Sunday, January 4, 2015

What Is Golf?

We don't always pay attention to who authored appellate decisions. Certainly, some jurists catch our attention, like the Ninth Circuit's (former Chief) Judge Kozinski, who is smart and entertaining (skip toward the end of this post if you want some Judge Kozinski crunch), or our own Tenth Circuit Judge Gorsuch, just because the writing is so good. Justice Scalia cuts with a sharp linguistic razor in dissents, because, he says, "a good, hard-hitting dissent keeps you honest" (skip to the very end for the What Is Golf reference).

Knowing a judge's body of work is an elementary but critical point of research.  These just-beneath-the-surface facts can provide force to the argument, as it did in U.S. v. BurnsOr it can be devastating, perhaps when arguing the wrong-headedness of controlling authority to a judge who, unbeknownst to the ill-prepared attorney, wrote that prior decision. These details matter.

The issue in Burns: whether the district court judge committed plain error imposing a supervised release condition that restricted the defendant's contact with his minor daughter.

The answer: yes.

The reason: because had the error been brought to the district court's attention, the court would likely have sustained the objection. (Thus it met the third prong of plain error, but that is for another post). 

Here's the link: the district court "likely would have softened the contact restrictions if the issue had been raised" because he is the same judge who, sitting on the appellate court in 2011, authored a seminal Tenth Circuit decision condemning this same error, U.S. v. Lonjose. The Circuit was careful to (foot)note that the"district court's error was understandable because of defense counsel's failure to object." Remanded for findings consistent with Lonjose.

Back to Judge Kozinski: here, he tells you How to Lose an Appeal. "First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief." Then, "[y]ou go to step two. Having followed step one, you already have a long brief, so you can conveniently bury your winning argument in the midst of nine or ten losers." And so on. Some suggestions are a bit dated ("make sure your photocopier is low on toner or take a key and scratch the glass so it will put annoying lines on every page"); others are timeless (call the district judge "senile or drunk with power, or just drunk"). The rest will be saved for a forthcoming post on, well, How to Lose an Appeal.  

And, finally, just for the writing, Justice Scalia on golf:
If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.
From PGA Tour, Inc. v. Casey, 532 U.S. 661 (2001).

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