Christmas is always a super-stressful time of year for me, but not for any of the normal reasons that plague sane people. My problem is that the people who know and love me tend to get me books–which makes sense, because books and bicycles are basically the twin obsessions of my sad life. The trouble comes when I get a bunch of books during the last week of the year. Receiving and opening them is pure joy. My friends and family like me! They get me!

But this elation soon descends into pure terror. The piles of books feel usher in the creeping dread of unfinished homework over a holiday break. Tim Urban pops up in my subconscious to remind me that I’ll probably die before finishing them. Carrie somehow finds more books in the laundry room that she meant to give me. I panic. I stop reading.

Anyway, here’s what I got through before my most recent meltdown:

Levels of the Game by John McPhee. Sporty McPhee is the best McPhee. I’ve long harbored suspicions that half his books result from weird bets with coworkers. This one was somebody at The New Yorker challenging him to write a 150-page play-by-play of the 1968 U.S. Open semifinal between Arthur Ashe and Clark Graebner that explains class and race in America. If he lost he’d be exiled to Alaska.

I Wear the Black Hat by Chuck Klostner. Absolutely wonderful. The villain is the person who knows the most and cares the least (with one notable exception).

Animal Liberation Now by Peter Singer. He’s not wrong.

Divided by God: America’s Church-State Problem–and What We Should Do About It by Noah Feldman. Great summary of the development of law on this topic through 2005 or so.

For Profit: A History of Corporations by William Magnuson. Not precisely what the title promises–it’s more a series of historical anecdotes illuminating particular aspects of the modern corporate form–but still terrific, and marvelously executed.

Exodus from the Alamo: The Anatomy of the Last-Stand Myth by Phillip Thomas Tucker. A great idea–a history of the Alamo crediting Mexican and Tejano sources, which reads as revisionist history in our tradition–poorly executed. Repetitive and speculative, but the underlying stuff is worth it.

Democracy and Distrust: A Theory of Judicial Review by John Hart Ely. A friend gave me this. Loved it. Ely is more convincing in his critiques of rival theories than his defense of his own, but the same could be said of literally any legal academic writing.

The Exorcist Legacy: 50 Years of Fear by Nat Setaloff. Don’t judge me. It’s a fascinating movie. Still a miracle that they pulled it off.

The Thomas Sowell Reader by Thomas Sowell. Based on what I’d heard of Sowell from smart people I disagree with I thought this would be more persuasive? Seventy-five percent of it reads like an uncharitable, bitter rant. (I suspect these were newspaper columns that haven’t aged that well?) The other 25% is thought-provoking, though.

The Killing Floor by Lee Child. Smart people seem to love Jack Reacher. WaPo ran a terrific piece on the series a few months back, which made it seem commercial almost to the point of being cynical. After reading this first entry in the series, I see the point. But it’s also a brilliantly executed piece of commercial fiction. The craft that went into it is impressive, with one exception: The British spelling, locating, and punctuation, all of which is hopelessly distracting. In no universe does Jack Reacher ‘take a decision’ about how to handle goons in a neighbouring jail cell or talk smack inside single quotation marks.

An anonymous reader asks if Virginia’s appellate courts are ratcheting down on the use of motions to reconsider to preserve error.

Here’s the background: Traditionally, appellate counsel have used motions to reconsider to clean up the record and preserve new arguments for appeal. It was fairly normal for an appellate lawyer to be hired after a disappointing trial result, spot an issue that wasn’t properly raised, move to reconsider on that basis, lose, appeal, and then ultimately win on appeal on that exact point.

