‘Judges gone wild’
Trump-appointed judge says too many write for Twitter
NOV 2, 2022 | REPUBLISHED BY LIT: NOV 3, 2022
A federal appeals court judge on Wednesday argued his judicial peers too often succumb to a “judges gone wild” mentality of writing “show off” opinions that may trend on Twitter but risk alienating the public instead of being persuasive.
U.S. Circuit Judge Stephanos Bibas, an appointee of former Republican President Donald Trump on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, said judges should focus more on writing “in way that ordinary citizens can understand,” during a lecture at Harvard Law School.
“Citizens don’t read many opinions, but when they do, accessibility is crucial,” he said at an event hosted by the Harvard chapter of the conservative Federalist Society. Clear writing “also constrains the power of politicians or talking heads to shape or warp the narrative.”
As an example of how to write clearly for the public, he pointed to his own decision after the 2020 election rejecting a bid by Trump’s campaign to block now-President Joe Biden from being declared the winner of Pennsylvania over unproven claims the election was unfair.
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious,” Bibas wrote. “But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
He wrote that on page one, making “it a little bit harder to lie” about what the court did, he said. Bibas said rulings like that can show “that we judges aren’t just politicians in robes.”
Bibas, who has delivered a version of this lecture at other law schools before, called out judges who write “result oriented” opinions focused on “what seems right, which all too often boils down to the judge’s own policy preferences.”
But he said judges also fall prey to other mistakes in writing opinions, including by filling them with distracting jargon, bad jokes and pop culture references, such as Star Wars in one case, rather than delivering “clear and succinct” rulings.
“For the show off, it seems to be all about the judge’s musings, even the judge’s ambitions to be noticed,” Bibas said. “‘Look at me, look at me, I’m so cool.’ That is not authoritative. It is even disrespectful.”
Asked by a student how judges feel when a big ruling like his election decisions garners them “newfound fame,” Bibas said “the kind of cheerleading you get from Twitter is really dangerous,” yet some judges seem to seek that attention.
“Try to be on Twitter less than you otherwise would,” he said. “Try not to be searching for the feedback or the plaudits or anything else. Just focus on the craft and find as much internal satisfaction in the craft of judging and writing as you can.”
Stephanos Bibas is a judge on the U.S. Court of Appeals for the Third Circuit. Judge Bibas was previously a professor of law and criminology at the University of Pennsylvania Law School.
As director of the Penn Law Supreme Court Clinic, he argued six cases before the Supreme Court of the United States and filed briefs in dozens of others.
He graduated summa cum laude and Phi Beta Kappa from Columbia University in 1989 with a B.A. in political theory and from Oxford University in 1991 with a B.A. in jurisprudence. He then earned his J.D. from Yale Law School in 1994.
After graduating from Yale Law, Judge Bibas clerked for Judge Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit and Justice Anthony Kennedy on the Supreme Court and was a litigation associate at Covington & Burling LLP in Washington, D.C.
Thereafter, Judge Bibas served as an Assistant U.S. Attorney in the Southern District of New York, where he successfully prosecuted the world’s leading expert in Tiffany stained glass for hiring a grave robber to steal priceless Tiffany windows from cemeteries.
Before his tenure at Penn Law, Judge Bibas taught at the University of Chicago Law School and the University of Iowa College of Law and was a research fellow at Yale Law School.
He has published two books and more than sixty scholarly articles.
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Beer Puns on Tap in Fifth Circuit Ruling on Selling Craft Beer To-Go in Texas
OCT 20, 2022 | REPUBLISHED BY LIT: OCT 21, 2022
A federal appellate judge sitting in New Orleans, Louisiana used a litany of alcohol-related puns and pop culture references in a Monday opinion limiting the authority of the agency that regulates the booze industry in Texas.
The opinion by Donald Trump-appointed Circuit Judge Cory T. Wilson gets into the sud-soaked language right out of the gate:
This is a case about beer. It turns on the meaning of the word “owned,” a pint-sized word with stout implications for craft brewers in Texas.
