稻草人法理学
引用次数: 0
摘要
根据《上诉行为标准》，德克萨斯州的律师被告诫不要将未采取的立场归咎于对方律师。参见律师对律师的责任，¶9。(“律师不得将律师或当事人未采取的立场归于另一律师或当事人。”)。但如果上诉法官自己做呢?—将未采取的立场归咎于被代理的上诉人，然后将其推翻并解决针对该方的上诉?或者在她的法律助理的稻草人手工艺品上盖章?考虑到撰写法官和法律助理都是德克萨斯州的律师，这是否违反了职业标准?这仅仅是树立坏榜样的问题吗?或者，它是否可能建立一个新的先例，在处理上诉时合法地使用稻草人式推理作为一种辩护策略，在这种策略中，高等法院必须提出解释其决定原因的意见?与其冒险在上诉游戏的这一点上给出答案，本评论员通过法庭之友信函的方式敦促Kem Thompson Frost，德克萨斯州第14上诉区上诉法院的首席大法官，重新审视她的小组的意见，并重新考虑对美国运通银行(FSB)的判决的理由，FSB是一家联邦储蓄银行，顺便说一下，它已经不复存在了，因为它已被合并为美国运通国家银行。案例引用:SAMEERA ARSHAD and ALMORFA, LLC诉美国运通银行案，FSB, No. 14-17-00676-CV (text . app)。-休斯顿[第14区]2019年7月25日，无宠物。h)。本文章由计算机程序翻译，如有差异，请以英文原文为准。
Straw Person Jurisprudence
Under the Standards for Appellate Conduct, Texas attorneys are admonished not to attribute to opposing counsel a position not taken. See Lawyers' Duties to Lawyers, ¶9. (“Counsel will neither ascribe to another counsel or party a position that counsel or the party has not taken.”).
But what if an appellate justice does this herself? -- Imputes upon a represented appellant a position not taken, and then knocks it down and resolves the appeal against that party? Or puts her stamp of approval on her law clerk’s strawman-whacking handiwork? Is that a violation of professional standards, given that both the authoring justice and the law clerk are Texas attorneys? Is it merely a matter of setting a bad example? Or does it, perhaps, establish a new precedent for the legitimate use of strawman-type reasoning as a justificatory stratagem in the disposition of appeals, in which the higher court must render an opinion explaining the reasons for its decision?
Rather than venturing an answer at this point of the appellate game, this commentator urges by way of amicus letter brief that Kem Thompson Frost, Chief Justice of the Court of Appeals for the 14th Appellate District of Texas, revisit her panel’s opinion, and reconsider the rationale belabored to affirm the judgment for American Express Bank, FSB, a federal savings bank that incidentally no longer even exists, as it has been merged into American Express National Bank.
Case cite: SAMEERA ARSHAD and ALMORFA, LLC, v. AMERICAN EXPRESS BANK, FSB, No. 14-17-00676-CV (Tex.App.-Houston [14th Dist.] July 25, 2019, no pet. h.).
But what if an appellate justice does this herself? -- Imputes upon a represented appellant a position not taken, and then knocks it down and resolves the appeal against that party? Or puts her stamp of approval on her law clerk’s strawman-whacking handiwork? Is that a violation of professional standards, given that both the authoring justice and the law clerk are Texas attorneys? Is it merely a matter of setting a bad example? Or does it, perhaps, establish a new precedent for the legitimate use of strawman-type reasoning as a justificatory stratagem in the disposition of appeals, in which the higher court must render an opinion explaining the reasons for its decision?
Rather than venturing an answer at this point of the appellate game, this commentator urges by way of amicus letter brief that Kem Thompson Frost, Chief Justice of the Court of Appeals for the 14th Appellate District of Texas, revisit her panel’s opinion, and reconsider the rationale belabored to affirm the judgment for American Express Bank, FSB, a federal savings bank that incidentally no longer even exists, as it has been merged into American Express National Bank.
Case cite: SAMEERA ARSHAD and ALMORFA, LLC, v. AMERICAN EXPRESS BANK, FSB, No. 14-17-00676-CV (Tex.App.-Houston [14th Dist.] July 25, 2019, no pet. h.).
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