U.S. Supreme Court Roundup National Conference of State Legislatures Legislative Summit August 13, 2013 Atlanta, Georgia

1. Appellate Practice 1

2. National Conference of State Legislatures
Legislative Summit
August 13, 2013
Atlanta, Georgia
PRESENTED BY
Matthew K. Schettenhelm
U.S. Supreme Court
Roundup
©2013 Best Best & Krieger LLP
Appellate Practice
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Shelby County v. Holder,
No. 12-96

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Voting Rights Act of 1965

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Voting Rights Act of 1965 described:
“the single most effective
piece of civil rights
legislation ever passed by
Congress.”

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Too effective?

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History

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The 15th Amendment
is ratified in 1870

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Two sections

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(1)

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The right of citizens of the
United States to vote shall
not be denied or abridged by
the United States or by any
State on account of race,
color, or previous condition of
servitude.

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(2)

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The Congress shall have
power to enforce this article
by appropriate legislation.

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Direct Effect =

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Trump state laws

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But . . .

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Stiff resistance

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For the first 100 years

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Enforcement =

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FAILURE

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States adopted
“color-blind”
alternatives:

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Poll taxes
Literacy tests
Vouchers of
“good character”

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The feds tried . . .

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limited success

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b/c

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litigation

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. . . slow . . .

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. . . expensive . . .

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piecemeal

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Consequently

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barely improved

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August 6, 1965:

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The Voting Rights
Act

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3 key provisions

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Forbids any “standard,
practice, or procedure”
that “results in a denial or
abridgement of the right of
any citizen of the United
States to vote on account
of race or color.”
Section 2:

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Applies nationwide
Section 2:
Enforced through litigation

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Preclearance Requirement
Section 5:

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Preclearance=

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No changes

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w/o

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Approval of:
1. Federal court in D.C.; or
2. The Attorney General

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Coverage test
Section 4(b):

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Jurisdictions that:
Section 4(b):

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1. Imposed a voting test
Section 4(b):

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2. Had turnout and
registration below 50%
Section 4(b):

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Temporary
Originally:

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1970: + 5 years

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1975: + 7 years

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1982: + 25 years

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2006: + 25 years

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2009

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Warning

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Northwest Austin Municipal
Utility District Number One
v.
Holder

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“A small utility district
raising a big question.”

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Is the
preclearance
requirement
unconstitutional?

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A unanimous Court found that Act:
The Act imposes substantial
federalism costs

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A unanimous Court found:
“Things have changed in the
South.”

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A unanimous Court found:
“Voter turnout and
registration rates now
approach parity.”

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A unanimous Court found:
These improvements “stand
as a monument” to the
Voting Rights Act’s success.

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A unanimous Court found:
But . . .

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A unanimous Court found:
Past success

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A unanimous Court found:
Justify

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A unanimous Court found:
Current restrictions

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A unanimous Court found:
Coverage formula: based on
data more than 35 years old

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But . . .

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The Court did not reach the
constitutional issue

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Statutory grounds: the utility
district could “bail out” from
coverage

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Decision sent a message to
Congress:

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Do something—

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or we will

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But Congress didn’t act

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June 25, 2013

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5-4

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Shelby County:
Section 4(b) is
unconstitutional

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Cites Northwest Austin more
than 30 times.

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“50 years later, things
have changed
dramatically.”

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Despite considerable
progress, Congress
reauthorized the same
requirements “as if
nothing had changed.”

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Coverage test
measures by literacy
tests (long since
banned) and
registration and
turnout numbers that
have since risen
dramatically

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Congress can only
single out states “on a
basis that makes sense
in light of current
conditions.”
It cannot rely simply
on the past.

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As a result:

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Section 4(b) =
unconstitutional

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Section 2 and
Section 5 unaffected

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This is well within
Congress’s authority
under the 15th
Amendment

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Extensive record,
including about
“second-generation”
voting barriers
(e.g. vote dilution)

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What’s the impact?