The facts of the case are pretty straightforward.
In 2019, the Texas legislature changed state law to allow small-scale breweries to sell to-go beers directly to consumers. But the change was limited to companies who produced no more than 225,000 barrels per year “at all premises wholly or partly owned.”
Wilson describes the change as “a previously untapped market for craft beer-to-go,” but bemoans the barrel limit as “a bit of a buzzkill.”
Monster Beverage Company-owned CANArchy Craft Brewery Collective began selling beers to consumers – the court said they were “[f]rothy at the prospects” of new market penetration.
The company was ordered to stop such sales by the Texas Alcoholic Beverage Commission (TABC) because of production facilities used on leased properties that put their annual output well over 225,000 barrels.
CANArchy sued and won in district court. The TABC appealed. On appeal, a three-judge panel affirmed the lower court’s ruling.
“Party over,” Wilson writes, describing the agency’s cease-and-desist order before commenting on the case’s current posture: “Party on.”
A lengthier description of the procedural history continues the trend:
Sobered by TABC’s cease and desist letters, CANarchy stopped selling beer-to-go. But CANarchy also brought the matter to a head by draughting a Texas state court complaint against TABC and its Chairman and Commissioners in their official capacities, seeking two forms of declaratory relief.
The plaintiffs originally sued under a primary legal theory premised on the dormant Commerce Clause of the U.S. Constitution but eventually won their motion for summary judgment based on a secondary theory that a company does not “own” a piece of real estate that they lease. Factually, the lower court observed, the company only produces around 17,000 barrels of beer on property they actually own. Coincidentally, that property is not located in the Lone Star State.
CANarchy then moved to voluntarily dismiss their dormant Commerce claim.
“The court obliged and entered a final judgment declaring that ‘the 225,000-barrel production threshold in Texas Alcoholic Beverage Code §§ 12.052(a) and 62.122(a) includes only barrels of malt beverages produced by the brewer at all premises owned by the brewer and does not include barrels of malt beverages produced by the brewer at premises leased by the brewer,’” Wilson’s opinion explains. “Rather than just cry in its beer, TABC timely appealed.”
Rather than simply endorsing the lower court’s ruling, the court took the opportunity to pour out a lengthy analysis of its own, complete with a reference to hops.
“Distilling their arguments, TABC asserts that the word ‘owned’ includes leased premises, while CANarchy contends that it does not,” Wilson continues. “We hop right to the analysis.”
The heart of the appellate court’s analysis rests on the fact that the word “owned” is not defined in Texas law. The court endorsed the notion that the meaning can be gleaned from statutory context – which places it outside and different to what the word “lease” means. The TABC, oppositely, argued that “owned” should be defined in accordance with the common law. That argument proved to be a losing one.
“We have not found, and TABC does not cite, any case in which a Texas court has conceptualized ownership as just one, or a specific number, of ‘sticks’ in a bundle of property rights,” the opinion says. “Instead, the few Texas cases to discuss the term ‘owned’ or its variants demonstrate that ‘own’ has no well-established meaning in common law…TABC’s resort to the common law falls a bit flat.”
Wilson goes on for awhile without indulging the theme before later describing the TABC’s secondary argument as a “party foul” because it was not raised with the district court – and therefore forfeited.
The opinion also contains a footnote evoking the “Great taste…less filling” slogan long-used to sell Miller Light [emphasis in original]:
A note on nomenclature: In 2021, while this appeal was pending, the Legislature repealed section 12.052(a) and replaced brewer’s permits and manufacturer’s licenses with a single brewer’s license under section 62.122(a). See Tex. Alco. Bev. Code Ann. § 62.122(a). The Legislature also consolidated “beer” and “ale” with the term “malt beverages.” See id. §§ 1.09(a), 62.122(a). Streamlined language that tastes great, and is less filling.