All the strange connections and the classics

I admit it. I frequently see strange connections in things that most people would find not connected or only vaguely connected. But there you are. At this blog, you get what you pay for.

Michael K. Ausbrook practices law in Bloomington, Indiana. He does a lot of state and federal post-conviction litigation (federal habeas cases attacking state convictions). He and I share a connection in that I handle a lot of those cases as a judge. Additionally, we are both enamored with the late Loren Eiseley.

Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s.

During this period he received more than 36 honorary degrees and was a fellow of many distinguished professional societies including the Association for the Advancement of Science, the National Academy of Sciences, the National Institute of Arts and Letters and the American Philosophical Society. At his death, he was the Benjamin Franklin Professor of Anthropology and History of Science at the University of Pennsylvania.

Publishers Weekly referred to him as “the modern Thoreau.” In the broad scope of his many writings he reflected upon such diverse topics as the mind of Sir Francis Bacon, the prehistoric origins of man, and the contributions of Charles Darwin. For more, visit the Loren Eiseley Society here.*

After the post on Richard Arnold recently, Michael wrote me an e-mail. He has allowed me to reprint a portion of it. That portion reads as follows:

As I mentioned in an earlier email, my father, also an Arkansan, was in the same Harvard law school class.*

Your post caused me to go look up Judge Arnold on the web again; It was interesting to see that he went to Exeter, taking Classics, and then majored in Latin and Greek at Yale. I went to Exeter, took Latin and Greek, and then majored in Classics at the University of Pennsylvania. (Georg Knauer, one of the great Vergil and Homer scholars of the 20th century, had just arrived there from Berlin, which was some consolation for Loren Eiseley’s withdrawal from the field because of illness just as I got to the U. of P.) It occurs to me that I might be part of the last generation for which a so-called classical education was not just plain strange.

Apropos of nothing, except maybe Exeter, I’ll share with you the fun fact about the one person, were you to have been a President of the United States, you would not have wanted to be associated with in any way: Robert Lincoln, who was sent off to Exeter when he wasn’t quite ready for Harvard. He was, obviously, Abraham Lincoln’s son; he was Garfield’s Secretary of War; and he was standing feet from McKinley when McKinley was shot.

(Italics supplied by Kopf.)

Don’t you see? In some strange way, and if only for a moment, the love of the classics brought Richard Arnold, Michael’s father, Michael and me (and perhaps even Robert Lincoln) together. Eiseley would not have been surprised.


*Michael didn’t tell me, but his Dad was a very distinguished lawyer.

**Read “The Slit” from his collection of essays entitled the The Immense Journey. That chapter is the introduction to the book, and is prompted by Eiseley peering into the skull of a long-lost rodent in an exposed crevice in the High Plains. You can read “The Slit” for free here (click “look inside” on the upper left and then scroll down). You will be hooked. You can buy the little book for $10.00. It will be the best investment of your life.

Update, 11:00 am Saturday, May 24, 2014:  I forgot another connection. Michael is a 1993 Magna Cum Laude graduate of the Indiana Law school and was elected to Order of the Coif. Richard Arnold’s brother, Morris (Buzz), who served with Richard on the Court of Appeals, was Dean of the Indiana law school when he was appointed a federal district judge.

Roscoe and Richard and Circles and Ovals

“Some shapes have no corners and therefore no distinguishable sides. Circles and ovals are examples of geometric shapes that have no distinguishable sides.” Michael E. Carpenter, Describe the Properties of Geometric Shapes (scroll down).

Earlier, I posted a photo of Roscoe Pound’s circular desk at Harvard. Today, I post a picture of Richard Arnold’s oval desk in Little Rock. These were two supremely gifted men of the law who understood that having “no distinguishable sides” was not a bad thing, but rather a beautiful thing.