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(1)

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Jurisdictions covered by
Section 4(b) may no longer
need to seek preclearance

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(2)

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Could lead to increased # of
lawsuits:

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Section 2 remains in full
effect

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Section 3– “bail in” through
litigation mechanism, to
place states and subdivisions
under preclearance

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(3)

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Congress could re-visit

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Arizona
v.
Inter Tribal Council of Arizona,
Inc.
No. 12-71

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National Voter Registration
Act of 1993:

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“Each State shall accept and
use the mail voter
registration application form”

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accept and use

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In 2004, Arizona voters
adopted Proposition 200

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Voters must present proof of
citizenship when they
register

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County recorders must reject
any application not
accompanied by satisfactory
evidence of citizenship

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(1) a photocopy of the applicant's passport or
birth certificate,
(2) a driver's license number, if the license states
that the issuing authority verified the holder's
U. S. citizenship,
(3) evidence of naturalization,
(4) tribal identification, or
(5) [o]ther documents or methods of proof . . .
established pursuant to the Immigration
Reform and Control Act of 1986.

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But . . .

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Concrete evidence of
citizenship

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Concrete evidence of
citizenship

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Voter only attests under
penalty of perjury

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Tension:

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accept and use

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Must reject if no:

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(1) a photocopy of the applicant's passport or
birth certificate,
(2) a driver's license number, if the license states
that the issuing authority verified the holder's
U. S. citizenship,
(3) evidence of naturalization,
(4) tribal identification, or
(5) [o]ther documents or methods of proof . . .
established pursuant to the Immigration
Reform and Control Act of 1986.

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Basic legal question

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Does the National Voter
Registration Act preempt
Arizona’s proof of citizenship
requirement?

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Yes

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7-2
No
Yes

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“Accept and use” fairly
susceptible to two
interpretations

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(but one is better)

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(1)

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Must accept federal form
as complete and sufficient

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(2)

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Receive form and use it
somehow

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e.g.

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Restaurant “accepts and
uses” credit cards, even
though it requires
customers to show
matching identification

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Context

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Many federal statutes
use similar structure—
and they require more
than willing receipt

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Other provisions of
the Act suggest the
completed federal
form is itself “valid.”

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States can create their
own forms—but
federal form must still
be available

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“No matter what procedural
hurdles a State's own form
imposes, the Federal Form
guarantees that a simple
means of registering to vote
in federal elections will be
available.”

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No presumption against
preemption under the
Elections Clause

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"The Times, Places and Manner of
holding Elections for Senators and
Representatives, shall be
prescribed in each State by the
Legislature thereof; but the
Congress may at any time by Law
make or alter such Regulations,
except as to the places of chusing
Senators."

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Federalism concerns are somewhat
weaker here:
the States’ role in regulating
congressional elections has always
been subject to federal
preemptions

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But, Arizona said, . . .

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Doesn’t this reading of
“accept and use” conflict
with the Constitution’s
basic division of
authority?

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States =
establish voter
qualifications
(including citizenship)

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Feds =
regulate time, place, and
manner of elections

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Yes, but . . .

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“Arizona is correct that it would
raise serious constitutional doubts
if a federal statute precluded a
State from obtaining the
information necessary to enforce
its voter qualifications”

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But:
Arizona can obtain that information
in another way

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Federal administrative process

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May request that the Election
Assistance Commission alter the
Federal Form to include
information the State deems
necessary to determine eligibility

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Can challenge its decision under
the Administrative Procedure Act

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Dissents

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“Arizona has the independent
constitutional authority to verify
citizenship in the way it deems
necessary.”

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“It matters not whether the United
States has specified one way in
which it believes Arizona might be
able to verify citizenship; Arizona
has the independent constitutional
authority to verify citizenship in the
way it deems necessary.”

