PrawfsBlawg

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

The title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers. 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better.  The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at Sentencing Law & Policy (where I do most of my blogging).

Still more on judicial language

Picking up on Bill's thread on judicial language comes this from Aaron Caplan (Loyola-LA): In his opinion for the Court in Scott v. Harris (dealing with summary judgment in a § 1983 action resulting from a high-speed chase that was video-recorded), Justice Scalia repeatedly referred to Harris as "respondent" while referring to Deputy Scott by name. This included six times in which Scalia quoted either from the lower-court decision or from Justice Stevens' dissent and went out of his way to replace Harris' name with [respondent].

What should we draw from that--whether about judicial decision making, judicial writing, legal writing, Justice Scalia, or anything else? And is it worth talking about in class and, if so, how? Aaron posed the latter question to the Civ Pro Prof listserv, in anticipation of teaching Scott. I just finished it today, but am going to point this out to my students on the course blog.

The Wrong Way to PSA

People have  been discussing Bridget Mary McCormack’s recent, 4-minute web ad in support of her candidacy for the Michigan Supreme Court – a video which features the reunited cast of The West Wing.  The ad is clever enough for what it is – a way to raise McCormack’s profile in a down-ballot race where citizens are less likely to vote.  And it says all the things a judicial candidate must say to win over voters: McCormack favors “justice for ordinary people, for families with sick kids, for victims of domestic violence.”  She has "fought to free innocent men and women, and put the actual criminals behind bars."  Reciting these qualities is somewhat trite, of course – what judicial candidate would ever come out as soft on crime or against families and victims? – but otherwise, it’s all well and good.  As an advertisement for a particular candidate in a contested race, it seems quite effective. 

However, a shorter version of the ad – pitched as a nonpartisan public service announcement – fails spectacularly.   That version retains the identical West Wing “walk and talk” setup but omits any specific mention of McCormack’s qualifications.  Instead, it positions itself solely as (in CJ’s words) “a gentle reminder for people to look for the nonpartisan section on their ballot and go vote there.”  Voting is important, the ad tells us, because state supreme courts rule on issues that affect millions of Americans, like civil rights, workplace rights, and the environment. 

These are certainly issues where an informed vote matters.  But in the short-form ad, the Bartlett Administration braintrust offers no guidance whatsoever on how citizens might actually cast such a vote.  Indeed, the ad doesn’t even recommend that citizens learn anything about the candidates before stepping into the voting booth.  The cognitive dissonance is jarring: your vote is critically important, the ad suggests, but not so important that you should take the time to enlighten it in any way.

The short-form PSA is all the more troubling because it deliberately targets citizens who engage in straight-ticket voting for legislative and executive races (i.e., checking one box to vote for all Democrats or all Republicans).  As Meryl Chertoff and Dustin Robinson recently highlighted, this “check one and you’re done” approach raises significant accountability problems in states with partisan judicial elections. In nonpartisan judicial races, the dangers of voter ignorance are exacerbated even further: without any readily available information, voters who otherwise rely on party affiliation are apt to choose among candidates based on factors like gender, perceived race or ethnicity, a familiar-sounding last name, or even complete whimsy.  Toby, Josh, Donna and the gang may as well look into the camera and say, “Go into the booth and flip a coin.  People’s lives depend on it.”

There are better ways to get out an informed vote in judicial elections.  Two years ago, the Colorado Bar Association sponsored this lighthearted PSA which encouraged voters to actually learn something about their judges before deciding their fates in the voting booth.  To be sure, Colorado benefits from some structural advantages over Michigan, including retention elections and a formal judicial performance evaluation program (the benefits of which I discuss here).  But at least the message in Colorado was the right one: if you’re going to vote in judicial elections, be responsible enough to learn something about the people on the ballot before you do.  Regardless of how your state chooses judges, that’s a good message for all of us to take into Election Day.

