Throughout this week, I've been blogging excerpts from Mayer Brown's Federal Appellate Practice treatise, and I close with the section on common mistakes at oral argument:

The most common mistakes of technique made by appellate oral advocates are born of lack of preparation, lack of attentiveness to the court, and nervousness.

First of all, although the point is obvious, it is safest to address judges as “your Honor,” unless you are entirely confident that you have the judge’s name right. Trying to connect personally is a good idea, but only if you are absolutely sure that you will not mix up the judges. Even in courts that have nameplates in front of the judges’ bench, mistakes can happen. Although not every judge who is called by the wrong name will take umbrage, counsel is likely to realize the blunder, perhaps when one of the members of the panel corrects the misnomer -- and that realization is bound to cause counsel to become distracted, flustered, or embarrassed. If the client is present, this kind of mistake also undermines the client’s confidence in the advocate.

Small physical manifestations of nervousness can appear unprofessional and distract the court from counsel’s argument. Unnecessary gestures, shuffling of papers, and fidgeting at the lectern should be kept to a minimum. Hands should be kept at counsel’s side or on the lectern. This will help create an appearance of earnestness and attentiveness. Crossing one’s arms or cocking one’s body to the side, by contrast, risks conveying a sense of combativeness. Rehearsals with video will help counsel to avoid these mistakes.

Counsel should tab reference material so as to avoid long delays while looking for page references. It is acceptable to pause for a sip of water, if you experience dry mouth, but do so carefully, lest the sip produce coughing, sputtering, or spraying. There is a technique that some experienced oral advocates use to prevent dry mouth and to avoid (or minimize) the need to quaff water -- which can have its own complications. Instead of depending on water, use hard candy (like Lifesavers) that stimulate moistness in the mouth. It is possible to pop a hard candy into your mouth discreetly while waiting to be called to counsel table and even while sitting there. Be sure, however, to swallow the candy before being called to the lectern.

Poor oratorical form is another common blunder, one that takes many shapes. Some speakers, desperate to make a point, resort to hyperbole, invective, or overstatement of fact or law -- all of which may result in a loss of credibility with the judges. Others read brilliant passages from their brief, but never engage the judges’ recurring -- and outcome-determinative -- questions. The late Chief Justice Rehnquist famously noted four “species” of poor advocates: the “lector,” who reads the argument; the “debating champion,” who knows the case and its theory very well but does not listen carefully to questions and carefully answer them; “Casey Jones,” who knows the case but races ahead, not bothering to “pick up passengers along the way”; and the “spellbinder,” who substitutes rhetoric for careful analysis.

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Finally, too many lawyers lose sight of their role as advocates before appellate judges. The forum is an appellate court, not a trial court. Arguments should not be pitched as if the judges were jurors: eschew emotional rhetoric in favor of intellectual debate. Judges are especially likely to take offense, or tune out, if they feel you are giving what is in essence a jury argument.

One important point of which many advocates lose sight is that the judges will have spent far less time than you studying your case. Accordingly, you should not assume that they are versed in every subtle nuance and factual wrinkle. You should listen to their comments carefully with an ear to whether they have lost track of what you are saying, which can occur when you assume familiarity with factual or legal details that the judges may not in fact possess.

Along similar lines, keep in mind that appellate judges are ordinarily generalists who may lack detailed knowledge of specialized areas of the law. This is a particular risk for counsel who practice regularly in a highly specialized area such as tax, securities, or ERISA, to name just a few. Take care to avoid jargon or the use of technical terms or acronyms that may be everyday fare for specialists in the area but a mystery to those not steeped in them. A related pitfall involves technically complex subjects such as computer technology and scientific or engineering details that may underlie the testimony of expert witnesses. Your presentation should be attuned to the panel’s level of comprehension, and you should supply any necessary exposition if the judges do not appear to be following the point. If the subject matter of the case involves any of these risks, remain sensitive to the danger of losing your audience.

Finally, counsel should remember to display the proper respect for the court, the trial judge, and opposing counsel. Judges especially dislike ad hominem attacks directed against the trial judge or opposing counsel. You may think that the trial judge is a hopeless bumbler or was far from impartial, or at least behaved that way in ruling against your client. But the members of the panel may have lunch with that judicial colleague every day, or belong to the same golf club. Insulting a friend provokes a defensive reaction, which is the last thing you want to do.

A similar caveat applies to the temptation to attack opposing counsel by accusing your opponent of “misleading the court” or “misrepresenting the record.” Judges do not like incivility. They do not like to see lawsuits turn into a personal battle between the lawyers instead of a controversy between their clients. And they do not want to be forced to choose sides by deciding which lawyer is being more candid and forthcoming in advocating the client’s cause. Stay on the high road, no matter how tempting it may be to strike a hard blow.

While the debate with the bench may be vigorous, it should always be respectful, as an alienated judge will almost certainly not be open to persuasion regarding the correctness of your position.

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From a Florida Court of Appeals opinion released today:

[T]he father [petitioned] for modification of the final [custody] judgment, requesting primary residential custody of their [15-year-old] son.... [T]he trial court based its ruling on evidence that the father was more likely to ensure the child was engaged in productive, normal, and healthy extracurricular activities, and the child would benefit from a greater male influence in his life. The trial court concluded that the child's development was "disturbingly retarded." It went on to find that the child possessed unreasonable fears for his age, and had "unmanlike" toilet behavior.

[Footnote: The child would sit to urinate and was self-conscious about urinating in the woods during excursions with the father.]

The court of appeals reversed, concluding that "the father failed to satisfy the extraordinary burden of showing a substantial and material change [in circumstances since the initial custody decision]." And the court seemed to dismiss the "toilet behavior" matter by saying, "The child simply did not conform to either the father's or trial court's perception of manliness."

Here's the just-enacted statute:

A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding £25,000.

(2) For the purposes of this section, a person publishes or utters blasphemous matter if --

(a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and

(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

(4) In this section “religion” does not include an organisation or cult --
(a) the principal object of which is the making of profit, or
(b) that employs oppressive psychological manipulation --
(i) of its followers, or
(ii) for the purpose of gaining new followers.

Now I oppose this law, for the obvious reasons, which I won't repeat here. The Irish Constitution does expressly calls for the punishment of blasphemy -- "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law" -- so the absence of a blasphemy law until now (an earlier law was struck down for not defining "blasphemy") has itself been unconstitutional. But it seems to me that Irish legislators should have tried to amend the constitution via referendum rather than enacting this sort of ban.

But here I'd like to say a bit about some slightly less obvious problems with the law. To its credit, the legislature tried to minimize the risk that (say) the Satanic Verses, the Last Temptation of Christ, the Mohammed cartoons, and other such speech would become criminal. True, a court might well find that (1) the speech "is grossly abusive or insulting in relation to matters held sacred by any religion," and (2) the speech intentionally caused "outrage among a substantial number of the adherents of that religion." But presumably this danger might be mitigated by the defendant's ability to get off the hook if he shows that "a reasonable person would find genuine literary, artistic, political, scientific, or academic value" in the speech.

Yet it seems to me that a court decision saying that the Mohammed cartoons or the Satanic Verses can't be punished because it has "genuine literary, artistic, [or] political ... value" would cause even more insult and social tension than the original speech itself would. At least without the blasphemy law, the government can say the speech is protected no matter how awful it might be. But with the blasphemy law, a government body must either find the speech unprotected -- or place its imprimatur behind the view that the "reasonable person would find genuine ... value" in it.

Likewise, another defense requires courts to decide which religions "employ[] oppressive psychological manipulation" "of [their] followers." Is threatening eternal damnation oppressive psychological manipulation, for instance? How about urging women to conceal themselves behind veils? I agree, of course, that religions should have the right to engage in such behavior, regardless of whether the government views it as "oppressive psychological manipulation" -- but if the law sets up "oppressive psychological manipulation" as a legal standard for determining which religions' adherents are protected from "blasphem[y]," then courts would have to apply that standard. Is religious tolerance and amity really advanced by official court decisions (and presumably jury decisions) about whether a religion practices "oppressive psychological manipulation"?

Thanks to Baran Alpturk for the pointer.

"Anchoring or focalism is a term used in psychology to describe the common human tendency to rely too heavily, or 'anchor,' on one trait or piece of information when making decisions." A big chunk of today's Biegas v. Quickway Carriers (6th Cir.) seems to me about anchoring effects, though it doesn't discuss the issue in those terms.

Dailey was driving his truck. Biegas was on the side of the road, and got run over. The judge concluded on partial summary judgment that, as a matter of law, Biegas was more negligent than Dailey. (This is important because state law “bars non-economic damages in motor-vehicle-injury cases when a plaintiff is more than fifty percent at fault.”) The judge then instructed the jury that “in ‘prior proceedings’ it had ‘already been determined that Begas ... is more than 50 percent at fault’ and that the jury’s job was ‘to determine how much fault from more than 50 percent to 100 percent can be attributed to the negligence of Begas, and how much fault from zero percent to 50 percent can be attributed to the negligence of Dailey.’”

The jury concluded that Dailey is 47% negligent and Begas is 53% negligent. On appeal, the Sixth Circuit concluded that the trial judge was wrong to hold that Begas was necessarily more negligent than Dailey. This left the question: Was this error harmless, because the jury concluded that Begas was indeed 53% negligent?

The majority said that the error was not harmless (paragraph breaks added):

We believe, however, that a properly instructed jury could have weighed the evidence of negligence by Biegas and Dailey differently and allocated fifty percent or less of the fault to Biegas. Although it is impossible to know what effect the erroneous instructions had on the jury’s allocation of fault, we think it likely that the instructions affected the jury’s entire analytical framework as it weighed and compared the evidence of negligent conduct by Biegas and Dailey.

Having been instructed by the district court that "prior proceedings" had determined Biegas to be more at fault than Dailey, the jury may well have given greater weight to the evidence of Biegas’s negligent conduct and less weight to that of Dailey. The erroneous instruction may have given the jury the impression that the district court had doubts about the strength of the Estate’s evidence or that the district court had some other undisclosed reason for tipping the comparative fault scale against Biegas from the start.

A properly instructed jury, told nothing about the relative fault of the parties and free to assess Biegas’s fault on a scale of 0% to 100% rather than 51% to 100%, could have weighed the evidence differently, splitting the fault equally or even allocating less of the relative fault to Biegas. Because the erroneous jury instructions could have affected the result of the jury’s deliberations, we conclude that the error affected the Estate’s substantial rights and was not harmless. Accordingly, a new trial is required so that the Estate may present its case to a properly instructed jury.

The dissent disagreed:

If the jury had found that Biegas’ degree of fault was 51 percent, I would agree that the error in giving the limiting instruction was not harmless. For in that situation the jury’s verdict could have equally well rested on either of two inconsistent theories. It could have reflected the jury’s independent judgment that Biegas was in fact 51 percent responsible for the accident. Or it could have reflected the jury’s conclusion that although it believed Biegas’ fault was less than 51 percent, the court’s instruction required it to set his fault at that level. In the latter situation, it could not be said that without the limiting instructions the jury likely would have concluded that Biegas’ level of fault was less than 51 percent.

In the present case, however, the jury’s verdict that Biegas’ fault was 53 percent necessarily reflected the jury’s independent determination that his fault exceeded the 51 percent minimum it was required to apply. In that circumstance, I cannot say that there was any realistic likelihood that, without the limiting percent instruction, the jury would have assessed Biegas’ fault level at less than 51 percent. The court’s contrary conclusion — resting upon statements that the jury "could have" weighed the evidence of comparative negligence differently, "may well have" or "could have" evaluated the evidence differently — is speculation and is insufficient to justify the conclusion that any error in the instruction was prejudicial.

We cannot say precisely what the jury would have done without the limiting instruction. We deal, however, with possibility, probability, and likelihood, not certainty. In the circumstances here I think the likelihood that without the limiting instruction the jury could or would have set Biegas’ fault at less than 51 percent is too slim to warrant concluding that the erroneous limiting instruction was not harmless.

I think the majority is right, but in any case it strikes me like a very interesting discussion.