Enter Wal-Mart Stores East, LP v. State Corp. Commission, 299 Va. 57 (2020). There, after receiving an unfavorable ruling from the SCC, Walmart moved to reconsider, seeking relief that it had not previously requested.[1] The SCC denied the motion, and the Supreme Court affirmed. It explained that a motion to reconsider ordinarily asks a court to revisit a holding because it was mistaken. Walmart’s motion, by contrast, did not ask the SCC to do that; instead, it was “a request to consider for the first time something the movant had not never before specifically sought.” The Court specified that it did not “mean to suggest that the Commission had no discretion to grant the motion to reconsider.” Instead, it was reviewing the SCC’s denial for an abuse of discretion, and it concluded that denial was within the range of available choices:

We do not mean to suggest that the Commission had no discretion to grant the motion to reconsider. It did. See 5 VAC § 5-20-120(C) (authorizing the Commission to “accept, modify, or reject the hearing examiner’s recommendations in any manner consistent with law and the evidence”). HN15 We review the Commission’s decision to deny the motion to reconsider under an abuse-of-discretion standard. “The abuse of discretion standard draws a line — or rather, demarcates a region — between the unsupportable and the merely mistaken, between the legal error . . . that a reviewing court may always correct, and the simple disagreement that, on this standard, it may not.” Reyes v. Commonwealth, 297 Va. 133, 139, 823 S.E.2d 243 (2019) (citation omitted). “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred,” Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493 (2016) (citation omitted), because only then does a discretionary decision exceed the “outermost limits of the range of choice available,” Reyes, 297 Va. at 140. Viewed under this deferential standard, the Commission did not abuse its discretion in denying Walmart’s motion to reconsider.

In other words, Wal-Mart held that requesting new relief is a permissible basis for denying a motion to reconsider. Wal-Mart did not say that this mandated denial. In fact, the Court bent over backwards to clarify that it didn’t.

And all that’s fair enough. “You didn’t ask for it until now, so you lose” is a little harsh but hardly beyond the scope of the SCC’s discretion.

The trouble comes in how Wal-Mart has been cited. Let’s see what the Supreme Court did with it in Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 95 (2021)

. . . Wal-Mart Stores, 299 Va. at 76-77 (concluding that a motion for reconsideration “may . . . challenge a tribunal’s failure to rule on an issue properly presented to it, particularly a timely but unadjudicated lesser-included claim,” but that it may not “request to consider for the first time something the movant had never before specifically sought”).
Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 95

Nope. That’s not what Wal-Mart said.

Has the Court of Appeals done any better? Let’s look at Page v. Portsmouth Redevelopment & Housing Auth., 2023 Va. App. LEXIS 407, *10 n.5 (June 20, 2023):

“A motion to reconsider ordinarily asks a court to reconsider a holding because, in the opinion of the movant, the holding was erroneous.” Wal-Mart Stores E., LP v. State Corp. Comm’n, 299 Va. 57, 76, 844 S.E.2d 676 (2020). A motion to reconsider may not “request [the circuit court] to consider for the first time something the movant had never before specifically sought.” See id. (holding that the SCC did not abuse its discretion in denying Walmart’s motion to reconsider because “Walmart’s motion . . . did not ask the Commission to reconsider its holding denying Walmart’s request for permission to aggregate the load of a specific number of customers” but instead, “Walmart argued that the Commission should consider whether authorizing some load less than Walmart requested in its Aggregation Petitions would satisfy Code § 56-577(A)(4)” (internal quotation marks omitted)).

Closer, but that’s still not quite it.

Let’s hope that some of our robed friends clean this up before we mis-cite our way out of a key tool for preserving error.

[1] More precisely, when the SCC denied Walmart’s requests to aggregate the loads of a specific number of customers (Walmart’s petitions sought to aggregate 120 customers totaling 70.52 megawatts of load and 44 customers totaling 20.57 megawatts of load), Walmart moved to reconsider, arguing that the SCC should take into account whether authorizing some load less than Walmart had requested in its aggregation petitions would satisfy Code Section 56-577(A)(4). Glad we could clear that up.

