Brief Writing 101 / Kethledge

Chas Rutledge

A woman was walking her dog. The dog ran into the street. The woman ran into the street. A car struck the woman. The woman landed on top of the car. The occupant of the car was injured after landing on the hood. Occupant on the hood. Sound ridiculous? Maybe not when occupying is defined as “in, on, entering or alighting from,” as it was in the driver’s car insurance policy. But don’t say ridiculous out loud, and definitely don’t write it down, unless you want a rant and some case law from Judge Kethledge:

There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

Before I forget what dicta means, the real lesson in Bennett v. State Farm is that there actually is a bad way to request an oral argument:

Appellee State Farm Mutual Automobile Insurance Company (“State Farm”) does not believe that oral argument is warranted for this appeal because: (1) this appeal is frivolous; and (2) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. . . . Nevertheless, the Bennetts have requested oral argument in this case. While State Farm submits that oral argument would not advance this Court’s decision-making process in this case, if this Court grants the Bennetts’ request, State Farm asks to be permitted to participate in such oral argument.

There was no such oral argument. A shame. That one could've been fun.

Don't Do This to Her!

Chas Rutledge

With all these healthcare.gov glitches I almost forgot about any actual legal problems in Obamacare – and, for some, there are still too many unanswered questions after NFIV v. Sebelius. For example, the ACA requires employers to cover contraception if they provide health insurance. Contradicting the Tenth Circuit’s ruling in Hobby Lobby, the Sixth Circuit recently decided that a for-profit corporation engaged in high-volume manufacturing could not challenge the mandate under the Religious Freedom Restoration Act (RFRA) because a corporation is not a “person” capable of “religious exercise” as required by the RFRA.Both courts discussed how the RFRA was enacted to protect the constitutional right to the Free Exercise of religion as it existed before Employment Division v. Smith. Hobby Lobby held that corporations did in fact have Free Exercise rights before Smith, while the Sixth Circuit in Autocam explained that these rights were “confined” to individuals, non-profit religious organizations, and some sole proprietors. According to the Sixth Circuit, neither Autocam nor Hobby Lobby can “exercise” a religion, even though Hobby Lobby is a closely held family business with an explicit Christian mission defined in its governing principles. With narrow exceptions, Autocam limits RFRA claims to individuals. Unlike the owners in Autocam, however, the owners of Hobby Lobby may indeed have standing in the Sixth Circuit, as the shareholder-standing rule that prohibited an individual claim in Autocam is only a problem for publicly traded corporations. Neither company in Hobby Lobby was publicly traded, and even Hobby Lobby agreed that the situation of a publicly traded corporation “would certainly raise difficult questions about how to determine the corporation’s sincerity of belief.”As Autocam demonstrated, it can be difficult for executives of a publicly traded company to freely exercise a religion, but, here, it's not impossible. The Kennedys, Roman Catholics who own a controlling interest in Autocam, argue “that if Autocam complies with the mandate, it will only be because they have directed Autocam to comply by violating their religious beliefs.” For the Kennedys, this amounts to impermissible “material cooperation,” even though their only other option has the corporation incurring a $19 million “tax.” Their legal argument, however, framed the dilemma as a choice and may have portrayed slight insincerity. If it is wrong to permit the funding of contraception in any way, then the Kennedys’ only real choice is to do everything they can to keep Autocam from funding contraception. The only option then would be to take the penalty, but the Kennedys never claimed that they simply could not comply with the mandate.The harm advanced by the Kennedys is not a “cognizable injury” separate from the corporation’s only because the injury “stems derivatively from their fiduciary duties.” The court never mentioned that one of those duties also exposes the Kennedys to possible litigation if they take the $19 million fine. If the Kennedys had claimed that their only option was to breach a fiduciary duty, their belief would appear more sincere. More importantly, the Kennedys might acquire individual standing if they are harmed by a derivative suit that amounts to an injury that is “sufficiently distinct” from any suffered by the corporation. Instead, the Kennedys did not appear to value their religion over their company, failing to even play a bluff for the court to call.My only real concern with this ruling has to do with retroactive ramifications of the mandate. Hobby Lobby might suggest that the Kennedys are religious individuals who “enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values.” Of course, that intention may or may not be successful and is only fair when the shareholders understand its implications. Yet, just like shareholders may not expect executives to take a penalty to avoid violating religious beliefs, the Kennedys made the decision to form the corporation before the ACA was enacted and before the Kennedys knew that the decision might lead to a mandate to cover contraception and thus a violation of their religious beliefs. In its own defiant words the court may still be “without authority to ignore the choice the Kennedys made to create a separate legal entity to operate their business.” If not the Pope, maybe the Supreme Court will be more understanding.