Today, I'll close my blogging of excerpts from Mayer Brown's Federal Appellate Practice treatise with two items about oral argument. First, answering questions:

Because the greatest value of oral argument is the chance to learn what the judges find important about a case and to respond to their concerns, treating judges’ questions as bullets to be dodged is self-defeating. Questions from the bench are an opportunity to assuage a judge’s concerns at the very moment that they seem most pressing to the judge.

Accordingly, questions should be welcomed and answered, not resented or evaded. Moreover, it is considerably more likely that you will retain the judge’s attention when answering his or her question than when giving your prepared remarks. And when a question is asked during your adversary’s argument, you will again have an especially attentive audience when you refer to and comment upon the implications of the judge’s question and the adversary’s response.

Although the temptation to postpone answering a question may be strong, especially if the question relates to a subject the advocate plans to reach later in the argument, the temptation should be resisted at all costs. Never, never say: “I shall be addressing that issue later in the argument.” In the heat of argument, a belated response to a deferred question often escapes notice, or is addressed only after the judge who initially asked it has already tuned you out. In addition, further questioning may use up your time, so that you never have a chance to reach the answer to the question at the stage you would have preferred to confront it.

The time when a judge asks a question represents what educators call the “teaching moment.” Since you are there to connect with the judges who will decide your client’s fate, do not squander the teaching moment. It may be permissible to give a brief but responsive answer and then to add that you plan to address that issue at greater length later. Counsel is, however, generally better served to reorder the oral argument, if necessary, and to accelerate the full discussion of the point once a judge’s question manifests current interest in it. Moreover, counsel are likely to find themselves subject to judicial admonition for not responding promptly and directly to questions they are asked. [Footnote: One anecdote from a Supreme Court argument, perhaps apocryphal, concerns a prominent advocate who was asked by Justice O’Connor during the course of his argument how he distinguished a certain case. He first responded that it was covered in the brief, but Justice O’Connor persisted. He then demurred on the ground that the explanation would be complicated and time-consuming, to which Justice O’Connor retorted: “You’re here, we’re here, why don’t we just go ahead and discuss it?” At this point, the advocate was compelled to admit that he was unfamiliar with the case.]

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One possible exception to this advice, however, arises when counsel is in the midst of answering another judge’s questions; in that case, counsel should seek to answer both sets of questions as expeditiously as feasible. In this vein, a question that appears to call for a yes-or-no answer should, if at all possible, be given such an answer, following which the advocate is free to elaborate, qualify, or explain.

At the same time, if the question involves a peripheral point, counsel need not spend more time on it than a candid and responsive answer requires. Counsel then should segue back to his or her main points. All too often, novice advocates who have taken perhaps too much to heart the importance of the judges’ questions finish an answer and then stare inquiringly at the judge, as if waiting for a nod of approval. This silence often encourages further questions, sometimes of little relevance. Counsel would be best served by switching quickly and smoothly back into the argument after responding to a question. An effective technique to signal closure is to turn or direct one’s gaze slightly away from the questioning judge and toward the rest of the panel.

If counsel does not know the answer to a question about the record or about a legal point that has not been briefed, it is appropriate to offer to submit a supplemental memorandum within a short period after argument -- a few days or a week, for example. In the case of a new legal point that is potentially adverse to your position, it is legitimate to point out that your adversary has not raised the point. On the other hand, one cannot propose supplemental briefing in response to tough questions on issues that have been briefed. In such a case, you will just have to do your best -- which you should be ready to do if you have prepared adequately. At all events, you should view hard questions as an opportunity to deal with what the court may see as the crux of the case.

If a question is unclear, counsel should ask for clarification. This must be done carefully. Judges do not like to be questioned -- that is their role. Therefore, it may seem impertinent to respond: “Are you asking whether ...?” One graceful way to deal with an unclear question is to preface your answer with a diffident: “If your Honor is asking whether ..., then ....” This invites the judge to clarify the question, if the premise of your answer is mistaken, without directly querying the judge.

Often, when asked to clarify a question, a judge will link it to other issues in the case, potentially allowing counsel to return to a point on his or her outline. At all times, credibility is crucial to the court’s confidence in counsel’s argument. If you do not know the answer to a question with a reasonable degree of confidence, never bluff. Admit that you do not know. But be appropriately apologetic: “I am sorry, your Honor, I do not know the answer to that question.” The excuse, “But, your honor, I didn’t try the case,” will not be well received.

You can take some sting out of the concession, if you can smoothly shift ground into an area where you are more confident. For example, if asked about some testimony that does not seem familiar, admit that you are not aware whether there is anything in the record on that point, but then immediately turn to something relevant that you can invoke to support your position on the pertinent issue.

If a judge asks about a case that does not ring a bell, admit it. This may be an instance in which you have no choice but to ask the judge for some help in identifying the reference. Once again, the response should be candid but respectful. Something like this may work: “I am sorry, your Honor, but that reference does not bring anything to mind. Perhaps if I had a bit more information about the case, I could respond to your Honor’s question.” While it is awkward to forget or not know about something that is germane to the issues on appeal -- or that the judge thinks may be germane -- it is far worse to get caught bluffing. That will totally destroy your credibility with the court. As Judge Selya has noted: “Credibility is the advocate’s stock [in] trade.” Indeed, often it is the advocate’s most powerful asset. Better to suffer the slight embarrassment of admitting that you do not know an answer -- and to offer to submit a supplemental memorandum addressing the point the next day -- than to risk getting caught faking it.

Just as hard questions should be seen as an opportunity to reassure the court that your position is really sound, requests for concessions should be approached with caution. Courts have been known to use concessions against an advocate in deciding a case. Whether it is wise to concede a point will, of course, depend on the circumstances. Counsel may have no choice but to concede unfavorable facts, but with careful preparation you should be able to proffer a convincing explanation of why they are not lethal to the position being espoused.

When legal concessions are solicited, however, counsel should think hard about the implications before agreeing. Does the proposed concession go to the heart of your case, or does it instead seek to test the logical limits of your position? If the former, you cannot concede the point. If the latter, it may be tactically advantageous to reassure the judge that you can prevail without your proposed rule producing the kind of untoward results implicit in the question. Anticipating questions of this sort is one constructive consequence of using formal or informal moot courts in preparing for argument. It is much better to have thought about such questions before you walk into the appellate courtroom and to be prepared with your answers than to try to figure out a response while standing at the lectern.

In any event, you should be prepared to stand your ground where you must, even if it involves disagreeing with the judge’s assumptions or premises, and you should never concede a point just because a judge is pushing for a concession. Even if the inquiring judge is disdainful of your efforts to avoid a damaging concession, remember that there are other judges on the panel who may take a different view of the matter.

If the bench is a hot one, the questions may come without pause. Answer each question directly, then try to weave your affirmative arguments in as further explanation. Needless to say, you should endeavor to make your most important points during the course of the argument even if bombarded with questions. At the same time, the purpose of the argument is more about getting the judges’ questions answered than about providing a forum for the advocate’s speeches. You should not worry unduly if there is neither time nor opportunity to cover valuable points that you planned to make; the reality is that this is almost inevitable in any complex or substantial case. Moreover, if the undiscussed points are important, they will almost surely have been covered in the briefs.

There are endless types of questions judges might ask. The following are some of the major forms, as well as examples and the occasional strategy for answering them:

(1) Pure factual questions: “Does the record show how far the witness was from the place where the collision occurred?” To these questions, counsel should give concise, straightforward answers and move on, if the question involves only a minor or peripheral point. But if the question invites focus on a crucial fact, the significance of that fact should be stressed in the answer. Make a judgment whether the question provides the “teaching moment” for driving home a major theme of your case, even if it comes at a point in your argument earlier than you had anticipated. If so, expand upon the answer and explain why it is important to the ultimate resolution of the case. If, unfortunately, you do not know or cannot recall the correct information, consider whether the answer may be important enough to turn to co-counsel at counsel table to see whether one of them can supply the answer.

(2) Threshold jurisdictional and waiver questions: These are questions such as: “Do you have a final judgment as to all parties and issues?” “Is your appeal timely?” “Is there diversity of citizenship?” “Why isn’t the case moot?” “Does the plaintiff have standing?” “What is our standard of review?” “Where was the issue raised below?” “Did you make the necessary pretrial motions or offer a curative instruction?” These are all questions that counsel must be prepared to answer, even if one’s opponent has not raised them in the briefs. The oral argument is the last place that you wish to discover a potential defect in your case that you have not considered how to address. Questions like this must be taken seriously, because they may reflect a desire on the part of at least the questioning judge to try to duck the main substantive issues on the appeal. Your answer will depend, of course, on whether you are appellant or appellee and whether you would be happy to have the court sidestep an issue or whether you need to get it decided in order to prevail in the case.

(3) Hypothetical questions: These question are tricky, and they are often the most important questions the advocate will receive. Counsel should not reflexively respond, as too many lawyers do: “That is not this case.” Most judges find such a response intensely irritating and an insult to their intelligence; they are perfectly aware that the question is not the precise one presented by the case. That is why they preface it with “if” or something like it. Instead, you should try to respond with a “yes” or “no” and then explain why the hypothetical demonstrates the soundness of your position or why, although the hypothetical might lead to a different result, the factual differences in the premises of the hypothetical are key to the difference in outcome. Generally, hypothetical questions are designed to test the principles underlying one’s argument. Counsel should avoid a radical argument that overextends the principle in a manner the judges are likely to find absurd or unacceptable. Where the hypothetical raises the possibility of a distasteful result, you should also explain why adopting the principle you are propounding would not compel the court also to reach an untoward result suggested by the hypothetical.

(4) Tennis-match questions: These are questions in which one judge is trying to counter or influence another judge, and counsel is simply the foil. An appellate oral argument is not merely a conversation between judges and the advocate, but also one among the judges themselves. Often, the judges will not have had occasion to discuss the case among themselves before the argument. Those judges with strong feelings about the proper outcome will often use their questions to attempt to persuade fellow judges. But from the standpoint of arguing counsel, these questions simply call for giving the best possible response. Where they are friendly, they should be seized upon as a means of advancing the advocate’s argument. Where they are implacably hostile, counsel should not become flustered but should keep in mind that the other judges hearing the case do not necessarily share the questioning judge’s viewpoint. And remember, you cannot participate in the conference at which your case will be discussed and voted on, so this is your best opportunity to be a party to the judges’ interchanges with one another.

(5) Attack questions: “Didn’t we hold in Smith v. Jones that ...?” Although these questions may present an uphill battle, they offer an important opportunity for counsel to explain why seemingly adverse precedent, or another dangerous point lurking in the question, is not controlling. These questions should not come as a complete surprise to the well-prepared advocate who has studied the briefs and applicable case law from the point of view of a skeptical judge. Chief Justice Roberts has recommended that counsel admit when his or her case is a complicated or hard one in order to attract sympathy from the bench, as insisting implausibly that the case is a “no-brainer” merely invites judges to find holes in your argument. Even though the question may be propounded in a forceful manner, counsel should respond in a calm and reasoned fashion and should not be bullied into making potentially fatal concessions. Counsel should also bear in mind that a hostile question does not necessarily signify a hostile questioner. Some of the toughest questions come from judges who are persuaded by your argument but need certain remaining questions answered in order to write what they wish to be an effective opinion.

(6) Socratic questions: These are questions that are actually intended to draw out from counsel the key points that the judge believes counsel wants to make. They may reflect the judge’s understanding of your position and a desire to see the arguments laid out in the sequence and at the time the judge believes is most intelligible. They may reflect a desire to have you move on quickly through your points, because the questioner knows where you are going. Try not to misinterpret these questions as an attack and respond defensively. Instead, grasp the questions appreciatively and provide prompt and reassuring answers.

