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Writing Briefs When Judges Read on iPads

I just read a very interesting article, Daniel Sockwell, Writing a Brief for the iPad Judge. The basic problem:

[M]ore and more judges are reading briefs primarily on iPads or other tablets…. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask — the clerks will likely be happy to help.

Why you should care how the judge reads your brief

Why do iPads even matter? … Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print….

And here are the author’s suggestions (reprinted with his permission, some paragraph breaks added):

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.

Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.

Next, lawyers should carefully consider what font to use in a brief that may be read

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What’s Misleading About This Picture?

That’s a graphic from an article last month in Vocativ, titled “Way More People Die in Texas From Drunk Driving Than Anywhere Else. (Vocativ is a new media startup that got a good deal of buzz last Fall, including for relying on “data ninjas.”) Here’s some of the analysis accompanying the graphic:

Texas, in many ways, is its own country, and drunk driving there is a systemic problem; perhaps, it’s the inevitable consequence of a state that tends to see legislation as an intrusion, except when it comes to abortion. Over the last couple of years, Texas was America’s runaway leader in drunk-driving deaths. In 2011, for example, 1,216 died — comprising 40 percent of the state’s total fatalities. That was almost twice as many as the state with the second-most drunk-driving deaths, California. Outside Texas, the national average for such fatalities hovers around 180.

Yup, bright red Texas sure looks pretty dangerous on that map, though blood-red California, Florida, North Carolina, and Pennsylvania are right behind. Alaska, Utah, Wyoming, South Dakota, Vermont, New Hampshire, and Maine seem like the only really safe places.

Except the map means very little. Here’s another map, from a National Highway Transportation Safety Agency site, that might be more helpful (though it uses 2008 data rather than 2011 data):

The Vocativ map counts total alcohol-impaired auto accident deaths; the NHTSA counts such deaths per 100 million vehicle miles traveled. And, for purposes of determining whether “drunk driving … is a systemic problem,” and whether it stems from some special cultural factors, total alcohol deaths matter very little. There’s no sense, for instance, in showing California as one of the four reddest states (as the Vocativ map does), when its rate is below the national average, or in [...]

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Real Clear Radio Hour with Bill Frezza

Denizens of Boston may be interested in the premiere of a new radio show this weekend, “Real Clear Radio Hour with Bill Frezza” brought to you by the Competitive Enterprise Institute.  It will air from 10:00-11:00 AM on Bloomberg radio’s WXKS 1200AM & WJMN 94.5FM-HD2.  You can also find it on several Internet services (at the link).  I’ve been working with Bill and CEI on the rollout (in my capacity as a CEI board member) and I think it is a show that VC readers will find appealing.  It is pitched at a high level of listener sophistication and is many ways sort of an NPR without the not-so-sutble political agenda.  Bill himself is a fascinating guy, a serial entrepreneur and founder of several technology start-ups, and his guests Saturday reflect his interests, particularly new ways of thinking about solutions to pressing public policy problems and the powerful impact of individual entrepreneurship in addressing political, social, and economic issues.  The guests on this Saturday’s show are illustrative:

Tune in Saturday morning for the debut program, featuring two very different kinds of entrepreneurs—Will Galvin of Self Help Africa who will discuss his distinct foreign aid and community investment model and Jonathan Downey of Airware, who’s proving that drones are bigger business than military.

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Twitter and Facebook

Embarrassing as it is for me to admit, I’ve been pretty absent-minded about maintaining our “social media presence,” such as it is. We’re delighted that we have almost 10,000 Twitter followers — with the Twitter feeds automatically coming from our RSS feed — but I can’t figure out how to sign on to manage one of our accounts (with 1,145 followers), @Volokhcom. I also can’t figure out how to sign on to manage the Facebook page called The Volokh Conspiracy, which was set up but hasn’t updated since Nov. 2012 (presumably because it’s going off an obsolete RSS feed).

It’s possible that I set these up with some odd e-mail accounts, though I’ve tried the ones I remember using. It’s also possible that the sites were set up by a thoughtful reader. Again, I’m embarrassed that I’ve been so scatter-brained about this, but there it is.

So let me ask:

(1) Have any of you configured either Twitter @Volokhcom or Facebook The Volokh Conspiracy? If so, please e-mail me at volokh at law.ucla.edu.

(2) Do you have suggestions on how I can figure out (perhaps by reaching the right people at Twitter or Facebook) who the page owner is — and it might be me, using some odd e-mail address that I’ve now forgotten about? I know that there are ways of complaining that an account is wrongfully using my name or trademark, but I don’t want to go that far at this point.

