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Friday, June 15, 2007

Sorry, you're too late

The Supreme Court’s 5-4 decision yesterday in Bowles v. Russell, dismissing the appeal of a convicted murderer because it had been filed two days late, even though it had met a separate deadline set by the trial judge, got me thinking -- not so much about the technical jurisdictional rules that the Court was called upon to interpret, but rather about a problem that I suppose most every law school professor has had to deal with at one time or another: namely, how to deal with students who turn in seminar papers and other assignments late. 

Should one just accept the paper and get on with the grading?  Should one accept it but find some appropriate penalty (and, if so, what should that be)?  Or should one refuse to accept it at all?  More generally, what is the appropriate mix of factors one should consider in dealing with these problems?  Should one’s primary concern be with professional development?  After all, if the student doesn’t learn to hand in her papers on time while in law school, won’t she be developing bad work habits that she will carry with her into practice, when a late filing could result in dismissal and a subsequent malpractice suit?  On the other hand, is it really one’s job, as a professor, to impart these kinds of values to students who haven’t already learned them by the time they’ve gotten to law school? Perhaps one’s primary concern should be with fairness to other students.  But what exactly does that mean?  If the paper comes in an hour late, how much of an advantage is that?   Or perhaps one should endeavor to display the kind of compassion and caring that one hopes one’s students will demonstrate when they someday are in a position of power. 

Try as I might to solve these kinds of problems with my head, I usually end up deciding them with my heart, and a heavy bleeder mine happens to be.  I suppose the same can be said of the Justices.  The issue in Bowles was not the kind that could be decided through any grand theory of statutory interpretation.  It’s the kind of decision that one makes with one’s heart, and one’s soul.  Was it really any surprise that the Court’s majority opinion should have been written by Justice Thomas, joined by Justice Scalia?  And that the dissent was written by Justice Souter? 

Posted by Stuart Green on June 15, 2007 at 08:57 AM in Life of Law Schools | Permalink

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Tracked on Jun 15, 2007 4:33:20 PM

Comments

I feel like there has to be some penalty, or it's unfair to the students who turned it in by the deadline but could have done a better job if they had worked longer, particularly if you're grading on some kind of curve or distributional scheme. On the other hand, not accepting it at all seems like too much to me, first because it over-punishes relatively minor lapses and second because it seems like it prioritizes the procedural part of the assignment over the substantive. I've imposed a 5 or 10% penalty per day, depending on the weight of the assignment and how long they had to work on it

Posted by: Katie | Jun 15, 2007 9:05:59 AM

Some of it should probably depend on whether or not the student contacts you about it being late.

I think I'd be more willing to accept a late paper if a student came in and asked for a "continuance" as it were, even if the reason was a bad one, than if it were just turned in late with no explanation.

More than one professor I've had justified their zero tolerance late policy in terms of a court. If you miss that filing deadline, sorry buddy, but that's malpractice. Others had policies that deducted points per day, with varying degrees of strictness.

Posted by: BenP | Jun 15, 2007 9:31:23 AM

As a professor, I believe we need to inculate professionalism, which certainly includes timeliness. But, suppose I said the deadline was June 1st, so you handed it in on June 1st, but the Dean said, "no the real deadline was May 31, so you could not rely on your professor. You lose." THAT is what Justice Thomas and his cohorts essentially said. THAT is a whole lot different, and that is what makes their opinion so outrageous.

Posted by: JDressler | Jun 15, 2007 9:49:01 AM

"that is what makes their opinion so outrageous"

Unless, of course, the Dean's statements were dictated by a governing university document that defined the types of papers a professor was permitted to grade, with the law school faculty having voted that papers not submitted on time may not be graded.

Posted by: steve | Jun 15, 2007 5:21:12 PM

If the paper was late because the professor wrongly stated the date it could be handed in, one might also want to interpret the rules a bit liberally, said rules (even university mandated) probably not as totally strict as some imply.

The ruling in a fashion is different in that here you hand in a paper. You get a grade and it can be quite important to passing the class. In this case, he was seeking review. The review could have easily failed.

