Posted on
August 3, 2025 in
Alien Anthropology
There’s a style of thought experiment that starts Imagine how this looks to someone without your preconceptions ….
Imagine a Venusian looking at your political system.
Imagine a future archaeologist unearthing your bathroom ritual.
Imagine how advanced spacefaring civilizations see your planet.1
We take things for granted. That’s not entirely a bad thing—none of us have the time or the mental capacity to question everything, much less to re-derive all societal rules from first principles. Most of us don’t have the mental capacity to question anything. And generally our cultural practices are what they are because they work. So we generally go along with the way things are done. We don’t even think about it.
Imagine a dry-land creature looking at our aquatic world.2
A creature that didn’t have our preconceptions and cultural baggage might see things in a different way than we do. What was obvious to it might appear deeply insightful to us.
Lawyers are people too.
Lawyers, like the rest of us, generally go along unthinkingly with the way things are done. When I was in law school, a prof asked, “Why do lawyers use yellow notepads?” His answer: “Because lawyers use yellow notepads.”
Why do lawyers charge by the hour? Because, as Abraham Lincoln famously said, that’s part of their stock in trade. What if we challenged that quantification? We might discover the insight that—
The regime of the billable hour presupposes a distorted and harmful account of the meaning and purpose of a lawyer’s time, and therefore, the meaning and purpose of a lawyer’s life, which, after all, is lived in and through time. The account, which ultimately reduces the value of time to money, is deeply inimical to human flourishing.
—and opt out of the billable-hour regime.
But lawyers take it for granted that the answer that everyone else seems to agree with is the right answer. And so we had yellow legal pads, and we still have the billable hour.
Going Along to Get Along
And if the Eastland Court of Appeals said in an unpublished opinion that the rule is X, and no other court says the rule is Y, then the rule is X and not Y.
Most of the time that works well enough, because everyone is playing by the same rules, and most of those rules are correct. If your client loses because the rules are against him—because the Eastland Court of Appeals said in an unpublished opinion that the rule is one that does not favor him—well, then … he loses, and that’s not your problem.
But most of the time is not all of the time, most of the rules are not all of the rules,3 and the Eastland Court of Appeals4 is not inerrant.
I exaggerate: good appellate lawyers don’t think an unpublished opinion from the Eastland Court of Appeals is inerrant. Good appellate lawyeres know that unpublished opinions are not authority, so they’re looking at published opinions; they know that sometimes courts of appeals disagree, so they’re seeing what the consensus is among those intermediate courts about whether the law is X or Y. Unless there seems to be serious disagreement among those courts, then the law is not Y.
That is so even though it might seem that Y is the better rule After all, they might say, generations of Texas’s smartest criminal lawyers have had a chance to convince courts that the law is Y, and isn’t it arrogant for us to think that we might succeed where they have not?5
Lest you think I’m still being hyperbolic: I admit it when I am, and now I’m not. I read a lot of briefs, and most of them don’t apply reasoning beyond “this is what the cases say.” Very rarely do I see that followed with a cogent “and here’s why they’re wrong.” Still, let’s give our notional appellate bar a little more credit6 and trust them not to take the intermediate courts’ word for it, but instead to treat the rule as unsettled until the Texas Court of Criminal Appeals has said that the rule is X.
If the Court of Criminal Appeals has said that the rule is X, there are very few Texas criminal appellate lawyers eager to frame an argument, with authorities, that the rule is Y.
The Court of Criminal Appeals generally attracts a smarter class of judge than the intermediate courts of appeals,1 We take things for granted. That's not entirely a bad thing—none of" data-link="https://bennettandbennett.com/blog/the-martian-appellate-lawyer">
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- There are no degrees of infallibility—you are infallible, or you are not.">7 than the intermediate courts. While the Court of Criminal Appeals gets the last word on matters of Texas criminal law, the last word is not always the final word: sometimes the court changes its mind.
