A Brief History and Status of (Cleaned Up) in the Sixth Circuit

By Shams Hirji on Posted in Uncategorized

Who was the first Sixth Circuit judge to use the (cleaned up) parenthetical in a judicial opinion? What is the current status of (cleaned up) in the Sixth Circuit? Which judges use it regularly, which judges never use it, and which judges use it sparingly? This post attempts to provide some answers to these questions.

First, some background on the parenthetical. (Cleaned up) was invented by Jack Metzler (@SCOTUSPlaces) to resolve a frequently-occurring problem in legal writing. Legal reasoning in our common-law tradition often proceeds by quoting authorities that themselves quote other authorities. But to adapt a quote to the legal document the present author is preparing, the author often needs to make changes to the immediate source of the quotation. For the same reason, the immediate source of the quotation might itself have made changes to the original source of the quotation. The standard citation rules of the profession — contained in the (much scorned) Bluebook — require many of these changes to be reflected in the quote itself and also in a cumbersome parenthetical following the quote. Doing so can seriously undermine the readability (and thus the comprehension) of the legal document that the author is drafting.

Enter (cleaned up). First in a tweet from 2017, and later in an article, Metzler proposed using (cleaned up) as a workaround for this problem. As Metzler explained in his article, the parenthetical allows legal writers to “drop superfluous material like brackets, ellipses, quotation marks, internal citations, and citations, and footnote references from their quotations by using” (cleaned up) “to signal that such material has been removed and none of it matters for either understanding the quotation or evaluating its weight.” Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 147 (2017).

Change in the practice of law sometimes occurs at a glacial rate. Not so with (cleaned up). Though coined only about five years ago, (cleaned up) has by now appeared in thousands of opinions from federal and state courts across the country at both the trial and appellate levels. Maybe the best example so far of the parenthetical’s acceptance in our legal lexicon came last year when (cleaned up) debuted at the Supreme Court in a unanimous opinion authored by Justice Thomas in Brownback v. King, 141 S. Ct. 740, 748 (2021).

That said, using (cleaned up) in briefs and judicial opinions remains at least a little controversial. Exhibit A for that point could be a published opinion that Judge Britt Grant authored for a unanimous panel of the Eleventh Circuit last year. See Callahan v. United Network for Organ Sharing, 17 F.4th 1356 (11th Cir. 2021). In the first footnote of that opinion, Judge Grant remarked that “a ‘cleaned up’ parenthetical has limited utility at most.” Id. at 1362 n.1. And “whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information,” which Judge Grant believed the appellant had done in that case. Id. (Evaluating whether Judge Grant’s skepticism of the parenthetical is justified or not is beyond the scope of this post.)

With the stage set, let’s take a look at the Sixth Circuit’s use of (cleaned up). Which judge was the first to use (cleaned up) in the Sixth Circuit? Our research reveals that the answer is **drum roll** Judge Norris. Judge Norris used the parenthetical in a unanimous, unpublished opinion for a panel of the Sixth Circuit consisting of himself, Judge Moore, and Judge Stranch in United States v. Dowell, 711 F. App’x 280, 282 (6th Cir. 2017). The Court issued its decision on October 6, 2017–just a little less than seven months after Jack Metzler first proposed using the parenthetical on Twitter.

It would be another five months or so before (cleaned up) made its second appearance at the Sixth Circuit. On March 8, 2018, Judge Siler issued a majority, unpublished opinion, joined by Judge Cook, that included the parenthetical. United States v. Joiner, 727 F. App’x 821, 827 (6th Cir. 2018). So novel was the parenthetical in the Sixth Circuit still, Judge Siler dropped a footnote in the opinion reminding readers that the Court had used the parenthetical before (in Dowell). Joiner, 727 F. App’x at 827 n.2. The footnote also referred the reader to a draft of Metzler’s then-upcoming article explaining why courts and advocates should use the parenthetical. Id.

For the rest of 2018, Judge Siler continued to be the most avid user of the parenthetical on the Sixth Circuit, employing it in six other opinions that year. It’s worth noting that Judge Norris and Judge Siler had both been judges on the Sixth Circuit for decades by the time Metzler had created (cleaned up). And both judges had been serving as senior judges for at least fifteen years by then. After so many years of service on the Court, those judges could have been forgiven for resisting any significant changes to the ways they approached opinion writing. But it turns out that they were the pioneers in the Sixth Circuit when it came to this bit of legal-writing innovation (an innovation that a clear majority of the Court’s active and senior judges would later adopt, see infra). Other early and consistent adopters of the parenthetical in the Sixth Circuit between 2018 and 2019 included Judge Boggs, Judge Griffin, and Judge Bush.