Posted by: Joe | Jun 16, 2007 11:28:36 AM

As a recent law graduate, I was intrigued by the analogy made here between student papers and death penalty cases. Isn't the reliance (or expectation) interest the prevailing factor to be considered in relation to whether the student should be able to hand in the paper late. The university, to which the professor is a part, should be estopped from claiming that the student's paper will not be graded because of the university document or Dean's rule. Even if the student had knowledge of the University's policy, surely a professor's statement as to the appropriate deadline should preclude the same organization from claiming otherwise?

Posted by: Ryan | Jun 16, 2007 4:11:53 PM

I'm more than a bit biased, having only been a student and not a boss or a prof, but I do think it would be quite unfair for a prof to refuse to accept a late paper or even to downgrade the paper, provided it were only a few days late and the student gave notice/asked for permission. University culture is definitely lax in terms of punctuality and deadlines, and schools at least tacitly promote this culture. For example, I have never received all my grades for a given semester by the registrar's due date.

As I'm sure the profs know very well, it is hard to complete a paper according to a strict schedule. Perhaps the issues were more complicated than you thought at first. Perhaps you revised your position and need to start a section from scratch. Perhaps you have finished making substantive revisions, but the footnoting is taking much longer than expected, etc. Considering that law schools papers (especially long research papers) are an academic exercise, and that students are generally not used to writing such papers, I think some leeway is definitely warranted. I think the educational value of having to meet a strict deadline (which, after all, the student is reminded of every month by verizon, ConEd, his landlord, etc.) is far outweighed by the academic enrichment the student gets when they have the time fully finish and revise a paper to the point where he has written something of value (and not given a lesser effort just to meet a deadline).

Posted by: Guest | Jun 16, 2007 9:47:18 PM

"I said the deadline was June 1st, so you handed it in on June 1st, but the Dean said, "no the real deadline was May 31, so you could not rely on your professor. You lose." THAT is what Justice Thomas and his cohorts essentially said. THAT is a whole lot different, and that is what makes their opinion so outrageous."

I think that should be rewritten as:

"I, [the judge] said the deadline was June 1st, so you handed it in on June 1st, but the [people's elected representatives passed a law that] said, "no the real deadline was May 31 [and that deadline was passed by both houses of Congress and signed into law by the President], so you could not rely on your [judge]. You lose." THAT is what Justice Thomas and his cohorts essentially said.

Stated that way, I don't see anything "outrageous"; unfortunate, yes, and I question the competence of the judge who issued the order, but I don't see anything 'outrageous' about an opinoin that says that the legislature's statute is valid.

And I'm not totally sure how to decide an issue like this with "one’s heart, and one’s soul." One's heart and soul may tell him that the courts are already too crowded with appeals, and we must feel sympathy for judges and other litigatns, so the appeal must be denied. Or, one's heart and soul may tell him that the little guy should get a break -- he relied on the words of a judge, after all.

I don't see how one's "heart and soul" helps answer this question. Rather, I think this is the type of question that must be answered by examining the applicable law.

Posted by: andy | Jun 18, 2007 3:52:55 AM

Just because Congress said it doesn't mean there's not an understood exception to it, andy. And Souter makes a pretty good case that the Court had recognized equitable (fairness) exceptions to this kind of rule. In fact, did not the Court overrule its previous cases to get to its results. I think it extremely odd that five members of the Court thought it necessary to overrule precedent for no obvious gain in a case in which fairness was denied to a prisoner.

Posted by: David in NY | Jun 18, 2007 10:11:10 AM

I cannot imagine what kind of heart would feel more sympathy for a judge because he is busy or another litigant because he must wait a little longer than for this prisoner whose claim will now never be heard on the merits. In fact, I think it should be with a heavy heart that any judge relies on what I consider the dubious and heartless "overcrowded courts" argument to dismiss anything.