Happy Thanksgiving! In no particular order, here are a few things I’ve been enjoying:

• Hyemin Han’s play-by-play of the D.C. Circuit argument in the Trump gag order case. Credit to longtime De Novo favorite Judge Millett for this hypo: ““Okay. But he can’t say that that person is an ‘un-truth speaker’?”
• Jeannie Suk Gersen’s take on SCOTUS’s Code of Conduct: “It is not a set of rules designed to redress past ethical breaches and prevent future ones but rather a defense brief arguing that there have been no ethical breaches to redress and prevent.” It was also fun to watch Brother Emmert’s enthusiasm for the Code of Ethics to slowly drain out of his post.
• Noah Feldman’s Divided By God: America’s Church-State Problem–And What We Should Do About It. This 2006 book is a little dated, but it offers a great overview of church and state law through the turn of the century. Would love to see an update covering the past few decades.
• John Hart Ely’s Democracy and Distrust. A friend gave me this book. It’s very persuasive in tearing down theories of constitutional interpretation, maybe a little less so in building one up.
• The debate over critical race theory seems to have summoned Duncan Kennedy back from his parallel universe? Here he is on a podcast that sounds like it was recorded in the phantom zone. Whatever. My UVA kids will still have to read A Semiotics of Legal Argument next semester.
• Tyler Cowen’s interview with Chuck Klosterman. I listened to this when it first came out (because The Nineties: A Book is amazing) and revisited it recently. To borrow a phase from Cowen, the interview is wonderful throughout, but it has one of my favorite thoughts from the whole year: the real risk you need to hedge against is premature death.

KLOSTERMAN: It might be, though, just what your personality is like. There’s a certain personality whose goal seems to be to make more money, and my personality is, “Don’t lose the money you’ve made.” I seem so lucky to have had things work out the way they have. My fear always is that, in the end, I’m going to have nothing again. Somehow, I’m going to have put all this time in, and done all of these things to accumulate this wealth that seemed absolutely unfathomable to me for most of my life, but somehow, I’m going to end up exactly the way I started.

COWEN: It’s not going to happen unless you blow it through some weird addiction. I would say high-quality real estate and cheap hobbies[1] — I’m sure you have at least one of those right now, probably both — are the best hedges. You’ve got them. Take more risk.

KLOSTERMAN: Okay.

COWEN: You are human capital, right? No one can touch that, short of you destroying yourself or just dying. The more money you spend . . . like spending money is insuring against an early death, because if I hit 96 years old and I’m broke, I’m like, “Oh my goodness. I made it to 96. I can at least read Wikipedia every day. This is still pretty awesome.”

KLOSTERMAN: Do you have kids? Oh, you did, you said that.

COWEN: Yes. She’s a huge fan of yours. She just had a daughter, a baby girl — beautiful. I can enjoy her for free. I’m hedged. The real risk is premature death, in my view. You want to do things that are fun now, so if you die when you’re 63, you still will feel, “I got my stuff in,” whatever that’s going to be, and I bet you do that.

Here’s to real estate and cheap hobbies! Happy Thanksgiving, everyone.

[1] Elsewhere in the podcast: “You can have cheap hobbies, watch basketball, enjoy the internet, listen to your music till you die.”

A friend recently pointed out something that should have been obvious, but wasn’t. Like many other appellate courts, the Court of Appeals of Virginia holds its decision conference immediately after oral argument.

I knew this, but I don’t think I appreciated what it meant until we started taking about it. Obviously, appellate judges are well-prepared. That’s why we don’t waste their time going over background information, and that’s why they have so many questions. So very many questions. But I’ve never really spent much time thinking about the psychology of that dynamic from the judge’s perspective. It’s probably very stressful! All things being equal, any given judge is probably way more concerned about the impression she makes on her colleagues than the impressions she makes on, like . . . me? And so she’s come into the argument armed not just with an understanding of the facts and the law, but actually prepared to vote and defend that vote to her colleagues. She is committed.

And so does that mean when the judge asks a hostile question? First, that she’s thought this through, and could well be committed to this position. Second, if she is, she’s giving you a fair chance to answer the question. Third, this is the last chance that you or anyone else will have to answer the question before she casts her preliminary vote. An appellate judge not a trial judge, who can take the matter under advisement and rule after revisiting the briefs and mulling things over in the fullness of time.* She will have to vote before they let her go home! The other day, I heard a very good lawyer crack a joke along the lines of, “That’s a great question. And like any good appellate lawyer, I’m going to answer not the question you asked but the question I want to answer.” I don’t think that’s the right tack here. I think you engage the hostile question, at least the first 2-3 times that you get it.