Asylum: Should They Stay or Should They Go?

Katharine Smith

A recent Seventh Circuit holding has resurrected and called into question a 2005 Sixth Circuit decision regarding immigration law and asylum eligibility. Processes for refugee and asylum admissions are varied and complicated. Not surprisingly, then, there is a circuit split regarding one of these asylum admissions processes – asylum granted to prevent an alien’s forced removal from the country.Before you get bogged down in background explanations and immigration legalese, stick with me. This is interesting stuff! Think about it – despite the myriad of problems we born-and-raised U.S. citizens are quick to point out with our nation, thousands of people around the world petition the U.S. government to move here or remain here every year. In 2012, 58,179 people were admitted to the States as refugees and 29,484 were granted asylum.[i] We see government shutdowns and Obamacare drama; they see a land of liberty. Many both want and need to call this place their home.So how do we decide who gets to come and stay? This is where the recently sharpening circuit split comes in. One potential asylum-obtaining process, more or less, goes like this: Alien comes to the United States. For whatever reason, immigration enforcement officials attempt to remove alien from the United States. Alien files for asylum to prevent returning to her home country and explains why she should be able to stay.[ii] Asylum can be granted, not to all aliens who face persecution upon removal from the States, but to those who face persecution specifically because of their “race, religion, nationality, membership in a particular social group, or political opinion.”[iii] But this is where it gets tricky. Everyone who’s made it through the first week and a half of a law school class knows that those straightforward-looking lists of elements or rules are never quite as straightforward as they seem.In 2005, the Sixth Circuit found that young, attractive Albanian women forced into prostitution did not meet the “membership in a particular social group” element and would not be able to stay in the States.[iv] This potential social group was too broad and based only on the fact that persecution was a possibility. The Seventh Circuit, however, found this August that young Albanian women who live alone and are targeted for prostitution could constitute “membership in a particular social group” and granted the Albanian asylum-seeker’s petition for review.[v] The Seventh Circuit en banc panel explicitly disagreed with the Sixth Circuit’s 2005 decision, noting it undermines the purpose of asylum law to deny asylum to those with valid claims merely because a group is broad and many might end up bringing valid claims.What do you think? Recognizing that there are many nuances to this “membership in a particular social group” element that cannot be discussed on this blog, do you think the Sixth Circuit or the Seventh Circuit got it right? If a similar case comes back to the Sixth, should we stick to our precedent or take into account the Seventh’s Cece v. Holder changes in interpretation? Do we want inclusionary or exclusionary asylum law? How much should a petitioner have to prove before we welcome them to the Land of the Free and Home of the Brave? This circuit split hones in on interesting questions that have troubled immigration judges and lawyers for years. And now as a result of this August Seventh Circuit opinion, it looks like these questions could continue to cause trouble for days to come.

[i] Daniel C. Martin & James E. Yankay, Office of Immigr. Stat., Refugees and Asylees: 2012, 1 (2012), available athttp://www.dhs.gov/sites/default/files/publications/ois_rfa_fr_2012.pdf.[ii] Id. at 5.[iii] INA § 208(b)(1)(B) notes that asylum seekers must meet the definition of refugees set forth in INA § 101(a)(42)(A). For a quick, helpful overview of asylum and removal law, see Kevin R. Johnson et al., Understanding Immigration Law 325 (2009).[iv] Rreshpja v. Gonzales, 420 F.3d 551 (6th Cir. 2005).[v] Cece v. Holder, 7th Cir. (en banc), No. 11-1989, 8.09.13

Dirty, Dirtier, or Dirtiest?