These days, the Sixth Circuit (as a whole) enthusiastically uses the parenthetical. Among the Court’s thirteen senior judges, eleven of them have authored at least one decision that uses the parenthetical. As for the Court’s active judges, we should probably exclude from the count Judge Davis and Judge Mathis because they joined the Court very recently and so (unsurprisingly) have not yet issued any opinions containing the parenthetical. There are fourteen other active judges on the Court. Among those fourteen judges, twelve of them have authored at least one opinion using the parenthetical. Indeed, Judge Kethledge used (cleaned up) in an en banc decision for the Court in Resurrection School v. Hertel, 35 F.4th 524, 529 (6th Cir. 2022).

Who are the holdouts? Among the active judges of the Sixth Circuit, the two who have never used the parenthetical in any opinion (published or unpublished, for the court or in a separate writing) are: Chief Judge Sutton and Judge Murphy. And the two senior judges who have never used the parenthetical in any opinion are Judge Daughtrey and Judge Cook.

The absence of any opinion using (cleaned up) by these judges is almost certainly not an accident. Consider that Judge Murphy and Judge Readler were confirmed to their Sixth Circuit seats just one day apart in March 2019. While Judge Murphy has not once authored an opinion using (cleaned up), Judge Readler has authored at least three dozen opinions for the Sixth Circuit (majority or unanimous) that include the parenthetical. That’s not even counting the several concurrences or dissenting opinions in which Judge Readler has used (cleaned up). Or consider that Chief Judge Sutton, Judge Daughtrey, and Judge Cook have all been judges for many more years on the Sixth Circuit than has Judge Thapar. But none of those first three judges has ever authored an opinion containing (cleaned up). Judge Thapar, by contrast, has authored dozens upon dozens of opinions with (cleaned up) in them. In fact, Judge Thapar might hold the record in the Sixth Circuit for the most number of opinions featuring the parenthetical.

The Sixth Circuit’s use of (cleaned up) is even more nuanced than just described. In between the judges that use it frequently and the judges that never use it are the judges who use it sparingly. For example, we found only one opinion in which Judge Moore used the parenthetical. See Cunningham v. Shoop, 23 F.4th 636, 651(6th Cir. 2022). And Judge Gilman and Judge Rogers have each only used the parenthetical in one unpublished opinion for the Court. See Hizer v. Comm’r of Soc. Sec., 852 F. App’x 999, 1000 (6th Cir. 2021) (opinion by Gilman, J.); Lowry v. Southfiled Neighborhood Revitalization Initiative (In re Lowry), No. 20-1712, 2021 U.S. App. LEXIS 38533, at *9 (6th Cir. Dec. 27, 2021) (opinion by Rogers, J.). Because our research reveals that most of the Sixth Circuit judges that have used (cleaned up) have done so in multiple opinions, we suspect (of course, we could be wrong) that Judges Moore, Gilman, and Rogers have deliberately avoided using the parenthetical except on rare occasions. Then there’s Judge Larsen, who has used the parenthetical in only one published concurrence, United States v. Phillips, 54 F.4th 374 (6th Cir. 2022), and in a handful of unpublished opinions or orders of the Court. See, e.g., United States v. Carrender, No. 21-5253, 2022 U.S. App. LEXIS 6160, at *5 (6th Cir. Mar. 8, 2022); Outdoor One Communs., LLC v. Charter Twp., No. 21-1323, 2021 U.S. App. LEXIS 37354, at *10 (6th Cir. Dec. 16, 2021).

All of this perhaps creates a dilemma for the Sixth Circuit practitioner, including this blogger, who is persuaded that the (cleaned up) parenthetical has many virtues. On the one hand, if a majority of Sixth Circuit judges are comfortable using the parenthetical in opinions for the Court, including in en banc opinions, then it would seem the practitioner should feel free to submit a brief using the parenthetical, too. On the other hand, there’s strong evidence that at least a few judges on the Sixth Circuit have some aversion to using the parenthetical. (It’s possible these judges prefer to quote less generally. In any event, if they wish, they are welcome to write us to explain why they rarely, if ever, use the parenthetical.) And given that the Bluebook itself has not endorsed (cleaned up), it’s unlikely that a practitioner would be faulted right now for not using the parenthetical. Advocates will have to decide for themselves whether using the parenthetical is worth any potential trouble. One thing seems clear though: (cleaned up) is here to stay at the Sixth Circuit.

