. (By the way folks, just so you know, I think that Lawrence reached the right result.)

Virginian, I find it interesting that people are immediately associating the ranking of the school with quality of the arguments. On the other hand, since Regent (low-ranked) does have a reputation for all sorts of religion and politics-related crap, maybe the “Pagan tribunal” example really is the best “bad” argument. Perhaps we could get a link to a document which documents this. If you can find this, I will back you as the winner.

Ken Starr’s argument, while silly and political, is not really a bad argument, because he won the Morse case.

Posted by: S.cotus | Aug 15, 2007 5:44:49 AM

Hands down, the majority opinion in Roe v. Wade. Such terrible reasoning... (head shrug)

Posted by: Anonymous | Aug 15, 2007 8:06:48 AM

If you call a winning argument bad, or you call an opinion from the highest court bad, you just complaining about the result. Whether you like it or not, these arguments are, in the world of lawyers, “GOOD.” From that point on, they are “the law” and you have to fit future arguments within their framework.

So, for example, while it is “cool” in some circles to bash Roe and Casey (especially to non-lawyers), the government, in its PBA arguments fits withing the existing law. This is how we do business. For a private attorney to do otherwise would be malpractice.

Posted by: S.cotus | Aug 15, 2007 8:10:32 AM

S.cotus: Are you claiming the Supreme Court is incapable of adopting bad legal arguments?

Posted by: James | Aug 15, 2007 8:26:30 AM

"If you call a winning argument bad, or you call an opinion from the highest court bad, you just complaining about the result."

That can't be right. Lots of people have said they like the result in Roe, but think the arguments in the opinion are poor. See, e.g., Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480, 480 (1990) ("Roe v. Wade is an unpersuasive opinion...").

For that matter, Scalia liked the result in, e.g., Hein, but didn't like Alito's reasoning. Lots of concurrences-in-the-result are very harsh on the reasoning of the majority.

Posted by: Chris | Aug 15, 2007 8:45:39 AM

Deposition testimony from a bankruptcy case
Lawyer: Objection. Hearsay.
Witness: It's not hearsay: I heard it myself.
That was probably the only time during the entire muti-year case that I saw the judge laugh.

Posted by: Tom | Aug 15, 2007 9:13:18 AM

I can confirm Portia's recollection. In a case argued in the Second Circuit in the summer of 2006, an attorney argued that his client's Third Amendment rights were violated because the FCC allowed military spectrum radio waves to be broadcast near his house. The radio waves were supposed to have entered his house (and messed with his head I'd wager) and thus to have been the quartering of troops.

I was in the courtroom and watched the argument. As I recall, the case had two titles, along the lines of "X v. Y (In re: Z)." The second part of the title was "In re Gonzales." I can't remember the first part. And the kicker is that the attorney making the argument was a former AUSA or DA as I recall being told. One judge on the panel was Judge Walker. I can't remember the others. If you could dig up the tape of this argument, it would be a classic.

Posted by: Anon | Aug 15, 2007 10:03:39 AM

From a case before my judge while I was clerking on the 3d Circuit a few years ago -- Summary Judgment should not have been granted against the appellant because Summary Judgment violates the Seventh Amendment right to a jury trial.

Posted by: anon | Aug 15, 2007 10:24:16 AM

Elmaghraby v. Ashcroft. In oral arguments before the Second Circuit, the government lawyer kept arguing that the plaintiff's allegations, that prison guards frequently removed his Koran and withheld it for days on end, proved that the prison allowed him to use his Koran. Despite several none-too-subtle hints that he should move on, the gubment lawyer fixated on this particular argument as a winner.

Posted by: Matt | Aug 15, 2007 10:28:31 AM

James, Chris, Yes. The Supreme Court, per se, cannot make bad legal arguments. Sure, I don’t like them, but that doesn’t mean they are bad lawyering. Even if Miers had gotten on the court, and written incomprehensible opinions (with impeccable grammar, as she this is a high priority for her) that could not even be understood by lower courts (or judges) they would form “the law” and lawyers would try to operate within them.