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Would apply presumption against
preemption

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“a State ‘accept[s] and use[s]’ the
federal form so long as it uses the
form as a meaningful part of the
registration process.”

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What’s the impact?

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(1)

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Limits States’ ability to
control their own election
processes

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(2)

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Requires States to engage
the federal administrative
process

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City of Arlington v. FCC,
No. 11-1545

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(Disclosure:
BB&K represented the City of
Arlington and other local
governments)

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FCC can define its own statutory
authority over State and local
governments

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Case has two elements

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(1)

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Administrative law

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(2)

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Federalism

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(1)

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Who makes federal law?

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But Congress also delegates

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( e.g.)
Central Intelligence Agency, Commodity Futures Trading Commission,
Consumer Product Safety Commission, Corporation for Public Broadcasting,
Defense Nuclear Facilities Safety Board, Election Assistance Commission,
Environmental Protection Agency, Equal Employment Opportunity
Commission, Export-Import Bank of the United States, Farm Credit
Administration, Federal Communications Commission, Federal Deposit
Insurance Corporation, Federal Election Commission, Federal Housing
Finance, Board Federal Labor Relations Authority, Federal Maritime
Commission, Federal Mediation and Conciliation Service, Federal Mine Safety
and Health Review Commission, Federal Reserve System United States
Consumer Financial Protection Bureau, Federal Retirement Thrift Investment
Board, Federal Trade Commission, National Aeronautics and Space
Administration, National Archives and Records Administration Office of the
Federal Register, National Capital Planning Commission, National Labor
Relations Board, National Transportation Safety Board, Nuclear Regulatory
Commission, Securities and Exchange Commission, Small Business
Administration, Social Security Administration,
Tennessee Valley Authority, U.S. Trade and Development Agency, United
States Agency for International Development, United States International
Trade Commission

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Who decides what the law
means?

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The courts do not operate
alone in interpreting
ambiguous statutes

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The Chevron doctrine

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Chevron U.S.A. Inc. v.
Natural Resources Defense
Council, Inc.,
467 U.S. 837 (1984)

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For a statute that an
agency administers:

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Follow a two-step process

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Is the statute ambiguous?

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Is the agency’s reading
permissible?

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If so, court must defer

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But the Court had never
decided one fundamental
question:

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What if the ambiguous
statute concerns . . .

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whether Congress intended
the agency to regulate in
this area at all

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Should a court defer to that
interpretation?

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(2)

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Federalism

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47 U.S.C. 332(c)(7)

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Titled
“Preservation of Local
Zoning Authority.”

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Statute imposes five
limitations on State and
local governments
regulating cell-tower
placement

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But begins with a broad
preservation clause:

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Except as provided in this
paragraph, nothing in this Act shall
limit or affect the authority of a
State or local government or
instrumentality thereof over
decisions regarding the placement,
construction, and modification of
personal wireless service facilities.

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except here

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Nothing in this Act

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may limit

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or affect

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Leg. history:

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Directed FCC to
terminate its
rulemaking, and leave
(non-RF) disputes to the
courts

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But the FCC relied on its
general authority outside
of Section 332(c)(7)

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Made rules interpreting
what it means to act on a
request within a
“reasonable period of
time”

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FCC claimed “reasonable
period of time” was
ambiguous and merited
Chevron deference

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But the FCC claimed that
Chevron also applied to
whether its general
authority extends to
Section 332(c)(7)

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The Supreme Court
granted cert. only on the
abstract administrative
law question: does
Chevron apply to
jurisdictional
determinations?

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Yes

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6-3

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“There is no principled basis for
carving out some arbitrary subset
of . . . claims as ‘jurisdictional.’”

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“[E]very new application of a broad
statutory term can be reframed as
a questionable extension of the
agency's jurisdiction’”

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“[J]udges should not waste their
time in the mental acrobatics
needed to decide whether an
agency's interpretation of a
statutory provision is ‘jurisdictional’
or ‘nonjurisdictional.’”