December 6th Cincy/NKY FBA Event Featuring Ohio SG, Kentucky SG, and Appellate AUSA

By Shams Hirji on Posted in Uncategorized

Readers of this blog may be interested in an event that the Cincinnati/Northern Kentucky chapter of the Federal Bar Association is hosting on Tuesday, December 6th from 4:00 to 5:00 p.m. at the Taft Center in Cincinnati (425 Walnut St., 2nd floor of U.S. Bank building). The event will feature a panel consisting of Benjamin Flowers, Matthew Kuhn, and Alexis Zouhary. Ben is the Solicitor General of Ohio, Matt is the Solicitor General of Kentucky, and Alexis is an appellate Assistant United States Attorney in the Southern District of Ohio. The title of the event is, “Representing the Government on Appeal.” Naturally, much of the discussion will focus on Sixth Circuit appellate practice.

Those interested can register at this link. Registration is free for FBA members, judges, law clerks, and court staff. Registration is $15.00 for everyone else.

States’ Title X Challenge Returns to Sixth Circuit

By Shams Hirji on Posted in Case Updates

Readers of this Blog may recall that, earlier this year, we covered the Sixth Circuit’s decision declining to enjoin (pending appeal) a 2021 Health and Human Services Rule that does two notable things: (1) the Rule eliminates the prior Administration’s requirement “that grantees create strict physical and financial separation between their Title X programs and any abortion services they may provide” and (2) the Rule requires “that grantees provide referrals to abortion services when requested by the patient.” The motions panel consisted of Judges Boggs, Bush, and Larsen.

Ohio and eleven other States sued under the APA, claiming the Rule was “arbitrary, capricious, and contrary to law,” and sought a preliminary injunction. Judge Black of the Southern District of Ohio found that the States had not met their burden of establishing their entitlement to a preliminary injunction. The motions panel agreed, holding that the States had not satisfactorily shown they would suffer irreparable harm.

Now the States, led by Ohio, are back at the Sixth Circuit. This Thursday, October 27, the Sixth Circuit will hear oral argument in the States’ merits-stage appeal of the District Court’s order denying the States a preliminary injunction. The merits panel consists of Judges Moore, Thapar, and Larsen. (Notably, Judge Larsen was also on the motions panel.) But if you thought this appeal was just the States’ motions-stage-appeal redux, you would be mistaken.

Recall, the motions panel held that, at least at the time of the motion panel’s decision, it was too speculative to say whether the States would receive less money in the next round of Title X funding. There’s been an interesting development on that front, however. Six days after HHS submitted its response brief in this appeal, HHS announced its Title X grant amounts to States and other competing grantees for 2022-23. Notably, the announcement indicates that some of the appellant States will be receiving fewer Title X funds for the upcoming year than they had received the previous year. For example, the Ohio Department of Health was awarded $7,040,000, which is a decrease of $1,760,000 from its previous award of $8,800,000. Meanwhile, Planned Parenthood of Greater Ohio, which had left the program before HHS’s adoption of the 2021 Rule, has now been awarded $2 million. HHS did not contest the States’ motion for the Sixth Circuit to take judicial notice of the announcement.

It will be interesting to see whether the decrease in funding for some of the States (and increase in funding for competing grantees) changes the Sixth Circuit’s calculus on whether the States are entitled to the preliminary injunction they seek. Of course, to get a preliminary injunction, the States will also need to show they are likely to succeed on the merits. And because the motions panel largely rested its decision on the States’ inability (at the time) to show irreparable harm, we know very little about what the Sixth Circuit thinks about the States’ arguments on the merits. Well, perhaps until one tunes into oral argument this Thursday. And tune in, we shall.

Watch Sixth Circuit Best Practices Webinar

By Shams Hirji on Posted in Interviews

This Wednesday, October 5th, at 1 p.m. EDT, the American Bar Association will be hosting a 1.5 hour webinar discussion of best practices for litigating in the Sixth Circuit. The webinar will feature two sitting Sixth Circuit judges, Chief Judge Jeffrey S. Sutton and Judge Jane B. Stranch. They will be joined by our own Lauren S. Kuley, who co-chairs Squire Patton Boggs’s Appellate & Supreme Court practice, and moderator Stephen J. van Stempvoort, who chairs Miller Johnson’s Appellate practice group.