The differences between “reasoning” and “results” for purposes of the Supreme Court’s arguments, I argue, are minimal, if nonexistant. Why? If you claim that the “reasoning” is dicta, then it isn’t an argument at all. If you think it constitutes part of the holding it binds (whether you or I like it or not) lower courts, and it IS the law.

Sure, lots of people like to criticize Roe, even people who don’t think that the state should be intervening in reproductive rights. But that doesn’t mean that lower courts can ignore its reasoning, and lawyers can simply say “Roe was badly reasoned, so I will pretend it does exist, but argue for a similar result.”

As to the argument about concurrences. Sure, they are harsh, but a concurrence rarely (thought not always) binds lower courts. (This is a complex issue, for another day.) So, while courts might be divided whatever you consider the reasoning and/or holding of the Supreme Court constitutes the law, and we have to fit our reasoning into it. That said, I have argued (on my blog) that some amount of political polarization has actually poked holes in the fabric of the law, since everyone is stretching (in the GWOT cases) to impose their view in the face of changing executive and legislative responses to the Supreme Court and the other branch.

Anon, Someone else poo-pooed the argument that “Summary Judgment should not have been granted against the appellant because Summary Judgment violates the Seventh Amendment right to a jury trial.” This has become a hot topic in law review articles as of late. While I don’t know the specifics of this, there actually HAVE been reversals of summary judgment on constitutional grounds.

Matt, As to the “Koran” argument, obviously I don’t have much sympathy for the government’s argument, but I think that there is some debate as to whether exercise of religion includes access to tangible materials (e.g. specific books) or merely access to the texts in any form. So, maybe the government lawyer was trying to say, “we let him read the Koran in a reasonable fashion – just not in the manner he wanted him to.” In fact, I could easily imagine a prison which provided all inmates with a touch-screen that provided unlimited access to all holy books from any religion. The inmates could read them as much as they liked, but they cold not actually touch them. Maybe this was the argument that the government was making.

Posted by: S.cotus | Aug 15, 2007 10:45:39 AM

Loving v. Virginia - Virginia sought to avoid "corruption of blood" and avoid a "mongrel breed of citizens."

NAACP v. Alabama - All the reasons Alabama Courts came up with that they did not have to obey SCOTUS.

Posted by: RMCACE | Aug 15, 2007 11:38:34 AM

As to Loving, I remember downloading the arguments off Oyez, and they seemed absurd. However, the justices didn't really treat them as if they were too absurd. Do you happen to know how far outside the mainstream they were at the time.

Maybe some specifics about NAACP v. Alabama would be helpful.

Posted by: S.cotus | Aug 15, 2007 11:40:33 AM

The builder of a home signed a purchase agreement stating the home never suffered from a wet basement. When confronted with a receipt for a pump's rental, and deposition testimony that the builder pumped water out of the basement over a three-month period, the attorney defending the builder explained the statement in the purchase agreement could not be a misrepresentation because the builder was not an occupant of the home. According to the lawyer, only occupants were capable of making misrepresentations.

Posted by: Looking2Evolve | Aug 15, 2007 12:15:43 PM

From an arbitration I worked on years ago: Arbitration under foreign substantive law, US rules of evidence. 3 arbitrators, only one American-trained. Opposing counsel tries to introduce a conversation between the witness and a non-party, for truth. Classic hearsay. Objection. Opposing counsel says "Your Honors, it's an oral business record."

Posted by: Eric | Aug 15, 2007 12:23:49 PM

In Stehney v. Perry, 101 F.3d 925 (3rd Cir. 1996), the Third Circuit affirmed the dismissal of a complaint by a former government contractor against, among others, the National Security Agency.

Stehny, a mathematician, was terminated from her job at a defense contractor because she could not get a security clearance. She could not get a security clearance because she refused to take a polygraph test. Passing a polygraph test is a requirement to obtain the level of clearance she sought, although the NSA has an exception for "world-class mathematicians." Stehny argued that the exception violated equal protection since it discriminated against non-world-class mathematicians.