(7) Softballs: These are questions in which the judge is characterizing your argument or your opponent’s argument or asking about something in the record or something held in another case. The purpose of this type of question is to help you underscore a favorable point. A surprising number of advocates, however, misinterpret softball questions as hostile, suspecting that the judge is cleverly laying a trap. Instead of appreciating the question and running with the answer it invites, too many lawyers respond defensively. This frustrates the questioning judge and forfeits a golden opportunity to drive home your point. Instead, you should embrace the question and seize upon it to delve into the argument. But if the question, though perhaps proffered with a seeming intent to be helpful, leads to conclusions you are not prepared to defend, you should not take the bait. Doing so is likely to produce a barrage of skeptical questions from the other judges. Best simply to correct the mistake politely and move on.

(8) Humorous questions: Sometimes judges like to get puckish with their questions, suggesting some silly comparison or jovial anecdote. Counsel should enjoy these quips, but should neither get distracted nor attempt to respond in kind, as such attempts usually fall flat. If the judges want to be light-hearted, let them, even if it appears that they are doing so at your expense. Stay on message and preserve a tone of respectful and serious professional gravitas.

(9) Irrelevant questions: In many oral arguments, a judge will ask a question that may seem totally beside the point. These questions are perplexing and may prompt you to scratch your head, figuratively, in confusion and perhaps mild anxiety. You will wonder whether the judge sees something that you missed or instead simply misunderstands the case. You should provide a short, respectful response and return to the affirmative argument. If the point is in fact relevant in a manner that counsel has failed to grasp, the judges will probably be quick to provide enlightenment.

(10) Repetitious (fly-paper) questions: Sometimes a judge will doggedly pursue a point, even after you have attempted several times to provide your best response, and you have nothing further to offer. The judge simply will not let go. If, after several attempts to explain, the judge will not get off the issue, as a last resort, counsel can try “I am sorry, your Honor, but I have given the best answer I have, which I hope the court will find satisfactory.”

(11) Stumpers: If you have no idea what the judge is asking about, or if you do not know the answer to the question, use one of the techniques discussed above for handling such questions, trying to tease out the judge’s thrust without directly questioning the judge.

(12) Questions as to the nature of further proceedings: These are the “what if” questions that ask the advocate about how the court should dispose of the case. “If the court disagrees with the result below, should it reverse outright or remand?” “Should an evidentiary hearing be held?” “Should the remand be to the same or a different judge?” “Is the proper remedy judgment for the prevailing party or a new trial?” “Should any retrial be limited to damages?” “Should an issue be certified to the state court?” “Should decision be held until the Supreme Court decides another case?” “Should sanctions be imposed on counsel?” Counsel should have anticipated any of these questions, like the threshold questions discussed above, as part of a proper preparation for the argument. The key here is knowing what remedy you want the appeals court to provide.

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The latest Jonathan Rauch column. I've long found Jonathan's work to be very insightful -- and while I'm not knowledgeable enough about politics to evaluate this column independently, my layman's sense is that he is quite right.

A lawyer says yes. [UPDATE: Here's his letter.] The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there's no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It's also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn't open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

Thanks to Kevin Gerson of the UCLA Law Library for the pointer.

UPDATE: A reader suggests, "I should think that the minute they are filed they become public information; accessible to all." That something becomes publicly available doesn't strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. So the fact that they are descriptively accessible to the public, at least if the public is willing to go to court or to read the briefs on PACER, doesn't resolve the copyright infringement question.

Now if the claim is that the minute they are filed, they ought to become available for copying by anyone, including by commercial services, that's a perfectly defensible claim. It's just that there's no existing copyright law doctrine that clearly embodies such a rule. (There is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding caselaw that says state court opinions are free of copyright. But there is no such doctrine as to briefs filed in court.)

One would therefore have to argue, as I mentioned above, that the fair use doctrine should be interpreted as basically embodying such a rule. It's just that the doctrine is vague enough that we can't be clear that courts will indeed interpret it this way.

UPDATE: Thanks to Erika Wayne for the pointer to the letter.

The case is Sedgwick Claims Management Servs., Inc. v. Delsman (decided July 17, 2009):

Defendant Robert A. Delsman, Jr. ... runs a "blog" in which he has strongly criticized the business practices of Sedgwick [Claims Management Services, Inc.] and its management. In addition, Defendant has mailed postcards styled as "WANTED" posters bearing the photographs of two of Sedgwick's executives, again with critical commentary. Sedgwick ... alleges that Defendant engaged in copyright infringement by using the two photos. In addition, Sedgwick alleges various state law causes of action, including defamation, based on the content expressed in the blogs....

(Show the statement of facts.)

Sedgwick provides insurance claim management services to its customers and their employees. The Company is an Illinois corporation and has its principal place of business in Memphis, Tennessee. David North is the Company's Chief Executive Officer and Paul Posey is its Chief Operating Officer. Sedgwick's clientele includes a number of recognizable companies, including General Electric. GE hired Sedgwick to manage and administer claims for its Long-Term Disability Income Plan, which is offered through Met-Life, Inc. ("Met-Life/GE Plan").

Defendant was previously employed by GE and purchased insurance under the Met Life/GE Plan. In or about February 2006, he submitted a claim for disability benefits. The status of his claim is not specified in the pleadings. However, Defendant, who claims he is disabled and has been unable to work for the last three years, apparently is highly dissatisfied with Sedgwick's handling of his claim. As a means of expressing his opinions regarding Sedgwick and its management, Defendant began (on an unspecified date) to publicly express his views through a web blog and a postcard mailing campaign called "Operation Going Postcard."

Defendant's blog is maintained at various URLs, i.e., www.Sedgwickcms.blogspot.com,www.gesupplydiscrimination.com and http:// gesupplyrexeldiscrimination.com. In these blogs, Defendant allegedly posted a number of "defamatory" statements in which he accuses Sedgwick of, inter alia, wrongfully denying benefits to claimants, violating various laws, and accusing Sedgwick and its "minions" (whom he calls "Sedgthugs") of having committed "Sedgcrimes." In addition, Sedgwick complains that Defendant used two copyrighted photographs, headshots of CEO North and COO Posey, and superimposed them on fugitive-style "WANTED" postcards. He also is alleged to have "morphed" the same two photos into pictures of Adolph Hitler and Heinrich Himler, respectively, and to have sent them to unspecified Sedgwick employees. Defendant allegedly obtained North's photo from a worker's compensation conference website, and Posey's photo from a Company press release announcing his elevation to COO.

In February 2009, Defendant launched Operating Going Postcard, which he described in his blogs as a campaign to "educate the consuming public" regarding the business practices of Sedgwick. According to Defendant, such negative publicity was a "good way to fight back against these despicable characters...." On February 9, 2009, Defendant sent one such postcard to CEO North. One side of the postcard incorporates North's picture into a "WANTED" poster which is captioned: "WANTED FOR HUMAN RIGHTS VIOLATIONS." To the right of the photo, the text reads: "Have you been threatened by this man or his minions? The time for change is at hand!" On the other side of the postcard, the following copy appears .... [Details omitted, but available in the opinion. -EV] ...

Sedgwick argues that the issue of fair use cannot be decided on a motion to dismiss, and that it should be allowed to conduct "further discovery." However, the Ninth Circuit has held that a defendant's "assertion of fair use may be considered on a motion to dismiss, which requires the court to consider all allegations to be true, in a manner substantially similar to consideration of the same issue on a motion for summary judgment, when no material facts are in dispute."

(Hide the statement of facts.)

C. FAIR USE FACTORS

1. First Factor--Purpose and Character of the Use

The first fair use factor addresses "whether the new work merely 'supercedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message, in other words, whether and to what extent the new work is 'transformative.'" Among the various forms of "transformative use" is parody, which is a "'literary or artistic work that imitates the characteristic style of an author or a work for comic effort or ridicule, ...'" ...

Sedgwick argues that there can be no fair use [as to the unaltered photos on the postcards] where, as here, Defendant did not alter the photographs of North and Posey.... [But] the salient inquiry is whether the use of the photos, in the specific context used, was transformative.... "[M]aking an exact copy of a work may be transformative so long as the copy serves a different function than the original work[.]"

Here, there can be no legitimate dispute that Defendant's use of North and Posey's photographs was transformative. Both images originally were used by Defendant for promotional reasons. Defendant, however, used the photographs as a vehicle for criticizing the Company. Specifically, both photographs are superimposed on postcards that mimic "WANTED" posters. Above each picture is the heading, in a large font, which states: "WANTED FOR HUMAN RIGHTS VIOLATIONS." The copy accompanying the photographs criticizes Sedgwick and its management's alleged mistreatment of claimants and questionable practices, and urges the public to report any misdeeds to the U.S. Department of Justice and state Attorney Generals. When viewed in context, it is clear that Defendant used North and Posey's photographs for a fundamentally different purpose than they were originally intended by transforming them into a vehicle for publicizing and criticizing Sedgwick's alleged business practices. In view of the above, the Court finds that the first fair use factor weighs strongly in favor of fair use.

[Footnote: Given the transformative nature of Defendant's use of the photographs, the matter of whether the use was commercial is less significant. Nevertheless, the Court notes that there is no claim that Defendant used the photographs for commercial gain. Rather, all of the facts presented indicate that the photographs were used as part of Defendant's overall endeavor to educate, publicize and warn the public about Sedgwick. The lack of commercialism also weighs in favor of fair use.]

2. Second Factor--Nature of Plaintiff's Work ... Neither party makes any argument regarding this factor. The Court therefore considers the second factor to be neutral.

3. Third Factor--Amount of the Work Used.... [T]he reuse of an entire image may be reasonable if it serves the defendant's intended purpose.... [T]he Court concludes that this factor is neutral.

4. Fourth Factor--Effect of the Use on the Potential Market

The fourth and final statutory factor is "the effect of the use upon the potential market for or value of the copyrighted work." ... [Sedgwick] argues that "the fourth factor weighs in [its] favor because Delsman's alteration, public display of altered photographs and public distribution of the same have injured Sedgwick's potential ability to continue to use the photos of its CEO and CFO (sic) for future marketing purposes." However, the relevant question is not whether the work itself has lost value, but rather, whether the secondary use has usurped the commercial demand for the original. Here, there is no such demand, since there is no commercial market for them. And even if there were, Defendant's use of the photographs is sufficiently transformative that it would not be a "substitute" for the original.

Moreover, the possibility that Defendant's use of the photographs has undermined Sedgwick's ability to use them in the future is not remediable under the Copyright Act. As the Supreme Court explained ..., "when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act." The Court finds that the fourth fair use factor favors Defendant.

5. Summary

Taking all of Sedgwick's allegations as true, the Court finds that two of the fair use factors weigh strongly in favor of Defendant and two are neutral. Defendant's uses of the photographs of North and Posey are highly transformative and serve an entirely different function than originally intended. It was reasonable for Defendant to use the entire photograph in order to evoke the image of a "WANTED" poster. His use could not have had impacted the market for the photographs because no such market is alleged to have existed. But even if it did, Defendant's use was sufficiently transformative that it could not be deemed to be a substitute for the original. Allowing Defendant to use the photographs in the context of publicly criticizing and warning the public regarding Sedgwick's business practices is precisely the type of activity the fair use doctrine is intended to protect.

The fair use analysis strikes me as quite right. As to the state law claims, the court concluded that "Sedgwick fails to adduce any evidence to meet its burden of showing a probability of prevailing on any of its claims. Rather, Sedgwick simply recites the elements of each of its state law causes of action and cites to various allegations of the Amended Complaint." It therefore ruled for Delsman on those as well.

By the way, Delsman, who is apparently not a lawyer, represented himself -- something that rarely leads to victory, but did so this time.

California, Pennsylvania. Montana, Bulgaria. Wyoming, New York. More?

No, I don't want "St. Petersburg, Florida" and the like, or even "Colorado City, Arizona." I'm looking for cities that have exactly the same name as the common name of an American state (and are located outside that state).

I'm writing up a pretty detailed discussion of tort law policy arguments for my forthcoming Torts class. In particular, I want to stress to students that they shouldn't just look at the classic compensation and deterrence arguments, but also consider how a proposed legal rule might affect defendants', prospective defendants', and others' liberty, privacy, and the like. A legal rule imposing strict liability on skydiving companies, for instance, might diminish poorer customers' freedom to choose to skydive. Perhaps the intrusion on freedom is justified, but it has to be recognized, and considered in analyzing the merits of the proposed rule.

