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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.

Posted by Scott on August 14, 2007 at 12:33 PM | Permalink


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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


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:


They were overruled by an arbitrator several times.

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

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

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

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

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

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.


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

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

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

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

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

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