Chas Rutledge

The Sixth Circuit recently explained that TripAdvisor did not defame the Grand Resort of Pigeon Forge by ranking the hotel Number One on a list of Dirtiest Hotels. TripAdvisor could not be liable because it used “loose, hyperbolic language.” The trial court ruled the same way but based its decision on a single theory: It is impossible to prove that a subjective statement is false. And, of course, proving defamation means proving a false statement. I think the trial court’s focus on “looseness” was the better way to go.For one thing both courts thought everyone would understand that the statement was based on reviews, but let’s pretend that TripAdvisor thought its user reviews proved that the Grand Resort was factually the absolute dirtiest hotel in all of America. It appears the Grand Resort thought they could simply show up to court with a dirtier hotel and win $10 million. Well, as the court explained, that's not how it works.Could they prove their hotel was “cleaner?” Probably not beyond a reasonable doubt but that isn’t the standard in civil cases. Most of law and life is subjective, which is why we have experts, right? Are there not hotel dirt experts? OK I guess that might be a problem. But I’ve been looking for a way out of the legal profession so I might give it a try after school and report back. Until then let’s just say I can demonstrate how my next-door neighbor’s new “Bed and Breakfast” is dirtier than the Grand Resort. This court still probably wouldn’t allow the defamation claim to proceed because we should know that the word "dirtiest" is always an exaggeration. See Seaton v. TipAdvisor, at 4. In fact those “hyperbolic” properties the court talked so much about are exaggerated even further with the addition ofabsolute dirtiest in all of America.The problem? Even if synthesized reviews of market goods aren’t meant to be factual they’re still the closest thing to facts that we have. How many billboards and commercials have told us about the WORLD’S BEST car, computer, chicken, or whatever. Ever want it? Well I know buyer’s remorse very well, so I try to stay away from ads (Do tell me when the new 6-blade Gillete razor is out, though; I’ve been shaving in the Dark Ages with 5 blades for far too long). Ads can be useless in part because courts have incentivized ad-makers to use hyperbolic language. They call it “puffery," turning a blind eye to these white lies because they don’t think reasonable people should take such obvious exaggerations literally. Well what about me and the rest of the unreasonables? We might find it unreasonable to require the effort to factor out how much exaggeration might be legal and might not. And when we hear about the BEST EVER product from 10 competing companies, review sites are often our best and sometimes only way of verifying information. We tend to take synthesized or summarized reviews much more seriously than any company’s own advertisement, which makes review sites like TripAdvisor pretty powerful market players. The good news is that well-known review sites like TripAdvisor are usually not seen as biased and are surely less biased than ad-makers.Knowing that hyperbolic language makes litigation less likely, however, I might advise review sites to use exaggerated language, making their reviews as useless as the “Got Chicken?” billboard I have to pass everyday. And that's not the kind of advice we want idiots like me giving. I certainly don’t fault the court for trying to limit its ruling and minimize dicta, but the court seemed to be offering anybody who will listen free legal advice by simplistically explaining that vague terms with more meanings are “less actionable.”TripAdvisor got away with their statement because they used “loose, hyperbolic language,” but what if it was only “loose” language? What if TripAdvisor had used non-hyperbolic language, such as saying that the Grand Resort was dirtier than the other nine hotels on the list? The trial court would still have dismissed the claim for defamation since the subjective idea of dirty is still at play, so there wouldn't be a disincentive to making what probably amounts to a more accurate statement. But we don't know what the Sixth Circuit would do, because it’s not “loose” and “hyperbolic” language. If I remember correctly free market economies like ours work best when the participants have perfect information and if we can’t have perfect information we should try to have the most accurate information we can, which means not incentivizing inaccuracy in our best sources of market information. Or was the “perfect” information part of the model another “hyperbole” that obviously wasn’t supposed to be taken seriously?