Posted by: Jim Green | Jun 18, 2007 10:40:50 AM

"I cannot imagine what kind of heart would feel more sympathy for a judge because he is busy or another litigant because he must wait a little longer than for this prisoner whose claim will now never be heard on the merits. In fact, I think it should be with a heavy heart that any judge relies on what I consider the dubious and heartless "overcrowded courts" argument to dismiss anything."

I guess all that shows is that the "heart and soul" approach simply serves as a cloak for one's policy preferences. I guess I don't feel too much sympathy for convicted murderers so my "heart and soul" leads me elsewhere.

"Just because Congress said it doesn't mean there's not an understood exception to it, andy."

Interesting. Just because the legislature says something, that doesn't really mean anything.

In any event, even if there is an exception in the law (and perhaps the majority read the statute incorrectly), I don't see how that supports the argument that one's "heart and soul" must be applied, and not the law. All it says is that the majority interpreted the law wrong, not that Supreme Court cases must be decided on "feelings."

Posted by: andy | Jun 18, 2007 11:10:16 AM

The issue in Bowles was not the kind that could be decided through any grand theory of statutory interpretation. It’s the kind of decision that one makes with one’s heart, and one’s soul.I can't agree. The issue in Bowles seems very much decided by a theory of statutory interpretation - indeed, it seems decided by ANY theory of statutory interpretation. I suppose you're correct about what the decision is, just not who makes it: surely it’s the kind of decision that Congress might make with it’s heart and soul, but the decision was made, and it's for courts to apply it. As Andy noted upthread, FRAP 4(a)(6) permits the District Court to extend the filing period - but it permits it to extend it for fourteen days. If Congress had meant "at the court's discretion," it could easily have said so, but instead it specified a time period. Thus, the court could only grant a 14 day extension intra vires; it cannot exercise power it doesn't posses, and had no power to extend the filing period for the additional three days. The court of appeals had no choice but to dismiss the appeal as untimely: "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514 (1869).

Posted by: Simon | Jun 18, 2007 12:16:32 PM

While I will accept dubitante, Andy, your retort to my last comment, reliance on statutory interpretation often (and in this particular case actually) does nothing more than cloak one's policy preferences as well. The decision presents two strongly argued, equally plausible positions. Considering the makeup of the majority and the dissenters it appears likely that the case turned not on the *correct* interpretation of the statute so much as the *policy preferences* of the justices.

Posted by: Jim Green | Jun 18, 2007 2:52:05 PM

"While I will accept dubitante, Andy, your retort to my last comment, reliance on statutory interpretation often (and in this particular case actually) does nothing more than cloak one's policy preferences as well."

You may very well be correct -- I certainly have no ability to psychoanalyze either Scalia or Stevens. Perhaps I will become jaded later, but I think both are acting in good faith. Scalia seeks the semantic meaning of the enacted text, understood against the body of law of which it is a part. Stevens views statutory enactments as a purposive act, and, acknowledging the limitations inherent in language, cogently argues that the semantic meaning of the words actually used in a statute do not best reflect the legislature's intent (and thus does not necessarily bind the judiciary).

I do think it's unfortunate that a hapless convict got screwed over by a careless judge (or careless counsel). But I think it's even more screwed up to say that a statute does not mean what it says -- the theoretical integrity of the law is very important to me (I am of course not under the illusion that defendants actually read 18 USC 2107, hence I refer to "theoretical integrity").

But, that being said, I don't think *I'd* have any trouble deciding this case in a fair fashion, and perhaps I attribute my good faith to others (much in the same way that e.g. liars tend not to believe anyone else). I have not looked at the relevant statutes in the detail that I'd like, but if I thought their text indicated that exceptions were allowable, I would have no trouble finding in favor of Bowles (or, alternatively, as the dissent contends, if I found that the relevant statute was not really a 'jurisdictional' statute, I could very well find in favor of him). I do know the approach that I would use, and I know that it would not be based on my policy preferences or my gut feelings.

"reliance on statutory interpretation often (and in this particular case actually) does nothing more than cloak one's policy preferences as well."