The presentation will feature a wide-ranging discussion of Sixth Circuit and appellate practice, with topics including the Court’s local rules, the mediation program, motions practice, and recommendations for briefing and oral argument. It is part of the ABA’s “Riding the Circuits” series, which seeks to provide insight on each of the federal circuits.

A link to the webinar, which will be recorded, can be found here.

Sixth Circuit Denies Government Emergency Relief in Air Force Vaccine Mandate Case

By Shams Hirji on Posted in Recent Cases

This past Friday afternoon, the Sixth Circuit dealt a blow to the Department of the Air Force’s efforts to overturn a District Court’s class-wide, preliminary injunction against the Department. Specifically, the Sixth Circuit denied the Department’s emergency motion to stay the District Court’s class-wide injunction. Judge Matthew W. McFarland, of the Southern District of Ohio, had ordered the Department to not take any disciplinary or separation measures against a class of some 10,000 unvaccinated service members. The service members had alleged that the Department applied a general, discriminatory policy of denying their requests for religious exemptions from the Secretary of Defense’s vaccine mandate applicable to all members of the armed forces. The plaintiffs argued that the Department’s policy violated their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause.

For the most part, the Department focused its emergency motion on the District Court’s decision to certify the class, arguing that the District Court abused its discretion in doing so. The Sixth Circuit disagreed in an opinion written by Judge Kethledge and joined by Judge Bush and Judge Murphy. The Court held, instead, that the Department was unlikely to prevail in its appeal of the class-wide preliminary injunction.

In particular, the Sixth Circuit rejected the Department’s argument that the plaintiffs were unable to satisfy Rule 23(a)’s commonality and typicality requirements for class certification. Contrary to the Department’s arguments, the Sixth Circuit held that the plaintiffs had offered up a “common contention” whose resolution would “resolve an issue that [was] central to the validity of each one of the claims in one stroke.” That common contention was the contention that the Department “operated under a general policy of discrimination.” If true, that would likely entitle the class to relief under both RFRA and the Free Exercise Clause.

As often happens with emergency motions, the panel tipped its hand a little as to how it would decide the merits of the Department’s preliminary-injunction appeal. The Court noted, for example, that its “own review of the record [did] nothing to convince [the panel] that the Department is likely to show” it did not enforce a general discriminatory policy. In support of the point, the Court pointed to evidence in the record indicating that the Department had denied all or close to 100% of all religious exemption requests during the relevant period.

Ordinarily, a randomly assigned Sixth Circuit motions panel does not hold on to the case and issue an opinion on the merits as well. But it looks likely that this appeal will play out differently. Probably in recognition of the urgency and importance of the issues involved, the motions panel expedited the Department’s appeal of the district court’s class-wide preliminary injunction. Under the Court’s order, the Department has two weeks to file its principal brief and the plaintiffs have two weeks to respond. The Department then gets seven days to reply. The Court also scheduled argument in the appeal for October 19 and said “we will strive to decide the Department’s appeal in November.” (Emphasis added). So, all signs point to the same panel handling the merits as handled the motion. That means the Department will need to work hard (and fast) if it is to have a shot at changing the panel’s mind in Round 2 of the appeal.

Welcome to the Sixth Circuit, Judge Mathis

By Shams Hirji on Posted in Judicial Appointments and Vacancies

On Thursday, September 8, 2022, the U.S. Senate confirmed Tennessee lawyer Andre Mathis to a seat on the Sixth Circuit. That seat opened up on November 18, 2021, when Judge Bernice Donald announced she was taking senior status.

Judge Mathis brings an impressive range of civil and criminal litigation experience with him to the bench. Judge Mathis’s confirmation is also notable for making him the first African American man to occupy a seat on the Court from Tennessee.

For more information about Judge Mathis, you can read our original write-up about his nomination. Or, for a more detailed portrait, you can review his Senate Judiciary Questionnaire.

The Sixth Circuit Appellate Blog celebrates Judge Mathis’s confirmation to the Court. We look forward to his many years of upcoming service on the bench. And we’ll continue to look forward to many more years of service from Judge Donald as a senior judge.