The response, I guess, would be that we have limited time, the hostile judge has flagged that she is committed to a hostile position, and there’s still a potential of persuading the other judges by reiterating talking points. All fair. But how is ducking the question going to persuade them? (Again, at least the first 2-3 times you get it. If the judge is just being mean, then by all means, disengage.)

All of which is a roundabout way of reiterating the most basic piece of good advice an appellate lawyer can get: answer the question.

*I mean, sure, if she gets assigned to write the opinion, she will be mulling things over for weeks. But she’ll be doing that after casting her vote and locking herself in before her colleagues. So a reversal at that point would presumably be awkward. There’s just got to a be a lot of psychological inertia there.

Over the last two months, the Court of Appeals has issued almost 160 opinions. The vast majority of those opinions are unpublished; the court is issuing about 7 unpublished opinions for every published opinion. So the default rule seems to not to publish opinions.

This is interesting for several reasons. First, Code § 17.1-413(A) says that “[o]pinions designated by the Court of Appeals as having precedential value or as otherwise having significance for the law or legal system shall be expeditiously reported in separate Court of Appeals Reports . . . .” (That said, even unpublished opinions remain useful. Under Rule 5A:1(f), “[t]he citation of judicial opinions, orders, judgments, or other written dispositions that are not officially reported, whether designated as ‘unpublished,’ ‘not for publication,’ ‘non precedential,’ or the like, is permitted as informative, but will not be received as binding authority.”) It’s not at all clear that the court’s unpublished opinions lack “significance for the law or legal system.” Some of them are interesting![1] Some of them have dissents! One recent opinion rejected a party’s effort to rely on decisions out of Oklahoma and New Hampshire interpreting the Uniform Trust Code when he could not find Virginia authority on point. We could solve that problem by publishing this opinion!

Second, this whole published/unpublished dichotomy is weird and archaic. I can find unpublished opinions just as easily as published ones on Lexis and Westlaw. For non lawyers, both published and unpublished opinions are accessible from the same page of the court’s website. That one group of these opinions will be published in a bound reporter some years from now and placed on a bookshelf in a library makes about zero practical difference to a modern researcher. Nobody uses the reporters.

Third, I can’t figure out why “unpublished” would be the default choice. Isn’t it fun to make law and publish things? Here are my hypotheses, none of which are totally convincing:

• The unpublished opinions lack precedential value or significance for the law (“These opinions are boring, and that makes sense because most of the court’s work is boring.”). This is certainly true for some of the opinions, but others seem pretty interesting. It’s hard to see how a case with a dissent, or an opinion noting a lack of Virginia authority on a point lacks significance for the law. Also, while there may not be anything legally groundbreaking in, say, an opinion applying the parol-evidence rule or the standards for expert witness testimony, just seeing those rules applied across a broad run of cases has value to practitioners. So I’d consider them significant for the law, if only because they save me from citing cases from the Kennedy and Johnson administrations.
• Workflow management (“The judges are lazy!”). Well, no. It looks like they’re putting as roughly as much work into a lot of the unpublished opinions as the published ones. These aren’t all 3-page per curiams.
• Vulgar legal realism (“This is all just an exercise of power in accordance with our priors, so no sense pinning ourselves down if we don’t have to!”) Yeah, probably not. But it’s nice to know that Duncan Kennedy is still kicking around in the back of my brain somewhere.
• Interpanel accord (“We’re pretty sure that we’re right but we don’t want to bind those other judges without giving them a say.”) Maybe? Under the interpanel-acord doctrine, only the court sitting en banc or the Supreme Court of Virginia can overturn a panel decision. This rule applies both to the literal holding of  the case and to its essential rationale. So you can imagine a norm developing under which a panel is hesitant to issue a published opinion that will bind the other judges who haven’t weighed in on the issue. This would be especially plausible where, as here, a large percentage of judges are relatively new to the court.

[1] Some of them, of course, are routine and tedious–for example, dismissals for procedural defaults.

Every Tuesday, the Court of Appeals hands down its published and unpublished opinions. And every Tuesday, those unpublished opinions seem to include a least a case or two where the court summarily affirms because the appellant has failed to ensure that the record includes a transcript or written statement of facts.