Sorry for the Jackass Offense

Morgan Blair James

Public shaming is not only a popular punishment among unhappy pet owners whose dog chewed on their favorite pair of shoes, but it is also becoming popular among judges and legislatures across the United States. With the return of public shaming, numerous questions remain unanswered surrounding judicial discretion and limitations to shaming punishments.Within the Sixth Circuit, Ohio is most frequently reported by the media for using public shaming.  In 2005, a state judge ordered two teenagers who defaced a stolen statue of Jesus to parade through town with a donkey and a sign reading “sorry for the jackass offense.”FN1A few years later, a different Ohio state judge ordered a woman to hold a sign stating “[o]nly an idiot would drive on the sidewalk to avoid a school bus.”FN2 And most recently, the same judge ordered a man who threatened a police officer on a 911 call to stand outside a police station with a sign that said “I apologize to Officer Simone & all police officers for being an idiot calling 9-1-1 threatening to kill you… it will never happen again.”FN3 While these instances made news headlines, no decisions or appeals have been made to determine the legality of these state judges’ orders.A first reaction to public shaming is shock and disbelief followed quickly with the questions “can a judge really do that?” and “what limits the judges’ discretion in these circumstances?”  While the answers to these questions are still somewhat undetermined, United States v. Gementera shed some light on the issue. In Gementera, the Ninth Circuit held that ordering a man to stand outside the post office with a sign stating “I stole mail” did not violate the U.S. Sentencing Reform Act and that public shaming is permissible.FN4 Importantly, the court noted that the Sentencing Reform Act afforded federal judges with broad discretion when determining appropriate conditions of supervised release and probation so long as these conditions are reasonably related to the nature and circumstances of the offense and are imposed for a permissible purpose.FN5While Gementera provided some guidelines, there are still lingering questions about the use of public shaming and judicial discretion. Should scenarios like ordering two teenagers to walk with a donkey through town holding a sign that says “sorry for [the] jackass offense” be distinguished from ordering a man to hold a sign outside the post office that only says “I stole mail”? Additionally, since the Supreme Court denied certiorari for Gementera and the wide variation in state sentencing laws, should there be more guidance by state and federal legislatures regarding the use of public shaming and the limits to judicial discretion?

FN1. Johnathan Turley, Shame on You, Wash. Post, September 18, 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/09/17/AR2005091700064.html.FN2. Doyle Murphy, Ohio Man Order to Carry ‘Idiot’ Sign after Threatening Cops, N.Y. Daily News, September 2, 2013, available at http://www.nydailynews.com/news/national/truth-advertising-man-carries-idiot-sign-threats-article-1.1444524.FN3. Id.FN4. United States v. Gementera, 379 F.3d 596, 600 (9th Cir. 2004).FN5. Id. at 601.

Police Function or Human Function?

Chas Rutledge

In Kovacic, the majority held that social workers do not have immunity when removing children from a home because they are performing a police function rather than a judicial or prosecutorial one. The court held that these social workers, who removed children without a search warrant, might be held liable without a valid exception to the warrant rule. Interestingly, Judge Sutton dissented, essentially arguing that the welfare of children in this instance outweighs the right to privacy, especially when the law is not clear.The notion of governmental immunity can be frustrating to all of us who do not enjoy it, but its purpose can be more understandable if you stand in the government’s shoes, as Judge Sutton does in his dissent:

Say you are a social worker. You are monitoring an unhappy family unhappy in its own way. After the parents divorce, they begin behaving badly when it comes to custody over their children. The mother, perhaps unfairly, perhaps not, is the immediate focus of concern. Over several years, she has had a series of encounters with social workers and police officers, each raising concerns about her stability and her capacity to care safely for her children. On March 26, 2002, you and five other social workers and officers along with several members of the Kovacic family meet to discuss the situation, and, with your operational silos removed, discuss the risk that the mother might imminently harm the two children, ages 11 and 8. The mother is invited but at the last minute declines to attend. You and the government officials together perceive risks you had not perceived individually. You act. Consistent with two state statutes and a standing order of the juvenile court concerning child endangerment, you remove the two children from the custody of their mother. Within three days, and again consistent with state law, a state court judge holds a hearing. She finds that the requisite endangerment and emergency existed, requiring the children to remain in state custody. State law provides a right of appeal, but the mother does not exercise it and never challenges the ruling. The children remain in the custody of the State (and a family member) for ten months.Eleven years later, a federal court of appeals considers whether the two children may recover money damages from you and the other social workers under § 1983 for seizing them in violation of the Fourth and Fourteenth Amendments. At that point, the court is told about the seen risks of a seizure (removal of children from their mother) and cannot be told about the unseen risks of a non-seizure (irreversible harm to the children) because you eliminated that danger. Let the reader be the judge. I for one would grant qualified immunity to the social workers. . . .If ever there were a reason for granting qualified immunity, it would be this: The social workers faced an uncertain legal and factual landscape and decided to act; a state court judge found three days later that they acted properly; and the affected family members did not challenge the state court decision, thus permitting the children to live outside their mother’s care for the next ten months.

