Equal Justice and the Poor

Many years ago, I attended my first meeting as a newly-elected representative on our church’s parish council. I was enthused, energized. Then an older man, a veteran of the council, pulled me aside before the meeting started and gave me a warning. “Now you’re going to have your eyes opened, ” he said. “It’s a lot easier when you don’t know about all of the issues.” And, of course, he was right.

I had the same experience some time later when I became involved in the most pressing problem facing our legal system: the inability of poor people to afford legal representation for the important life-changing issues they face. I had been involved in pro bono from the day I was graduated from Marquette, handling divorces, landlord-tenant issues, even a capital punishment case in Texas. I enjoyed the rewarding nature of the work and appreciated the hands-on experience. The clients I represented seemed to appreciate having a lawyer.

But while I was helping individuals now and then, and feeling comfortable that I was doing some good, I was blissfully ignorant of the big picture issues and challenges that had the system in a chokehold — the lack of funding for legal service providers, the reluctance of lawyers to become involved in pro bono, the resistance of some to changes in the delivery of legal services to poor people, the lack of leadership from those in the best position to lead. My eyes were anything but open.

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Some Modest Predictions on the Severability of the Individual Mandate

The Court’s decision on the severability of the individual mandate may be the aspect of the PPACA litigation that is most difficult to predict. If the Court holds that the individual mandate is constitutional, then severability won’t be an issue in the first place. If severability does arise, whether and how the Court will sever the mandate is unclear. In part, this is because of problems with severability doctrine itself. Notwithstanding over a century of cases on the issue, the Court has had a hard time settling upon a definitive severability test. Sometimes the emphasis has been on legislative intent. Other times the focus has been on whether the constitutional remainder can function without the invalid part. Still other times the Court has severed or refused to sever without acknowledging the doctrine at all. The oral argument on severability reflected this state of affairs, as the Justices spent a considerable amount of time exploring the merits of several possible tests. Without knowing the doctrine, it is difficult to anticipate a result.

In part, the unpredictability also reflects the absence of a completely satisfying way to sever the mandate if it is unconstitutional. Because the PPACA lacks a severability clause, covers such a diversity of topics, and reflects a variety of legislative compromises, it is hard to identify a clear legislative intent with respect to severability. Because the invalidation of the mandate will render certain aspects of the core health-care reforms financially problematic, it is unsatisfying to focus exclusively on the textual separability of the mandate from surrounding provisions. And because courts are poorly equipped to appreciate the complexities of health care policy, it seems problematic to base severability on anticipated financial implications.

That being said, I think we can reasonably make a couple of predictions about this aspect of the decision. First, if the Court holds that the individual mandate is not severable, that holding will rest on the votes of the conservative Justices, who generally seemed much more skeptical of severability than their counterparts during oral argument.

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Citing to the Record in Briefs

My students are currently finishing up their briefs on summary judgment. We have been discussing the importance of citing to the court filings in a summary judgment motion setting. Here are the major rules from the 19th edition of the Bluebook regarding record citation. “B” here refers to the rules from the Bluepages at the beginning of the Bluebook.

B7.1.1—Abbreviation in General

When citing to other court filings in the same case, abbreviate the titles of those documents and cite a paragraph or page within the document. The 19th edition of the Bluebook permits a writer to choose to enclose the cite in parentheses or not. For now, my preference is to use the parentheses. (What do readers think about this change in form?)

Example: (Jefferson Aff. ¶ 2.) or Jefferson Aff. ¶ 2.

Cites to the record use an “R. at page number” format. Example: R. at 5. or (R. at 5.)

If the citation refers to the entire sentence, it comes after the period in the sentence. Place a period before the end parenthesis.

Refer to B7.1.4 regarding citation with PACER/ECF.

Example: The Plaintiff was driving a blue Ford. (Williams Aff. ¶ 7.)

If the citation only refers to part of the sentence, place the citation within the sentence immediately after the fact supported by the cite. Assuming the sentence contains two cites, place the period for the second citation after the parenthesis to emphasize that the second cite refers to the latter half of the sentence.

Example: Jones was in studying in Chicago (Jones Aff. ¶ 6), and Carson was visiting South Dakota (Carson Aff. ¶ 8).

Example 2: Smith did not observe anything unusual that day (Smith Aff. ¶¶ 2-3), and he received no phone calls from Jones (Jones Aff. ¶ 10). Notice the hyphen in this example to show citation to consecutive paragraphs.

BT.1: Abbreviating Titles of Court Documents

This list should be used in conjunction with B7.1.1 to abbreviate titles of court documents.

Words of more than six letters may also be abbreviated, even if the words do not appear in the list.

Omit articles and prepositions.

Other words in a document title may be omitted if the document can be unambiguously identified.

B7.1.2—Pinpoint Citations

Use a page, paragraph, or line as a pincite (do not use p. before a page number). Separate line and page references with a colon.

Other subdivisions such as paragraphs should be identified. Per Bluebook Rule 3.3(c), use more than one paragraph symbol to indicate multiple paragraphs. Do not put a space between the two symbols (see examples above).

It’s customary to use “at” with appellate record cites, but the 19th edition does not require “at” with other page number references in record cites.

B7.1.3—Date

Use a date to emphasize a significant date or when documents are otherwise indistinguishable, such as when the same person has provided multiple affidavits.

Example: (Elliot Aff. ¶ 7, March 9, 2012) and (Eliott Aff. ¶ 6, March 29, 2012)

B7.2—Short Forms

Use short forms as applicable after the long form is first given.

The Bluebook allows the use of id. with record cites. Id. should be underlined or italicized consistently with other cites in the brief.

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