If you're reading this column, then you're obviously a reader with an interest in appellate content. But these monthly tidbits (the first Tuesday of every month) probably aren't enough to fill you up. Well, you're in luck. The universe of recent appellate reading material is vast. All you need is a little direction, and suddenly you'll be overwhelmed.
Starting with books, it seems like writing opinions isn't enough fun for Supreme Court justices, so they all seem to have publishing contracts too. You no doubt recall that Justice Clarence Thomas published his memoir, "My Grandfather's Son," in 2007, and Justice Sonia Sotomayor published her memoir, "My Beloved World," in 2013. Almost as edifying as the books themselves are the reviews and press reports about them, of which there are many. See Amy Davison Sorkin, What Can Memoirs by Supreme Court Justices Teach Us? The New Yorker, Oct. 21, 2024 (noting the "famously colorful and perhaps factually dubious," William O. Douglas's "Go East, Young Man"; "The Memoirs of Earl Warren," published posthumously; Sandra Day O'Connor's "Lazy B"; John Paul Stevens's "The Making of a Justice: Reflections on My First 94 Years").
This year's memoir is Justice Ketanji Brown Jackson's, "Lovely One." See also D.C. Circuit Judge David Tatel's "Vision: A Memoir of Blindness and Justice" (2024). Also new this year is Justice Neil Gorsuch's latest book "Over Ruled: The Human Toll of Too Much Law" (2024), following his 2019 book, "A Republic, If You Can Keep It."
Justices Amy Coney Barrett and Brett Kavanaugh have contracts for forthcoming books at some point too. And retired Justice Anthony Kennedy's autobiography is expected to be released next year. Another particularly prolific former-justice-author is Stephen Breyer whose latest book is "Reading the Constitution: Why I Chose Pragmatism, Not Textualism" (2024). His past books include "Against the Death Penalty" (2023), "The Authority of the Court and the Perils of Politics" (2021), "The Court and the World" (2015), and "Making Our Democracy Work: A Judge's View" (2011). And if that's not enough, note that back in 2012, SCOTUSblog posted "353 Books by Supreme Court Justices."
Robed authors, of course, are only the tip of the iceberg. Books by professors and court watchers abound. This year's must-read from Dean Erwin Chemerinsky is "No Democracy Lasts Forever: How the Constitution Threatens the United States" (2024), dissecting what he believes is rotten in our nation's founding document and what might be done to correct some of these problems (e.g., the electoral college, filibusters, gerrymandering, life tenure for justices, etc.). This is depressing yet essential reading for lawyers (and anyone else who cares about America's future). And if you missed his book from last year, "Worse Than Nothing: The Dangerous Fallacy of Originalism" (2023), or his earlier book, "The Case Against the Supreme Court" (2015), it's not too late, of course, to read those too.
Other worthwhile new books this year on legal topics are Peter Hoffer's "The Supreme Court Footnote: A Surprising History"; Madiba Dennie's "The Originalism Trap"; Jack Balkin's "Memory and Authority: The Uses of History in Constitutional Interpretation"; Scott Turow's "Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty"; Linda Mullenix's "Public Nuisance: The New Mass Tort Frontier"; and Ray Brescia's "Lawyer Nation: The Past, Present, and Future of the American Legal Profession."
If books are too much of a commitment or too broad in focus, and you're looking for more appellate content, then it's law review articles you want. Every year there are dozens of valuable appellate-related articles.
The obvious place to look for appellate content is The Journal of Appellate Practice and Process, which is now up to 24 volumes of appellate delights. Every volume is guaranteed--by definition-- to have something of interest. E.g., Eric Magnuson & Samuel Thumma, "Same as it Ever Was": Why Audio-Video Recordings in and of Trial Court Proceedings Should Not Change the Standard of Appellate Review, 24 J. App. Prac. & Process 213 (2024); Pamela Corley & Adam Feldman, Does Quality Matter? The Influence of Party Briefs and Oral Arguments on the U.S. Supreme Court, 23 J. App. Prac. & Process 345 (2023); Gerald Lebovits, What Trial Judges Want (And Don't Want) In Appellate Opinions, 23 J. App. Prac. & Process 375 (2023); Brian Wolfman, Some Thoughts on Reply Briefs, 23 J. App. Prac. & Process 395 (2023). Beyond this obvious gold mine, law reviews from around the country are always publishing pieces relevant to the Supreme Court and appellate practice.