The Presidential Election and the Lower Federal Courts

Over at the Volokh Conspiracy, Ilya Somin wonders why no one is asking the Presidential candidates about judicial nominations during the debates.  I sympathize with the concern but find it a bit misplaced: in any of the typical debate formats, the responses will inevitably tend toward vague descriptions of “strict constructionists” or individuals with sufficient “empathy.”  This may rally the base but otherwise offers little insight.   (The problem isn’t limited to Presidential aspirants: in their second debate, Massachusetts senate candidates Elizabeth Warren and Scott Brown offered two of the least illuminating answers ever when asked to name their model Supreme Court Justice.)

One way to get better answers on the candidate’s view of the relevance and importance of judicial nominations is to focus on the lower courts.  The Supreme Court captures public attention, of course, but it is the lower courts where most citizens have contact with the federal judiciary, and where a President can leave a more lasting legacy.  To that end, here are two questions I would like to see posed to the candidates before Election Day:

President Obama, you inherited 41 federal district court vacancies on Inauguration Day 2009, yet during the entirety of your first year in office you nominated a mere 21 people to fill those vacancies. (Fuller details here.)  Today there are 62 vacancies in the district courts, representing a shortfall of almost 10 percent.   Despite this crisis, and even though you enjoyed a significant Democratic majority in the Senate for your first two years in office, your overall pace of lower court nominations has lagged significantly behind your two immediate predecessors.  Why?

Governor Romney, during your time as Governor of Massachusetts you established a Judicial Nominating Commission to vet judicial candidates and send the most promising individuals to you for further consideration.  The Nominating Commission was heralded as a model for the country, particularly since it relied on a blind review that did not consider the candidate's party affiliation.  Yet some have complained that you stripped the commission of many of its powers toward the end of your term in order to put a more partisan stamp on the judiciary.  What lessons did you learn from the Nominating Commission experience, and as President, would you favor the expanded use of senatorial screening committees to help select qualified candidates for nomination to district court judgeships?

Judicial Legitimacy When the Stakes Are Personal

I just finished reading the Federal Circuit’s new opinion in Beer v. United States, in which a divided en banc panel held that the Compensation Clause of the Constitution bars Congress from revoking cost-of-living-adjustment (COLA) raises for sitting federal judges.  The majority concluded that current Article III judges had reasonably relied on the provisions of the Ethics Reform Act of 1989, which set out the formula for automatic annual COLA raises.  The majority also concluded that Congressional legislation revoking the judges’ COLA raises in certain subsequent years constituted an impermissible diminution in judicial salary.  In reaching its decision, the Federal Circuit overruled its own 2001 decision in Williams v. United States, and distinguished the Supreme Court’s decision in United States v. Will, on which the Williams case relied.  A sharp dissent argued that the majority’s position, no matter how reasonable or just, impermissibly disregarded an authoritative opinion of the Supreme Court.

The Beer case is a gold mine for those of us who teach and think about the judicial process.  Among other things, it touches directly on the debate over pragmatic approaches to judging, judicial ethics and recusal, federal judicial selection, the legislative-judicial relationship, and the process of justifying decisions in written opinions.  It also offers an interesting demonstration of how a court can secure the legitimacy of a decision when the judges themselves are not – indeed, cannot be – neutral.

The neutrality of a decisionmaker is a well-recognized component of procedural fairness, and one of the most important contributors to the legitimacy and public acceptance of a decision.  Public perceptions of whether legal procedures and outcomes are fair often turn on the belief that the decision was rendered by an impartial, honest, and principled judge.  Even if the outcome is viewed as favorable, Americans are (rightfully) queasy if they believe that the decision was made with the judge’s personal or pecuniary gain in mind.

As the Federal Circuit readily acknowledged, in Beer a financial conflict of interest was unavoidable.  The legislation at issue affected the salary of every Article III judge, regardless of level of court or geographic placement.  The court (with the agreement of both sides) invoked the time-honored Rule of Necessity in concluding that it was appropriate for it to rule on the matter.  But the Rule of Necessity does not solve the neutrality problem.  It allows the court to rule when no other judges are available, but does not by itself lend sufficient legitimacy or credence to the ruling. 