The New Law School "Class"

Chas Rutledge

Jobless law school grads have been suing their alma maters all over the country. Most are unsuccessful and this latest attempt by twelve graduates of Thomas Cooley Law School in Lansing, Michigan, was no different. The students claimed that the school’s misrepresentation of employment statistics led them to attend the school, and that, if they knew the true statistics, they would have either not attended the school or paid less in tuition ($300,000,000 less). The Sixth Circuit confirmed that it was unreasonable to rely on the statistics.Like many law schools, Thomas Cooley claimed that 76% of 2010 graduates were employed even though some of these students “could be working as a barista in Starbucks.” Of course, the statement was literally true because it did not define “employment.” The second stat at issue was an average starting salary of $54,796. FN1The court admitted this one was “objectively untrue” in that it only included students that responded to the survey rather than all graduates. Yet the court thought that the students should have either looked closer FN2 or asked more questions. FN3A recent study found that there were twice as many people who passed a bar examination—53,508—as there were job openings—26,239.FN4  This case is interesting in that Thomas Cooley enrolls more students than any other law school (about 4,000 in 2010-2011) and charges $36,750 for tuition, while offering the lowest admissions standards of any accredited or provisionally accredited law schools in the country.FN5 Each of these students graduated with an average debt of $105,798. Interestingly, however, a majority of the students suing here currently own and operate their own “law firm.” If this case shows us anything, it’s never good to have too many bored or unemployed lawyers.

FN1 The court explained that the “graduates’ reliance on the statement that the ‘[a]verage starting salary for all graduates’ was ‘$54,796’ was unreasonable in light of both the statement that the “[n]umber of graduates with employment status known” was less than the total number of graduates and the very title of the report (a “Salary Survey”). Because their reliance was unreasonable, their claim for fraudulent misrepresentation failed as a matter of law. Therefore, the district court properly dismissed the claim.”FN2 The court felt that the students couldn’t have looked closely enough: “Unreasonable reliance includes relying on an alleged misrepresentation that was expressly contradicted in a written contract that a plaintiff reviewed and signed. A plaintiff unreasonably relies on one of the defendant’s statements if another of the defendant’s statements contradicts it. Here, the statement ‘average starting salary for all graduates’ expressly contradicted other statements in the very same report showing that the report itself was based not on data for the entire class, but on data from those who completed the surveys.” (citations omitted)FN3 The court also rejected the students’ silent fraud claim since none of the students actually inquired about the statistics: “the Cooley graduates did not allege in their amended complaint that they ever asked Cooley about the claims in its Employment Reports so as to create a duty for Cooley to disclose the truth. As the district court noted, the graduates admitted, in their response to Cooley’s motion to dismiss, that they did not allege that they specifically requested additional information regarding Cooley’s employment reports beyond what was publicly available[.]’”FN4 See Catherine Rampell, The Lawyer Surplus, State by State, New York Times (June 27, 2011), http://economix.blogs.nytimes.com/2011/06/27/the-lawyer-surplus-state-by-state/.FN5 According to U.S. News, Thomas Cooley accepted 83% of all applicants.

Blew What?

