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Wednesday, June 15, 2011

What good can come from Kentucky or North Dakota?

So, I intended to shift gears away from amicus briefs , but I just had an interesting development I thought would be of interest to the Prawfs audience. Yale University’s counsel opposed the filing of the brief in a case seeking restitution of a Van Gogh painting confiscated during the Russian Revolution. Contrary to Yale University’s educational mission encouraging the dynamic exchange of ideas, its counsel seeks to muzzle amici. In fairness, the brief criticizes Yale’s counsel’s Act of State arguments, which all but ignored historical context.

As you can see (scroll toward end), the opposition to the motion relies on a case written by Judge Posner generally slamming amicus briefs. That opinion was ripped apart later by Justice—then Circuit Judge—Alito while he was still on the Third Circuit. Justice Alito noted that the party opposing the filing “cited a small body of judicial opinions that look with disfavor on motions for leave to file amicus briefs.” Justice Alito also noted that the description of the role of amicus in this small body of cases “was once accurate and still appears in certain sources . . . but this description became outdated long ago.” The minority view also was criticized in a Yale Law Journal article relied upon by Justice Alito. Justice Alito correctly concluded: “I believe that consent [to file amicus briefs] is now freely given in large part because it is thought that leave to file would be granted in any event if consent were withheld.” “[I]t is preferable to err on the side of granting leave. A restrictive policy with respect to granting leave to file may also create at least the perception of viewpoint discrimination.”

Yale’s counsel didn’t mention any of the criticism or any of the sixteen cases that cite the Alito opinion with approval. Basically, Yale’s counsel repeated the failure that drove amici to file in the case – ignoring (or ignorance of) historical context. Yale’s counsel also haughtily dismissed the interest of one amicus and me because we are based in North Dakota and Kentucky, respectively. The short reply amici asked to file today squarely addresses this and uses the line in the title of this post. I think you might enjoy reading it.


This episode brings to mind recent blog post of my colleague, Mike Mannheimer, theorizing about snobbery’s impact on law review article selection. I’ve still got teeth in case there is room for smiling after the next submission season – and maybe I’ll git to wear shoes ‘n git me a ‘possum dinner at a fancy ristorant if I kin dig me up some money! O!, but hold yer horses – all dem fancy pants 2L’s prob’ly jes thinks I be paddlin’ wit one oar in the watter! Gis I’ll jes play de State song on me fiddle ‘n swing me feet in de blue grass.

So, before you jump into amicus work, you should know that these sorts of flaps can arise, which increases the total amount of time to one should budget to perform such work. On the positive side, the reply was even a little fun to draft, and I imagine opposition to the filing of an amicus brief brings Shakespeare to the minds of most judges: “The lady doth protest too much." (Again taken out of historical context).

Finally, I want to provide a link to my first Supreme Court filing with my wonderful mentor Ed Gaffney. There are plenty of professors who signed on who you may know, for which we are thankful. We also had a little fun in this one dreaming up a dialogue between Harriet Boaltwoman and Sojourner Truth IV.

Posted by Jen Kreder on June 15, 2011 at 02:49 PM | Permalink


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Anyone who can't think of any good that comes out of Kentucky must drink wine spritzers.

Posted by: Joe DuRant | Jun 17, 2011 4:29:48 PM

Um, is SSRN down for everybody, or just me?

Posted by: Matthew Reid Krell | Jun 16, 2011 9:21:11 PM

In the context, there's a whiff of snark in the written phrase "learned counsel" (talking about opposing counsel).

I think the old school pleasantries (e.g., learned counsel, my friend on the other side, my brother, etc.) might be viewed with skepticism in print, not to say they can't be vocalized Court with clear sincerety that would not distract.

Posted by: anonanana | Jun 16, 2011 4:50:32 PM

I have seen other instances in which local counsel, even in federal court, mention the "outsider" status of participants; I reckon it's not unprecedented in Kentucky to avert to NY roots of counsel or parties. Here, your brief supposedly emphasized NY laches law, and was filed in CT, so finding CT counsel mentioning relatively far-flung locations does not seem so unusually parochial or arrogant.

Since you asked, I think any filing might have spent less time discussing the general function of amici (let alone suggesting that a YLJ article had special bite against Yale University, or that a commitment to the free exchange of ideas means the more briefs the merrier), less time on Latin prepositions, and less time alluding to Christlike amici -- and more time explaining how the participation wouldn't be redundant and wasn't badly out of time. Perhaps that was handled in the prior filing.

I'd fear the judge would emerge with the impression that your next brief would be interesting, expert, and prone to be distracted from serving the court in favor of arch exchanges with one of the parties. The virtue of amici filings is that they are not bound by the interests of the parties; the drawback is that they sometimes substitute the interests of the amici.