(Interestingly, she also argued that the exception was an implicit discrimination against women. Former Harvard President Larry Summers may agree?)

Posted by: World-Class Mathematician | Aug 15, 2007 12:38:26 PM

S.cotus
In response to your comments regarding Lawrence V. Texas, though I agree with your general point in your comments regarding self-identification (legally and otherwise, for that matter) and sexuality, I do take issue with some of your comments regarding "attention-seekers". I would never deny the existence of "LUGS" and I think you were right on the money to turn the tables in such a way. However, I do take issue with you writing their behavior off to attention-seeking. Perhaps college is a sexual free space that allows women to try out behavior they hadn't previously felt they had the freedom to engage in? Who really knows - I imagine it's different for everyone, with a healthy mix of attention-seekers thrown in. Not really my point. My point is to rethink the idea that all sexual acts by 'straight' women are somehow for, implicitly, the attention of men, rather then because of their own desires.

Posted by: Katie McNabb | Aug 15, 2007 12:54:38 PM

S.cotus -- I, like many of the commentators, am a lawyer, so I don't need you to explain how lawyers work and reason.

Your argument boils down to this: (1) the supreme court makes the law; (2) lawyers work within the law; (3) thus, the supreme court cannot adopt bad legal arguments.

Your conclusion (#3) does not follow from #1 and #2. Yes, it is true that the supreme court makes the law. And yes, it is true that supreme court opinions bind lawyers and jurists. Neither proposition, alone or combined with the other, supports your conclusion that the court cannot adopt bad legal arguments. Instead, they merely point to the outcome of the court doing so: if the court adopts a bad legal argument, that bad argument becomes law, and that bad argument binds lawyers and jurists.

For example, imagine an advocate arguing that the "judicial power" of article III includes the power to make appropriations on behalf of the federal government through judicial opinion. That's a bad legal argument--the text, ratification and implementation history, and structure of the constitution make clear that the court lacks this power. But under your reasoning, our advocate's argument loses its "badness" if the supreme court adopts it, and that's just silly. The argument itself remains the same, regardless of whether it appears in the u.s. reports, and regardless of whether it binds lawyers and jurists.

Posted by: Jimmy | Aug 15, 2007 1:24:23 PM

Katie, I don’t know if they are seeking the attention of men per se, but they DO declare their sexuality in public, which is a form of attention-seeking. While I do know that a lot of faux-lesbianism is to seek the attention of men, for others it is just a way to say, “look at me.” And, so you, see, faux lesbian becomes a First Amendment issue. (And, just to let you know, I think that any displays of sexuality in public, even if as vanilla as they come, are attention-seeking.)

Jimmy, It comes down to what your definition of “bad” is. Sure, you and I probably do agree that some decisions are impractical, or not supported by the history, text, or precedent of the constitution. In the case of a “judicial appropriation” we would just have to fool ourselves into thinking that it all made sense.

Posted by: S.cotus | Aug 15, 2007 2:18:42 PM

S.cotus,

Is there an organization called HUGS? And shouldn't your unwillingness to let Lawrence self identify be applied equally to those self identifying as LUGS? Perhaps they too misrepresent themselves or lack the self awareness to comprehend their state of sexuality.

Posted by: Jim Green | Aug 15, 2007 2:42:08 PM

Strangely, few men self-identify as gay in college and then turn straight. These are all interesting issues.

For some similar examples, I think that most of us agree that in the US, religion in a matter of self-identity. (Except for kids: apparently people think it is a constitutional right for parents to force kids to go to church. Personally, the state has a compelling interest in prohibiting any kids from attending church until they turn 16 and can choose what church they want to go to.) There is no way to disprove that someone believes something or not. However, the best prisons have been able to do is show a course of conduct inconsistent with those beliefs, and the courts, based on such a course of conduct have upheld prison restrictions that conflicted the inmate’s professed religion.

I don’t think that we treat sexuality as a religion, which appears to get specific protection from the first, so the best we have is self-professed assertion’s of “sexuality,” and an ambiguous statement holding in Lawrence that appears to treat homosexual behavior as protected based on the status of gay people as gay. Even today, I think that the Texas’ lawyers assertion that “they did not prove they are gay” is tenable, because the Supreme Court (and society in general) has not really explained what it means to be gay.

