Chemerinsky and Garner Highlight Bartlett Lectures


Erwin Chemerinsky

On Monday, June 28, 2010, the U.S. Supreme Court completed its October term of 2009, ending the fifth year of Justice John G. Roberts’ tenure as Chief, the first year of Justice Sonia Sotomayor, and the 35th and final year of Justice John Paul Stevens.  And on Friday, June 25, 2010, Erwin Chemerinsky, founding dean of the University of California at Irvine Law School, once again visited Kansas City to share his insight on the justices and their opinions.  Introducing the dean as “the gold standard,” Judge Nanette K. Laughrey thanked him for returning to the Western District for the 10th anniversary of the D. Brook Bartlett Lectures.    

Dean Chemerinsky offered three themes. First, he described the Supreme Court numerically, indicating that the Court would decide 73 cases this term, compared to an average of 200 cases per year for most of the 20th century, and 160 cases per year in the 1980s.  This downsizing of the docket means major issues go longer before resolution, circuit conflicts linger, and it has become even harder to get a petition for certiorari granted.  He noted that as the docket dwindles, the length of the opinions increases, and he enjoyed calling for an imposition of word and page limits on the justices.

Dean Erwin Chemerinsky

Second, he opined that instead of calling it the Roberts Court, the more accurate label for the Supreme Court is the Kennedy Court. Justice Anthony M. Kennedy was in the majority on 92 percent of the opinions last year the most of any justice and he is virtually tied for that honor with Justice Roberts this year. Even more telling, Kennedy has been in the majority on more 5-4 decisions than any other justice for the past five years. Chemerinsky conceded that, like others who argue before the Supreme Court, this statistical reality often leads to his arguing to an audience of one.

Third, he speculated on the impact of Elena Kagan joining the Supreme Court.  Expressing no doubt that she will be confirmed, he believes that neither President Obama nor the pundits can be sure of where she will fall along the ideological spectrum. Will she be more or less liberal than Justice Stevens? He ultimately predicted that Kagan would not present a significant change to the ideological balance of the Court. He reported that Justice Sotomayor’s first-year voting record was consistent with the liberal faction, and he assumes a similar pattern for anyone replacing Justice Ginsberg, should she retire.

Moving to the conservative side, the dean then focused on birthdays, reciting the ages of Justices Roberts (55), Alito (60), Thomas (61), Scalia (73) and Kennedy (73).  Even assuming that President Obama gets a second term, Chemerinsky concluded that the president is unlikely to change the balance of the Court. While political conservatives may enjoy the current composition of the Supreme Court, he suggested that liberals take heart as the justices continue to decide fewer and fewer cases.

Chemerinsky followed his thematic overview by summarizing the term’s high-impact cases, identifying Citizens United v. Federal Election Commission, 130 S.Ct. 676 (2010), as the most important decision.  The Court held that corporations, and unions by implication, could independently spend as much as they wanted to get a candidate elected or defeated. The ruling addressed expenditures rather than contributions, but the dean felt that contribution prohibitions would undergo renewed attack now that corporations share the same free speech rights as individuals. 

In Citizens United, the Court struck down the exact statutory provision it upheld seven years prior in McConnell v. Federal Election Commission, 540 S.Ct. 93 (2003).  What happened in those seven years? Justice Alito replaced Justice O’Connor, and the dean emphasized how little weight the Roberts Court gives stare decisis.

While Chemerinsky described the challenge of summarizing the lengthy Supreme Court decisions for his students and in his book supplements, his skill at doing just that remains obvious. And the 400 attorneys attending the Bartlett Lectures were fortunate that he continues to educate us in exchange for some Kansas City barbecue.

Bryan Garner

After the in-depth analysis of the Supreme Court, attorneys heard from Bryan Garner, a respected expert in legal writing and English usage, on ways to improve their legal writing skills. Titled “Better Brief-Writing in 60 Minutes,” Garner’s presentation offered concrete suggestions on how attorneys can improve the persuasiveness of their briefs.

Bryan Garner

He began by playing John Philip Sousa’s “King Cotton” march, to illustrate musically what good writing should do: Present a good idea at the outset, support that main idea, present some variations on the basic theme, and then close with a persuasive conclusion that reinforces the main idea. And be sure to do this compactly and concisely, he said, just like a Sousa march.

Garner, who is an attorney as well as a lexicographer, lamented the poor quality of much legal writing. His main point, which he re-emphasized throughout his presentation, was this: Strive for clarity in writing.

He counseled the audience to write clearly and to avoid obscurity. The lawyer with the better, stronger case, he said, will usually write more clearly and directly. But the lawyer with the weaker case will tend to overwrite and bury the merits of his or her brief by using boilerplate language, long clauses and overly descriptive language. Cultivate a knack for plain English. As he concluded, he issued this piece of advice to the attorneys in attendance: Whatever the page limit for your brief, just cut the number in half. The judges and their law clerks will appreciate how you got straight to the point.  And your opposing counsel will be jealous of how you focused the court on your winning arguments and will be suspicious of what they missed if you were able to persuade them in half the number of pages.

Garner certainly has the pedigree to dispense good advice on how to be a better writer. He is the author of Garner’s Modern American Usage, a nearly 900-page reference work considered by many writers and educators as the authority on questions of English usage. And the audience clearly enjoyed his seminar, which was a deft mixture of useful advice and humor.

For any attorneys who were unable to attend the lectures, you may contact Diana Diaz (diana_diaz@mow.uscourts.gov) for copies of the Chemerinsky or Garner written materials.

 

 

 

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