Wednesday, March 3, 2021

SCOTUS cleans up!

LASC Judge Ashfaq Chowdhury has a piece in today's DJ titled So fresh, so clean: If you don't spend a lot of time on #appellatetwitter, you may have missed a recent momentous event in citation history.

The lawyers and judges who get excited about these kinds of things were all, uh, atwitter on February 25 when the U.S. Supreme Court released its opinion in Brownback v. King, 2021 DJDAR 1792 (Feb. 25, 2021). This was the portion of the opinion that caused all the fuss:

"The Court has explained that the judgment bar was drafted against the backdrop doctrine of res judicata. ... To 'trigge[r] the doctrine of res judicata or claim preclusion' a judgment must be 'on the merits.' Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001). Under that doctrine as it existed in 1946, a judgment is 'on the merits' if the underlying decision 'actually passes directly on the substance of a particular claim before the court.' Id. at 501-502 (cleaned up)." (Citation omitted; emphasis added.)

You read that correctly. The last parenthetical in that paragraph was in fact "(cleaned up)." That was not a mistake or something left over from a clerk's draft. The (cleaned up) parenthetical is a novel citational form, used here for the first time by the U.S. Supreme Court; it's meant to signal that internal citations, ellipses, alterations and/or quotation marks have been omitted from the quoted material, but that the substance hasn't been changed by the writer. In essence, (cleaned up) means the meat of the quote has been faithfully conveyed -- and spares the reader the boring details. Think of it as a sort of Marie Kondo approach to citation: Do long, turgid citations spark joy?

The push among #appellatetwitter and elsewhere among appellate practitioners for the adoption of (cleaned up) has been gathering steam since appellate practitioner Jack Metzler first proposed the new parenthetical in 2017 on Twitter. He later published an article outlining how such a parenthetical could be used, and the potential benefits of its adoption. See Jack Metzler, "Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154-55 (2017). 

He concludes: The Bluebook has not yet adopted the new rule Metzler proposed in his 2017 article, but it does appear that a critical mass of legal writers has spoken. You, too, can now join the movement. Let's clean up these citations.

Today's Recorder On Appeals column is by Johanna Schiavoni and is titled Incivility Is Killing Your Argument. It starts off like this:

Hyperbole. Invective. Ad hominem attacks on the trial judge, opposing counsel, or opposing parties. What do each of these things have in common in legal writing? They are not persuasive. And they’re killing your argument.