Yet the Federal Circuit managed to minimize the neutrality problem and preserve its legitimacy – and it did so by employing three techniques that normally are thought to threaten legitimacy.  First, the court unapologetically stressed the importance of judicial independence, and tied stable and predictable salary increases to that value. This was a potentially risky move.  Notwithstanding general public support for an independent judiciary, naked assertions of judicial independence historically have backfired.  (Rose Bird’s failed bid for retention as California’s Chief Justice in 1986 is one notorious recent example.)   In Beer, however, the court was careful to describe judicial independence as a public good rather than a perk of wearing the robe.  Even though the judges faced a conflict of interest in the case before them, the larger value of judicial neutrality in the vast bulk of cases was better preserved through an independent (read: financially secure) judiciary.

Second, and somewhat counterintuitively, the court’s legitimacy was probably helped by the presence of a dissenting opinion.  Dissents are often thought to weaken the force or legitimacy of a majority opinion, either by pointing out flaws in the majority’s reasoning or by pressing the majority author to narrow the scope of a ruling or soften his or her rhetoric.  The presence of a vigorous dissent in Beer, however, sent the message that the court was aware of, and considered, a multiplicity of views – including views that contradicted the judges’ own pecuniary interest.  A unanimous opinion might well have sent the opposite message: that the court failed to critically examine all views before reaching its decision.  (As I explain here, this “groupthink” interpretation of a unanimous opinion likely contributed to the non-retention of three Iowa Supreme Court justices in 2010.)

Finally, Judge O’Malley’s substantial concurrence in Beer took a risk by eschewing a formalist/legalist approach in favor of a much more functional or pragmatic form of decisionmaking.  Judge O’Malley dedicated several pages to explaining how the relevant legislation had created vested expectations for Article III judges, and exploring the negative consequences of abandoning an expectations-based approach.   While legal pragmatism has its adherents, it is more susceptible to public concerns about court legitimacy precisely because it diverges from the comfortable formula of looking backward to precedent, and instead looks ahead to the potential consequences of a decision.  But here, too, the Federal Circuit balanced the pragmatic and legalistic approaches, emphasizing legalism in the majority opinion and pragmatism in the concurrence.  The result is a set of opinions that highlight many forms of legal reasoning and reinforce the message that the court addressed the issue thoughtfully and carefully.

The Federal Circuit obviously lacks the salience of the Supreme Court, yet public acceptance of its decisions is no less important.  Beer v. United States suggests, in a fascinating manner, how court legitimacy can be sustained by combining diverse components of legal justification in unexpected ways.

Comparable measures of ideology

An interesting article in the most recent American Journal of Political Science by Joshua Clinton, Anthony Bertelli, Christain Grose, David Lewis and David Nixon, measures the preferences of Bureaucratic Agency actors. Although the article focuses on congress and the presidency, it has relevance for those who study law and courts because there is so much interaction between courts and federal agencies. It is one more useful tool to help determine the influence of courts on agency policy - of course that happens to be an area in which I do a lot of work, so I am particularly interested.

Now back to listening to the late Levon Helm and the Band

Bargaining Your Way Out of War Crimes

Writing book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?

Shopping for Settlement

Judge Rakoff of the Southern District of New York has hit the papers again as a critic of the SEC's settlement processes, now in the SEC v. Citigroup Global Markets case.  (One report here.) 

One function of the review process is to publicize SEC settlement practices.  The publicity pressure seems aimed at a few SEC practices, including the practice of allowing settlement with the SEC without admitting or denying the allegations.  Judge Rakoff's opinions also highlight some fundamental and possibly intractable problems with entity-level punishment.  Namely, who pays when a corporation pays a penalty?  (probably current shareholders) Does the channeling of fines to injured investors through Fair Funds change anything (my article about this here)? And to what extent should the SEC pursue individuals? 

