Saturday, February 02, 2008

Setting the record straight, part 2

Returning to Illusory Tenant's jeremiad against a law student, Daniel Suhr wrote something that looked at whether some decisions written by Justice Butler have had "legs," i.e. have they led to further changes in Wisconsin law or been cited by the courts of other states.

IT focuses on two decisions of the Ohio and Vermont cases included in Daniel's piece. These courts faced the same question as that present in Knapp. Should they follow Patane (that is how they phrased it) under the Vermont and Ohio constitutions?

IT goes to great lengths to establish that Justice Butler did not "make" or "cause" these courts to rule in the way that they did. But Daniel never made that claim. He noted that they cited Knapp in reaching the same result. IT's suggestion that there is some kind of lawyers' rule or custom that one should say that they "cited Knapp after holding ..." or words to that effect is wrong. In 26 years of practice at what most people would regard as relatively high level of the profession, I have never heard of such. If I cite a case to a court or, if the court cites a case in the course of an opinion, we are generally understood to be saying that we find it to be persuasive on whatever the issue before us happens to be.


Both the Ohio and Vermont courts decided, like Knapp, not to follow Patane and to base their decisons in their state constitutions. Of course, the Ohio or Vermont Supreme Courts did not "follow" Knapp in the sense that they found it to be binding precedent. What they did do is cite Knapp as consistent with their interpretation of the Ohio or Vermont constitutional provisions that were similar to the Wisconsin provision at issue in Knapp and the federal provision at issue in Patane. As IT knows, when courts do this, it is not as some idle statement meant to satisfy the curiousity of someone who just happens to be thumbing (or, nowdays, left clicking) through the reporters. They tend to use like minded decisions from other jurisidictions to confirm their conclusions and to bolster the persuasive nature of their decision. Judges also take comfort in knowing that other courts have reached the same conclusion. We are a profession that likes company.

This doesn't mean that SCOWIS and Louis Butler "made them" do it or even that, had SCOWIS not decided Knapp as it did, they would have decided differently. But the argument that the citation of Knapp by other courts is insignificant strikes me as a strange defense of IT's candidate. I am sure that Justice Butler is proud of the fact that other courts cite his work. He would probably like to think that his work, of which I am sure he is rather fond, is influential and persuasive. I know, were I in his position, I would.

But this attempt to portray our student as inept or disingenuous also fails.

But I have more.

12 comments:

iT said...

I don't care whether Daniel Suhr is a law student or the reincarnation of Oliver Wendell Holmes, Jr.

IT goes to great lengths to establish that Justice Butler did not "make" or "cause" these courts to rule in the way that they did. But Daniel never made that claim.

Yes he did. From Suhr's "Activist Decisions Extended and Exported":

"This paper looks at the four cases above and asks: in just the two years since each was decided, have they been used as precedent for further decisions? Have other courts accepted or rejected the rationale and rule offered in these cases?"

The answer to these two questions, in the cases of Farris and Peterson are (1) No and (2) Neither. Yet he presents them as examples in support of his "thesis" anyway. And you find that defensible? Wow.

IT's suggestion that there is some kind of lawyers' rule or custom that one should say that they "cited Knapp after holding ..." or words to that effect is wrong.

The rule or custom I have in mind is honesty.

Speculation as to Justice Butler's pride in his work are irrelevant.

it said...

Speculation / is.

Speculations / are.

Take your pick.

Rick Esenberg said...

Have other courts accepted or rejected the rationale and rule offered in these cases?"

It seems to me that they did.

iT said...

It seems to me that they did.

Only to the extent that they happened to be consonant with elements of Knapp after the other courts were finished with their independent analyses, which had absolutely nothing to do with Knapp. Nothing.

I explained this in great detail and very carefully in the three (not two) posts of mine that for some reason you've decided not to provide links to, for the benefit of your readership. That omission is a bit less than cricket, if you ask me.

But that isn't so much the point as is the one you're conveniently ignoring here: the fact Suhr is using these cases in support of his conclusion that Butler is a menace to "the safety, prosperity, and health of the citizens of many states, especially Wisconsin."

How can that be, since Knapp did not inform these decisions at all?

Seriously. The best defense of Suhr's Knappian shenanigans that you can muster is that Butler may be "rather fond" of his opinions? Forgive me, but that is just laughable.

Rick Esenberg said...

How can that be, since Knapp did not inform these decisions at all?

