Comments on: CAAF issues Anderson opinion [revised]

By: Dwight Sullivan

Dwight Sullivan — Mon, 08 Mar 2010 19:13:48 +0000

Anon 0716 — I understand your argument that Anderson doesn’t exactly quote Quiroz. But it purports to. It is set off in block quotation format with a citation following, exactly as the Bluebook prescribes for a quotation of 50 words or longer. And, most tellingly, the citation is followed by “citation and quotation marks omitted.” If it isn’t a quotation, then there is simply no reason to indicate a change from the original. Such a parenthetical is used only in the case of a quotation. (I’m on a borrowed computer in a Nashville Starbucks at the moment. I don’t think the barristas (sp?) have a Bluebook, so I can’t quote (or even cite) Bluebook chapter and verse at the moment. So my search for further textual support will have to wait for tomorrow.)

By: Anonymous

Anonymous — Mon, 08 Mar 2010 12:16:52 +0000

Mr Sullivan, have to disagree again. If this list of 5 factors was a direct quote, each factor wouldn’t be in a separate paragraph. The original Quiroz opinion listed the factors together in the middle of one paragraph. Now we have 5 separate paragraphs, and of course, as you point out, the “and” before the last paragraph is missing. So perhaps the earlier anon was correct – sloppy writing or sloppy editing. Nonetheless, CAAF appears to be emphasizing the word “unfairly.”

By: Dwight Sullivan

Dwight Sullivan — Sun, 07 Mar 2010 18:28:13 +0000

Anon 1159, greetings from BWI, where my netbook is about to run out of power. Take another look at Anderson and Quiroz. Anderson does quote the five Quiroz factors and not merely cite them (though the quotation omits the word “and” before the fifth Quiroz factor). Page 18 of the Anderson slip opinion sets out a block quotation from Quiroz, followed by an “Id.” citation with a parenthetical indicating “citation and quotation marks omitted.” Obviously that parenthetical wouldn’t be there if it weren’t a direct quotation.

By: Anonymous

Anonymous — Sun, 07 Mar 2010 16:59:58 +0000

Mr Sullivan, I have to take issue with your Bluebook application here. You are correct that according to the Bluebook, when a writer quotes a passage, then the writer is not supposed to indicate “that emphasis in the quotation appears in the original.” Rule 5-2(d)(iii). The problem with the phrase that you and anonymous are debating is that the phrase is NOT A QUOTATION. Quiroz was cited, NOT QUOTED. As such, I believe that Anonymous is right. The emphasis belongs to CAAF.

By: Simpleton

Simpleton — Fri, 05 Mar 2010 19:04:15 +0000

I know one implicates equity and the other a legal standard, but what is the delta? W/o the benefit of a dictionary and using instead my unrefined melon, it appears that unreasonable means to be w/o reason. Unfair is something not justified by the facts and circumstances. If a charge exists that is not duplicitous there is reason to charge it, even if a single actus reus is the factual basis for the multiple charges. Thus it would also appear that the facts and circumstances justify multiple charges. One could argue that it is fair to charge a single act as multiple offenses if the powers that be created a system with these offenses and your existence and actus reus occur within that very system. Basically, do the crime, do the time.

I would argue that unreasonable and unfair are virtually synonymous, but it is more appropriate to use the one that can be understood as a legal standard. Equity principles should be minimized if all possible as they can potentially diminish precedent and the rule of law to the whim, character, philosophy, etc., of a particular judge(s) and his/her understanding of fairness.

By: Anonymous

Anonymous — Fri, 05 Mar 2010 14:36:02 +0000

This happened in an opinion a year or so ago (I believe on the lesser-included issue). I’d presume, unless the opinion is corrected, this is the new standard counsel should adopt in pleadings . . . However, this is why opinions need to be clear and specific if they are overruling or changing precedent (and yes, just stating the obvious). CAAF has on occassion not followed the advice in Rorie and left the proverbial hanging chad out there with no specific guidance to counsel. For a good court, that is not good practice.

By: Anonymous

Anonymous — Fri, 05 Mar 2010 13:00:21 +0000

Okay. You win the Bluebook prize (and who made the editors of Harvard Law Review Assciation king, anyway?). Just saying, some ignorant lay readers like me may be confused. So, what does the Bluebook say about a court adopting a word it disparaged in an earlier opinion? In my lay opinion, the Quiroz standard is now changed. All five judges have signed onto “unfairly.” (emphasis in original).

By: John O'Connor

John O'Connor — Fri, 05 Mar 2010 12:52:14 +0000

I agree with Dwight. Absent a parenthetical that says “emphasis added,” you assume that the emphasis carried over from the original source.

By: Dwight Sullivan

Dwight Sullivan — Fri, 05 Mar 2010 12:36:48 +0000

According to the Bluebook, one should NOT put in “emphasis in the original.” Only a change in emphasis is noted in a parenthetical.

By: Anonymous

Anonymous — Fri, 05 Mar 2010 12:34:21 +0000

Then maybe Judge Ryan should have put in a parenthetical comment – “emphasis in original”. She didn’t. So, without the reader going back to Quiroz, any reader would be confused.

By: Dwight Sullivan

Dwight Sullivan — Fri, 05 Mar 2010 12:02:49 +0000

Anon 0658 — I’m not sure whether you were trying to be sarcastic or not (one of the many problems with blogs; it’s often difficult to tell), but the word unfairly was italicized in CAAF’s Quiroz opinion. So it was italicized in Anderson simply because it was quoting Quiroz.

By: Anonymous

Anonymous — Fri, 05 Mar 2010 11:58:18 +0000

Couldn’t be sloppy editing or sloppy writing. Judge Ryan underlined the word “unfairly” in her opinion, so she must have really meant it.

By: Anonymous

Anonymous — Fri, 05 Mar 2010 11:48:33 +0000

sloppy writing or sloppy editing … sloppy nonetheless

By: John O'Connor

John O'Connor — Fri, 05 Mar 2010 00:41:32 +0000

Huh, I thought UMC stood for Undividual Military Counsel.

By: blahblahblah

blahblahblah — Fri, 05 Mar 2010 00:30:40 +0000

oh blah blah blah. What a dumb CAAF precedent about how you can’t say “unfair” while being a court of law because it presumes equitable power. It’s 2010 – YES WE CAN.

By: Anonymous

Anonymous — Fri, 05 Mar 2010 00:27:11 +0000

Unreasonable Multiplication of Charges v. Unfair Multiplication of Charges…

well, at least we don’t have to change the acronym.