These settlement reviews in high profile cases also force out information about the facts of the particular case.   For instance, one result of Judge Rakoff's initial resistence to the settlement in Bank of America was that the Bank ultimately stipulated to certain facts.

So maybe the chance of public judicial criticism constrains agencies.  But both of the options currently on the table seem unappealing: judicial rubber stamping on the one hand or unpredictable judicial intervention on the other.  The first is unappealing not only because the agency can come back to the court to enforce compliance (which it seems never to do), but also because these agreements implicate regulatory policy, and the agency is officially acting on the public’s behalf. 

On the other hand, I'm not sure the extent of scrutiny should depend on a figurative spin of the judicial assignment wheel.  (If it does, a useful question for Rakoff-watchers is how his recent change to senior status as a judge affects the case assignment process.)  To the extent particular judges are more willing to scrutinize settlements or develop a reputation for rejecting settlements, agencies may forum shop to avoid this scrutiny.  In other words, they may shop for settlement.  Finally, it may push agencies to select remedies that avoid judicial review.

 The backstory: This is not the first time Judge Rakoff has scrutinized, initially rejected, and tweaked a settlement, as well as calling the SEC to task in colorful, widely reported language. When Judge Rakoff reviewed the SEC's 2009 settlement with Bank of America, he said agency claims of victory created a “façade of enforcement.”   His initial rejection of the Worldcom settlement in 2003 raised the same sort of questions: Who benefits?  What changes in corporate governance?  How did the SEC come up with this settlement? (rejection here)

The standard of review: These disputes arise in the context of settlement review by judges.  Courts review settlements with the SEC to make sure they are “fair, reasonable, adequate, and in the public interest."  The caselaw on how to review settlements reflects the hybrid nature of the settlements: they are both court order and contract.  Courts that have emphasized the contractual aspect of these agreements have examined primarily whether the contract was made voluntarily; if so, the court declined to redefine the agreed-upon terms.  Others have taken a closer look based on the court's continuing monitoring role, although courts often defer to the agency's view of the public interest.   

Public Judges and Private Judging

Judges on the Delaware Chancery Court are being sued for participating in “secret judicial proceeding[s].”  The back story is that the Delaware  legislature passed a statute and then rules a few years ago allowing chancery court judges to act as arbitrators.  (Here is early commentary by Larry Ribstein.)  Arbitration filing fees (an initial $12,000 and then $6000 per day) in Delaware are deposited in the court’s Arbitration Fund Account.  In other words, professional responsibility rules may prevent judges from acting as paid private arbitrators  - basically moonlighting - while also public judges, but that is not what is happening here. 

The complaint was filed yesterday by the Delaware Coalition for Open Government, Inc., in the federal district court in Delaware.  It essentially alleges that an arbitration under these rules violates the First and Fourteenth amendments and the Civil Rights Act because the documents are confidential and not part of a public record or docketing system.  As the complaint says: "Although the statute and rules call the procedure 'arbitration,' it is really litigation under another name."

Can this be?  I ask not as a constitutional scholar, but because I think our court system already facilitates private negotiated contract in some ways, including using public judges to settle cases.  Delaware is unusual in the extent to which it is developing a service that competes with private arbitration services, but other courts have integrated arbitration and mediation into their court system, including into specialized business courts.   A difference in kind or degree? 

Behind the Scenes of Six Strikes

Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.

Prop 8 at the California Supreme Court

Greetings, Prawfs community! It is an honor to be back. Thank you to Dan and the Prawfs team for having me on this month. I enjoyed speaking with and learning from all of you during my last stint earlier this year and I know this will once again be a rewarding experience.

I am Fellow/VAP at the California Western School of Law in San Diego, California and I am currently on the market (pardon the shamless plug!). My research focuses on free speech on the Internet, social networking behavior and online anonymity. I am in the middle of a multi-stage project on cyberbullying in schools.