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A contrary rule would jeopardize
Chevron itself and encourage
unelected, unaccountable judges to
make policy choices.

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Refused to apply de novo standard
to decide whether an agency’s
general authority extends to the
particular ambiguous term

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A general grant of
rulemaking/adjudicative authority
is enough to trigger Chevron: will
not go provision-by-provision

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Dissents

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“My disagreement with the Court is
fundamental. It is also easily
expressed: A court should not defer
to an agency until the court
decides, on its own, that the
agency is entitled to deference.”

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Administrative state would leave
the Framers “rubbing their eyes.”

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“The appropriate question is
whether the delegation covers the
‘specific provision’ and ‘particular
question’ before the court. A
congressional grant of authority
over some portion of a statute does
not necessarily mean that Congress
granted the agency interpretive
authority over all its provisions.”

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What’s the impact?

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More difficult to challenge a
federal agency’s statutory
interpretations

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Koontz v. St. Johns Water
Management District,
No. 11-1447

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Land use permits

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Takings Clause

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“nor shall private property
be taken for public use,
without just
compensation”

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Question:

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When a State or local
government conditions
how a person may use his
land

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Does it present a
constitutional issue?

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A landowner, Mr. Koontz,
sought to develop his
property

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But he sought to
build on wetlands

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Florida had adopted the
Water Resources Act

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water districts can regulate
“construction that connects
to, draws water from,
drains water into, or is
placed in or across the
waters in the state.”

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A district can condition that
construction on

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Reasonable conditions
“necessary to assure” that
construction will “not be
harmful to the water
resources of the district.”

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Water District offered Mr.
Koontz two alternatives:

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(1)

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Reduce development size
and deed conservation
easement to the district

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(2)

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Enhance approximately 50
acres of District-owned
wetlands elsewhere

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Mr. Koontz refused

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District denied his
application

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Mr. Koontz sued:

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Claimed it was “an
unreasonable exercise of
the state’s police power
constituting a taking
without just
compensation.”

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Florida Supreme Court said
there was no “takings”
problem for two reasons:

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(1)

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District denied the
application—so it, quite
literally, did not “take”
anything

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(2)

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Only required Mr. Koontz
to spend $—not surrender
a property interest

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The Supreme Court
reversed

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5-4

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“unconstitutional conditions”
doctrine:

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The government cannot
coerce a person to give up
constitutional rights

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“Land-use permit applications
are especially vulnerable to
this type of coercion”

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“the government can pressure
an owner into voluntarily
giving up property for which
the Fifth Amendment would
otherwise require just
compensation”

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On the other hand

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“[M]any proposed land uses
threaten to impose costs on
the public that dedications of
property can offset.”

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“Insisting that landowners
internalize the negative
externalities of their conduct
is a hallmark of responsible
land-use policy.”

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Dolan v. City of Tigard, 512 U.S. 374
(1994) and Nollan v. California
Coastal Commission, 483 U.S. 825
(1987) “accommodate both
realities.”

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Government may condition a land-
use permit so long as there is a
“nexus” and “rough
proportionality” between the
property that the government
demands and the social costs of the
applicant’s proposal

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Rejected both elements of Florida
Supreme Court’s holding

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(1)

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Doesn’t matter that the
government denied the application
(instead of approving with
condition)

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It’s true that
“nothing has been taken.”

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No “just compensation” required
under the Constitution

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But the cause of action may permit
other damages

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(2)

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Requiring applicant to spend $ is
enough—provided that there is
“direct link between the
government’s demand and a
specific parcel of real property”

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Otherwise, a permitting authority
could too easily evade the Nollan
and Dolan tests

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Rejected the view that it will be too
difficult to distinguish permit fees
from taxes:

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Decision “does not affect the ability
of governments to impose property
taxes, user fees, and similar laws
and regulations that may impose
financial burdens on property
owners.”