You don't believe that and, in any event, you can't prove it unless you are a mind reader. You know darn well that, if you had been arguing that the Vermont or Ohio constitutions mandate the exclusion of physical fruits of a Miranda violation, you would cite every decision from every other state that went your way. You also know that when courts cite decisions from other jurisdictions that go the same way they do so to bolster their conclusion or because they found it persuasive.

And, of course, that's why I made the reference to a justice being fond of his work and proud that other courts cite it. Because I presume that he knows, as we all do, that when other courts cite your work; they do it for a reason. It's not a criticism; it's a compliment.

Rick Esenberg said...

And, as far as linking to your many posts, I did not do so because you are nice enough to include a link to the archive of your posts everytime you bring this up. I can include any links you want, but I suspect that the relatively few people that are going to follow this type of detail are familiar with what you said.

Dad29 said...

As a rank outsider, I understand using citations which are consonant with my thesis as support of an argument.

That's also a convention in blogging--no big surprise.

None so blind as they who WILL not see, and none so obstinate, either.

Let's hope that his clients are not actually paying for that sort of crap.

Anonymous said...

If young Daniel were indeed the "reincarnation of Oliver Wendell Holmes, Jr.," don't you think he would be studying at the Professor's alma mater instead of a third-tier law school in the Midwest?

Anonymous said...

Saying "mandate the exclusion of physical fruits of a Miranda violation" is just plain dishonest. Isn't Knapp about the unique circumstance of "deliberate" Miranda violations? Shouldn't the sentence be "mandate the exclusion of physical fruits of a deliberate Miranda violation?

Isn't that different than a garden-variety Miranda violation? Isn't that the point of the whole Knapp case, that the U.S. Supreme Court didn't directly address how to deal with the physical fruits of a "deliberate" violation, therefore the Wisconsin court had to decide whether or not to allow that evidence found by the deliberate violation of a suspect's rights?

iT said...

You don't believe that and, in any event, you can't prove it unless you are a mind reader.

Of course I believe it. Both courts arrived at their dispositions according to their own independent readings of Patane, and according to their own independent applications of Patane to their own State's existing precedent.

And both States only mention Knapp in passing, following the completion of those independent analyses, for the sole purpose of observing that their own holdings happen to place themselves in accord with a couple of other States, including Wisconsin.

Moreover, to paraphrase a commenter at my blog who spent a number of years practicing in Ohio, the majority in Farris is comprised of old school conservative Republicans, and Suhr's suggestion that some wild-eyed liberal activist in Madison led them down the garden path is especially ludicrous.

As for the "mind reader" remark, it's particularly amusing coming from you, who has pretty much conceded every single point both myself and Atty. Henak have made with regard to Suhr's initial misrepresentation of Knapp and is left with nothing but a resort to pure conjecture by insisting that the Knapp II court purposely shifted the basis of its holding from the Fifth Amendment to the cognate Wisconsin provision in order to deliberately insulate itself from federal review because they knew SCOTUS would vacate them otherwise.

Let's cut to the chase here. Even setting aside Suhr's woeful misreading and misrepresentation of Knapp, his second project involved attempting to portray its allegedly pernicious influence in other jurisdictions (and Wisconsin -- he performs a similarly misleading feat with Cleaver).

He is dead wrong about all three cases, which appear in sequence under his Knapp heading. And you are defending this disingenuous practice with, amazingly, an appeal to Butler being "rather fond" of his own work. It's hard to believe that you're actually serious.

Now Mr. Suhr informs us that he's helpfully forwarded this errant propaganda to the Gableman campaign, evidently for the purpose of its formulating talking points for deployment against Justice Butler. One of them's already turned up issuing from the mouth of Gableman himself, who actually claimed that Butler "cited The Wizard of Oz" in State v. Dubose. This is a flat-out lie.

Butler is not "my candidate." I have nothing to do with his campaign. But that may change in the near future if these shenanigans keep up, and you keep defending them.

Rick Esenberg said...

Anon 1:12

It is certainly possible to try to distinguish Patane in that way, but I think it was unlikely to work for reasons that I have explained elsewhere. You can defend Knapp on that basis, but I think it's bad form to call into question a young man's ethics or competence over it.

As for IT's point, it is simply overwrought to say that someone is "dead wrong" when they say, accurately, that a court who reached the same result as Knapp cited it in so holding. He's, at best. picking a nit and trying to turn it into tarantula.

iT said...

Man oh man. I said he is dead wrong to use those three cases in support of his portrayal of Justice Butler as the pernicious influence he seeks to manufacture with his paper.