Out-of-the-Box Lawyering

A suggested blog: A blog that reports cases that hold laws or rules unconstitutional or invalid for some other reason

This is an out-of-the-box suggestion for a new blog — one that I think will interest many readers, and it’s free for the taking.

By way of background, one way of coming up with solutions in your practice is to have many ways to jog your thought processes.

Assume you have a case that involves a statute (state or federal) or a regulation (state or federal) or a court rule — or indeed any rule (state or federal), and the statute, regulation or rule is barring you or your client from achieving the relief you would like. One defense to the bar that you might consider is whether that bar is invalid. For instance:

1. If the bar is a statute, is it unconstitutional under either the federal or the state constitution;

2. If it is a regulation, is it invalid because it did not comply with rule-making requirements or because it violates a federal or state statute or constitution;

3. If it is a district or appellate court rule, similarly, does it violate a federal or state constitution, statute or even a uniform rule of the court;

4. If it is a city ordinance, does it violate a constitution or a statute.

This validity-checking technique would apply to various types of litigation, and could be helpful to all who are trying to defeat some bar. It could be helpful to plaintiffs and defendants, and to corporations where they are being charged with violating a statute of a regulation. It would also be helpful to civil rights or other groups where they or their clients are being barred from some type of activity. The list could go on and on.

Just as a test, I skimmed Howard Bashman’s highly-admired appellate blog, How Appealing from February 8 through February 17 and found one case in which a federal court of appeal held an EPA rule invalid and another case in which a different federal court of appeal held a Texas statute unconstitutional.

In the first, the U.S. Court of Appeals for the D.C. Circuit rejected an E.P.A. regulation regarding mercury emission trades, holding that the rule violated the plain text of the federal Clean Air Act. In so holding, the court discussed issues regarding the limits on the ability of an agency to promulgate rules.

The second case was from the U.S. Fifth Circuit. In that case, the court, 2-1, held that a Texas statute that made it a crime to promote or sell certain devices for sexual stimulation was unconstitutional under the Fourteenth Amendment. In doing so, the court rejected Texas’s claim that the plaintiffs, who distributed the sexual devices for profit, did not have standing to assert the rights of their customers.

You may not have a mercury emission or a sex toy case (what a difference), but the same issues, even if you had not considered them, might apply to your case or to your client. This blog could cause attorneys to at least think about related potential solutions in their cases – a consideration that the attorneys might not have made without that trigger.

Additionally, there are cases that have held certain federal rules were invalid because the government failed to publish them for notice and comment. Hemp Industries Ass’n v. DEA, 333 F.3d 1082 (9th Circuit., 6/30/03, 01-71662). For instance, the DEA issued a rule that banned the sale of consumable products containing hemp oil, cake, or seed. The U.S. 9th Circuit held the rule was invalid because it was a legislative rule “and should have been subjected to notice and comment procedures [under the Administrative Procedures Act].”

As far as the potential number of cases, I did a sample test of the first half of a six-month index for U.S.Law Week and, from that, estimated that Law Week reported for 2007 about 110 cases in which a law or rule was held invalid for some reason. And, of course, Law Week did not report all state and federal cases in which a statute or orinance or rule had been held invalid.

This new blog could also have categories or topics for the various bases of invalidity. Those categories could, for instance, include: Violates state constitution, Violates federal constitution, Violates federal statute, etc.

Another topic, for instance, that would apply to Hemp Industries, might be “Publication Requirements Not Met.”

Thus, in a case involving a regulation, just having a topic of “Publication Requirements Not Met” could trigger attorneys to check whether indeed the regulation in their case had been published properly.

Attorneys could thus treat the list of topics as a checklist, similar to one that a pilot goes through before taking off. The attorneys would probably know of all of the defenses to the bar that would be listed in the topics. However, what the list would do, though, is to trigger thought processes and a consideration of defenses that the lawyers might not have otherwise considered.

As far as who would be the blogger, it could be an individual or it could be a group of attorneys in a firm or academics from one or more law schools who specialize in different areas of the law.

NOTE: Please let me know if you are interested in starting the blog or have any questions about it.. I’m not after any remuneration. I just think this could be a very valuable blog.

In addition, I would appreciate learning of suggestions for such a blog. I'm not allowing comments to be posted because of severe comment spam problems. However, you can email me as follows: Type “noboxes” before the traditional @ sign and type “cox.net ” after the @ sign. (Do not include the quotation marks.)