Posted by: S.cotus | Aug 15, 2007 2:55:32 PM

S.cotus -- respectfully, you're talking nonsense. We don't have to fool ourselves into thinking anything. A bad argument is a bad argument, whether or not a court adopts it.

Think of the implications of your reasoning. Take a hypothetical bad legal argument--"Argument A". If the second circuit adopts Argument A, and the first circuit rejects Argument A, what is the status of Argument A? Is it now a good legal argument for districts within the second circuit but a bad legal argument within the first? Note that I'm not asking whether the 2d circuit opinion that adopts Argument A is binding, citable precedent--under these facts, it certainly is--but whether the underlying argument is a good or a bad legal argument.

Consider also instances in which a court overrules one of its own precedents on grounds that the earlier decision was based on an erroneous premise or faulty reasoning. Were the original premises and reasoning accurate and logical before the overruling, but not afterwards?

Finally, recognize how extreme your position is within legal thought. Scholars from all ideological and jurisprudential backgrounds--from Paulsen to Yoshino, Prakash to Koh, Amar to Tribe--have criticized the supreme court for adopting bad legal arguments in one instance or another. I'm not claiming you're wrong just because they all implicitly agree that the court can adopt bad legal arguments, but I want to point out how extraordinary your claim is.

Posted by: Jimmy | Aug 15, 2007 3:09:13 PM

If pro se litigants count, then the worst argument ever has to be the prisoner who filed a "Motion to Kiss My Ass." Here's an interesting piece on the case, with a great excerpt for the District Court opinion denying the Motion:

http://www.concurringopinions.com/archives/2005/12/judge_moore_and.html

Posted by: Norm Peterson | Aug 15, 2007 3:30:31 PM

It all comes down to what we mean by “bad.” I agree with you that there are bad decisions. They are unclear, unworkable, unsupported by whatever we think is the appropriate authority. But, I disagree with you in saying that somehow they can rank up there with the “bad legal argument” that this contest is trying to find. In essence, they are the baseline by which we measure other arguments.

Posted by: S.cotus | Aug 15, 2007 3:43:21 PM

S.cotus,

I think I find the Texas argument so bad in part because I find it offensive. That argument is just as offensive as the law that it was seeking to uphold. Prove you are a homosexual. How do you do that? Acting homosexual isn't enough? Self identifying as a homosexual isn't enough? Both together aren't enough? How does one prove one is or is not a homosexual?

Assume Lawrence is a homosexual. Is it not an affront to his dignity to deny him the right to make an argument based on who he is because he did not prove it to the satisfaction of Texas or the Supremes?

Thus, I find that the argument that he didn't prove he was a homosexual untenable, offensive, and rightly in this list of bad arguments started by the always funny and fun Scott Moss.

Posted by: Jim Green | Aug 15, 2007 3:53:00 PM

Jim, First of all, don’t get me wrong. Not only do I think L v. T reached the right result, but I think that homosexuals should be allowed to wed, join the military, obtain library cards, adopt children, and everything else. Probably more so than most people.

But, I don’t find any argument “offensive” because it is a term without meaning. In fact, amongst non-lawyers, it is fashionable to run around screaming that they are “offended” by policies, laws, prices, traffic, or just about anything they don’t like. Somehow, American culture has told these people that if they scream “offended” they are more likely to get their way.

I have, in the above posts explained some of the gray areas with recognition of homosexuals as either a protected class, or recognizing (consensual, adult) homosexual conduct a fundamental right. As it stands now, even post-Lawrence, it is unclear how one goes about being classified as a homosexual, in order to bring themselves within the ambit of Lawrence. Looking at the text of Lawrence, it seems that the court did not say that there was a general right of sexual privacy (which is unfortunate, because I think there should be). Consider this paragraph from Lawrence:

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.