Lifting the Constitutional Iron Curtain
An example: Texas has its own constitution, which is different than—uses different words than, was written at a different time and for different people than—the United States Constitution. In 1944 the Court of Criminal Appeals declared that, in interpreting the Texas Constitution’s search and seizure provisions it would follow the United States Supreme Court’s interpretation of the Fourth Amendment.8 47 years later, the Court of Criminal Appeals reversed course. Article I, section 9 of the Texas Constitution has independent meaning, and would be interpreted in the light of Texas legal history.
The Court of Criminal Appeals changed its mind. The appellate bar could have attacked every Texas search-and-seizure case decided between 1944 and 1991.
Did it? What do you think?
Forty-Seven Years in the Wilderness
Almost every lawyer who had been around before the Court of Criminal Appeals decided to simply follow the United States Supreme Court in 1944 was, by the time the Court of Criminal Appeals changed its mind in 1991, dead or retired. The entire criminal appellate bar had never won an appeal based on independent state constitutional grounds.
The behavior had been extinguished. Since then—34 years—there have been three times when a Texas constitutional argument has prevailed over U.S. Supreme Court authority. More often, courts of appeals have noted that criminal appellate lawyers asserted that the Texas Constitution provides more protection than the Fourth Amendment, but then have provided no authority or analysis for why.
The analysis and authority exist, but nobody thought of the analysis. Nobody found the authority.
Enter the Martian Appellate Lawyer
What it took to see the argument and find the authority was a foreigner looking at the law without preconceptions.
The Texas Constitution says such-and-such. The men who wrote that had something in mind. To figure out what that was, we don’t look at cases from past, say, 1900. The farther in time those cases get from 1876,9 the less reliable their interpretation. So let’s look at cases from the 19th Century.
In fact, a nearly identical search and seizure provision was in the Texas Republic’s constitution of 1845, so let’s look at what the men who wrote that might have thought. How? Let’s look at pre-1845 cases from Texas and the United States. Even U.S. Supreme Court cases from before 1845 are fair game, because Texans knew about the Fourth Amendment and the Supreme Court.
Looking at those cases, we see that in the young republics judges depended on treatises to tell them what the common law said. So let’s look at those treatises, which in this millennium have been scanned to PDF and made available to the public online.
Those treatises digest cases from the various states, and from England, and refer to other treatises, which are also available online.
Following this trail, the Martian appellate lawyer can show what the Texas Bill of Rights meant to the men who wrote it, and to the first couple of generations of Texans—broadly, the rights of Englishmen under the common law, with some improvements. Not coincidentally, that was what the United States Bill of Rights meant to the men who wrote it.
They meant the same thing, so we’re back to 1944? We can look to the U.S. Supreme Court’s Fourth Amendment jurisprudence in interpreting Article I, section 9?
Yes and no.
In 1944, nobody foresaw cases such as Terry v. Ohio, in which the Supreme Court diverged from the common law to create a category of seizure that was less than an arrest, and that required less than probable cause. The Court of Criminal Appeals had no reason to know that the United States Supreme Court would stop interpreting the United States Constitution with fidelity to prior law.
Our Martian appellate lawyer, though, with hindsight and without preconceptions, might observe that the Supreme Court had diverged from the common law, might argue to the Court of Criminal Appeals that that divergence required a review of all Texas search-and-seizure cases from the iron-curtain era, and might show how a Terry stop, specifically, does not comply with Article I, section 9.
All of which is to say …
Your appellate lawyer should be a Martian.
- “Mostly harmless.” [↩]
- The Industrial Revolution and its consequences…. [↩]
- Statistics are astrology for midwits. [↩]
- If it actually exists. [↩]
- Yes it is, and such arrogance is not only appropriate but a requisite for doing this job. [↩]
- than they deserve [↩]
- Intermediate courts have general jurisdiction, but the Court of Criminal Appeals handles only criminal cases, so the judges can be more specialized) but the Court of Criminal Appeals is no more infallible ((There are no degrees of infallibility—you are infallible, or you are not. [↩]
- The Fourth Amendment would not be incorporated against the States until 1961 [↩]
- My impression is that the Civil War devastated the Texas criminal bar, but I know of no scholarship on the topic. [↩]