Another good place to look is at the Eisenberg Prize, awarded annually by the American Academy of Appellate Lawyers to recognize the best law review on appellate practice and procedure. (BTW, this $2,000 prize is named for the late Dean of Marquette University Law School, Howard B. Eisenberg, not California's appellate guru Jon Eisenberg.) The 2022-23 winner was Benjamin Johnson for The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022).
Other recent noteworthy articles are abundant. One article that received widespread attention is Mark Lemley's The Imperial Supreme Court, 136 Harv. L. Rev. F. 97 (Nov. 2022), arguing that the Court is implementing policy preferences of its conservative majority by stripping power from every political entity except the Supreme Court itself. See Adam Liptak, An 'Imperial Supreme Court' Asserts Its Power, Alarming Scholars, NYT (Dec. 19, 2022).
Of course, most law review articles won't be capturing the attention of the mainstream press. But there are always recent articles important to practicing appellate lawyers. Some examples: Abbe Gluck et al., Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals, 107 Cornell L. Rev. 1 (2022) (concluding that nonpublication practices disproportionately impact certain substantive areas of the law); Perry Dane, The Nagging in Our Ears and Original Public Meaning, 106 Marq. L. Rev. 767 (2023); Benjamin Eidelson & Matthew Stephenson, The Incompatibility of Substantive Canons and Textualism, 137 Harvard L. Rev. 515 (2023); Tejas Narechania, Certiorari in the Roberts Court, 67 St. Louis Univ. L.J. 587 (2023); Allen Sumrall & Beau Baumann, Clarifying Judicial Aggrandizement, 172 U. Pa. L. Rev. Online (2024); Merritt McAlister, Bottom Rung Appeals, 91 Fordham L. Rev. 1355 (2023); Richard Luedeman, The Flubs That Bind: Stare Decisis and The Problem of Indeliberate Doctrinal Misstatements in Appellate Opinions, 75 SMU L. Rev. 725 (2022); Diane Wood & Zachary Clopton, Managerial Judging in the Courts of Appeals, 43 Rev. Litig. 87 (2023); Stephen Choi & Mitu Gulati, How Different are the Trump Judges? Va. Pub. L. & Legal Theory Research Paper 2024-59 (2024).
If you miss pondering the big picture issues and legal schools of thought underlying the law, then this overview of legal philosophy is well worth your attention: Patrick Joseph Borchers, Legal Philosophy for Lawyers in the Age of a Political Supreme Court, 90 Tenn. L. Rev. 223 (2023) (contending that legal philosophy is relevant in promoting the arguing, deciding, and the outcome of today's cases in a principled fashion).
The good news about law review articles is that they are all available online for free, usually on SSRN (the Social Science Research Network). Even better news is that law review articles typically have an abstract, which is often enough to glean the point of the article and decide if it is worth reading in its entirety. That said, when it comes to legal articles, it's often a short jump from famine to excessive feast. Many articles with engaging abstracts or introductions quickly stumble into mind-numbing unreadability. Many articles span over a hundred pages, and with footnotes, this can simply become too much to fully digest. Fortunately, we now have an amazing tool to help address this problem: AI.
Every day another new AI solution seems to emerge. A free and easy-to-use new one worth trying is Google's NotebookLM, which allows users to upload a source (e.g., a document or video or audio file) and have it quickly summarized in various ways (e.g., into an outline, with main points, key quotes, and conclusions). But what makes NotebookLM so remarkable is its Audio Overview feature, called Deep Dive, which quickly converts source material into a lively audio podcast, complete with realistic-sounding speakers discussing the content in casual, conversational style, making complex information easy to digest. See Ben Cohen, There's a New Hit Podcast That Will Blow Your Mind (Oct. 4, 2024). This is an astounding AI development that will no doubt have many uses--including simply helping you swim through lengthy law review articles painlessly.
This article started with the assumption that you're a reader. Using NotebookLM you can transform your reading material into engaging audio format, so you can continue ingesting that material while driving or simply walking down the street. Sure, there are already many worthwhile appellate podcasts out there. But now you know how to create customized listening. Once upon a time, making a mixtape for someone else was a (heartfelt but frustrating) way to express affection. Now, you can quickly and easily make appellate audio files for yourself to bask in your own appellate nerdiness.
Reprinted with permission from Daily Journal.