Welcome, Judge Mathis!

In Concurrence, Judge Thapar Cautions: Don’t Rely Too Much on Agency Guidance

By Shams Hirji on Posted in Recent Cases

Judge Thapar issued a short and sweet concurrence today that cautioned against overly relying on agency guidance that has not gone through notice and comment. The respondent in Huscoal, Inc. v. Director, __ F.4th __ (6th Cir. 2022), had filed a claim for survivor’s benefits under the Black Lung Benefits Act. She argued that her husband had died because of his coal-mining job at Huscoal, Inc. The Administrative Law Judge (ALJ) granted the respondent’s claim and the Benefits Review Board affirmed. The Sixth Circuit affirmed, too, in an opinion written by Judge Gilman and joined by Judge Griffin and Judge Thapar.

The sole issue at the Sixth Circuit was whether substantial evidence supported the ALJ’s conclusion that the respondent’s husband suffered from an illness that arose “at least in part” out of his coal-mine employment. The husband’s employer and the employer’s insurance carrier argued “no,” pointing to the husband’s 60-year smoking history. The employer and carrier also faulted the ALJ for, in their view, improperly relying on a doctor’s opinion based on (again in their view) inaccurate information.

The Sixth Circuit held that substantial evidence supported the ALJ’s decision, including the ALJ’s decision to credit the doctor’s opinion. In some key parts of its decision, however, the ALJ relied on the agency’s preamble to the relevant regulations. That is what Judge Thapar took issue with in his concurrence.

Judge Thapar noted at the outset that he joined the majority’s opinion in full. Judge Thapar nonetheless found it “concerning” that the ALJ had “entirely discounted the testimony of two experts based on one line from a guidance document–the DOL’s Preamble to the Black Lung Benefits Act regulations.” The petitioners did not “challenge that reasoning” so Judge Thapar joined the majority opinion in full. But Judge Thapar wrote separately to explain the reasons for his concern.

First and foremost, “the Preamble didn’t go through notice and comment.” Notice and comment matters, explained Judge Thapar, because it “guard[s] against underinformed agency action and protect[s] regulated parties from unanticipated changes to their rights and duties.” As a result, treating the preamble as binding “would rob the public of the input and warning the law demands.”

That was especially troublesome here because, according to Judge Thapar, the preamble at issue undermined the black-lung regulations. And, unlike the preamble, the regulations had gone through notice and comment, so “contradicting their mandate [was] unlawful.”

In concluding, Judge Thapar reiterated that had the petitioners “argued on appeal that the ALJ’s order read the [p]remable as binding,” the court would have needed “to more closely scrutinize the ALJ’s reasoning.” But the petitioners had only raised a substantial-evidence challenge. And Judge Thapar agreed with the majority that the “ALJ’s decision passe[d] evidentiary muster.”

Although a relatively short concurrence, Judge Thapar’s opinion offers much to think about. As probably most federal practitioners know, interpreting agency regulations is a standard feature of federal practice and has been for a long time. How much weight to assign agency guidance, prefatory language, commentary, etc., that itself has not gone through notice and comment is an issue that often comes up. Judge Thapar’s concurrence is a good reminder that even if such material can be illuminating at times, at the end of the day, it didn’t go through notice and comment. So, one should never reflexively assume it accurately states the law. The petitioners in this case learned that the hard way.

Sixth Circuit Opinion Reversed in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.

By Ellen Phillips on Posted in Case Updates, News and Analysis, Recent Cases, Supreme Court, Uncategorized

The Supreme Court on Tuesday issued an opinion in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., which reversed the Sixth Circuit’s October 2020 decision finding that DaVita Inc. plausibly asserted a claim against an Ohio hospital’s health plan for unlawfully discriminating against patients with end-stage renal disease by offering low reimbursement rates for outpatient kidney dialysis.  Specifically, the Sixth Circuit majority found that the health plan violated the Medicare Secondary Payer Act’s anti-discrimination provision—which prohibits a health plan from differentiating its benefits based on whether an individual has end-stage renal disease—by offering lower reimbursement rates for services offered by dialysis providers.   See DaVita, Inc. v. Marietta Mem’l Hosp. Emple. Health Ben. Plan, 978 F.3d 326 (6th Cir. 2020).  The Sixth Circuit, over Judge Murphy’s dissent, concluded that the anti-discrimination provision authorized “disparate-impact” liability, and that the limited payments for dialysis treatment had a disparate impact on individuals with end-stage renal disease.  See id. at 349. 

In a succinct seven page opinion written by Justice Kavanaugh on behalf of a 7-2 majority, the Supreme Court reversed.  Justice Kavanaugh, borrowing language from Judge Murphy’s dissent, rejected the Sixth Circuit majority’s “disparate-impact” theory because the text of the Act’s anti-discrimination provision “does not ask about ‘the effects of non-differentiating plan terms that treat all individuals equally.’” Op. at 5 (quoting 978 F. 3d at 363 (opinion of Murphy, J.)).   And the text of the plan, according to the opinion, did not “differentiate in the benefits provided to individuals with and without end-stage renal disease,” because it provided the same benefits, “including the same outpatient dialysis benefits, to individuals with and without end-stage renal disease.”  Id. at 4.  In addition to being “atextual,” the Court also found that a disparate-impact theory “would be all but impossible to fairly implement.” Id. at 5.  According to the opinion, “Courts would be entirely at sea in trying to determine an appropriate benchmark or comparator for outpatient dialysis.” Id. at 6. 

Justice Kagan, joined by Justice Sotomayor, dissented.  The dissent agreed with the Justice Kavanaugh’s opinion on disparate impact, but would have instead found outpatient dialysis to be a “proxy” for end-stage renal disease, because nearly all patients with end-stage renal disease, and hardly anyone else, undergo outpatient dialysis.  Dissent at 1–2.  The majority opinion, according to the dissent, “flies in the face of both common sense and the statutory text.”  Id. at 2.

Reception of the opinion is, naturally, split, with Law360 reporting that counsel for the health plan is “very pleased that the Supreme Court reads the Medicare Secondary Payment Act the way that it is written,” and the CEO of DaVita criticizing the Court’s “narrow interpretation of the” Medicare Second Payer Act and limiting the Act’s ability “to protect some of the most vulnerable patients in the healthcare system.” 

With Shoop v. Twyford, also decided Tuesday, the Court has issued opinions on each of the ten cert. petitions granted from the Sixth Circuit this term. 

The Corpus Linguistics Bug: New Cases in the Sixth, Fourth Circuits.

By Squire Patton Boggs on Posted in Learned Sixth, Recent Cases

In a previous post, we discussed corpus linguistics, an emerging tool in statutory and constitutional interpretation.  It appears that the corpus linguistics bug is spreading, both in this Circuit and to other circuits as well.  Two recent cases serve as a reminder that the Sixth Circuit is both a thought leader in analyzing and utilizing this new variant of legal analysis and is an increasingly powerful vector of transmission. 

Consider Fulkerson v. UNUM Life Ins. Co. of Am., a Sixth Circuit opinion handed down a week ago.  No. 21-3367, 2022 U.S. App. LEXIS 15363 (6th Cir. June 3, 2022).  In Fulkerson, a panel consisting of Chief Judge Sutton and Judges Siler and Readler weighed whether reckless driving was a “crime” pursuant to the crime exclusion of an insurance policy.  Id. at *4.  Judge Readler penned the opinion.   He concluded that reckless driving was a crime for the purposes of the insurance policy by looking to dictionaries and “the tapestry of state laws” regulating the conduct in question.  Id. at *5-8.  Following a belt and suspenders approach, Judge Readler also used corpus linguistics, “a helpful tool in assessing common usage” to support his conclusion that “[t]he contemporary common usage of the term ‘reckless driving’” “fits within the ordinary meaning of ‘crime.’”  Id. at *8.  As Judge Readler noted, “[a]lthough more commonly used in the constitutional and statutory interpretive settings, these resources seemingly have the same force in many contractual settings as well.  Id. at *9 (citing Stephen C. Mouritsen, Contract Interpretation with Corpus Linguistics, 94 Wash. L. Rev. 1337, 1341 (2019)).  Judge Readler then laid out the results of his analysis of the Corpus of Contemporary American English for the term “reckless driving” during the relevant time period.  Id. at *10-13.  “Tellingly, a vast majority recount instances in which some manner of prosecution occurred, where the individuals either were ‘charged,’ ‘convicted,’ and/or ‘sentenced for reckless driving” and others “explicitly refer[ed] to ‘reckless driving’ as a crime[.]”  Id.  