But I think there's another category of such effects beyond just "liberty" and "privacy," which I've tentatively labeled "consumer supremacy" -- but that's not a great label, and I'm looking for a better one (hence the post). Here's an example, drawn from an article by Prof. Andrew McClurg.

In the article, Prof. McClurg points to a case in which the plaintiffs were faulting the gun manufacturer Lorcin for "negligently failing to take reasonable precautions to minimize the risk of handguns being sold to those likely to misuse them"; and one such precaution, suggested by one Patrick McGuire, was to distribute the following alert to Lorcin dealers:

Important Notice to All Firearms Retailers ...

Your firm, as a gun retailer, plays an all important role in making certain that weapons such as the Lorcin .380 are kept out of the hands of criminals. You are in a key position to help prevent criminal misuse of this weapon. Here are some things you can do.

1. Make certain, through a training program, that all sales personnel are completely familiar with federal and local regulations and procedures regarding gun purchaser applications and registrations.

2. Instruct your sales personnel to be especially alert to, and wary of, gun buyers who display certain behavioral characteristics such as:

(a) Buyers who appear in unkempt clothing and have a slovenly appearance.

(b) Buyers who appear nervous, agitated, distracted or hurried in their purchase.

(c) Buyers who appear evasive, hesitant in responding to questions, stand off from the sales counter and who resist eye contact with the sales person.

(d) Purchasers who appear vague and uncertain in response to routine questions about why they are purchasing the weapon, how they intend to use the gun, where it will be stored, suggestions for safe use, and similar topics.

(e) Buyers who are belligerent or aggressive in response to routine questions about where they live, how they came to select your store, and similar questions.

(f) Those buyers who purchase large quantities of ammunition with their first gun purchase.

(g) Buyers who present an altered or expired drivers license or other out of date or invalid documents.

Challenging Suspect Gun Buyers

Retail sales personnel should be trained and encouraged to politely but candidly question suspect gun buyers, such as those exhibiting the above characteristics, about the truthfulness of the applicants' answers to questions on the ATF application form. Experience shows that many persons who misstate personal information, such as prior felony convictions, psychiatric history and treatment, etc., will -- if challenged and confronted -- often admit that their applications contain false information. For example, a sales clerk, reviewing an application that may contain false data, may properly ask:

"You realize that federal agents do check the accuracy of information on these applications. If they find any of it to be incorrect, you can be fined and imprisoned. Is there anything, anything at all, that you would like to change on this application? Or, would you like to hold this application for a while, and think about it, before filing it and purchasing this gun?"

Challenged in the above way many -- while certainly not all -- unqualified gun buyers will either admit to a false statement that disqualifies them as a gun buyer or will give up their attempt to make a gun purchase.

Lorcin Engineering can assist you in training retail sales personnel to screen out potential gun misusers. There is no perfect system to prevent guns from falling into the hands of criminals and other dangerous persons. But as a gun dealer you can be of significant assistance to law enforcement agencies, and to your community, by staying alert to these telltale signs....

My sense is that there's something troubling in the legal system's requiring distributors, on pain of legal liability, to screen people for wearing "unkempt clothing" or having "a slovenly appearance," or for being "distracted or hurried," or "resist[ing] eye contact," or being "belligerent or aggressive in response to" probing about their addresses or motivations. Of course, a store owner is generally entitled to impose such policies on its own. (I set aside for now the serious risk that implementing such policies might lead to race, sex, etc. discrimination lawsuits; that's not what I'm getting at here.) But those policies strike me as undermining a certain expectation of something -- again, consumer supremacy is the best term I've come up with -- that American consumers have.

We assume that we can generally go into a store in whatever mood and dress we might be in, and still buy the product we want. That's not always so, for instance if the store is partly selling a pleasant atmosphere for its customers (which is why we might accept a dress code for a fancy restaurant but be annoyed by a dress code at Walmart). And at some point unjustified rudeness to the store owners can lead them to rightly kick us out. But we don't expect to be judged for dress or attitude by the people from whom we're buying consumer goods. Again, those people have a legal right to do it, and some might exercise this right; still, one thing we value as consumers is that most stores recognize this sort of consumer supremacy. If the legal system requires stores to shift away from this model, that's a cost that needs to be taken into account.

So my questions: (1) Is there a good name for this sort of consumer interest -- not quite liberty and not quite privacy? (2) Is there anything else that's useful to say about the nature of this interest, or how much it should be weighed?

I'm not looking for a general discussion of gun manufacturer liability. In fact, what's interesting to me about such consumer supremacy concerns is that they would apply to similar arguments as to any form of negligent distribution or negligent entrustment. (Imagine, for instance, a legal liability rule that would require car rental companies to closely investigate buyers who seem unkempt or nervous, on the grounds that they might be smugglers or just reckless drivers, or a legal liability rule that would require bar owners not just to card patrons but to closely investigate those who seem to be acting uncomfortable or who are wearing clothing supposedly associated with under-21-year-olds.) I'm also not claiming that consumer supremacy must trump all other concerns; perhaps some restraints on it are permissible. I just want a good term for this concern, and any insights you folks might pass along about it.

Notes: (1) I realize that the proposal literally seemed to focus only on requiring Lorcin to suggest such policies to dealers, rather on requiring Lorcin to mandate such policies, but the logic of the proposal suggests that if failing to recommend such policies is negligent, failing to demand them would be negligent, too. (2) I realize that the liberty/property/whatever-it's-called concerns could be fit within the compensation and deterrence boxes, if one tries creatively enough, but I want to give students a broader checklist that will lead them to policy arguments that they might otherwise miss; and the policy arguments I have in mind aren't what one normally thinks of when one hears "compensation" and "deterrence." (3) I realize the particular claim that Prof. McClurg points to has now likely been preempted by federal statute; my question isn't about that.

The posts about amicus briefs have gotten enough interest that I thought I'd add one more, before I close with two posts about oral argument. Again, this is from Mayer Brown's Federal Appellate Practice treatise:

[A] nonparty that is not a government entity or official covered by Rule 29 of the Federal Rules of Appellate Procedure and cannot obtain the consent of the parties must seek leave of the court to file an amicus brief. Whether to grant a motion for leave to file is a decision that falls within the discretion of the court of appeals....

(a) Restrictive View

In a series of opinions, Judge Posner of the Seventh Circuit has taken a narrow view of the circumstances in which leave to file an amicus brief should be granted. Indeed, his attitude towards amicus filings has been described as one of outright “hostility” and even as a “crusade.”

While acknowledging that we are now “beyond the original meaning” of “amicus curiae,” and that “an adversary role of an amicus has become accepted,” Judge Posner is nevertheless insistent that there be “limits.” Those limits, according to his opinions, are that a motion for leave to file should ordinarily be granted only when (1) a party is not represented competently or not represented at all; (2) the amicus has an interest in some other case that may be affected by the decision in the case before the court; or (3) the amicus has unique information or a unique perspective that can provide assistance to the court beyond what the lawyers for the parties can provide.

The opinions offer a number of justifications for these limitations: (1) judges “have heavy caseloads” and so “need to minimize extraneous reading”; (2) amicus briefs may be used to “make an end run” around limitations on the length of party briefs; (3) amicus briefs “drive up the cost of litigation”; and (4) amicus briefs often reflect an effort to “inject interest group politics” into the judicial process. Judge Posner has applied the limitations without discrimination; in the most recent of his opinions, he denied a motion filed by the Speaker of the Illinois House of Representatives and the President of the Illinois Senate.

These opinions do not reflect the views of Judge Posner alone. Although two of the three were “in chambers” opinions in which Judge Posner spoke only for himself, one of the opinions was a panel opinion joined by two other members of the Seventh Circuit. And that opinion states that the limitations described above reflect the “policy of this court.”

It bears mention, moreover, that Judge Posner is one of the most respected and influential judges in the United States. For that reason, his views on amicus briefs, as on any issue, will inevitably be taken seriously by other courts. The Supreme Court of Illinois, for example, has stated that the limitations described in Judge Posner’s opinions will be treated as a “useful guide” in ruling on motions for leave to file in that court. Following that “guide,” the court ruled that the Chamber of Commerce of the United States — one of the most frequent filers of amicus briefs — would not be permitted to file a brief in that case.

Nevertheless, the significance of Judge Posner’s views should not be overstated, even within the Seventh Circuit. Because a motion for leave to file an amicus brief rarely results in the issuance of an opinion, it is difficult to gauge how consistently Judge Posner’s “policy” is followed. Still, practitioners filing a motion for leave to file in the Seventh Circuit would be well advised to include an argument that the proposed brief satisfies the standards set forth in Judge Posner’s opinions. Practitioners should be particularly careful to ensure that their proposed amicus filings are not perceived as “me too” briefs, which merely repeat the arguments of the party or other amici. That is sound practice in any circuit, but especially in the Seventh.

(b) Permissive View

Outside the geographical boundaries of the Seventh Circuit, Judge Posner’s position on amicus briefs has few defenders. Leading appellate practitioners have been highly critical. One has argued that Judge Posner’s “reflexively negative view” towards amicus briefs “makes no sense” given “the simple fact that many appellate decisions have profound effects that far exceed the boundaries of the dispute between the parties.” And within the federal courts of appeals, Judge Posner’s position clearly reflects the “minority view.” Although there have been isolated instances of courts outside the Seventh Circuit denying motions for leave to file for reasons other than untimeliness, the “general practice in the federal courts of appeals is to grant leave to file an amicus brief in most situations.”

The majority view is comprehensively set forth in an opinion by another of the country’s most respected judges: then-Judge Alito of the Third Circuit. His opinion rejects the “restrictive standards” reflected in Judge Posner’s opinions, on the grounds, among others, that they may “convey an unfortunate message about the openness of the court” and “create at least the perception of viewpoint discrimination.” Judge Alito’s opinion also responds to a number of the specific points made by Judge Posner. The opinion explains that, even when a party is well represented, an amicus may provide “important assistance to the court” — for example, by collecting relevant “‘background or fact[s],’“ providing “‘expertise not possessed by any party,’“ explaining “‘the impact a potential holding might have’“ on a particular group, or arguing “‘points deemed too far-reaching’“ by a party. The opinion also points out that requiring a prospective amicus to undertake the “distasteful task” of demonstrating the incompetence of the attorney for the party would likely “discourage amici” in cases where the party’s brief is “less than ideal” and an amicus submission would be “valuable to the court.” Finally, the opinion notes that a restrictive policy is “an unpromising strategy for lightening a court’s work load,” because the time required for “skeptical scrutiny” of proposed amicus briefs might equal or exceed the time required for studying the briefs if leave were granted, and “unhelpful amicus briefs” likely claim only “a very small part” of a court’s time in any event.

Judge Alito’s approach is thus diametrically opposed to Judge Posner’s. While the latter effectively establishes a presumption that motions for leave to file an amicus brief should be denied, the former effectively establishes a presumption that they should be granted. As Judge Alito’s opinion puts it, courts should grant leave to file “unless it is obvious that the proposed briefs do not meet Rule 29’s criteria as broadly interpreted” — i.e., unless it is obvious that the movants do not meet the broadly interpreted requirements of “(a) an adequate interest, (b) desirability, and (c) relevance.” Judge Alito’s opinion notes, correctly, that this approach “is consistent with the predominant practice in the courts of appeals.”

Thus, in most circuits, a motion for leave to file an amicus brief will ordinarily be granted as long as the motion and brief (1) comply with the technical requirements of Rule 29 and any applicable local rules and (2) make a plausible case that the brief performs one of the traditional functions of an amicus submission. In most circuits, however, a motion ordinarily will not be required, because, as Judge Alito’s opinion observes, the parties recognize that “leave to file would be granted [even] if consent were withheld,” and thus it is typical for consent to be “freely given.” Practitioners may find that consent is less freely given in the Seventh Circuit, because, under that court’s restrictive standards, it is far less clear that leave to file would be granted if consent were withheld.