My posts this month will indeed touch on technology and speech, but also on gay rights, a passion and interest that underlies much of my work. Hopefully, all posts will also include a healthy dose of fun, humor and insight, but I leave those judgments to you, dear Reader.

At 10 am Pacific (1 pm Eastern), the California Supreme Court will hear arguments in Perry v. Brown, the federal suit challenging the constitutionality of California's ban on same-sex marriage. You can watch the argument live here: www.calchannel.com. The case had already made its way to the Ninth Circuit some months ago, but because a central issue in the case is whether initiative proponents have standing to defend the initiative in federal court when the state declines, the Ninth Circuit certified a question to California's highest court. The question is: Per Arizonans for Official English v. Arizona and Karcher v. May, does California state law grant standing in this case to initiative proponents?

Today's hearing is a profound example of a Federal Court's class in action and a recognition that University of Washington Professor Peter Nicholas is right when he argues that process -- in this case, standing -- has been and will continue to be salient in determining the success or failure of litigating gay rights at the federal level.

Ted Olson will argue that the initiative proponents -- gathered together under the ironically named organization, "protect"marriage.com -- lack standing as a matter of California state law. It seems to me -- and to Mr. Olson and to Dean Chemerinsky and to Professor Tribe, among others who have written about this issue -- that this is a losing battle for "protect"marriage.com.

As the Supreme Court stated in Arizonans:

Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III's case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U.S. 54, 62. Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII's state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court.

The last line is what the certified question to the California Supreme Court is about. The Ninth Circuit wants to know if there is anything in state law -- California's "citizen suit provision" -- that would "support standing" for "protect"marriage.com. But, as the Court implies, even if there is, that is not the end of the story. That is, standing as a matter of state law would be a necessary, but insufficient piece of the puzzle. As a matter of federal law, those seeking to defend Prop 8's ban on same-sex marriage must demonstrate a "direct stake in the outcome." The initiative proponents cannot do that. They cannot show how their marriages will be affected one iota from the state recognizing same-sex unions. Nor can they show how they would be specifically harmed by such recognition. The only party that can demonstrate a harm -- the State -- believes that being forced to issue marriage licenses and recognize the love between two committed gay Californians is a good thing!

"In Defense of Judicial Elections" - author Q&A

In their book “In Defense of Judicial Elections” authors Melinda Gann Hall and Chris Bonneau do just that – they provide a defense of judicial elections. Their work has been somewhat controversial and so I decided to spice up our Prawfs summer by conducting a very brief “E-Interview” with them on the subject. My understanding is that they are generally willing to engage in some ‘give and take’ in the comments section of the blog. This does not necessarily mean that they will answer every question – it’s their call.

JY - Judicial elections have gotten a lot of media attention in recent years and a number of groups and even former SCOTUS justice Sandra Day O'Connor have voiced their opposition to them. In your book "In Defense of Judicial Elections" you obviously takes a different view - please elaborate.

CB - I think the main difference is that our research and analysis begins from a place of agnosticism and we only make conclusions based on the empirical data.  Moreover, our position is subject to being revised in the future if the evidence warrants.  The vast majority of the opponents of judicial elections are not interested in how they actually work.  They aren't interested in empirically verifying their claims.  And, when people dare to question their assumptions (whether it be us or Jim Gibson or Matt Streb or Eric Posner or anyone else), they simply ignore the evidence and shift their argument.  

MGH: The most significant difference between our book and much of the advocacy taking place on this topic is that we rely on empirics rather than outdated normative theories or unsubstantiated assumptions. Elections certainly have limitations but of the case against them rests on hyperbolic rhetoric or unverified hypotheses.

JY - Aren't you concerned that some of the less desirable aspects of political elections will influence judicial decision making? Won't powerful interests cast undue influence on case outcomes, given that they might have helped finance a judge’s reelection or might do so in the future?

MGH - Recusal standards and disclosure requirements will go a long way toward remedying this problem. However, there is no reason to expect a quid pro quo relationship between donors and judges. Money tends to support candidates who share a group's interests. There is no evidence at all that judges are "bought. We also should acknowledge that there is no way to remove politics from the judicial selection process. Appointment systems, including the “merit” plan, have their own shortcomings.