A few key takeaways: 

  • Judge Readler’s analysis is consistent with our point in our last post: “corpus linguistics is not a silver bullet.”  And, as Judge Thapar noted, “corpus linguistics is one tool . . . but not the whole toolbox.”  Wilson v. Safelite Grp., Inc., 930 F.3d 429, 441 (6th Cir. 2019) (Thapar, J., concurring).  If invoked, it will likely be used as evidence that supplements other more common interpretative modalities.
  • The makeup of this panel also shows the increased appetite for, or at least lack of aversion to, corpus linguistics analyses in this Circuit.  Previously, Judges Thapar, Readler, and Griffin wrote or joined opinions relying, in part, on corpus linguistics.  See United States v. Woodson, 960 F.3d 852, 855 (6th Cir. 2020) (6th Cir. 2020) (Judges Griffin and Thapar joining an opinion in which Judge Readler invoked corpus linguistics); Wilson v. Safelite Grp., Inc., 930 F.3d at 438 (Thapar, J., concurring) (invoking corpus linguistics in statutory analysis).  We can now add Chief Judge Sutton and Judge Siler to this list.  As a reminder, Judge Stranch penned a lengthy concurrence to her own opinion in Wilson v. Safelight expressing her concerns with using corpus linguistics.  Id. at 445-48 (Stranch, J., concurring).
  • Before Fulkerson, corpus linguistics was typically used in the constitutional and statutory contexts.  From what we can tell, this is the first time any federal court has applied corpus linguistics to a private contract. Corpus linguistics has officially entered the contracts arena, making understanding this tool all the more imperative for all lawyers. 

Next, consider United States v. Rice, a Fourth Circuit opinion handed down yesterday.  No. 19-4489, 2022 U.S. App. LEXIS 15886 (4th Cir. June 9, 2022).  The Fourth Circuit was “asked to decide if the North Carolina crime of assault inflicting physical injury by strangulation is a ‘crime of violence’” for the purposes of sentencing enhancement under the U.S. sentencing guidelines.  Id. at *1-3.  We will not go into this case too deeply, but do note that they concluded strangulation was a crime of violence.  It is notable, however, that Judge Quattlebaum, writing for the majority,  cited to Judge Thapar’s concurring opinion in Wilson v. Safelight for the proposition that, “[a]lthough relatively new, corpus linguistics is gaining traction as an interpretive tool.”  Id. at *10.  Judge Thapar’s jurisprudence and this Circuit’s continued use of corpus linguistics in tough cases will likely push other circuits to consider conducting corpus linguistics analyses as well.  Moreover, this is the first instance that a corpus linguistics analysis was featured in a Fourth Circuit opinion, albeit in a footnote, to supplement the court’s analysis. 

The corpus linguistics bug is spreading in our own Circuit and spreading to others.  We recommend you read up on this tool of statutory, constitutional, and now contractual interpretation and will keep you updated on any interesting new developments.

Rachel Bloomekatz Nominated to the Sixth Circuit

By Ellen Phillips on Posted in Uncategorized

Today, President Biden nominated Columbus, Ohio appellate litigator Rachel Bloomekatz to the Sixth Circuit as part of his eighteenth round of judicial nominees, which would fill the seat vacated by Judge R. Guy Cole Jr.  Judge Cole announced in December his intention to take senior status. 

Rachel Bloomekatz is currently a solo practitioner at Bloomekatz Law, LLC, a law firm that she founded in 2019 in Columbus, Ohio.  She specializes in public interest work and has represented nonprofit organizations including Everytown for Gun Safety, the Public Health Law Center, the American Heart Association, and the Ohio Conference of the NAACP.   She also served as state counsel for Biden’s 2020 campaign in Ohio.  Prior to opening her own firm, Bloomekatz was a principal at Gupta Wessler PLLC and an associate at Jones Day, LLC.   She also clerked for Chief Justice Margaret Marshall on the Massachusetts Supreme Judicial Court, served as an Assistant Attorney General in Boston, Massachusetts, and clerked for Justice Stephen Breyer on the United States Supreme Court.  She received her J.D. from UCLA School of Law and her A.B., magna cum laude, from Harvard University. 

Bloomekatz is President Biden’s third nomination to the Sixth Circuit, with U.S. District Judge Stephanie Dawkins Davis having been confirmed by the Senate yesterday, and Memphis litigator Andre Mathis awaiting a Senate vote after clearing the Senate Judiciary Committee in February.  

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