This practice is consistent with our experience. Counsel who regularly practice before courts of appeals (at least other than the Seventh Circuit) recognize that it is generally pointless to withhold consent to the filing of an amicus brief, even if it is being proffered by a hostile amicus. The court of appeals is likely to grant the motion, and recalcitrant counsel gains nothing but judicial annoyance from forcing the amicus to file a formal motion. It may sometimes be awkward to explain to a client why giving this consent is not only appropriate as a matter of “professional courtesy” but also as a matter of tactical wisdom; counsel representing a party should be prepared to provide such an explanation. If succeeding on an appeal depends on keeping the court of appeals from hearing from an amicus curiae, counsel and the client may have real problems.

here. He fooled me, a Norwegian news site (which ran the headline, "North Korea Threatens Cyprus With War"), and others. The key to the hoax's success, I think, was that it captured well the spirit of the actual North Korean news agency. In any case, PopeHat 1, me 0.

for current law students and recent graduates (from 2006 or later) -- for details, see here. Naturally, the law review issue will have an Introduction by Scott Turow, and it will also have stories from some law professors.

That's the holding of U.S. v. White (N.D. Ill.), decided yesterday, which dismissed White's indictment for allegedly soliciting criminal actions against the juror (long after the trial was completed). An excerpt:

In 2003, a jury in the Northern District of Illinois convicted Hale of soliciting the murder of District Judge Joan Lefkow, who had presided over a civil case involving Hale’s organization....

On October 21, 2008, the government indicted defendant, alleging that on his website, Overthrow.com, he solicited or otherwise endeavored to persuade another person to harm “Juror A,” the Hale jury foreperson. Specifically, the government alleged that on or about September 11, 2008, defendant displayed on the front page of his website a post entitled, “The Juror Who Convicted Matt Hale.” The post read:

Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number].

The post did not expressly advocate that Juror A be harmed.

As “circumstances strongly corroborative of [defendant’s] intent” that another person harm Juror A, the indictment alleged that when he posted the above statements, defendant was aware that white supremacists, Overthrow.com’s target audience, sometimes committed acts of violence against non-whites, Jews, homosexuals and others perceived as acting contrary to the interests of the white race. The indictment also alleged that before he posted the above statements, defendant displayed on Overthrow.com other posts, some of which were still available, purporting to contain the home addresses of and/or other identifying information about individuals who had been criticized on the website, and that in certain of these posts, defendant expressed a desire that the individuals be harmed.

To see more of the facts, and the court's analysis, please read the opinion. For now, let me just quote the discussion of NAACP v. Claiborne Hardware (1982):

In Claiborne Hardware, the Supreme Court considered a boycott by black citizens of white-owned businesses in Claiborne County, Mississippi. As is pertinent here, the boycott involved stationing individuals, known as “enforcers,” “deacons” or “black hats,” near white-owned businesses for the purpose of reporting blacks who violated the boycott. Boycott supporters read the names of such persons at meetings of the Claiborne County NAACP and at church services and published them in a mimeographed paper entitled the “Black Times.” Such persons “were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.” Some also became targets of violence.

While acknowledging that persons who committed acts of violence could be held liable, the Supreme Court held that others involved in the boycott, including the leader, Charles Evers, could not be. This was so despite Evers’s statements that “blacks who traded with white merchants would be answerable to him,” that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people,” that if “we catch any of you going in any of them racist stores, we’re gonna break your damn neck,” that “boycott violators would be ‘disciplined’ by their own people” and “that the Sheriff could not sleep with boycott violators at night.”

Regarding this aspect of the boycott, the Court noted that speech does not lose its protected character “simply because it may embarrass others or coerce them into action.” Even when the speech arguably contains threats of violence, “in the context of constitutionally protected activity ... ‘precision of regulation’ is demanded.” The Court thus held that, although the “black hats” who engaged in violence could be punished, there “is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others.” Finally, the Court held that Evers could not be held liable for his statements about the boycott violators:

While many of the comments in Evers’ speeches might have contemplated “discipline” in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended.

It is clear that “fighting words” -– those that provoke immediate violence -– are not protected by the First Amendment. Similarly, words that create an immediate panic are not entitled to constitutional protection. This Court has made clear, however, that mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. In Brandenburg v. Ohio, we reversed the conviction of a Ku Klux Klan leader for threatening “revengeance” if the “suppression” of the white race continued; we relied on “the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg.... Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the “profound national commitment” that “debate on public issues should be uninhibited, robust, and wide-open.”

In the present case, defendant also disclosed the identity of a person, Juror A, with whom he disagreed on a matter of social importance, i.e. the conviction of Hale in a high profile criminal case. Although he did so under potentially intimidating circumstances, as Claiborne Hardware holds, even when the circumstances surrounding a disclosure are intimidating, the speech may not be punished consistent with the First Amendment unless it is directed to inciting imminent lawless action and likely to produce such action. Defendant’s speech lacked both of these characteristics.

You might also want to read the rest of the analysis, and in particular pp. 19-34, which discuss other cases, including the Nuremberg Files case. (For my views on the Nuremberg Files case, see this op-ed supporting the panel decision that was later reversed by a 6-5 vote of a Ninth Circuit en banc panel.) This is a very interesting, important, and difficult category of First Amendment questions, and the court's opinion strikes me as a must-read for anyone interested in this.

Thanks to Deborah Lauter, Director for Civil Rights of the Anti-Defamation League, for the pointer to the decision.

UPDATE: From p. 35 of the opinion: "[T]he fact that I might regard as noble the struggle of Mississippi blacks for equal treatment, and defendant’s views as reprehensible, is irrelevant to the constitutional analysis. Nevertheless, there is irony in the fact that defendant’s right to spread a message of white supremacy has, in large part, been secured by the efforts of African-Americans to obtain civil rights."

More on amicus briefs, and in particular "the virtue of brevity" and "the vice of duplication," from Mayer Brown's Federal Appellate Practice treatise (some paragraph breaks added):

Courts have heavy caseloads, and judges and law clerks are therefore busy. For that reason, they tend to appreciate short briefs — or, more precisely, briefs that say no more than necessary for the court to decide the case intelligently. They also tend to pay more attention to short briefs. As Justice Scalia put it in his book on effective advocacy: “The power of brevity is not to be underestimated. A recent study confirms what we all know from our own experience: people tend not to start reading what they cannot readily finish.” Accordingly,

a brief that is verbose and repetitious will only be skimmed; a brief that is terse and to the point will likely be read with full attention. So a long and flabby brief, far from getting a judge to spend more time with your case, will probably have just the opposite effect.

That is particularly true of amicus briefs. In Justice Scalia’s words, the “injunction of brevity has special force here, since not even the demands of duty drive judges to read amicus briefs that are bloated.” That view is shared by the justices’ law clerks. On the basis of interviews with former clerks, the author of a study on amicus briefs in the Supreme Court concluded that “[o]ne of the foremost attributes common to the ideal amicus brief is brevity.”

At least as a general rule, the same principle applies to amicus briefs in the courts of appeals. For two main reasons, an effective merits-stage amicus brief rarely requires every one of the 7,000 words authorized by the rules, and the author should try hard to resist the notion that the brief should be as long as the rules permit. Judges are aware that appellate briefs are like gas, expanding in volume to fill their container. Even though the rules permit a 7,000-word container, judges recognize and resent gaseous briefs.

First, apart from tables and certificates, an amicus brief need only include a statement of interest and an argument; it need not include a statement of the case or a statement of facts.

(Show more about statements of facts in amicus briefs.)

That is what the rules say. As a matter of practice, however, an amicus brief not only need not include a statement of the case or of the facts, it ordinarily should not include either type of statement. An amicus should assume that judges and law clerks do not wish to read procedural or factual — or any other — information that has been set forth in the party’s brief and that instead they wish to get to the main point of the amicus brief as quickly as possible. Unnecessary preliminaries create a risk that the reader will lose interest in the brief and will — at most — merely skim the brief rather than studying it carefully.

Of course, there may be cases in which the facts are critical and the amicus concludes that they have not been effectively presented in the party’s brief. In that circumstance, the amicus should include a statement of the facts of the case, but only a short one focusing on the most salient facts that underpin the arguments that the amicus will be making. If you draft a statement of facts for an amicus brief, go back after you complete the argument section to see whether you can excise some facts as unnecessary to the court’s appreciating your points. As in any brief, factual propositions should be supported by citations to the opinion under review and the record, so that the reader is left with no doubt as to their accuracy. The author of the brief must also be meticulous in ensuring that the citations actually support the proposition; if they do not, the amicus risks losing credibility with the court.

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Second, as to the argument, while it may be understandable for a party to believe that it must err on the side of saying too much, so as not to omit anything that might conceivably persuade the court to rule in its favor, there is no reason for an amicus to adopt that approach. On the contrary, if an amicus feels that it must err in one direction, it should err on the side of saying too little.

An amicus brief typically has a single, discrete objective. If that objective can be achieved in relatively few pages, then, as the survey of law clerks concluded, “it is counterproductive to obfuscate the important information the amicus seeks to convey by submitting additional pages.” It is also counterproductive to risk irking the judges who will decide the case by submitting additional pages — to say nothing of the risk that the judges will only skim the brief or not read it at all. According to Justice Scalia, the author of an amicus brief should “[m]ake the one or two points (preferably one) that [he or she] think[s] will contribute something important and new — and close.”

Brevity, of course, is merely an ideal toward which the amicus should strive; it is not an inexorable requirement. In particular, “the goal of brevity should not override the more important goal of helpfulness.” There will be cases in which the objective of the amicus cannot be achieved in a few pages — cases, for example, in which there is simply a very large volume of important information to be conveyed to the court. There will also be cases in which the main justification for the amicus filing is that the party’s brief is inadequate. In that circumstance, an amicus may well require all of the words it is allowed — or at least nearly all.

Whatever its length, an amicus brief should not merely repeat what the party and other amici say in their briefs. The need to avoid “me too” briefs is one of the most common admonitions to authors of amicus briefs — and with good reason. If an amicus brief simply repeats what another brief says, the court will give it little weight. It may not even be read, once an even cursory scan reveals the duplication, as where the amicus brief tracks the organization and headings in the party’s brief. The court may go so far as to deny leave to file, if leave to file the brief is required.

Moreover, apparent duplication may lull the judges (and their law clerks) into giving the amicus brief such short shrift that they miss some unique gem of distinction or insight concealed within the morass. Supreme Court law clerks have indicated, unsurprisingly, that duplication is “the fatal flaw of an amicus brief.” If an amicus does not have anything different to say, it should either stay out of the case or consider filing a consolidated brief with one or more other amici.

Part of the art of drafting an amicus brief, therefore, is not only to have something distinctive to say but also to make it apparent that there is something distinctive about the brief. This can be done in a very brief Introduction that explains what the amicus brief contains or addresses what is not in the party’s brief. In addition, section headings should not mimic those of the party’s briefs. In sum, just as it is often said that not only must justice be done, justice must appear to be done, so too the amicus brief not only should be different from the party’s brief but it also should appear to be different.

The opinion is ACLU of Minnesota v. Tarek ibn Ziyad Academy, filed yesterday. Most of it deals with whether the ACLU's members have "taxpayer standing" to challenge the allegedly Establishment-Clause-violating program; the court said that it does, and also rejected some other procedural objections to the lawsuit. The court also concluded that the charter school is, under Minnesota law, a part of the state public education system, albeit a part that has considerable autonomy; the First Amendment thus applies to its actions. And the court concluded that the organization that runs the school is also to be treated as a state actor as to the school's operation, because of its close involvement with the school.

This leaves the substantive question: Does the charter school indeed unconstitutionally promote Islam, or does it simply offer an environment that's appealing to, and suitably accommodating to, its overwhelmingly Muslim students (chiefly the children of Somali immigrants)? To give one example, the lawsuit challenges the "school calendar" and the "school menu," but I take it that there wouldn't be any problem with public schools that have many Jewish students offering kosher options on the cafeteria menu and Jewish religious holidays off (given that so many students would be absent in any event). Whether the school's actions are seen as endorsing a religion or merely accommodating Muslim students' religious beliefs — the question that, rightly or wrongly, must be answered under the current Establishment Clause test — thus turns on the factual details.

And the court concluded that, because of this, the case can't be resolved without further factual discovery, presumably followed by hearings to resolve the contested factual questions:

The issues raised in both TIZA’s and Islamic Relief’s Rule 12(b)(6) motions [for failure to state a claim upon which relief can be granted] are factual in nature and are not appropriately resolved at this stage in the litigation. For example, TIZA argues that Plaintiff conflates the uniform-dress code with religious entanglement and that Plaintiff has failed to explain how a conservative dress code has the effect of promulgating religion. However, whether or not TIZA’s dress code involves religious entanglement requires a factual inquiry into the particulars and reasons for the dress code. In addition, TIZA asserts that it has honored certain requests for religious accommodation and that in honoring such requests, it is not endorsing religion. However, this inquiry also involves fact issues not appropriately resolved at this stage of the litigation.

Similarly, Islamic Relief argues, for example, that the Charter School Contract demonstrates that Islamic Relief was not endorsing a religious point of view because TIZA made representations in that contract that the charter school would be nonsectarian. In addition, Islamic Relief asserts that Plaintiff’s Complaint must be dismissed because Islamic Relief, as a sponsor, had no role in setting school policies that could be construed as endorsing religion. Again, whether or not Islamic Relief played a role in the allegedly sectarian operations of TIZA is a factual inquiry, and the role and importance of the Charter School Contract will be just one part of that inquiry.

The Court also notes that, at least with respect to TIZA’s motion, there are several alleged sectarian practices, such as TIZA’s busing schedule, that TIZA does not address. That not all allegedly sectarian practices and policies are addressed underscores the premature nature of TIZA’s motion. It is inappropriate, at this early stage of the litigation, to dismiss Plaintiff’s Establishment Clause claim, particularly because it requires an analysis of all the allegedly impermissible religious practices together.

Thanks to Religion Clause for the pointer.

though another twitter feed is an authentic feed of North Korean propaganda headlines (though their Twitterization is apparently not authorized). More here.

You can read the Complaint, the Thomas More Law Center press release, and a FoxNews.com article. To quote the last of these,

The leader of an Arab Christian evangelical group filed suit against the city of Dearborn, Mich., claiming the city violated his First Amendment right to distribute literature on public property.

The incident occurred last month at the city's annual Arab International Festival, an event that attracted 300,000 visitors and has provided a favorite evangelizing venue for the group, Arabic Christian Perspective, whose members have attended for the past five years.

George Saieg, Arabic Christian Perspective's founder, says trouble started when he called the Dearborn police to let them know his group would be returning to the festival.

City police told Saieg that, unlike in previous years, his group would not be allowed to distribute material on the sidewalks, and that Arabic Christian Perspective could either rent a stand at the festival or be assigned a specific location at which it could distribute its literature.

My thoughts:

1. If indeed the plaintiffs were trying to distribute material on public sidewalks that were generally open to the public, and

2. if the would-be leafleters merely wanted to distribute leaflets rather than solicit money, then

3. they would have a constitutional right to distribute leaflets -– something that they have a right do even in “nonpublic fora” such as airports, and certainly on “traditional public fora” such as sidewalks.

4. Even content-neutral bans on all distribution of materials would thus be unconstitutional.

5. Content-based bans that exclude “political literature” (if such a ban was indeed instituted here, which the Complaint alleges) would be even more clearly unconstitutional, even if they applied to all political literature, or all noncommercial literature, or all political and religious literature. Plaintiffs assert that this ban was not applied evenhandedly to all political literature; I don’t know if they’re correct, but even if they’re not, a ban on handing out all political literature is still unconstitutional.

6. Some content-neutral restrictions on leafleting that let people walk around and leaflet, but (say) limit the number of people in the walking group would be constitutional. But restrictions that require people to stay at fixed booths would generally not be constitutional, especially if the fixed places are in places that many festivalgoers wouldn’t visit (and if they cost money to rent).

7. The matter would be different if a group is putting on its own rally or some such, even in a public park or a public square, and gets a permit that would allow only its own members or invitees on the property on which the group itself is speaking. In such a situation, the property could in effect be temporarily privatized, so that the group can express its own views without the interference of others. That, for instance, is why parade organizers (who have a valid parade license) can generally select who can participate in the parade, even though the parade proceeds down a city street.

But if the group basically lets pretty much everyone use the sidewalk (as the Complaint alleges), and doesn't itself use the sidewalk for its own speech, then the sidewalk remains a traditional public forum or at worst (from the plaintiff-speakers' perspective) a nonpublic forum. Leafleting is generally constitutionally protected in both classes of forum. See Parks v. City of Columbus, a case from the federal circuit (the Sixth) in which the event took place.

UPDATE: This, by the way, is the case that Clayton Cramer blogged about yesterday, but I see no reason to treat it as a government action that is targeted at Christians because they're Christian (something that Cramer's post suggested). As best I can tell, even the plaintiffs aren't claiming that the city is discriminatorily enforcing the no-leafleting aspects of its policy; they do claim that some vendors were violating the ban on distributing "political paraphernalia," but it's not clear to me that the city even knew about that. The problem, it seems to me, is that the leafleting ban is unconstitutional, and even more clearly unconstitutional if limited to "political literature" — not that the city is selectively applying it to Christians.

is here. Some excerpts:

All Korea Linguistic Association praises contribution of Great Leader Kim Il-Sung to reform of Korean alphabet!
about 1 hour ago from web ...

Three-Revolution Red Flag Movement cheers production gains at Chagang-Do Cement Factory #2.
about 2 hours ago from web ...

DPRK Weather Bureau predicts typhoons, monsoons, to strike US west coast in 2009.
about 3 hours ago from web

Dear Leader Kim Jong-Il telegrams congratulations to Iranian President Mahmoud Ahmadinejad on successful reelection!
about 4 hours ago from web ...

Central Procurator Roh Seng-Teh denounces US Supreme Court Judge Sonia Sotomayor as sellout to independence of Puerto Rican people!
about 4 hours ago from web ...

UPDATE: It appears from that the Twitter feed might not be North Korea's idea; according to the story, "a KCNA spokesperson replied: 'We do not permit to appear KCNA on Twitter at all.'" (The story is about a different Twitter feed, but presumably this statement would apply to the feed I point to as well; KCNA is the "Korean Central News Agency," a North Korean government organ.)

The feed described in the Forbes story used actual KCNA headlines, and the one I pointed to has items that have that authentic KCNA ring. (I'd read some KCNA items in the past, so that's why the Twitter feed seemed authentic.) But it is likely that this particular feed is intentional parody, as opposed to the KCNA site, which is unintentional self-parody.

FURTHER UPDATE: Hoaxer identifies himself. Good job!

I continue my blogging of some excerpts from Mayer Brown's Federal Appellate Practice treatise. Today's item is also about amicus briefs, and in particular amicus briefs supporting petitions for discretionary review (such as petitions for certiorari) rather than amicus briefs on the merits:

In the Supreme Court, amicus briefs likely have a greater impact at the petition stage than at the merits stage. A recent study found that a “paid” (as opposed to in forma pauperis) certiorari petition’s chances of being granted rose from 2 percent with no amicus support, to approximately 20 percent with the support of one amicus, to more than 50 percent with the support of at least four amici. There is no direct counterpart to the certiorari stage in courts of appeals, whose jurisdiction is for the most part mandatory, but there is an obvious indirect counterpart: the stage at which a party petitions for hearing or rehearing en banc. Just as the Supreme Court exercises discretion in deciding whether to grant certiorari and hear a case on the merits, an en banc court of appeals exercises discretion in deciding whether to grant hearing or rehearing en banc and allow the case to be heard or reheard by the entire court.

The exercise of that discretion is guided by similar considerations in each instance. One such consideration is the importance of the question presented. Because amici can “communicate the importance of the case by their very presence,” and can communicate it even more effectively by filing persuasive briefs, there is reason to think that amicus briefs will significantly increase the likelihood of a grant of hearing or rehearing en banc in a court of appeals.

In fact, however, amicus filings supporting an en banc petition “are apparently rare.” There are likely a number of reasons for this. First, by local rule, some circuits restrict or prohibit unsolicited amicus filings at the en banc petition stage. Second, a petition for rehearing en banc must ordinarily be filed within 14 days of the entry of judgment, and that time frame may effectively preclude amicus participation in many cases. Third, a potential amicus may not wish to invest the necessary resources if the circuit that would hear or rehear the case en banc is one to which the potential amicus has little or no connection and thus one whose decision will have relatively little effect on its interests.

When those limiting circumstances are not present, however, filing an amicus brief in support of en banc consideration may turn out to be a wise investment of resources. That is particularly so because one can never count on further review by the Supreme Court, which in recent years has granted certiorari in fewer than 80 cases per term. One should never (or almost never) file an amicus brief in opposition to an en banc petition, however, because it will have the counterproductive effect of making the case appear more important than it otherwise would.

What is true of en banc petitions is equally true of other requests for discretionary review in a court of appeals. See generally Chapter 2, discussing appeals within the discretion of the court of appeals. Apart from its discretion to hear or rehear any case en banc, there are three types of interlocutory orders over which a court of appeals has discretionary jurisdiction: a grant or denial of class certification; a grant or denial of a motion to remand a class action to the state court from which it was removed; and an order in a civil action certified by the district court to involve a controlling question of law as to which there is substantial ground for difference of opinion and whose immediate resolution may materially advance the ultimate termination of the litigation. As with a petition for en banc hearing or rehearing, the filing of one or more amicus briefs in support of a petition for one of these other forms of discretionary review is likely to increase the likelihood that the petition will be granted by highlighting the importance of the question presented in the petition.

Practitioners should be aware, however, that the period for filing and deciding a petition for permission to appeal is extremely compressed. A petition for permission to appeal a class-certification order or an order certified under 28 U.S.C. § 1292(b) must be filed within 10 days of the order’s entry, and a petition for permission to appeal a class-action remand order must be filed within 7 days of the order’s entry. An answer in opposition to any such petition must be filed within 7 days after the petition is served. And because a petition for permission to appeal an order of one of these types does not stay proceedings in the district court, the court of appeals will ordinarily act on the petition promptly. In part for these reasons, amicus filings in support of petitions for permission to appeal are even rarer than amicus filings in support of petitions for en banc review. For the same reasons, if an amicus brief in support of a petition for permission to appeal is being contemplated, one should plan on filing the brief as soon as possible.

Neither the Federal Rules of Appellate Procedure nor the circuits’ local rules specifically address the filing of amicus briefs in connection with petitions for permission to appeal. Counsel would therefore be well advised to keep the brief very short and to file a motion for leave to file even if the parties consent. As discussed above, at least two circuits specify such requirements for submitting amicus briefs in support of en banc petitions.

Senator Coburn's exchange with Judge Sotomayor last week brought up the question whether there's a constitutional right to self-defense. A few thoughts, from a post from a year ago:

1. Heller recognized a right to keep and bear arms in self-defense, which logically presupposes some legal right to self-defense. Why would the Constitution let you keep an object for a certain purpose, when all use of the object for that purpose could be outlawed?

2. Heller often talks of a "right to self-defense" in contexts that suggest it is of constitutional stature, e.g., "That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."

3. I suppose that a right to keep and bear arms in self-defense could coexist with a regime that allowed people only a right to self-defense using arms, and that banned unarmed self-defense, or self-defense with weapons that might not qualify as "arms" for Second Amendment purposes. But that wouldn't make a lot of sense: Why would you have a right to defend yourself — lethally, if necessary — using the most lethal weapons, and not using less lethal means? Sometimes the legal answer to some questions is "because that's the way we've always done things, even if you think that's illogical," but that answer can't work here, because tradition is on the side of a right to self-defense using whatever means come to hand.

4. But can an opinion by Justice Scalia, no fan of unenumerated rights, be read as recognizing such a right? Well, it does seem to read that way on its face; and beyond that, Justice Scalia has signalled an openness both to unenumerated rights when they have been broadly recognized for hundreds of years, and to this right in particular. See Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (four-Justice plurality authored by Justice Scalia) (suggesting that "the right to have a jury consider self-defense evidence" may be "fundamental" and supported by the "historical record"; such a right would make little sense if self-defense could be abolished as a defense).

[UPDATE:] 5. Likewise, even the narrowest test that the Court has recently announced for recognizing unenumerated rights — the Washington v. Glucksberg test, which focuses on whether a right is important and broadly recognized throughout America and throughout American history — cuts in favor of recognizing a right to self-defense. Now if one rejects unenumerated rights under the Due Process Clause, under the Privileges or Immunities Clause, and under the Ninth Amendment, then one would just be left with the right's being implied by the Second Amendment. (My sense is that nearly all Justices and nearly all major commentators accept some implicit rights, such as the right to expressive association that is seen as implicit in the First Amendment. The controversy arises when the implication gets too tenuous, and when the right is really being urged as an independently secured, albeit not expressly enumerated, right.)

6. At least some lower court judges — including some Reagan and Bush appointees — have shown a willingness to recognize a constitutional right to self-defense, even before the Second Amendment was recognized an individual right. Compare, e.g., Rowe v. DeBruyn, 17 F.3d 1047, 1054-56 (7th Cir. 1994) (Ripple, J., dissenting); id. at 1047 n.** (Cudahy, Flaum, Ripple, and Rovner, JJ., supporting rehearing en banc); DeCamp v. N.J. Dep’t of Corr., 902 A.2d 357, 361–62 (N.J. Super. Ct. App. Div. 2006) (endorsing Judge Ripple’s position and concluding that prisoners have self-defense rights, though without explicitly deciding whether those are federal constitutional rights or only state law rights); Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980) (en banc) (Merritt, J., dissenting), rev'd on other grounds, 456 U.S. 107 (1982) with Rowe, 17 F.3d at 1052-53 (7th Cir. 1994) (rejecting a constitutional right to self-defense generally, though the case involved only prisoner rights); White v. Arn, 788 F.2d 338, 347 (6th Cir. 1986) (rejecting a constitutional right to self-defense generally, though the only issue in the case was whether the defendant could be required to prove self-defense by a preponderance of the evidence, rather than requiring the prosecution to disprove self-defense beyond a reasonable doubt).

7. Likewise, at least two state courts have expressly read a state constitutional right to bear arms in self-defense provision as supporting a right to self-defense, at least with the constitutionally protected arms (though for the reasons mentioned in item 2, I don't see how the right would be so limited). See McKellar v. Mason, 159 So. 2d 700, 702 (La. Ct. App. 1964); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139, 142–44 (W. Va. 1988).

8. If one counts all the states that have a right to bear arms for individual self-defense in the state constitution together with all the states that have a right to defend life expressly mentioned in the state constitution (and many state courts have indeed read such rights to defend life and property as securing constitutionally protected rights), one gets 44 of the 50 states — an important marker of the breadth of self-defense as a constitutionally secured right, and not just a common-law right. See generally Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. & Pol. 399 (2007); see also this earlier post and this one.

None of these, standing alone, would be dispositive evidence that the courts are likely to recognize a constitutional right to self-defense in the wake of Heller. But put together, it seems to me they point strongly in that direction.

9. I should note, though, that this surely doesn't mean a constitutional right to use deadly force in all circumstances in which one is defending oneself. Historical limitations on this right — either broadly accepted, or at least accepted by a substantial minority of states — are likely to be upheld, especially if history and tradition is a large part of the basis for recognizing the right in the first place.

Thus, a rule that one can only use deadly force to defend oneself against threats of death, serious bodily injury, rape, kidnapping, and a few other very serious threats would likely be constitutional (even though many states also allow use of deadly force to defend against robbery and in some situations burglary). Likewise, the "duty to retreat," which is to say the principle that deadly force can only be used in self-defense if it's genuinely necessary, in that no safe avenue of retreat is available, is likely to be constitutional, too, because it has long been recognized in at least a substantial minority of states. There may be other examples as well. My point is that a federal constitutional right to self-defense likely exists, especially in the wake of Heller. But it is not unlimited, and is likely to be strongest precisely where there's a broad and deep common-law and statutory tradition of recognizing such a right.

[UPDATE:] This might mean that the constitutional right to self-defense is only rarely relevant to a judicial decision. But that might simply reflect how broadly and deeply accepted the right is. If legislatures and state courts consistently honor a constitutional right to self-defense — because it's so deeply embedded in American moral thinking and the American legal tradition — then indeed there'll almost never be a case in which a governmental decision is struck down based on a constitutional right to self-defense. Nothing inherently wrong with that.

I often warn my students about literary references -- whether high culture or low -- in legal writing. Sometimes, if they're just right, they can make your point more vivid and persuasive (see here for an example). But sometimes they just seem forced, or are just not very apt. And my sense is that people are often so tempted to use what strikes them as a cute and engaging reference that they don't think critically about whether it works or not. Here is an example, from a brief I just read:

The mischaracterization of this claim as a "freedom of speech" claim and the use of the civil procedure tool "Special Motion to Strike" is about as applicable to this claim as Cinderella's glass slipper was befitting the ugliest of her evil stepsisters.

I'm not sure that really adds much to the argument.

My colleagues at Mayer Brown LLP have come out with a superb treatise on Federal Appellate Practice. Naturally, I'm biased in this evaluation; but I think it's broadly agreed that Mayer's appellate practice is at least one of the very top in the nation, and they have a lot of experience to pass on. Judge Alex Kozinski agrees in his blurb for the book, calling it "a guide that every appellate lawyer should read — and that every client should expect to see on his lawyer's shelf."

I thought it would be worthwhile to blog some excerpts from the treatise this week, chiefly about amicus briefs and about oral arguments. These aren't necessarily the most important parts of federal appellate practice, but I have to admit that many important parts are not necessarily the most exciting to read about, unless you actually need them for a brief you're working on. So I tried to compromise by finding something generally interesting yet still relatively useful.

Today, I start with a question that has sometimes arisen in discussions here: Why should anyone file an amicus brief, and how should people decide whether to spend their time and money doing it? Here's the discussion, from chapter 12.2 of Federal Appellate Practice (some paragraph breaks added):

There are many different types of amicus briefs that persons or organizations want to submit to a court of appeals. An amicus sometimes wants to file a brief because it lacks confidence in the party’s ability to address the core issues in the case accurately and competently. In that circumstance, an amicus brief is similar to a party’s brief, addressing the same issues as the party and advancing essentially the same points, although it may not include some of the required components of a party’s brief (for example, a statement of the case and, in many instances, a statement of the facts).

Another type of amicus brief is filed simply “to enable the officers of trade associations to show their members that they are on the ball.” In that circumstance, as Justice Scalia has put it with characteristic bluntness, “it really does not matter what the amicus brief says.”

Ideally, however, an amicus will attempt to say something that is of use to the court and different from what the party says. Amicus briefs of this type commonly fall into one of four categories.

First, there is an infinite variety of circumstances in which an amicus brief can provide extra-record factual information that may be of assistance to the court in understanding the background for the issues. An amicus brief can collect relevant facts or data that do not appear in the parties’ briefs or in the record. This kind of brief enlarges the factual context in which the court will resolve the issues, beyond the record made before the trial court or administrative agency.

For example, an amicus brief might provide information about religious practices in a free exercise case, a university’s admissions program in an equal protection case, a tribe’s customs in a case involving Indian property, or endangered species in an environmental case. For an amicus brief of that type to be given weight by the court, “the nonrecord facts relied upon should have the ring of truth on their face”; an amicus risks losing credibility “if it goes too far in setting forth nonrecord material as indisputably true.” In addition to providing factual information of which the amicus has special knowledge, amicus briefs may collect relevant facts or data that are publicly available — for example, the legal rules or procedures that govern in different jurisdictions.

Second, an amicus brief can provide the views of experts on an issue with which the court will have to grapple in deciding the question presented. Such a brief “can present information that may help clarify the issues in much the same way that expert testimony assists courts to make a more fully informed decision.” For example, an amicus brief may provide the views of legal historians in a case involving a constitutional provision whose interpretation is likely to turn on historical practice or the views of economists in a case involving an antitrust issue whose resolution is likely to turn on economic theory.

In cases of that type, the parties themselves are unlikely to possess the requisite expertise; generalist judges are likely to benefit from the expertise of the amicus; and the judges are more likely to find the views advanced credible than if they had been set forth by the (nonexpert) party whom the amicus is supporting. Some have argued, however, that judges are too willing to find this type of submission credible, because most authors of amicus briefs are guided, not by “the scientific norms of neutrality and objectivity,” but by “the ideology of advocacy.”

Third, an amicus brief can explain the practical effects of a particular outcome on individuals or groups not before the court. For example, an amicus brief may explain how the decision in a school case will affect student achievement, how the decision in an environmental case will affect water distribution, how the decision in a tax case will affect a certain category of taxpayers, or how the decision in an international-trade case will affect a domestic industry.

Courts often are influenced by the practical consequences of adopting one or another of the legal rules under consideration. That is particularly true in “highly technical” cases in which decisions by generalist judges may have “a tremendous impact on people and institutions in the real world.” It is also true in nontechnical cases in which there is no clear constitutional or statutory text that directly answers the question presented and judges thus have more leeway in taking practical considerations into account.

Fourth, an amicus brief can suggest an alternative legal ground for deciding the case. The alternative ground may be narrower. For example, while the party may want to achieve a big, symbolic victory by having a statute declared unconstitutional, the amicus may be able to persuade the court that the party should prevail because the statute, even if constitutional, does not reach the conduct at issue. The alternative ground may be broader. For example, while the party may be seeking to distinguish the decision on which the district court or agency relied, the amicus may believe that there is no plausible basis for distinguishing it and that the only hope for success is to argue that the decision should be overruled. Or the alternative ground may simply be different. For example, the amicus may have what it considers to be a better argument for obtaining the same relief.

In some cases an amicus will advance an alternative argument because it believes that the argument has a better chance of success; in some cases it will do so because its interests would be better served if the court adopted the amicus’s own legal theory rather than the party’s. If the amicus is supporting the appellant or petitioner and the alternative argument was not raised below, it may not be feasible for the amicus to raise the argument, because a court of appeals generally will not reverse a judgment on a ground not raised below. If the amicus is supporting the appellee or respondent, however, the party’s failure to raise the argument below ordinarily will not be an obstacle, because a court of appeals can generally affirm a judgment on any ground that has a basis in the law and the record.

One other type of amicus brief bears mention: a brief filed by the government, federal or state, or a government agency as amicus curiae. This type of brief does not have to fit within one of the four categories described above. The government is not an ordinary litigant, and its goal, at least as an ideal, is not to win cases but to ensure that the law is correctly interpreted and that justice is done. For that reason alone, a brief that merely sets forth the government’s views on a particular issue is likely to be deemed helpful by a court, especially when the brief is filed by the United States. That is why, as discussed in the following section, the Federal Rules of Appellate Procedure extend to the federal and state governments the right to submit amicus briefs. A government amicus brief, therefore, may provide powerful support for a party, even if the brief merely endorses the position that the party has staked out.

Of course, an amicus brief filed by the government may also fit within one of the categories described above. A government or government agency may have unique access to relevant facts or data; it may have expertise developed through administering a particular law; it may be able to explain the practical consequences of adopting a particular legal rule (for example, on the foreign-policy interests of the United States); or it may wish to offer an alternative basis for deciding the case before the court.

This decision, in State v. Cobbins — the Christian/Newsom murder trial — was handed down in mid-April, but I just saw it because it just got posted on Westlaw. So I thought I'd note it, especially since I haven't heard of any earlier cases on the subject:

All defendants, at the hearing, requested that this Court order (1) media outlets to disable a portion of their websites (their internet forums) to prohibit web users from posting comments about any stories related to this case; (2) require media outlet internet users wishing to utilize the internet forums to use their true names and addresses; (3) or that this Court establish guidelines for acceptable comments on the internet forums and employ real-time monitors to ensure compliance. In Defendant Cobbins' written motion, he asserts that the intensive media coverage generated by this case “has fueled hostile threats, accusation, and diatribes by the public ... directed toward [the defendant], his co-defendants, and toward the attorneys who have been appointed by this Court to represent the various defendants.”

The written motions focus on the internet sites of local media and the public's ability to publish comments anonymously on those cites. Included in Defendant Cobbins' motion are various samples of comments posted by the public which discuss this case, the defendants, and the attorneys involved. Defendant Cobbins argues further in his motion that “[i]f the media cannot responsibly report, and/or monitor the public dissemination of its website content where such failure to monitor affects the effective representation of counsel for one or more defendants, it should not be allowed to further publicly disseminate information about this case.” He also asserts that “[w]hile the public has a right to be informed about these proceedings, that privilege will always be subservient to the constitutionally guaranteed right to receive effective assistance of counsel where one is charged with a capital crime.” ...

In Nebraska Press Ass'n v. Stuart, the Court established a three-part test to be used in determining whether a prior restraint is invalid; a trial court must determine (1) the nature and extent of pretrial publicity, (2) whether alternative measures would be likely to mitigate the effects of unrestrained pretrial publicity, and (3) how effectively a restraining order would operate to prevent the threatened danger.

In this case, the publicity has been extensive, detailed, and arguably misleading at times from a legal perspective. The relief sought currently is not the complete bar of media coverage of the proceedings, but rather a bar to the sharing of ideas between citizens who read or listen to the local media reports concerning this case, who wish to make anonymous public comment on the same in the media internet forums.

This Court has already granted alternative measures to mitigate the effects of unrestrained pretrial publicity by granting a change of venire to those defendants who have made the request; therefore, the juries who will hear and decide the charges will not be from the local media coverage area. The relief sought also would not necessarily effectively operate to prevent the threatened danger. Counsel asserts that the restraint is necessary to ensure the effective representation of the defendants. Only two media outlets intervened in these proceedings. The internet is not restricted to use by the media alone. Private citizens have access to and utilize the internet everyday to freely discuss and exchange ideas whether on the internet forums of the two media outlets or otherwise.

Considering all the factors, this Court cannot find that disabling the internet forums of the media internet sites would be an appropriate restraint.

In addition to and in the center of the issue of restraint and freedom of speech in this case is the issue of whether anonymous speech on these internet forums is protected and whether it should be restricted. The Supreme Court has recognized that the First Amendment protects anonymous speech....

The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The “ability to speak one's mind” on the Internet “without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate.” People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court....

So long as people are not committing any wrongdoing, they should be free to anonymously participate in the online forums. Accordingly, this Court does not find that any restraint on the internet forums would be appropriate in this case.

In addition to the request by all four defendants discussed above, Defendant Cobbins' motion includes an alternative motion to allow counsel to withdraw due to the threatening nature of the comments made anonymously in the media.... In this capital case, this Court has called upon some of this area's finest defense attorneys to represent the named defendants. At this court's request, the attorneys have graciously, and at great personal sacrifice, accepted these appointments and are zealously representing their clients as they are required to do by law. As pointed out by counsel, fees paid in appointed cases do not compare with the fees received by most attorneys in non-appointed cases. This Court greatly appreciates the sacrifices made by the members of the bar, on both sides of the courtroom, who accept this Court's appointments and who assist in the pursuit of justice. Without the dedication of these attorneys, our criminal justice system could not function.

At the hearing, Assistant District Attorney Leland Price announced that the State stands ready to investigate and/or prosecute anyone who anonymously or otherwise engages in criminal conduct toward any person, be it attorney, victim's family member, court personnel or otherwise. While this court understands counsel's concerns with the various general comments in the media concerning attorneys in this case, this court does not find that any of the comments rise to a level which would require allowing counsel to withdraw at this time....

This seems to me the right result. I'm generally skeptical of speech restrictions aimed at preventing jurors from being prejudiced at trial; and courts are as well. The Supreme Court in Nebraska Press Ass'n v. Stuart (1976) has held that in principle such restrictions may be permissible, but it set up a pretty stringent test that must be passed before they can imposed met (quoted above), and my sense is that in practice courts very rarely impose them. I recognize that jurors may hear things about the case that they shouldn't hear — rumors, allegations, information about excluded evidence, and so on. But judges should be able to do a pretty good job of persuading jurors to set that aside, and to focus on what they hear in the courtroom. All of us are familiar in our daily lives with rumors that prove to be false, newspaper accounts that omit important details, media accounts that we mishear because we aren't closely focused on them, and so on. Jury instructions that remind jurors of that, and remind them to pay attention only to things that they hear in court, that they can focus on and remember well, and that are subject to cross-examination shouldn't be hard to accept or counterintuitive. They won't be perfect, but I suspect they should be fairly reliable, especially since they come from a high-authority figure that jurors are likely to view positively.

But whatever one might say about the risk of incurable juror prejudice from media accounts, it would apply least to user comments, especially anonymous ones. Such comments are so low in credibility that it's hard for me to see jurors being much influenced by them, especially in the face of instructions from a judge that explain why such out-of-court sources should be ignored. So the judge's conclusion here strikes me as entirely correct on this.

Threats to lawyers are a different matter, and certainly something that jury instructions can't cure. Nonetheless, the risk that a few speakers might use online comments to threaten lawyers doesn't justify, I think, imposing special restrictions on all speakers (or even all anonymous speakers); and people who really want to seriously threaten lawyers would still be able to threaten them even if comments are shut down on certain articles at various media sites. Plus requiring people to use their accurate names and addresses isn't self-enforcing; certainly the newspaper can't practically enforce that. So someone who wants to threaten someone would still be able to do so, just using a false name and address — the proposed orders wouldn't really prevent such threats, except insofar as they might catch a few of the most foolish threateners.

I'm delighted to say that James L. Gibson, coauthor (with Gregory Caldeira) of Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court, will be guest-blogging this coming week, chiefly about that very topic: how much the public really knows about the Supreme Court, and how that can be measured. Prof. Gibson is the Sidney W. Souers Professor of Government and Professor of African and African American Studies at Washington University in St. Louis, as well as Professor Extraordinary in Political Science at Stellenbosch University in South Africa, and author of many books and articles that are too numerous to mention here; I much look forward to his posts.

Say that someone alerts Amazon that a certain book that it is selling contains a libel — or discloses information that invades someone's privacy, or some such. And say the matter is clear, and Amazon has no doubt that the book is indeed libelous. Under traditional American libel law (which is quite constitutional under the First Amendment), Amazon would at that point be legally actionable for Amazon to continue distributing the book.

Bricks-and-mortar bookstores have in fact long been potentially liable for distributing libelous books once they learned that they were libelous, though in practice such lawsuits have been rare. It's also possible that they could even be enjoined from selling the book, once there's a final finding by a court that the book is libelous; they could certainly be sued for damages. It's possible that 47 U.S.C. § 230 would shield online bookstores from this liability rule, though it has long been applied to bricks-and-mortar bookstores. But let's assume that Congress modifies § 230 to track traditional libel law rules. Or let's say that this arises in England, or some other country that doesn't have § 230.

My question: Should it be proper for Amazon to at that point delete the libelous books from users' Kindles? Let's say that Amazon tried to add a provision to its user license agreement that would give it the contractual right to do so. Should consumers be very troubled by that? Or should they react the same way they react to the fact that if a Web site operator is alerted that some of his writings are libelous, he must change them or face the risk of liability? (That's just normal libel law.)

I would be troubled, partly because I wouldn't be at all certain that the judgments about what is and is not a libel will be made accurately. That's always a risk with any libel law system, but I would think it's even more egregious if it can affect existing copies and not just the distribution of future copies. I also would worry that the same would end up applying to books that contain alleged "hate speech," or blasphemy, or insults to political officials, or whatever else some country that has jurisdiction over Amazon might insist on. Again, the ability to change existing copies in customers' hands strikes me as materially more dangerous than just the ability to demand that people who post things online change their postings. But would I be correct?

Incidentally, what if instead of deleting the material, Amazon changed the file to include an explanation that this and that passages are false, with details about why they are false? (Of course, that would not be helpful in invasion of privacy cases, and many people who are libeled would prefer that the libels of them be entirely deleted, rather than just supplemented with correcting information.) Should we also be troubled about that, either on its own terms or because of the possibility that it would lead to broader editing? Or should we welcome it as a means of providing more information to readers, as well as mitigating in some measure the harm to the wrongly defamed?

It now appears that Amazon deleted a particular edition of 1984 from customers' Kindles because the edition was infringing:

An Amazon spokesman, Drew Herdener, said in an e-mail message that the books were added to the Kindle store by a company that did not have rights to them, using a self-service function. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers,” he said.

Does that make the deletion of the books proper? I don't think so.

1. It's true that Amazon might well have been infringing copyright by distributing the books, even though it was doing so unwittingly. (I don't think it would be immune from liability under 17 U.S.C. § 512, but I don't want to get into the details of that now.) It certainly had an obligation to remove the material from its own site once it learned that it was infringing.

2. It's also true that, under U.S. law, even reading an infringing book on one's electronic reader might be an infringement. That's not true for traditional books; if you read at home a book that turns out to be infringing, you're not an infringer. If you sell it or give it away to someone, you probably are, but just reading it doesn't implicate any of the copyright owner's exclusive rights. But when you read an electronic book, you are necessarily making copies of the book inside your computer system, and onto your computer screen, and those copies are often present there for periods of longer than transitory duration. That likely means that you're infringing the copyright owner's exclusive right to make copies. (By authorizing the sale of an electronic version, the copyright owner is implicitly or expressly licensing people to do the electronic copying involved in reading authorized copies; but here there was no such initial authorization.) So unless the home reading is a "fair use," even of an infringing copy, the user might be infringing copyright by reading the electronic book on a Kindle in the U.S.

3. But that's a "might be." Perhaps the user can win on a fair use defense; perhaps courts might conclude that online reading of an electronic book on one's own Kindle should be treated legally the same as the reading of a physical book; the matter is not settled.

And it's only if the reading takes place in the U.S. In other countries, the law might be different, and reading an electronic book might be as noninfringing as is reading a paper book. What's more, it has been said that Orwell's works are in the public domain in some other countries, including Canada and Australia. (I haven't investigated this closely myself, but see here and here for such claims.) So reading the Orwell work on your Kindle in Canada might well not be infringing, unless there's some added text in that work, for instance someone's Introduction, that is not yet in the public domain.

4. And on top of that, even if your reading the work on your Kindle might be an infringement, that's your infringement. Amazon at that point is not legally responsible for your infringement (though it was for the original infringement in the sale of the book). It thus can't defend itself on the grounds that the law requires it to take this step, in order to stop its own infringement — deleting your copy wouldn't have stopped its own infringement, but at most might have prevented an infringement by someone else (its customers), or mitigated the harm caused by Amazon's original infringement. And as I mentioned, the actions that the deletion was preventing might not even have been infringing.

5. Nor does it seem to me that Amazon can defend itself on the grounds that it was exercising its contractual rights to delete infringing material. As I read its Kindle License Agreement, it has not reserved any such rights. Rather, it says (emphasis added), "Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use."

Even if Amazon had reserved such a right under its contract, I think that would have been something that many readers would have found quite troubling, especially given that the reservation of this right would have been unexpected, contrary to the way things are done with traditional books, and put somewhere inside an agreement that no-one reads. The contractual term might have been enforceable, but still understandably upsetting to readers. But as best I can tell, no such right was reserved; in fact, the deletion was a breach of its contract, and quite possibly a trespass on readers' Kindles.

6. On top of that, the trespass wasn't just annoying, but for some people quite damaging; some readers lost their own annotations together with the electronic book.

7. All this may have happened not as a deliberate decision to remove this book from customers' Kindles, but rather as an artifact of the way Amazon's computer system works: when a book is deleted from the central site, all downloaded copies are also apparently deleted. But if that's so, that just means there's a seriously bad design choice (or a serious bug) in the Amazon system. It hardly gets Amazon off the hook.

For these reasons, I'm pleased that Amazon has changed its policies:

Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances,” Mr. Herdener said.