CB - No more so than some of the less desirable aspects of appointments will influence such decisionmaking.  This is a point we have made numerous times, but bears repeating:  there is simply no evidence--NONE--of justice being for sale.  Moreover, do we really think that "powerful interests" don't have undue influence on case outcomes as, say, the US Supreme Court?  Of course they do.  At least with elections, voters have a choice and can oust rogue judges.  

JY - In recent decades it has become quite clear that judicial elections can be ugly affairs with lots of negative campaigning - doesn't this hurt the judiciary's image - making people see them less as esteemed decision makers and  more as politicians in robes?

MGH - Judges are politicians in robes in some sense, and voters are smart enough to recognize this. Judges have a great deal of discretion,  and their values influence what they do. Also keep in mind that state supreme court elections have been heated for decades, with defeat rates that surpass many other elected offices. If competitive elections, or elections at all, harm judicial legitimacy, there would be obvious evidence of this by now. 

CB: This is a great question and it is a legitimate concern.  However, in a series of survey experiments--in KY as well as nationwide--Jim Gibson has found that negative ads and candidates talking about policy have no consequences for legitimacy.  He did find a negative effect for campaign contributions, finding that campaign contributions do lead to a loss of legitimacy (this is also true for state legislatures).  But, and this is a crucial point, the net effects of elections is still positive. That is, even with the costs incurred by campaign contributions, judicial elections are legitimacy-ENHANCING institutions.  This is a really important finding and undermines the arguments of folks like Justice O'Connor and Justice at Stake. 

 

Is deliberation overrated?

I'm not saying that deliberation is necessarily overrated, but I'm starting to wonder about its relative value. In recent years I've read a number of books and articles on the decision making processes of groups such as James Surowieki's The Wisdom of Crowds (2005) and Cass Sunstein's Infotopia: How Many Minds Produce Knowledge (2008), and found them to be very interesting and insightful. Both of these books at least suggest the possibility that group decision making may not always be better with group deliberation.

Of course, to suggest that something is 'overrated' typically implies that it is somewhat highly rated in the first place. When I look around, I see deliberation everywhere - government decisions, academic committee decsisions, tenure decisions, where to eat lunch, jury outcomes, Supreme Court outcomes (ok, only to a degree on that one). I think it's fair to say that deliberation is cherished in this country. But is it all that it's cracked up to be? What are its attributes? How do we evaluate its worth (relative to other systems)?

For a bit of class fun last semester, I tried a class exercise that was suggested by one of my readings on this subject.

I divided the class into three groups of equal size: 1) The deliberation group, 2) The secret vote group, and 3) the list vote group. I then held up for the class to see (all had roughly equal views) a glass container of paper clips. They were able to view the container for 30 seconds. I then asked the groups to decide how many paper clips were in the container. The secret ballot group was to do just that - each person would make a guess, write it down in private and their estimates would be averaged. The list  group would use a list - the first person to decide would write their estimate on the top of the list and then the estimates would go from there (everyone could see the prior estimates)- and they were averaged. The deliberation group deliberated on the best estimate and used a consensus decision rule on the number of paper clips.

The results? The best estimate was by the secret vote group, followed by the list group, and the worst estimate (by far) was by the deliberation group. Of course, this little exercise is hardly ready for scientific peer review and was done primarily for fun and to introduce the class to varying decision methods. However, given the prevalence of deliberation in our society, might it give us pause to think about whether it's 'overrated'? I'm not sure. Certainly there are other considerations at issue (e.g. how the process makes participants feel). But I thought I'd see what Prawfs readers thought.

How Should Elected Judges Interpret Statutes?

Federal judges are unelected and, basically, politically unaccountable. Most state judges are elected in some form or another. What (if any) significance does this hold when it comes to how judges should interpret statutes? There is some evidence that modes of selection and retention do in fact affect judicial behavior, but here I am asking the normative question. Should a judge's elected character make a difference to the judge's interpretive method?

A) No. What matters is the judicial role. That role determines the proper interpretive method. How one got into the role is irrelevant.

B) Yes. Elected judges can legitimately engage in looser interpretation or more aggressive interpretive maneuvers because they have a better democratic pedigree. (I concede that some of the terms being used here are vague, contested, complex, etc. but I hope they have enough content to allow the reader to agree or not.)

C) Yes, but in the opposite way. Elected judges have to be more restrained precisely because they lack the right kind of independence.

D) None of the above.

As you might guess, this issue is implicated in one of my current research projects. I am tentatively endorsing B. Perhaps you can save me from making a fool of myself by explaining why I'm totally wrong before I post the draft on SSRN.

Deferring to agency amicus briefs that present new guidance

In reading some of the Supreme Court's recent cases, I was intrigued by its willingness to defer to administrative interpretations presented to the Court in the form of amicus briefs filed by the relevant agency or by the Solicitor General. I refer in particular to Williamson v. Mazda Motor (relying, in part, on a brief expressing the government's view that a federal vehicle-safety regulation did not preempt a state tort suit) and Chase Bank v. McCoy (deferring to the agency's interpretation of its own regulation, which was conveyed in an amicus brief). Giving some degree of deference to positions expressed in agency amicus briefs is not a new development, though it does seem to me that the Court perhaps used to express a bit more hesitation about doing so.

In any event, whether or not there is a trend in this regard, one interesting feature of deferring to an amicus brief is that the Supreme Court might be relying on an interpretive authority that did not exist until the Supreme Court's decision to review the case brought it into existence. (This new-authority scenario doesn't describe every instance in which the Court defers to a brief. After all, agencies sometimes file briefs in lower courts; plus, some briefs merely restate administrative guidance offered elsewhere, in which case the deference is not to the brief's position per se.) The right answer to the case could therefore change as the case moves from the lower court to the high court. That seems, at first blush, a bit strange. How should we respond to this state of affairs?

There are a few possibilities:

1. Because uniformity, consistency, and predictability are important, the lower courts should do a better job of conforming their interpretive practices to the Supreme Court's model. Indeed, in Chase Bank v. McCoy, the Supreme Court seemed to criticize the Ninth Circuit for not inviting the agency to submit an amicus brief. And yet . . . Should we really expect every lower court in the land to ask for, and wait for, an agency's views whenever a statute administered by the agency is the subject of litigation? Would the agencies and the Department of Justice welcome a regime in which they had to take positions like this routinely?

2. Because uniformity, consistency, and predictability are important, the Supreme Court should stop deferring to new guidance provided in government amicus briefs.

3. No change is needed. When the Supreme Court decides to hear a case, it should try to get the right answer, even if that means relying on a new source of guidance that was called into existence by its decision to review the case. If Congress passed a new statute that applied to pending cases, the Court would apply that. Same thing here. (Here I am borrowing from footnote 6 of Justice Scalia's dissent in Mead.)

Thoughts? (I should add that I recognize that the considerations presented here concern just one aspect of the larger issue of deferring to agency views expressed in connection with litigation.)

Waiting for Davis v. United States -- or not waiting

One interesting Supreme Court case still awaiting decision this term is Davis v. United States. The case presents the question whether the good-faith exception to the exclusionary rule applies in a situation in which a search was legal when conducted but becomes illegal based on a new rule announced while the case is pending on direct appeal. The new rule at issue in Davis is Arizona v. Gant (2009), which concerned vehicular searches; the search in Davis took place before Gant and was legal under pre-Gant circuit law, but then Gant was decided while the case was pending before the court of appeals. The court of appeals held that Gant provided no remedy, essentially reasoning that the point of the exclusionary rule is to deter police misconduct; if that is the purpose, then evidence should not be excluded when the police acted in accordance with law that was valid at the time.