Posted by: Anon3 | Jun 16, 2011 3:57:26 PM

I don't see the snobbery, though, in fairness, I also don't see your reply as being particularly snarky, either, so maybe I'm not attuned to these things. That said, I'm more curious about the strategy behind filing the reply. Opposing an amicus filing is out of the ordinary such that it would seem to place Yale on the defensive. But by replying in the manner you do, especially by presenting your expertise, it seems like you've put yourself on the defensive.

Posted by: Anon2 | Jun 16, 2011 1:30:40 PM

Two cents:
The tone seems a bit risky. The relevant perspective would be that of a judge or clerk, not a practicing lawyer who does litigation.
I appreciate wit in legal writing, but I think too much wit makes for a broader tone that could be labeled sarcastic or snarky, which detracts and distracts. Judge's rulings can make the same mistake.
Personally, I didn't see any snobbery in the opp brief.

Posted by: anonanana | Jun 16, 2011 1:01:34 PM

Jen -- one important disagreement. I think amicus curiae is, as you note, probably a genitive construction, but if curiae is dative, the meaning would be "friend to the court" or "friend for the court," not "friend at the court." For "friend at the court," I'd go with a preposition and then the ablative or accusative -- probably amicus in curia, or maybe amicus apud curiam.

Posted by: Marc DeGirolami | Jun 16, 2011 8:50:10 AM

Considering the issue of whether amici should be permitted to plead before the Connecticut courts has many elements of a policy decision, the tone is perfectly appropriate. This is not a technical question requiring heavy citations to lull the court to sleep, and a forceful well-written policy argument can effectively tap into a court's sense of justice. We all know from first year law school readings that often judges enjoy using a little high-flying language themselves, which they may in fact adapt from the briefs. Whether the style will be effective in this case has yet to be seen, but there is certainly nothing wrong with highlighting the cloaked arrogance found in the opposition to the amici. What is more important here is the issue in play, which has as of yet seen no commentary by the critics.

Posted by: Cristian | Jun 16, 2011 6:25:33 AM

I would like to know how many of you who have posted negative comments are practicing lawyers and involved in litigation. My guess: zero

Posted by: Lucille | Jun 16, 2011 12:25:30 AM

We were being called hacks. The implication was that a party sought out pseudo-experts who supported its view and the best that could be done was to dig up people from NKU and UND who hardly are worthy to say anything against counsel's great client. We have nothing against Yale; some of us attended Yale and all of us were lucky enough to have attended elite institutions, but I believe it is a mistake to not read between the lines on this one; I don't even think the opposition brief was subtle in its bias. It seems to me the arrogance was compounded by the expectation that we were hoping not to participate in the litigation at all beyond the motion to file the amicus brief and the brief itself, which absolutely is correct in its objective statement of the law (contrary to Yale's representations of the Act of State doctrine in the other briefing in the case). We debated whether to respond at all and thought, in our role as amici concerned about historical records, bias and prejudice, that something out of the ordinary would be the most effective way to make our point in just a few pages. We realized not everyone would like it, but we're a far way from starting a congressional lobbying firm with Steve Colbert. Perhaps the expectation we would not reply accounts for counsel's relying on the minority view without disclosing it as such. I'll let others post their two-cents without replying for a while. I'll be very interested in what people think - positive or negative.

Posted by: Jen Kreder | Jun 15, 2011 9:13:54 PM

I did not infer anything negative from page 3 (the part of the brief that allegedly slams Kentucky/North Dakota). Also, I did not see anything on that page that dismissed a viewpoint because it was based in Kentucky or North Dakota. I'm sure, however, that there frequently are subtle digs in legal briefs that are intended to be understood only by persons involved in the litigation.

As a general matter, I wonder whether colorful, adjective-laden briefs actually work. I am so put off by them that I find it hard to believe that they do. I read lots and lots of briefs in pending appellate tax cases (yes, I'm a nerd) and am frequently annoyed by how taxpayers and the IRS/DOJ present their arguments.

But perhaps some judges out there respond well to these types of briefs, and that's why we see so many of them. Or maybe litigation is such an emotional process (for parties and representatives) that snark is inevitable, even if not terribly helpful. It may feel good to slam opposing counsel in a brief, even with the understanding that the judge won't care or that such language may hurt rather than help.

Posted by: andy | Jun 15, 2011 8:25:58 PM

Reasonable minds can disagree. The consensus of amici was such that we responded the way we felt appropriate.

Posted by: Jen Kreder | Jun 15, 2011 7:47:39 PM

Thanks, I just read it. I think I read the opp brief somewhat differently than you do: I don't think I would have responded at all to it, and if I did, I don't think I would have opted for snark. But maybe that's just me.

Posted by: Orin Kerr | Jun 15, 2011 7:42:35 PM

We couldn't take that one lying down. If you have a minute,, I recommend the opposition brief, which I appended to provide full context. I think it's safe to say I've never published anything quite like this.

Posted by: Jen Kreder | Jun 15, 2011 5:17:44 PM

After reading your reply, I think I'd be interested in your views of the role of snark in legal writing.

Posted by: Orin Kerr | Jun 15, 2011 4:15:01 PM

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