From reading it (and I have read it a few times), I can’t figure whether only homosexual persons have a right to engage in such conduct, or whether everyone does. So, even today, the argument of the Texas attorney would have some merit. If you conclude that nobody has to prove that they are gay, then, we must conclude that there is a generalized right to sexual privacy. But, Lawrence doesn’t say this, and lower courts have unfortunately rejected this notion.

If, on the other hand, you conclude that only “proven” homosexuals have such a right, then you have to have trials on the issue. Alas, this isn’t too far outside the realm of possibilities. Courts routinely resolve whether religious beliefs are “devoutly” held. Perhaps if we simply treat the “status” of being a self-identifying homosexual as akin to self-identifying as a member of a religion (as we do in the US), it makes sense. But, even then, a court would still need to conduct a strange inquiry.

Posted by: S.cotus | Aug 15, 2007 5:03:05 PM

S.cotus,

This exchange is kinda fun. And I suppose until September 17, assuming all went well, I can wallow in the squalor that is the life of non-lawyers. That said, taking the oath in September won't make offensive arguments any less so.

First, just for kicks, should we have a presumption one way or the other? You are presumed straight until proven homosexual? That would have to be the choice. Should we make it a bursting bubble or a burden shifting presumption? What would constitute prima facie evidence to rebut the presumption? How about getting caught in a homosexual act and professing homosexuality, wouldn't that be enough? Would it require a preponderance or clear and convincing evidence?

Humor aside, perhaps I find the argument offensive because of its premise. It ultimately puts the courts in the position of entering judgment about who you are. I can see it now, a final judgment in a declaratory action finding, for fun let's just say you, whoever you are, homosexual. On appeal should it be abuse of discretion? The affirmation might read, well, it could have gone either way S.cotus, but its within the wide discretion of the trial court so we guess the judgment will stand, you are gay.

Now I agree that Lawrence isn't clear. It can be argued many different ways. And I would even concede that there may be some resonance at least for some people in the Texas argument. I, however, find that resonance discordant and offensive. I don't mind courts deciding what happened and who did what but its offensive to me to let courts define who we are.

I also don't think offensive is an empty term. People are offended when they are made to feel less than they are. This argument makes does just to me and I am not even homosexual assuming you would accept a wife, a daughter, a lack of homosexual partners, and my professed straightness as proof. But I hope you wouldn't ask for proof. That would offend me.

Posted by: Jim Green | Aug 15, 2007 5:47:08 PM

I don't know, it's a toss up between Alito's opinion in Ledbetter v Goodyear and the per curiam argument in Bush v Gore for the worst legal argument I have ever run across.

Posted by: MarkT | Aug 15, 2007 6:32:30 PM

http://youtube.com/watch?v=48YsBMDyHXE

Sadly the [Sasha Baron Cohen as Bruno] video doesn't have the classic line about "So you're saying that if I place a man's penis in my mouth, I've somehow crossed some line and now I am gay?"

I think S.cotus, that you are exactly wrong. The ruling in Lawrence does not create a right for homosexuals, which would create the need for an evidentiary hearing on whether the person in the dock is in fact homosexual, it says that discriminatory enforcement of a statute banning sodomy is unconstitutional. The statute, despite its facially neutral construction, actually targets only one group. Presumably a statute banning vaginal intercourse would be unconstitutional even if theoretically applied equally to hetero and homosexual couples.

The point of the passage that you cite is not to suggest a dichotomy between homosexual conduct and one's identity as a homosexual, but rather to cut through the nonsense of Texas's argument by pointing out that whether or not homosexual conduct can be practiced by non-homosexuals, it is principally homosexuals that will be effected, and unfairly so.

Of course, the interesting thing is that in areas where it pays to be really representative of a group, like in refugee law, there is a marked bias towards unassailably homosexual refugees, with attendant markers. In most other contexts, see Goffmann Stigma and Kenji Yoshino's brilliant update Covering, its the opposite.

Posted by: Bart Motes | Aug 15, 2007 6:59:27 PM

To anon at 10:24: The idea that summary judgment is unconstitutional isn't quite as crazy as it sounds. See this paper by Prof. Suja Thomas, aptly titled "Why Summary Judgment is Unconstitutional." For those of you who prefer hard copies, it's published at 93 Va. L. Rev. 139 (2007).