It would of course be silly to deny that canons of statutory construction cannot be perverted much in the same way that nearly any other interpretive pool can be perverted. I often see references to "plain meaning" used, if not dishonently, then at least unfairly. But I think the approach of the honest textualist better comports with the constitution than the approach of the honest purposivist, and I thus think the former is the model to which judges should aspire. I do not deny that there are both dishonest textualists and dishonest purposivists, but, call me naive, I view the differences of opinion in Bowles attributable to different (but honest) theoretical approaches to the law, rather to cloaked policy preferences.

I will not profess to having any special knowledge of each justice's predilections regarding criminal law, so I may very well be wrong, but nothing about a 5-4 decision, in itself, makes me think that all 9 justices are trumping policy concerns over the law. Perhaps this is one of those cases that so arouses the "judicial libido" that none of the justices are capable of deciding the issue honestly, but the facile allegation that an opinion written by Thomas (and, god forbid, joined by Scalia) necessarily reflects a dark heart in both men bothers me (and, to the extent that you suggest that anyone who agrees with them must have a dark heart, offends me as well).

Posted by: andy | Jun 18, 2007 4:21:27 PM

Andy, I apologize for offending you. I did not intend to insinuate that agreement with Scalia and Thomas evinced a dark heart. Hell, even I agree with them at times (but don't tell anyone). The equities do, however, seem lopsided too me when comparing the workload of a judge or the impatience of another litigant to the a rights of a prisoner whose potentially meritorious habeas petition will never be heard on the merits. The purpose of habeas is to air out mistakes. If there were any raised in this petition they will never see the light of day. I just don't put much stock in overcrowded docket and floodgates type arguments. Those seem to bear little on the merits of a claim.

Posted by: Jim Green | Jun 18, 2007 5:52:13 PM

Jim:The equities do, however, seem lopsided too me when comparing the workload of a judge or the impatience of another litigant to the a rights of a prisoner whose potentially meritorious habeas petition will never be heard on the merits.What makes you so sure that the Justices in the majority (or Andy for that matter) disagree with you on that)? I certainly agree that in this case, Bowles got screwed. But he got screwed by the District Court, not by the 6th Circuit, and not by the Supreme Court. In order for your point to come into play, one must first conclude that the time limit for filing an appeal is not jurisdictional, and that has nothing to do with how sympathetic a situation is presented by the case at bar.

Posted by: Simon | Jun 18, 2007 6:10:52 PM

Jim --

If I were King, I would let Bowles' appeal go through. Three days is not so late, and a federal judge actually told him he had that long.

But I'm not king, and I don't think it's the role of SCOTUS to act as if they are kings (or queens). That's it. I don't think the plain text of 2107 tells us what the "best" rule is; as the Bowles case makes clear, it's far from perfect and leads to unfortunate circumstances. But, the question becomes, whose job is it to fix the poor policy inherent in 2107? I say Congress. A "unique circumstances" doctrine strikes me as nothing more than an invitation to judicial lawmaking.

Now, of the people want to vest the courts with lawmaking powers, go ahead, but until they do so, I think the right approach is to determine what Congress's statute says and then apply the law accordingly, no matter how unfair it might be.

Posted by: andy | Jun 18, 2007 6:54:21 PM

Simon, I am very pleased that we agree on this point. I concluded that Andy disagreed when he wrote: "I guess I don't feel too much sympathy for convicted murderers so my 'heart and soul' leads me elsewhere." I cannot divine the justices actual thoughts. As for the rest of your point I think the dissent addressed it better than I can. Suffice it to say, if the majority is correct then your argument holds sway. I do not the majority is correct.