This is copy of a photo showing Judge Richard Arnold's oval desk was supplied to me by our Circuit Librarian in jpg format. From the properties menu, it appears that the photo was taken on Wednesday, September 29, 2004. The copy appears to have been made on that same date.  Judge Arnold died on September 23, 2004 as a consequence of an infection he suffered while being treated for Non-Hodgkin's Lymphoma (of the indolent variety) at the Mayo Clinic in Rochester, MN.  He had suffered from, and had been treated for, the disease since 1975.

This copy of a photo showing Judge Richard Arnold’s oval desk was kindly supplied by our Circuit Librarian, the marvelous Ann Fessenden. The original photo was taken on Wednesday, September 29, 2004. Judge Richard Arnold died on September 23, 2004 as a consequence of an infection he suffered while being treated for Non-Hodgkin’s Lymphoma (of the indolent type) at the Mayo Clinic in Rochester, MN. He had suffered from, and had been treated for, the disease since 1975. Upon Richard’s death, his brilliant brother (Morris (Buzz) Arnold), a Republican at the time of his appointment as an Eighth Circuit Judge, said of Richard, a Democrat at the time of his appointment as an Eighth Circuit Judge,*He was second to none in the country. I mean that literally.” According to Tony Mauro, who has covered the Supreme Court for over 30 years: At the time of Richard’s death, eight Supreme Court Justices published tributes to his fairness, judicial restraint, and eloquent and influential judicial opinions.  It is hard to imagine, these days, eight Supreme Court Justices agreeing on the time of day. But, Richard’s unique spirit and remarkable gifts brought people together. He was, as Professor Polly Price of Emory said, like Learned Hand, “perhaps the best judge never to serve on the Supreme Court.”


*Clarification, Friday, May 23, 2014 at 9:53 PM: Richard made it clear when he was first appointed as a federal district judge (barely a year later he would become a Circuit judge) that once appointed to the bench he was a judge and not a Democrat who was a judge. Before he too became a Circuit judge, the same sentiment was true for Buzz once becoming a district judge. He was a judge and not a Republican judge.

Judge Richard Arnold’s conversations with a “regular” lawyer about citation to “unpublished” opinions

arnold_richardI am pleased to post a guest piece by Elaine Mittleman  an experienced federal appellate practitioner. It has to do with the late Richard Arnold, one of the nation’s most highly respected judges, and his views about “unpublished” opinions as precedent. While the guest post is a thoughtful discussion of the substance of the issue, I am personally more interested in the two items of correspondence that Judge Arnold sent to Elaine. It shows Richard at his very best, taking the time to correspond with a “regular” lawyer about an issue that was important to the writer and recipient. From a historical perspective, Elaine’s post adds an important dimension to Richard’s biography and that is an especially good thing. Enjoy.

I have been thinking of the late Judge Richard S. Arnold of the Eighth Circuit.  A recent article about the 25th anniversary of PACER [Public Access to Court Electronic Records] caused me to reflect again on Judge Arnold’s important and path-breaking perspective on permitting the citation of unpublished opinions.

The United States Courts website article, “25 Years Later, PACER, Electronic Filing Continue to Change Courts,” December 9, 2013, explains that, for every Third Branch court, “all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes.  This level of transparency and access to a legal system is unprecedented and unparalleled.”

Judge Arnold sent me an extremely thoughtful letter dated October 25, 1999 (see below), in response to a letter about a proposed American Bar Association resolution and the issue of unpublished opinions. He wrote, “(a)s to ‘unpublished’ opinions, I do not wish to say much, lest I become too emotional.  Whether an opinion is sent to West or other book publishers is important, but not crucially so.  But the assertion by any court that it has the right to decide a case differently from an identical case submitted the day before, merely because the earlier case was not ‘published,’ I find truly offensive.”

He admitted, “(l)et me warn you that my views are distinctly in a minority among judges.  In March of 1998 I attended my last meeting of chief circuit judges.  …  At that meeting we discussed proposals to make various changes in the system of published and unpublished opinions, including a proposal to acknowledge that all opinions have precedential value.  I believe I am correct in recalling that no one at the meeting favored the proposal except me.”

In a letter (see below) dated December 13, 2001, Judge Arnold enthusiastically commented to me, “I appreciate very much your sending me the information about the D.C. Circuit’s proposed rule change.  My response is one word: ‘Hooray!’”

The excellent blog, How Appealing, written by attorney Howard Bashman, included a series of “20 Questions” for selected judges.  Senior Judge Arnold responded to the 20 questions he was asked in a post (see responses to questions 12-16) dated November 3, 2003. In addressing questions about unpublished opinions, Judge Arnold emphasized that, “(i)t’s my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. …  I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin.” Judge Arnold also predicted that, “the rule against citation … and attempts to enforce it are doomed to fail. … (I)t is just not possible to put that much of a restraint on the availability of information.”

Rule 32.1 of the Federal Rules of Appellate Procedure provides that a court may not prohibit the citation of federal opinions that have been designated as unpublished or non-precedential.  This Rule applies to opinions issued on or after January 1, 2007. Local Rule 32.1A of the Eighth Circuit provides that unpublished opinions are not precedent.  Unpublished opinions issued on or after January 1, 2007, may be cited in accordance with Federal Rule of Appellate Procedure 32.1.

In a letter dated July 10, 2006, to the editor of The National Law Journal concerning unpublished opinions, I noted the passing of former Chief Judge Richard S. Arnold of the Eighth Circuit and former Chief Judge Edward R. Becker of the Third Circuit. Further, I emphasized that a major part of the legacy of those judges should include the appreciation, as acknowledged by the adoption of Fed. R. App. P. 32.1, that all opinions are important and may be cited.

Judge Ralph Adam Fine of the Wisconsin Court of Appeals commented in an email message dated July 25, 2006, on my letter to The National Law Journal, noting that he respectfully disagreed.  He explained that, “(t)he rule in our system, as it was in the federal system before the recent change, is that unpublished decisions of our court may not be cited as precedential or even ‘persuasive’ authority.  The main reason is that most of the routine cases (that is, those merely replicating existing law) are drafted, in the first instance, by staff attorneys or law clerks.  Although the result is correct, occasionally unfortunate language may seep into those decisions because the deciding judges do not read them as they would a decision circulated by a colleague that is destined for publication. As Judge Alex Kozinski has so thoughtfully and eloquently explained, appellate judges in the federal system give even less scrutiny to these run-of-the-mill decisions.”

There may be distinctions between federal and state courts that explain or justify differing rules for publishing and citing opinions.  The controversy about citation of unpublished decisions continues.  A 2013 article by attorneys at Manatt, Phelps & Phillips, LLP, titled, “To Cite or Not to Cite?  That is the Question,” discusses citation rules in California federal and state courts.  The attorneys argue that the availability online of unpublished opinions has made it more tempting to cite them, even if there is confusion about the propriety of doing so.  They offer a roadmap for California practitioners to determine whether a particular decision may be cited in federal and state courts in California.

Judge Arnold’s position that unpublished opinions can be cited has several practical advantages.  This simple practice does not require a roadmap and rejects any argument that it is improper to cite unpublished opinions.  Further, I believe that Judge Arnold did not accept that some decisions are “run-of-the-mill” – and possibly not even read by the deciding judges – while others deserve a higher level of judicial analysis and contemplation.  I think Judge Arnold appreciated that a court decision affects and is important to, at a minimum, the parties involved.  Thus, the attitude that many opinions can be treated as insignificant and not worthy of recognition can foster unfairness in the legal system.  The result may be that a significant number of persons seeking their day in court feel that they were denied that basic opportunity.

It may be questioned whether the terms published and precedential have lost their original meaning and impact.  If opinions are available online and throughout the nation to all who want to read them, they should be permitted to be cited in legal pleadings.  Judge Arnold’s prediction – that enforcement of rules against citation of unpublished opinions is doomed to fail – was exceedingly accurate.

Elaine Mittleman

Many thanks, Elaine!


Judge Richard S. Arnold Letter 10.25.99.redacted

Judge Richard S. Arnold Letter 12.13.01

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