Many thanks! [...]

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Our commentary on why the FDA should allow 23andMe to proceed

For those of you who have been following FDA actions against the consumer genomics company 23andMe (see my prior posts here and here), you may enjoy the commentary that Robert Green (geneticist at Harvard) and I published in Nature today.

We argue that it’s an open question whether FDA has jurisdiction over the health-related interpretations that 23andMe and other consumer genomic testing companies provide. And even if they do, that the precautionary approach the FDA adopts is unwarranted here. Early empirical data that shows little harm and significant benefits to consumers. Moreover, we believe that FDA’s regulatory approach puts it in even greater tension with the First Amendment. An excerpt from the article below:

“The FDA cannot reasonably regulate all such indirect information as medical devices. Moreover, as the court cases of Sorrell v. IMS Health (2011) and United States v. Caronia (2012) demonstrate, doing so could put FDA regulations in greater tension with the First Amendment of the US Constitution, which protects the rights of individuals to receive information, and of ‘commercial speech’1. Given this backdrop, the agency should avoid restricting consumer genomic testing unless faced with empirical evidence of harm.”

Read the rest of the commentary here.

 

 

 

 

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Commandeering and Originalism

Will Baude’s post on commandeering  prompts me to revisit the doctrine after a twenty-year absence.  I have fond memories of the doctrine, because it can be traced directly to an amicus brief that I wrote for the Council of State Governments in New York v. United States, 505 U.S. 144 (1992).

The original understanding of the founders was not a principal focus of the amicus brief or of the decision in New York v. United States itself — probably because the entire brief was written on a budget of $10 thousand, and I couldn’t afford an associate to check citations, let alone slog through all the ratification debates.  (The doctrine’s origin in an obscure amicus brief may also explain why lawyers speak of the Printz doctrine rather than the New York v. United States doctrine.  Although it came five years later than New York v. United States,  Printz was the Solicitor General’s first opportunity for a full-scale counterattack, which in turn forced the Court to develop more clearly the rationale for its earlier holding.)

New York v. United States was based not so much on an original understanding as on a practical political concern — that federal commandeering makes it less clear which level of government is responsible for a particular policy — and thus which officeholders should be voted out in the next election.  That governance rationale is independent of the ratification debates; indeed, in an odd way it seems to me that the article Will Baude cites may actually bolster the original rationale for New York v. United States.  Because, as the article makes clear, the Anti-Federalists wanted the federal government to rely on state enforcement in order to weaken federal authority.  That is, they hoped that  state authorities could use their enforcement power to [...]

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Thanks to Tim Sandefur, And A Brief Comment

I very much appreciate Tim Sandefur’s careful response to my question about his view of the Constitution. If I understand Tim’s view, though, it’s actually not about the U.S. Constitution in particular. Instead, it’s a theory of all governments throughout human history. In these posts, he happens to be advocating his approach for the U.S. Constitution today. But if I understand him correctly, he would be advocating the same classical liberal interpretation if he were interpreting the constitution of the People’s Republic of China, the constitution of Vichy France in World War II, or tribal councils set up by hunter-gatherers in the prehistoric era. Granted, Tim argues that there are aspects of the U.S. Constitution that (in his view) explicitly adopt his classical liberal approach, so part of the argument is specific to the U.S. Constitution. But I gather that the underlying classical liberal theory of how constitutions should be interpreted is actually about all governments in all times in all countries, not just the U.S. Constitution today. Or at least that’s my understanding: I hope Tim (or commenters) will correct me if I’m wrong. [...]

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Happy 10th Anniversary to Althouse

Ann Althouse celebrates 10 years of blogging.

I remember the first time I met Ann. In the 1990s at the AALS annual meeting, Philip Hamburger and I put together a program on law review editing and the quality of writing in American law reviews. I invited Ann to be on the panel because of something interesting she had written on the topic.

The one thing I remember her saying then was that the genre of writing she wanted to do didn’t really exist — at least not yet. The reason that her comment stuck with me was that I wasn’t quite sure what she meant. I thought that columnists can do commentary and scholars can do scholarship and some lucky people can do both.

And then came blogs, and Ann found the genre of writing that she wanted to do.

I’ve always considered Ann a natural blogger. It’s intriguing to think about the dissimilarities among some of the natural bloggers in the law school world — Glenn Reynolds, Eugene Volokh, and Ann Althouse — people who write quickly, naturally, and with very different styles. [...]