Posted by: The Blog Lebowski | Aug 15, 2007 7:54:40 PM

There's an attorney in Springfield who once sued the makers of The Neverending Story on a false advertising claim. His name was "Lionel" something...

Posted by: andy | Aug 15, 2007 9:16:07 PM

NAACP v Alabama is a procedural mess because of the stubborness of Alabama. Quick facts: State passes law saying NAACP must disclose bank accounts, leases, and membership list. Alabama Supreme Court issues contempt judgment. SCOTUS reverses. Alabama Supreme Court re-instates the contempt judgment over SCOTUS's ruling because it claims SCOTUS relied on a "mistaken premise" that NAACP had properly disclosed certain items. SCOTUS reversed again because at no point in earlier proceedings did the state raise this argument, arguing it only on remand. Alabama then tries to drag on without having a hearing on the merits. It goes up to SCOTUS a third time, and SCOTUS orders a hearing on the merits in Alabama or the Federal District Court will do it. Alabama Circuit Court has hearing and surprise, finds the NAACP had violated Alabama law and ordered it to stop doing business in the state.

The Supreme Court of Alabama saved its best argument for last in upholding the judgment. It ruled that "a rule of long standing and frequent application that where unrelated assignments of error are argued together and one is without merit, the others will not be considered." The Supreme Court of Alabama ruled that NAACP's brief violated this rule, and therefore it could not hear the constitutional grounds. The Alabama Attorney General argued that this constitited an adequate and independent state ground, therefore precluding judicial review.

SCOTUS is now a little pissed. On the fourth time before SCOTUS, they rule on the merits. In dismissing the procedural issues raised by the Alabama Supreme Court, SCOTUS points out:

"it seems to us crystal clear that the rule invoked by it cannot reasonably be deemed applicable to this case. In its brief, the Association referred to each of its assignments of error separately, and specified the argument pertaining thereto. A separate paragraph was devoted to each of the assignments of error except, as noted above, for two related assignments included in one paragraph and four other related assignments included in another paragraph. These six assignments, like all the others, were specified and explicitly tied to the argument relating to each. We are at a loss to understand how it could be concluded that the structure of the brief did not fully meet the requirement that unrelated assignments of error not be "argued together." Had the petitioner simply omitted the Roman numerals which subdivide its "Argument" section, intended presumably as an organizational aid to understanding, there would have been no conceivable basis for the suggestion that the various errors were argued "in bulk"; and, indeed, the sole basis mentioned in the Alabama court's opinion for the conclusion that these errors were grouped for argument is the numbering of subdivisions.The numbering was a mere stylistic device, which cannot well be regarded as detracting from the brief's full conformity with the rule in question."

SCOTUS also listed several Alabama cases where the Alabama Supreme Court permitted clearly deficient briefs. In the understated conclusion to the opening section detailing this tortured procedural history SCOTUS states: "The State has urged that if the nonfederal ground relied on below be found inadequate, as we find it to be, the case be remanded to the Supreme Court of Alabama for decision on the merits. While this might be well enough in other circumstances, in view of what has gone before, we reject that contention and proceed to the merits."

Posted by: RMCACE | Aug 16, 2007 12:29:27 AM

An anonymous commenter writes: From a case before my judge while I was clerking on the 3d Circuit a few years ago -- Summary Judgment should not have been granted against the appellant because Summary Judgment violates the Seventh Amendment right to a jury trial.

I assume it was made less articulately than it is here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363

Posted by: anonymous | Aug 16, 2007 2:10:27 AM

RMCACE, Do you think this constitutes bad legal argument, or rather just bad political positions? I mean, I think we all know that Alabama has a history of institutionalized racism, and all sorts of other wackiness. Their Supreme Court seems to just be acting as a political actor and advancing their position via a form of legal argument. The fact that they did it four times means that they failed.

Posted by: S.cotus | Aug 16, 2007 9:16:01 AM

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