Now, some of these results I can understand. If you’re appealing an evidentiary ruling without a transcript or written statement, then good luck proving that the trial court abused its discretion. And I suspect that the CAV sees a healthy number of hopeless pro se appeals in which an incomplete record is the least of the appellant’s concerns.

But sometimes, the court will use this basis affirm a purely legal ruling like a judgment sustaining a demurrer or granting summary judgment, in a case with grown up lawyers. In fact, they did just that last Thursday in Oliver v. Kimberly A. Pinchbeck, P.C.

Oliver affirmed a grant of summary judgment in favor of the plaintiff, and it did so without oral argument because the appellant had not filed a transcript or written statement of facts. Now, as the Oliver court rightly observes, it’s the appellant’s burden to provide the court with a record sufficient to determine if the trial court erred. And as the CAV points out, Rule 5A:8(b)(4)(ii) says, “When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission will not be considered.”

So leaning on these principles, the Oliver court held that “[t]o conduct a de novo review of summary judgment, this Court must review both the written pleadings and the positions asserted at oral argument.” That was because

The circuit court heard argument on summary judgment on November 2, 2022. Oliver did
not provide a transcript or a written statement of facts regarding what specific arguments the parties presented to the circuit court and what legal authority supported their positions. In rendering judgment, the circuit court relied upon not only the pleadings and briefs, but also the arguments and evidence presented at that hearing.

The reference to “evidence presented” at a summary judgment hearing has me lost; that’s not really how I understand summary judgment hearings to work. So maybe something bonkers took place that justifies the result.

But let’s bracket any procedural shenanigans for now and look at the rest of the argument, because I just don’t buy it. That is, I’m not convinced that to review a judgment granting summary judgment de novo, the court needs a transcript or written statement outlining the arguments that the parties made at the hearing.

Now, it certainly might need that information, if (say) the appellant were relying on a position she took at oral argument. But I don’t think that it’s categorically necessary. The briefs and pleadings should usually be sufficient to show that the appellant gave the trial court a fair chance to rule intelligently on the issue. After all, the CAV’s job isn’t to decide if the trial court was right to rely on an argument that the appellee made at the hearing. It’s to decide whether the result below was correct, period. If the trial court is right for the wrong reason, it still gets affirmed.

The typical rejoinder is that the court needs a transcript or written statement to be sure that the appellant didn’t concede her case away at oral argument. That seems a bit of a stretch. The motions and briefing offer prima facie evidence of the parties’ arguments below. It’s unreasonable to infer from a missing transcript that the appellant affirmatively waived those points. If you can see from the material already in the record that the appellant preserved her appeal points, that should be sufficient unless the appellee argues affirmative waiver (consistent with 8.01-271.1., of course). And even then, I’m not sure that the burden shouldn’t be on the appellee to come forward with a written statement supporting what is, in essence, an affirmative defense.

This isn’t just a theoretical issue. Lots of experienced lawyers will tell you that you don’t need a court reporter for a hearing on a purely legal issue like a demurrer or a motion for summary judgment.* Under the CAV’s current practice, they’re wrong. Twice in the past year, I’ve come in on appeal had to file written statements saying things like “there were some unreported hearings and stuff, but everyone argued consistent with their written pleadings and no evidence was taken.” I’m not sure that added much to the analysis. Given the procedural headaches written statements entail, it certainly cost my clients a nontrivial amount of money.

But as long as CAV maintains its current approach, I don’t have a better solution.

* This is a longstanding urban legend of Virginia law. For God’s sake, people, if a matter is important enough to merit a hearing, it’s important enough to hire a court reporter.

At the VBA’s summer meeting last month, Judges Ortiz and Martin presented their annual review of civil decisions from the Supreme Court of Virginia. Judge Ortiz shared a few eye-opening statistics:

• In 2022, the CAV heard 553 civil appeals
• Through the first six months of 2023, the CAV heard 392 civil appeals
• In 2022, SCOVA granted 29 civil writs
• Through the first six months of 2023, SCOVA granted 4 civil writs

Here’s the last paragraph from Grant Gilmore’s The Ages of American Law:

Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed.