Whereas the vast majority of courts (including the federal system) have adopted the "transactional" test for claim preclusion ("res judicata"), California has thus far stuck with the "primary rights" doctrine -- a relic of our common law past that's (at best) confusing, unhelpful and often substantially unjust.
Nonetheless, that's the approach the California Supreme Court has elected to take. Hopefully, at some point, we'll adopt a more enlightened vision. But for now, that's the law.
So when appellant arguesthat the California Court of Appeal should adopt the prevailing transactional approach, I have no problem whatsoever when Justice Rubin responds in the today's opinion: "We are not free to depart from binding Supreme Court precedent, and we decline appellant’s invitation to make new law by adopting the federal transaction doctrine."
Fair enough. Exactly right.
By contrast, I do have a problem with Justice Rubin's backhanded slam on how appellant crafted this argument. Justice Rubin says: "Instead of pertinent case law to support her position, her appellant's brief relies solely on an eight-and-a-half page block quotation from a 15-year old law review article."
Let's break this sentence down.
Justice Rubin first doesn't like the fact that there's a huge block quote from a law review article. I can see how that might be a little bit distracting. At least in terms of form.
But the stark reality -- as much as some of us might hate to admit it -- is that sometimes law review articles are actually pretty darn good. They're well-written, well thought out, and sometimes even persuasive. Now, could an appellate advocate say the same thing as the law review article does by changing around a word or two, and claiming the language as her own? Sure. But do we really need to compel such plagiarism? Especially when the existing article is good as is? Personally, I've seen a nontrivial number of appellate briefs that lift -- sometimes verbatim -- things I've said in a law review article or in a blog post and slap 'em down in the brief. Sometimes with a footnote that cites my original piece. Sometimes entirely without any such reference.
If a lawyer wants to forthrightly concede that he can't say it any better than a law professor who spent a year or more crafting a particular article and getting it published, I don't see why we should care. Or backhandedly insult the person by insinuating that this practice is lazy or somewhat untoward. If someone says something exactly right, I see no reason not to quote it. Even if the resulting passage is perhaps long. For example, I'm certain I could accurately summarize the Gettysburg Address, or the Declaration of Independence, by cutting 'em up a bit and replacing words here and there. But if those things say exactly what I want to say, I see no reason not to just put 'em down on paper.
It should be the thoughts that matter. Not whether they are in a block quote or whether someone else said 'em first. (Indeed, as far as legal briefs go, I'd think that the fact that a neutral person -- with no stake in the matter whatsoever -- thought that X was the right legal principle would count slightly in favor of the persuasiveness of such a claim. At least as contrasted to identical words articulated by a hired gun paid to advance a particular position on behalf of a client. Yet more reason to be happy with a direct quote.)
Let's then talk about the final portion of Justice Rubin's missive. The part that backhandedly slams the piece as being a "15-year old law review article."
Let me tell you a secret. There's an easy way to make your law review articles more recent: Simply publish the exact same article time and time again, with incredibly slight variation. Indeed, that's a good way to become an "expert" in the field. Despite the fact that you've said basically one thing twenty different times. Academics are well familiar with this move. Many engage in precisely such a practice. That way they're insulated from critiques similar to Justice Rubin's -- that their articles are "too stale". "Hey, I've got twenty articles on this topic. Including one from just last year." What could be better evidence of relevance and expertise?!
As you may be able to tell, I'm not especially enthralled with this practice. Which seems a waste of intellect as well as trees. If you've said something once, and things haven't changed, there's no need to say it again. So a 15 year old (God forbid!) article may well be equally good -- or, in many cases, even a fair piece better -- as an identical one from a year ago.
That's particularly true here. California has had the primary rights doctrine for over a century. It has not substantially changed -- sadly -- during this era. And certainly hasn't changed in the last 15 years. Its defects are legion. They're the same now as they were in 1950, and certainly the same as they were in 1999. I might find it plausible to slam an article on, say, the legal implications of GPS tracking as coming from a "15-year old law review article". But similarly slamming an article on a relic like the primary rights doctrine as being "too old"?! Get serious.
Now, look. I'd have said everything I just said about virtually any slam about quoting from a law review article. At least any article that I thought was persuasive. That seems to me an entirely acceptable -- and honest -- thing to do. If anything, something I'd respect, and not want slammed (even in a backhanded way).
But I will nonetheless forthrightly concede that I find the reference here to be especially grating because (1) the law review article, in my mind, is entirely right, and (2) as it so happens, it was written by a colleague of mine here at USD -- a fellow civil procedure professor by the name of Walter Heiser. Who also so happens to be the nicest guy you'll ever meet in your life.
Not that he'd actually care about the implicit slam. He's way too nice of a guy. Plus there's the theory that "any publicity is good publicity." (Though, in this regard, at least Justice Rubin might have given Professor Heiser his props by actually citing the article -- which, I'm quite confident, is the absolute leading article on California's primary rights doctrine -- rather than just mentioning it sub silentio.)
But I'll nonetheless admit that I have a somewhat proprietary interest in the guy's welfare. So I thought I'd expressly say so.
But I'll reiterate that I'd say the same thing if anyone did the same thing even to a law review article of a guy I despised. The things (sometimes) have value. When they do, I give props -- not slams -- to any lawyer who elects to cite 'em directly rather than rework the wheel in language that's allegedly the lawyer's "own".
I don't want to lose cite of the legitimate part of Justice Rubin's opinion. He's exactly right that the Court of Appeal can't abrogate the primary rights doctrine by itself. That's the California Supreme Court's job. So an appellate brief that has a huge focus on why that doctrine stinks -- even if that's entirely right -- does indeed miss the mark. (Though, I might add, a truly smart appellate advocate might nonetheless elect to argue the merits in the hope of persuading the Court of Appeal that it was indeed time for a change and, hopefully, getting the Court of Appeal to encourage the Supreme Court to accept review As it indeed sometimes does.)
At the very least, I wouldn't slam a wonderful piece of scholarship -- in a doctrinal field that's (1) complicated, and (2) actually relevant to practicing lawyers -- in the way that the opinion does here. Sure, law professors could all write articles about the hermaneutics of fifteenth century Scottish land use decisions, and then make sure to publish that same article every single year so it doesn't get "old". But that's hardly a world in which I'd prefer to live.
So let's show the relevant people here -- law professor and appellate advocate alike -- some love.
You can simultaneously reject an argument yet appreciate the sentiment. As well as the argument.