MORE APPELLATE POTPOURRI

(Posted November 9, 2023) Today I’m thinking of celebrated astronomer Carl Sagan, born on this date in 1934. In his far-too-short life, Sagan received (among numerous other awards) a Peabody, an Emmy (two, actually), a Pulitzer, three Hugos, and medals from NASA and the National Academy of Sciences. He also received, at one point in the 1980s, a letter from a twenty-something Steve Emmert, expressing great respect for Sagan’s body of work. To my enormous surprise, he wrote back.

In my office, I have a framed print – really, it’s just a printout of an online photo – of this image, taken from the Cassini spacecraft in its visit to Saturn a few years ago. I use it to remind myself how insignificant 0ur troubles are; how meaningless most of our differences are. It’s a wonderful conversation starter for people who have never considered this perspective.

Sagan never got to see this image; Cassini snapped it more than two decades after an aggressive form of cancer claimed him in 1996. But he anticipated it, inspired by an earlier, similar photo. Here’s a passage, recounted in his book, Pale Blue Dot, from a lecture that he had delivered just two years before his death:

On [the tiny dot in the original photo], everyone you ever heard of… The aggregate of all our joys and sufferings, thousands of confident religions, ideologies and economic doctrines, every hunter and forager, every hero and coward, every creator and destroyer of civilizations, every king and peasant, every young couple in love, every hopeful child, every mother and father, every inventor and explorer, every teacher of morals, every corrupt politician, every superstar, every supreme leader, every saint and sinner in the history of our species, lived there on a mote of dust, suspended in a sunbeam. …

Think of the rivers of blood spilled by all those generals and emperors so that in glory and triumph they could become the momentary masters of a fraction of a dot.

In our many moments of strife and discord, we would all do well to ponder this perspective and realize that we’re all brothers and sisters here, sharing the only home that we’ll ever know.

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Things are still quiet at Ninth and Franklin – no new decisions for the third straight Thursday – so this is a good day to catch up on some appellate developments.

An AJEI highlight

The ABA’s Appellate Summit last week had the usual bounty of outstanding appellate CLE presentations, but my favorite was probably the “fireside chat” with US Solicitor General Elizabeth Prelogar. On Saturday morning, she sat down with a couple of appellate jurists to answer questions about the job and about life. The hour flew by as she related details of inner workings in the office, of her tenure as a law clerk to two SCOTUS justices, and of her pre-law-school journey. (This included a year as Miss Idaho.)

I finally got a definitive answer to one nagging question, of how to pronounce her surname. At the outset of the session, Judge Michelle Childs of the DC Circuit introduced the Solicitor by pronouncing her name as “pre-low-grr,” where the second syllable rhymes with know. I figured I had my answer until, late in the program, the interviewee mentioned her own name, and pronounced it “pre-logger,” as in someone who comes in and marks individual trees before the logging crew comes in to cut some of them down.

Sessions like this are wonderful opportunities to humanize public figures, and this was no exception. America’s top-ranking appellate lawyer is a real person, and a delightful one at that.

New developments in the appellate blawgosphere

VANA is not, of course, the only website focused on appeals – not even the only one in Virginia. Other sites have featured some interesting recent posts. John Koehler has this new piece on the surprising size of the pending merits caseload at the Supreme Court of Virginia. It features discussion of a couple of OJ proceedings, cases that you won’t find on the court’s writs-granted page. He has also posted a very moving essay on a CAV opinion published yesterday. Both are highly readable, as is virtually everything on John’s site.

Jay O’Keeffe has resumed posting after a hiatus of a couple of months. His current musings include one on decision conferences, another on unpubs in the Court of Appeals, and his skepticism of the current CAV position on the necessity of transcripts for appeals where the only issue is the sufficiency of a pleading below. I agree with Jay on this, wholeheartedly; the CAV’s approach is unnecessarily strict and leads me to doubt the assurances that I’ve long received from appellate jurists that, deep down, they hate procedural defaults and want to decide all appeals on the merits.

Juli Porto continues to post excellent summaries of recent decisions. If you try cases, you could do worse than to print out one of her analysis essays of a topical case for your trial notebook. She provides a helpful cheat sheet on the decisions as they arrive, and you can tell at a glance how new opinions will affect your next trial.

John O’Herron, who was a speaker at an AJEI segment on practice-building, occasionally posts highly informative essays in the Commentary section of his web page.

Speaking of unpubs …

I’ve already lamented the paucity of merits cases in the Supreme Court of Virginia, and I won’t repeat that here. But I’ve quietly been monitoring one interesting side effect of the current court’s small merits caseload. Unpubs are becoming an endangered species in the SCV. The court has issued only two of them all year. Just five years ago, there were two dozen.

Mind you, I emphatically am not trying to encourage the court to issue more unpubs; I believe that most if not all merits decisions should be published. I just note that one consequence of the court’s plummeting merits docket is the absence of these familiar decisions.

A clever headline

This isn’t remotely appellate, but it’s too cool not to mention. Virginia Business magazine posted yesterday a couple of stories about this week’s election. One of those discussed the outcome of a referendum in Richmond over whether to authorize construction of a new casino in the capital city. You’ve probably heard about the result of the vote; but the title of the essay, which spoils any surprise about the outcome, caught my eye: “No dice.”