Chas Rutledge

In 2005 a federal judge was forced to treat one gram of crack as 100 grams of cocaine and sentence two African-American cousins to ten years, the shortest period allowed under the Anti-Drug Abuse Act of 1986. In part because the 100-to-1 ratio had unfairly impacted African-Americans for 25 years,FN1 the Fair Sentencing Act of 2010 lowered it to a more lenient 18-to-1,FN2 meaning that the Blewetts would not be subject to any mandatory minimum if sentenced today. The Blewetts appealed, prompting a shaky, Aaron Craft-likeFN3 blocking response from the government, who demands that neither the Blewetts nor anyone else sentenced under statutory minimums benefit from a new law that is not explicitly retroactive.FN4The court ended up giving the Blewett cousins the same rights as anyone caught with crack today, for which The Volokh Conspiracy pronounced! “The Sixth Circuit Really Blewett.”FN5 True, the 2-to-1 majority barely wiggled out of a tricky equal protection argumentFN6 that was not even raised by either party. But the court was just trying to show that the retroactive effect given to the Sentencing Commission’s “guideline ranges”FN7 had to incorporate statutory minimums—in other words, that Congress did not intend to violate the ConstitutionFN8—or leave 17,000 crack prisoners serving unfair sentences.FN9 While the argument clearly has flaws, the court’s objective is too worthy to criticize.Of course, Judge Gilman’s dissent concludes that the reference to “guideline ranges” has no effect on statutory minimums. He reminds us about the uncertain nature of equal protection and points out that the issue of the old ratio and equal protection has already been decided.FN10 But, while the dissent blames Congress for any injustice, the majority tries at first not to point fingers: “If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional.”FN11First of all, I’m not sure that a court really “perpetuates” anything by not raising its own issues or arguments.FN12 That’s like saying that the referee of a basketball game perpetuates unfairness by calling a charge without being absolutely sure that the defender’s feet were set. A call has to be made—block or charge—those are the rules—was the foot still or not. And what if you couldn’t even see the defender’s feet? You have to go by something, don’t you. Well, some of us, even if unconsciously and immeasurably, favor the offense or defense, some of us favor certain teams, some favor certain players, some just favor fairness, and others plain technicality, even if we all like to claim we favor nothing at all.FN13Whatever we refs favor, we would never favor anything unless the call is unmistakably neck and neck, right?FN14 And what about when a new block-charge rule makes defense a little bit harder.FN15 Say the rule was designed to maximize entertainment, and the rule-makers have come straight out to say that they favor offense, something you’re still technically prohibited from doing. And say that you, a referee who applies the new rule extensively and deals directly with its implications, know that the rule was not intended to further punish a team who’s been having bad, unfair nights all season long—no, say throughout the existence of the league.And, lastly, say that you’re watching that team’s player almost get his first career basket, when a kid like Aaron CraftFN16blindly lunges expecting to provoke his tenth charge of the night. What do you do if you didn’t see his feet and had to make a call?Me, I’d the call the foul. Even if I caught his foot flat on the ground, at that moment, all I need is the swing of a shoestring.FN17Sports are always better when the underdog has a chance, and sometimes we just get too fed up with technicalities. I mean, consistency is never entertaining and truly rather rare.So for a chance at achieving the rule’s primary purpose, the ref is usually blamed. Had the player’s “upward motion” really started, some might ask. Were both of the defender’s feet actually planted? Must there be a defender at all? And what happens next play when Aaron Craft, expecting the same call, bulldozes over a pretty steady block for his eleventh dunk of the night.FN18 The referee’s pride, we hope, is worth more than one player’s missed free throw. After all, it’s the referee’s job to focus on technical consistency.Yet because and in spite of the rulebook’s consistency, the game can’t always be fair and entertaining, especially with newer, less consistent, untested technicalities. In fact, to some extent we all favor consistency over entertainment or even fairness, which is why we can’t give the ref too much power, for fear of it being abused.FN19 Exceptions, extensions, and additions to the rulebook can only be written so fast, so we deal with it and force the ref to follow the technical rules as they stand, teasing the ref to blame the rule-makers when the players are no less responsible.FN20I thought the responsible player here was supposed to be the federal government, whose attorneys have enormous prosecutorial discretion. Famous for their high conviction rate, they get so many slam-dunks that they rarely shoot too far from layup-range. But when the team’s only goal is to score points, all principles of fairness conveniently relegate to terribly inefficient rule-makers.In the meantime, fairness just depends on what play you can make, or what question you can ask. Can you ever favor fairness over consistency? As the court phrased it, “The question remaining is: how retroactive is the new law?” In other words, does Congress limit discrimination to its own legislation, just rectifying the discrimination that judges were guided to engage in, or is Congress truly not racist? Or, is it an abuse of power to go with Congress really not being racist, when it just enacted a new rule for fairness and equality, which on its own daringly downplays consistency.FN21In this league, that all depends on the quality of the video replay.FN22 Just as in basketball, our judicial referees are confined by technical rules, because we favor consistency over fairness, expecting fairness to eventually win out when our elected representatives finally get their act together.FN23 But, while the language in Blewett is mildly entertaining, the players here aren’t tossing around pumpkins for fun; they’re praying for equality to a high-level court of justice. Here, your opponent’s failure to play fair doesn’t earn him an unjust place at the free-throw line; it earns you an unjust place in prison. And there’s an 80% chance it’s because of your race.Final briefing for the en banc review will be concluded on August 29, 2013, and arguments are scheduled for October 9, 2013, 1:30 P.M., EST.”FN24 In the short term, consistency usually wins: If not the en banc panel, the Supreme Court will overturn this decision. Eventually, Congress might have time to make the law expressively retroactive. But good calls are never noticed; maybe Judges Merritt and Martin were merely hoping to stir a discussion and speed up the process. Either way, as far as blowing, Volokh, if anybody blew this one it was you or the prosecutor.

FN1. The racially discriminatory impact of the 100:1 sentencing scheme surfaced early on when statistics showed that nearly one hundred percent of all crack defendants were non-white. See United States Sent’g Comm’n, 2011 Sourcebook of Federal Sentencing Statistics tbl.34 (94% nonwhite); LaJuana Davis, Rock, Powder, Sentencing—Making Disparate Impact Evidence Relevant in Crack Cocaine Sentencing, 14 J. Gender Race & Just. 375, 386-88 & n.68 (2011). From 1988 to 1995, federal prosecutors prosecuted no whites under the crack provisions in 17 states, including major cities such as Boston, Denver, Chicago, Miami, Dallas, and Los Angeles. Dan Weikel, War on Crack Targets Minorities over Whites, L.A. Times, May 21, 1995, http://articles.latimes.com/1995-05-21/news/mn- 4468_1_crack-cocaine.↩FN2. In fiscal year 2010, before the passage of the Fair Sentencing Act, almost 4,000 defendants, mainly black, received mandatory minimum sentences for crack cocaine. United States Sent’g Comm’n, 2010 Sourcebook of Federal Sentencing Statistics tbl.43. As the dissent points out, there may be no constitutional distinction between a 100-to-1 ratio and an 18-to-1 ratio. Yes, even the new ratio of 18-to-1 permits disparity: There were approximately 30,000 federal prisoners (about 15 percent of all federal prisoners) serving crack cocaine sentences in 2011,[ii] and more than 80 percent[ii] of federal prisoners serving crack cocaine sentences are black.FN3. http://www.huffingtonpost.com/2013/03/24/aaron-craft-charge-iowa-state_n_2945553.htmlFN4. The government also occasionally and famously tries to violate the ex post facto prohibition by applying harsher new sentences retroactively—whether explicit or not.FN5. Orin Kerr, http://www.volokh.com/2013/05/20/the-sixth-circuit-really-blewett/FN6. Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).The trick is that Congress only “violates” equal protection when it does so intentionally. See Washington v. Davis, 426 U.S. 229 (1976). Detailed, statistical proof of racial discrimination is sometimes not even enough; the harm must be “maintained . . . because of an anticipated racially discriminatory effect.” McCleskey, 481 U.S. at 298. The government essentially contends that this discrimination was maintained to respect “finality interests in already-sentenced cases.” Like myself, the court did not find that interest the least bit compelling and felt that the proof here “supports an inference that the old crack laws have been maintained at least in part because of their discriminatory effects.” The court also distinguished this case from precedent in that “the defendant’s independent characteristics do not factor into the equation, and the decisionmaker’s choice is a discretionless mandatory minimum.” First of all, I’m all for making up useful words, but the opposite of discretionary is nondiscretionary, or “mandatory,” as in mandatory minimum.And Feeney held that the decision-maker must select or reaffirm “a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279. But, according to the majority, Feeney makes it clear that racial discrimination, “regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.”FN7. 18 U.S.C. 3582(c)(2). The sentencing guidelines are promulgated by the Sentencing Commission, part of the Judicial Branch.FN8. Of course, the dissent argues that this is not susceptible to more than one construction because the court already decided it was not retroactive in this way inWilliams.FN9. United States Sent’g Comm’n, Analysis of the Impact of Guideline Implementation of the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively, at 12 (May 2011).FN10. United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.), cert. denied, 506 U.S. 892 (1992) (holding that “the one to one hundred ratio of crack to cocaine does not violate Equal Protection Standards.”)FN11. Blewett (emphasis added)FN12. The majority provides that the Supreme Court has invalidated the judicial perpetuation of racial discrimination through the failure of courts to allow custody awards of white children to mixed-race parents. See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).FN13. Me, I like to think I’d go for the player that truly believes he has time to set his feet, and against the player that always lunges for the charge thinking "what’s the worst that can happen, this guy makes both free throws?" We all, in some way, at least try to favor fairness, right? Of course, there are many factors involved—the player’s objective, the team’s objective, the organization’s objective—so I’m not necessarily talking here about Aaron Craft’s latest moment of fame and shame against Illinois last March. That game was huge, the tournament was at stake, and fouls aren’t nearly as important with a few seconds on the clock. But here, is this case bigger to the government than any others? If so, it’s only in terms of racial discrimination: the worst part for the government is that “the effect of the decision will be widespread if it is allowed to stand.”FN14. See Tim Donaghy. http://en.wikipedia.org/wiki/Tim_DonaghyFN15. “Under the revised block/charge call in men's basketball, a defensive player is not permitted to move into the path of an offensive player once he has started his upward motion with the ball to attempt a field goal or pass," according to the new rule. "If the defensive player is not in legal guarding position by this time, it is a blocking foul. Previously, a defender had to be in legal guarding position when the offensive player lifted off the floor.” http://www.cbssports.com/collegebasketball/blog/eye-on-college-basketbal...FN16. This is a hypothetical. Made clear so that Aaron will not try to sue me. No time for that.FN17. The court grabbed this shoestring by the horns:

Like passing a foreign ship at night with an “ahoy,” our dissenting colleague starts with a poetic metaphor about “setting sail . . . without any legal ballast.” The dissent then refuses to acknowledge, come to grips with or rebut the equal protection argument in this case. . . . A dissent that refuses to acknowledge the main problem in a case and then relies primarily on a case that does not mention the problem is not responsive or relevant. In order to be responsive, disagreement at least requires a discussion about why we should continue to hold thousands of people in jail who are there because of a law that is acknowledged to be racially discriminatory by a majority of the Supreme Court and by the vote of a large majority of the Congress of the United States. Congress does not often acknowledge that it passed a racially discriminatory law and then try to redress its own prior mistake. To be relevant, a dissent must at least try to deal with that issue.

FN18. Call the foul and the replay is immediately compared to the last call. Take, in the case of federal judges for instance, the ex post facto prohibition against retroactive applications of a harsher new sentence.FN19. See Tim Donaghy.FN20. Think of the government as Bruce Pearl blaming the refs or his Division II opponent for his starters running up 150 points. That’s how I feel when the Blewettmajority blames the dissenter, and the dissenter blames—Congress, who else? How does the third and arguably most powerful branch of government consistently escape blame. More candidly, the majority could have proposed that race must play a role in the government’s failure to retroactively apply the Fair Sentencing Act, and that, to be relevant, a prosecutor must at least try to deal with that issue.To be clear, I don’t think the prosecutors here are racist and I don’t think the court intended any such implication. But I do think that prosecutors are sometimes too focused on their never-ending quest to sellout jails. They are uniquely empowered to factor out legal technicalities in favor of fairness. Yet, more often it seems, they take ambiguity as opportunity to undermine the clear purpose of a legislative decision like the Fair Sentencing Act of 2010. As the court explained, that’s apparently just how it works: “the prosecutor will charge based on an objectively verifiable quantity of crack, and the court will impose a sentence no lower than that mandated by Congress.”FN21. Like when “upward motion” replaces “when the player lifted off the floor.”FN22. The court remarks:

The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

FN23. The dissent points out that slow-moving Congress is free to change the law, as if the majority attempted to forbid it. While the government seems technically correct, there are reasonable arguments for both sides, so why not go with the one that’s fair—whether it’s permanent, temporary, or ineffectual. Of course, maybe I’m just not cut out to be a judge or a referee. Either way, two people so far appear to feel the same way, despite their opinion being vacated when the government’s request for review was granted.FN24. They are also asking whether the sentences amount to cruel and unusual punishment. Also, does the court not participate in daylight savings time (EDT)? EST doesn’t start until November 3, 2013; do you think they were just assuming we would understand what they meant, like maybe Congress was with the Fair Sentencing Act?.