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John Berlau on How American Taxpayers Saved Turin Instead of Detroit

President Obama boasted during the Presidential campaign that the taxpayer bailouts of Chrysler and GM saved “Detroit” (a particular locution that he wisely doesn’t use any more, as I noted yesterday).

But as John Berlau also observed yesterday, with respect to the Chrysler bailout it might be more accurate to say that it “saved Turin,” Italy that is, rather than Detroit, U.S.A.

(Disclosure: I am a member of the Board of Directors of the Competitive Enterprise Institute where Berlau works). [...]

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“The Nation” has No Credibility

If it did, it wouldn’t have published this obituary of Ariel Sharon by professional anti-Israel agitator Max Blumenthal. I’m not a big Sharon fan, but it’s not the negative nature of the obituary that’s problematic. Rather, I’m not sure I’ve ever seen a more consistently dishonest appraisal of historical fact in the Arab-Israeli conflict, at least this side of Hamas-controlled media. There are so many distortions, exaggerations, and falsehoods that it’s hard to know where to begin, so I’ll just give one example. Referring to the massacre of Palestinian by Christian Lebanese militiamen, “Sharon and many of his officers were well aware of the Phalangists’ intention to murder as many women and children as they could.” Time Magazine made a similar allegation against Sharon, and, following a libel lawsuit by Sharon was found by New York jury to have lied. Israel’s Kahan investigative Commission held Sharon indirectly responsible “for ignoring the danger of bloodshed and revenge” and “not taking appropriate measures to prevent bloodshed.” It also found that while Israeli forces had negligently failed to anticipate the massacre, and take proper measures to respond to initial reports of a massacre. That’s all bad enough, but not for Blumenthal, who apparently is privy to his own set of facts. (Again, this is of a piece with the rest of the obituary, which, and I can’t resist one more example, falsely claims that Sharon orchestrated the “comprehensive demolition of the Jenin refugee camp,” a claim that not even the Palestinian propaganda machine, which made phony allegations of massacres of hundreds by Israeli forces (in fact, only around fifty Palestinians, mostly gunmen, were killed in the battle, along with 23 Israeli soldiers) alleged at the time. UPDATE: Here are aerial photos taken after the Jenin battle showing the camp outside the combat zone [...]

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A Question for Tim Sandefur

Reading Tim Sandefur’s first guest post, I have a quick clarifying question. Let’s say that the public disagrees with Tim’s view, and that to make its point, a constitutional amendment pursuant to Article V is passed that explicitly approves the existing status quo of judicial interpretation and explicitly rejects the Declaration of Independence as a guide to interpreting the Constitution.  In Tim’s terms, the Amendment expressly adopts the wolf view and rejects the sheep view.  Here’s my question: If that happened, how would Tim interpret the Constitution then? Would his view be that the Amendment should be recognized and that his book’s view of the Constitution will have been rendered obsolete? Or would he say the new constitutional amendment is illegitimate and must be ignored, as it is inconsistent with natural rights?

I ask that question because I think Tim’s views could reflect one of two positions. The first position is that the Constitution enacts classical liberalism because it just so happens that the Framers were classical liberals, and their policy views were enshrined in the Constitution they enacted unless and until it is properly changed. On that view, the people ultimately get to decide what the Constitution means because they can amend the Constitution however they want pursuant to Article V (as long as they don’t interfere with equal suffrage in the Senate). The second position is that the Constitution enacts classical liberalism because classical liberalism it is the only correct system: It is the only system that that correctly understands the nature and meaning of rights. On that view, the people are powerless to change the Constitution in this way because they have no power to alter the correctness of classical liberalism.

I hope Tim won’t mind me interfering with his guest-blogging by asking this question, but [...]

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Tim Sandefur Guest-Blogging

I’m delighted to report that Tim Sandefur will be guest-blogging this coming week about his new book, The Conscience of The Constitution, which has just been published by the Cato Institute. Tim is a principal attorney at the Pacific Legal Foundation, a national libertarian public interest legal group that defends economic liberty and private property rights, and is also the author of Cornerstone of Liberty: Property Rights in 21st Century America (2006) and The Right to Earn A Living: Economic Freedom And The Law (2010).

In Conscience, Sandefur argues that the classical liberal principles of the Declaration of Independence should guide interpretations of the Constitution: that the central value the Constitution was meant to foster and protect is individual liberty and not — as many of today’s lawyers, judges, and law professors believe — democracy. As a result, Sandefur defends the controversial theory of “substantive due process” and argues against both conservatives and liberals who believe in “judicial restraint” or “judicial modesty.” This isn’t quite my own view of the matter, but I expect the posts to be very interesting and thought-provoking. [...]

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