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Dissent

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The Court’s rule “threatens to
subject a vast array of land-use
regulations, applied daily in States
and localities throughout the
country, to heightened
constitutional scrutiny”

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Agrees that a permit denial should
be treated the same as a grant with
conditions

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But strongly disagrees that Nollan
and Dolan extend to cases where
the government conditions a
permit not on the transfer of real
property, but on the payment of $$

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Requiring a person to pay $$ is not
a taking requiring just
compensation (Eastern Enterprises
v. Apfel, 524 U.S. 498 (1998)).

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Significant practical harms:

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The Court “extends the Takings
Clause, with its notoriously
‘difficult’ and ‘perplexing’
standards, into the very heart of
local land-use regulation and
service delivery.”

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Cities and towns across the nation
impose many kinds of permitting
fees every day:

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e.g.

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to mitigate a new development's
impact on the community, like
increased traffic or pollution

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To cover the direct costs of
providing services like sewage or
water

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To limit the number of landowners
who engage in a certain activity,
as fees for liquor licenses do.

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All now must meet Nollan and
Dolan's nexus and proportionality
tests

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How is one to tell an improper
exaction from a proper tax?

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Also stressed that the district made
no “demand”: it only suggested
ways that Mr. Koontz could comply

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This gives District’s attorney
incentive to deny, without offering
alternatives

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“Nothing in the Takings Clause
requires that folly.”

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What’s the impact?

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Threat of increased
litigation about permit
conditions

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Fourth Amendment

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"right of the people to be
secure in their persons,
houses, papers, and
effects, against
unreasonable searches and
seizures, shall not be
violated."

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If there is a “search,” it
must be “reasonable”:

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Officers have probable
cause to believe they can
find evidence of a crime
and (usually)
judge issues search
warrant;

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(1)

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When does a dog sniff
provide “probable cause”
to justify a search?

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Florida v. Harris,
No. 11-564

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(2)

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Does a dog sniff on your
porch constitute a “search”
at all
(and therefore require
probable cause)?

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Florida v. Jardines,
No. 11-1447

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Florida v. Harris,
No. 11-564

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When does a dog sniff
provide probable cause to
justify a search?

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Officer pulled over driver
for expired license plate

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Driver: visibly nervous

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+

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Unopened can of beer

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Aldo: alerted

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Based on the alert, officer
concluded he had probable
cause to search truck

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Found illegal drugs—but
not those that Aldo was
trained to find

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When driver out on bail:
the officer (and Aldo)
pulled him over again
(brake light)

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Aldo alerted again

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Officer found nothing

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306
The defendant moved to
suppress the evidence
found in his truck:

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307
Aldo’s alert did not give
officer probable cause

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308
The Florida Supreme Court
agreed:

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309
Not enough that the dog
was trained and certified

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State must present:

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311
the dog's training and certification records,
an explanation of the meaning of the
particular training and certification, field
performance records (including any
unverified alerts), and evidence concerning
the experience and training of the officer
handling the dog, as well as any other
objective evidence known to the officer
about the dog's reliability.

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312
Court stressed evidence of
performance history

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313
Under this test:

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314
An officer who did not keep
full performance records
could never establish
probable cause

315. Appellate Practice
315

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316
Is all that required?

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317
9-0

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318
No.

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319
The probable cause test asks only
whether the facts would lead a
reasonable person to belief that
contraband or evidence of a crime
is present.

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320
Test cannot be reduced to
a precise definition

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321
Court has consistently
used an “all-things-
considered” approach

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322
The Florida Supreme
Court’s “check list”
approach:

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323
“the antithesis of a
totality-of-the-
circumstances analysis.”

