The Really Low Standard of Review

May 18, 2008
/ Author: Rick

First, let’s have a “shout out” to Joni Mueller of Pixelita Designs. When I first started thinking about putting up a legal blog, I had already finished the design of the website for my law practice. Since many people liked the look, I didn’t want my blog, Probable Cause, not to fit into the overall design of the site. The problem was, I’d never used WordPress before and didn’t know how to modify any of the templates. I posted a note on the WordPress Forums. In came Joni Mueller to save my day giving me some pointers and sending over a tweak of the theme design I liked so that I could start modifying the colors and other parts to make it fit into the rest of the RHDefense site.

When asked what she’d like me to say about her here, she replied,

We’ve been around since 2003, we believe in standards compliant and accessible web sites and Ivan does great graphic artwork. I try to put my English degree to good use (B.A., Trinity Univ., San Antonio, Texas, 1981) by writing solid copy when asked.

Thanks for the help, Joni!

Anyway, as you can see, Probable Cause is well on the way to getting some new skin. I hope to have the design completed and fully integrate it into the rest of the website, complete with its own button, by the end of the week.

And, lastly, a little explanation about “The Really Low Standard of Review.” That subtitle for the Probable Cause blog was chosen for a few reasons.

For one thing, I lost a Petition for a Writ this past week that so far as I or anyone I know can tell, I should not have lost. The Court denied the Petition without explanation in what we call a “postcard” denial.

A “postcard denial” is summary disposition without a rationale—something akin to “The petitioner’s claims are without merit,” or its more tersely worded cousin, “Denied.” Such denials can mask deficient state adjudication, and their confused treatment by the federal courts reflects both divergent conceptions of comity and different
readings of legislative purpose. – Leo Kovarsky, “AEDPA’s (Imaginary) Purposes” (2007) BePress

Frankly, the inexplicable loss on this Petition, particularly without explanation, makes me wonder about the point of being an attorney. From all appearances, the rule of law is dead.

But I’ll address those issues in another post someday. The point here is that when I thought about what happened, I realized that the Standard of Review (and that was one of the topics of the Petition) has dropped even lower than it ever was before. Today, the Standard of Review appears to be: “Do we, the Justices of the Court of Appeal, like the appellant, or do we want him to lose?” If we want him to lose, that’s all that’s required; no amount of settled law or legal reasoning is going to change the result.

Another reason for the choice of subtitle is as a kind of joke on myself. (I mean, other than the one the Court played.) Of all the standards of review — “beyond a reasonable doubt,” “clear and convincing evidence,” etc. — “probable cause” is fairly low. So far as I know, other than “because the Court said so,” the only standard lower than probable cause is “reasonable suspicion.” And, oftentimes, probable cause and reasonable suspicion appear to be the same thing. At any rate, it doesn’t take much to get to probable cause. So the idea here is that, if you’re reading what I write, you don’t have a very high standard for deciding what you’ll spend your time reading!

My only hope is that you’ll find my writing more useful than the Court did with my last Petition.

(And for any potential clients out there, I don’t often lose — maybe that’s why I took this last loss so hard. Hmm…no. I’m pretty sure it was because the Court was wrong, and I hate losing when I’m right.)

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  1. Losses hurt for sure. It hurts for the client and it just plain hurts to lose, especially without a good reason. Like when your mother said no and when you asked her why, she said “because I said so.” You’re on my blogroll.

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