Congress Considers Creating New Federal Appellate Seats, and the Usual Political Arguments Emerge.
By John Grimm
The House Judiciary Committee recently held a hearing to consider creating additional federal judgeships, including the addition of new appellate-court seats. The hearing revealed bipartisan concern that rising caseloads—and the growing backlogs they produce—threaten litigants’ access to the courthouse. At the appellate level, courts have grappled with increasing workloads by giving more power to staff attorneys to manage low-profile cases. Witnesses also cited curtailed oral arguments and a proliferation of unpublished decisions as casualties of appellate court overload.Read More…
The Singular “They” Reaches the White House, But Not the Appellate Courts
By Steve Klepper (Twitter: @MDAppeal)
Within hours of his inauguration, President Biden signed his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order began:
Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.
Focus on the first sentence. It uses the singular “they,” instead of “he or she,” to refer to an indeterminate person. That’s no coincidence in an order addressing discrimination based on gender identity.
The phrase “he or she” rests on the erroneous assumption that everyone is either a “he” or a “she.” Non-binary individuals do not identify as men or women. The easy fix is to write in plain English and use the singular “they,” just like the White House does.
I’ve written on this issue before—urging judges to abandon “he or she” and expressly embrace the singular “they” (in the same way they endorsed the “cleaned up” parenthetical). My proposal made no headway, so far as I can tell. The phrase “he or she” continues to appear regularly in Maryland appellate opinions. In the words of Arlo Guthrie, however, “I’m not proud … or tired.”Read More…
February 2021 Maryland Certiorari Grants
Yesterday, the Maryland Court of Appeals granted certiorari in four criminal appeals and three civil appeals. The cases, with the questions presented and links to the Court of Special Appeals opinions under review, are below.Read More…
Issues That May Be Raised For The First Time On Appeal
Every appellate attorney is familiar with the rule that the appellate courts will not consider arguments raised for the first time on appeal. My experience doing criminal appeals informs me that I better make sure my issues were raised below, otherwise I can expect the Office of the Attorney General to begin their response brief with an argument that the issue was not preserved and therefore should not be considered on appeal.
Where an issue was not raised below, normally the only recourse is to ask the appellate court to exercise plain error review pursuant to Maryland Rule 8-131(a). That is an uphill battle that usually results in the appellant rolling backwards a long way down.
However, there are certain issues that may properly be raised for the first time on appeal. Appellate attorneys reviewing the trial record should keep a lookout for these issues as they may be dispositive to the appeal.Read More…
Problems with Modern Electronic Legal Research—“Googlization” versus “Boolean Logic”
By Michael Wein
About every two to three years, Westlaw and Lexis representatives contact my office about renewing my existing (and not inexpensive) legal database subscription or switching to the other company. I have used legal databases since college, though which one I prefer is not the subject here. What’s comparably new is both companies for about the past decade, have boasted their new legal database systems now have a sophisticated algorithm search comparable to Google, for every appellate (and most Federal District Court cases), to quickly and correctly locate the best cases on the topic. This conceivably makes Boolean logic or just regular “keyword” searching, unnecessary or obsolete. As explained below, though there are some advantages, depending on the market audience, it is not necessarily these algorithms are superior, particularly when it comes to locating more obscure appellate caselaw, to help win a case.Read More…