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324
Performance tests often have
“relatively limited import”

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325
So the Court provided a
framework:

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A court may presume a
dog’s alert provides
probable cause if:

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bona fide organization
has certified dog’s
reliability; or

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the dog has recently and
successfully completed a
training program

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329
Defendant must have
opportunity to challenge
that evidence

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Key question: whether all the facts
surrounding a dog's alert, viewed
through the lens of common sense,
would make a reasonably prudent
person think that a search would
reveal contraband or evidence of a
crime

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331
“A sniff is up to snuff when it meets
that test.”

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332
Aldo’s sniff passed.

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333
State showed adequate
training

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334
And the defendant failed
to rebut based on Aldo’s
performance

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335
(2)

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336
Florida v. Jardines,
No. 11-1447

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337
Does a dog sniff on your
porch constitute a “search”
at all
(and therefore require
probable cause)?

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Yes

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339
5-4

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340
Police received an
unverified tip that
marijuana was being grown
in defendant’s home

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341
Officer watched home for
15 minutes

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342
Approached his home with
drug-sniffing dog

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343
Dog caught scent and
engaged in “bracketing”

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344
After dog sniffed base of
front door, he sat.

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345
This is trained behavior
indicating the odor’s
strongest point.

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346
Based on this, the officer
received a warrant to
search the residence

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347
Search revealed marijuana

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348
Defendant moved to
suppress marijuana plants
b/c dog investigation was
an unreasonable search

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349
Florida Supreme Court: use
of dog was a “search” and
was not supported by
probable cause

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350
5-4

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351
It was a “search.”

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352
This is a straightforward case.

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353
Found search based on “trespass”
theory; no need to ask whether
“reasonable expectation of
privacy.”

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354
Under the Fourth Amendment,
“the home is first among equals.”

355. Appellate Practice
355
The Court has always ruled that
curtilage—area immediately
surrounding the house—enjoys the
full protection of a “house.”

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356
Officers entered that protected
space, and engaged in conduct not
explicitly or implicitly permitted by
the homeowner

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357
Homeowners do grant visitors a
license

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358
It “does not require fine-grained
legal knowledge; it is generally
managed without incident by the
Nation's Girl Scouts and trick-or-
treaters.”

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359
But homeowners do not grant an
implicit license to visitors to search
with a dog

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360
“To find a visitor knocking on the
door is routine (even if sometimes
unwelcome); to spot that visitor
exploring the front path with a
metal detector, or marching his
bloodhound into the garden before
saying hello and asking permission,
would inspire most of us to — well,
call the police.”

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361
Because this is a trespass, don’t
have to ask whether officers
violated defendant’s “reasonable
expectation of privacy.”

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362
The Fourth Amendment's property-
rights baseline “keeps easy cases
easy.”

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363
Concurrence

364. Appellate Practice
364
Would find search on both
“property rights” and “reasonable
expectation of privacy” grounds

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365
“For me, a simple analogy clinches
this case.”

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366
A stranger carrying super-high-
powered binoculars, stands on your
porch, doesn’t knock, and can see
your home’s furthest corners.

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367
The stranger has both “trespassed”
by exceeding his license, and
violated your reasonable
expectation of privacy

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368
Dissent

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369
Not a search.

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370
The Court manufactures a rule of
trespass that does not exist.

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371
Visitors have a license to use a
walkway to approach a front door
and remain there a brief time

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372
That’s all that occurred here

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373
And a homeowner has no
expectation of privacy with respect
to odors that can be smelled in
places where members of the
public may lawfully stand

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374
Stresses decision’s narrowness:

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375
Because it is based only on
trespass, it does not apply when a
dog alerts on a public sidewalk or
street

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376
What’s the impact?

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377
Harris:

378. Appellate Practice
378
States can use dogs without
satisfying “inflexible
checklist”

379. Appellate Practice
379
Jardines:

380. Appellate Practice
380
Clarifies contours of
permissible police behavior

381. Appellate Practice
381
Physical intrusions of
“houses, papers, and effects”
will constitute a “search.”

382. Appellate Practice
382
Investigations in or near a
house likely to be subject to
closer judicial scrutiny

383. Appellate Practice
383
Dan’s City Used Cars, Inc. v.
Pelkey,
No. 12-52

384. Appellate Practice
384
Does federal law preempt
state-law claims about the
storage and disposal of a car
after it has been towed?