Posted by: Jim Green | Jun 18, 2007 6:55:10 PM

I can almost see the argument that (1) for policy reasons, we need hard and fast deadlines, no exception or (2) whether it is a good or bad idea, Congress took into account the costs in situations like this one and, after careful reflection, decided that we should bear those costs in order to have the benefits of a hard and fast rule. I don't agree with (1) or believe that (2) is factually accurate, but if you buy either one of them, so be it. What I can't abide about the decision is the tone in the majority's opinion, amplified by some of the comments here, that there would be something lawless or antidemocratic or negatively activist in deciding the case the other way. This was not a case where Courts were trying to claim jurisdiction over subjects or people outside their purview. This was a case where a Court made a mistake that had dire consequences for a real life litigant and sought, in a minimally invasive and nonprejudicial way, to modify its normal procedures in order to rectify its own errors. This is the kind of trivial, equitable, self-regulatory accomodation that Courts have traditionally undertaken and it demeans the status of the Courts as a co-equal branch of government to suggest that our current laws disempower them from continuing to do so.

Posted by: Andrew Siegel | Jun 19, 2007 10:56:37 AM

What I can't abide about the decision is the tone in the majority's opinion ... that there would be something lawless or antidemocratic or negatively activist in deciding the case the other wayAssume for sake of argument that the time limit is jurisdictional. Under that assumption, would you still say that there is nothing lawless, problematic or activist about a court considering the merits of a case where it doesn't have jurisdiction because Congress foreclosed that jurisdiction? And how does it "demean[]" the status of courts to suggest that Congress has the power to define their jurisdiction?

Posted by: Simon | Jun 19, 2007 11:16:33 AM

"This was a case where a Court made a mistake that had dire consequences for a real life litigant and sought, in a minimally invasive and nonprejudicial way, to modify its normal procedures in order to rectify its own errors."

But I thought it was *Congress's* procedures that were at issue, not the courts. And yes, I do find something "antidemocratic" about a court unilaterally modifying the jurisdictional constraints the people's representatives have imposed on the courts.

If the majority was wrong on the law (e.g. they interpreted the statute incorrectly or wrongly stated that it was a jurisdictional issue), then I would happily criticize them along with everyone else. But so far the only criticisms I've heard are that this case should have been decided with ones "soul" or "heart," or that the courts modifying the legislature's enactments is somehow "trivial" or "minimally invasive." If the majority interpreted the statute incorrectly, I wish people would say so, because I'd be all ears (especially since I am generally unfamiliar with this area of the law).

Posted by: andy | Jun 19, 2007 11:49:39 AM

Well, if you assume that the requirement is jurisdictional and if by "jurisdictional" you mean "unchangable or waivable by the courts no matter what the circumstances are" then the result in the case is obvious and there is something problematic about any other result. But, as the dissent makes clear, there is no reason to make those assumptions. The whole point of my comment and one of the main points of the dissent and of the various critiques of the decision is that it makes no sense to think of a time limit as jurisdictional in this sense, at least unless the time limit is the product of some sort of serious consideration by Congress of the appropriate boundaries of judicial power.

It is one thing to say that Congress has the power if it chooses to assess what kinds of controversies should come before the courts and make determinations to limit the scope of the courts' powers in order to better balance powers between the branches or to insulate a sensitive political calculation from judicial review. It is something entirely different to say that every time Congress sets up rules for how claims are to be processed through the courts, the process it creates is "jurisdictional" and every slipup divests the courts of power to continue to adjudicate the case. That such a preposterous position is gaining adherents is a sad testament to the fact that many people in this country (including, seemingly, a majority of the Supreme Court) have begun to think of access to the courts as some sort of herculean favor people are asking of the government rather than as a right of democratic citizenship.

Posted by: Andrew Siegel | Jun 19, 2007 3:10:49 PM

"The whole point of my comment and one of the main points of the dissent and of the various critiques of the decision is that it makes no sense to think of a time limit as jurisdictional in this sense. . .

"[E]very time Congress sets up rules for how claims are to be processed through the courts, the process it creates is "jurisdictional" and every slipup divests the courts of power to continue to adjudicate the case."

Those are troubling allegations. I too am scratching my head at how a 14 day deadline is a "jurisdictional" provision, but unfortunately I have little familiarity with this area of the law. Do you know of any good law review article out there (written by someone without an agenda) setting forth the legal justification for treating a time limit statute as a jurisdictional one?

Posted by: andy | Jun 20, 2007 11:24:36 AM

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