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385
9-0

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386
No.

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387
The case is the story of
Robert Pelkey.

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388
During a February
snowstorm, Mr. Pelkey had
been confined to his bed
with a serious medical
condition

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389
His apartment building
towed his car

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390
(Pelkey didn’t know)

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391
Soon after, Mr. Pelkey was
admitted to the hospital for a
procedure to amputate his
foot

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392
During the procedure, he had
a heart attack

393. Appellate Practice
393
He remained in the hospital
until April

394. Appellate Practice
394
(Pelkey still didn’t know)

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395
The towing company, Dan’s
City, scheduled an auction

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396
Even after Pelkey asked Dan’s
not to proceed,

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397
Dan’s disposed of the car—
and kept the proceeds

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398
Pelkey claimed Dan’s violated
the New Hampshire
Consumer Protection Act

399. Appellate Practice
399
Dan’s argued that Pelkey’s
claims were preempted by
federal law.

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400
Specifically:

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401
Federal Aviation
Administration Authorization
Act of 1994

402. Appellate Practice
402
"[A] State ... may not enact
or enforce a law, regulation,
or other provision having the
force and effect of law
related to a price, route, or
service of any motor carrier
... with respect to the
transportation of property."

403. Appellate Practice
403
Enacted in 1980

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404
Deregulates trucking industry
(following model of airline
industry)

405. Appellate Practice
405
Goal:
Ensure that States would not
undo federal deregulation
with regulation of their own

406. Appellate Practice
406
Pelkey’s claims escape preemption.

407. Appellate Practice
407
Claims are not “related to” the
service of a motor carrier “with
respect to the transportation of
property.”
"[A] State ... may not enact or enforce a law, regulation,
or other provision having the force and effect of law
related to a price, route, or service of any motor carrier
... with respect to the transportation of property."

408. Appellate Practice
408
The state law regulates disposal of
vehicles “once their
transportation—here, by towing—
has ended.”

409. Appellate Practice
409
Claims are also unrelated to a
“service” the motor carrier
provides its customers

410. Appellate Practice
410
Here, the only “service” ended
months before the conduct on
which Pelkey’s claims are based

411. Appellate Practice
411
Pelkey's claims are far removed
from Congress' driving concern.

412. Appellate Practice
412
Pelkey's claims are far removed
from Congress‘s driving concern.

413. Appellate Practice
413
Rejects argument that because the
statute lists exceptions to
preemption, and those exceptions
do not reach these claims, the
claims must be preempted.

414. Appellate Practice
414
“Exceptions to a general rule, while
sometimes a helpful interpretive
guide, do not in themselves
delineate the scope of the rule.”

415. Appellate Practice
415
What’s the impact?

416. Appellate Practice
416
Reinforces limits of express
preemption

417. Thank you for attending.
Matthew K. Schettenhelm
Best Best & Krieger LLP
Washington D.C.
Phone: (202) 785-0600
Email: matthew.schettenhelm@bbklaw.com
www.bbklaw.com
Appellate Practice 417

418. Credits
• Images (creative commons licensed via Flickr):
 Selma March - Trading Cards NPS: http://www.flickr.com/photos/tradingcardsnpsyahoocom/7222972614/
 Supreme Court Bldg-Mark Fischer: http://www.flickr.com/photos/fischerfotos/7432022562/
 U.S. Capitol-TexasGOPVote.com: http://www.flickr.com/photos/60064824@N03/5486339525/
 Police dog-Clotee Allochuku: http://www.flickr.com/photos/clotee_allochuku/6069598467/
• Presentation style: Lessig (roughly)
Appellate Practice 418