Davis is interesting for all sorts of reasons involving the exclusionary rule and, more broadly, the retroactivity of judicial decisions. My particular interest has to do with appellate case-management. Defendant Davis is hardly the only person whose case involves the question whether the good-faith exception should apply to pre-Gant searches. Whenever the Supreme Court grants review on a recurring issue like this, there will be plenty of other litigants at various places in the appellate pipeline whose cases involve the same issue. What should lower courts do with these potentially affected cases?

Here is what the Fifth Circuit said in a recent changed-law/exclusionary rule case that happened to come to my attention: "We are aware that the Supreme Court granted certiorari in Davis to address precisely this question. Unless and until the Court instructs otherwise, we are bound to apply this Circuit's binding precedent [i.e. that the good-faith exception applies in changed-law scenarios]." United States v. Curtis (March 11, 2011). It went on to affirm the defendant's conviction.

Now, the court's statement is true enough. A mere grant of certiorari does not change circuit law. But there is another option, right? Namely, the court of appeals could just wait about three months and see how Davis turns out. To be clear, I'm not saying that delaying decision is, all things considered, the right call in this case. The question of whether to hold cases in abeyance when the Supreme Court has granted certiorari is surprisingly complicated and does not admit of across-the-board rules, or so I've argued elsewhere. Sometimes courts decide to wait for a forthcoming potential change in law, sometimes they decide not to wait, and sometimes (as here) they act as if no choice is available to them. But whatever the court does, it is making a choice.

Bonus question: If you are the attorney for someone like Curtis, what is your next move?

AT&T v. Concepcion and Adherence to Minority Views

Last week the Supreme Court decided AT&T Mobility v. Concepcion, in which it held (5-4, along the "usual" ideological lines) that the Federal Arbitration Act preempted a state-law rule deeming an arbitration clause's ban on class proceedings unconscionable. The case came from the Ninth Circuit, which was applying California unconscionability law. That the case came from a federal court rather than a state court was important. Had the case come from a state court, it might have turned out differently. That is because Justice Thomas believes that the FAA does not apply in state courts, and he has continued to adhere to this view despite multiple precedents to the contrary. See, e.g., his dissents in Preston v. Ferrer (2008); Buckeye Check Cashing v. Cardegna (2006); Doctor's Assocs. v. Casarotto (1996). (For other reasons, he also had problems with the majority's implied preemption analysis in AT&T v. Concepcion itself, but he reluctantly joined the opinion.) In an alternate universe where the case came from a state court, he presumably would have joined the four dissenters in AT&T v. Concepcion in voting not to reverse a state court's unconscionability holding, though for different reasons. (Here I leave aside the possibility that the Court would overrule itself on whether the FAA applies in state courts, but see more on that below.)

Let's return to the actual universe and suppose that tomorrow a state court issues an opinion striking down a class waiver in circumstances that are not materially distinguishable from those in AT&T v. Concepcion. If the Supreme Court took the case, how would it come out? Would Thomas adhere to his prior views on the FAA in state courts? Would the four dissenters adhere to their AT&T v. Concepcion dissent?

There are a few possibilities:

1. Nobody adheres to their prior dissents. FAA preemption wins 9-0.

2. Thomas adheres as usual, the four dissenters do not adhere. FAA preemption wins 8-1.

3. The four dissenters adhere, Thomas does not. Same 5-4 as AT&T v. Concepcion. One might wonder why Thomas would not adhere here, when he has repeatedly in the past. One possibility is that, even though he thinks the FAA shouldn't apply in state courts at all, that view has been rejected by the Court and, for the sake of enforcing lower court obedience to Supreme Court law (even incorrect law), a state court that deviated on indistinguishable facts couldn't be allowed to get away with that.

4. An even more interesting one: all adhere. FAA preemption loses 5-4, though perhaps not with a majority opinion. The result flips, in other words.

Now, my scenario is perhaps a bit unrealistic. When is a case not really distinguishable? Why are we assuming the Supreme Court would decide such a case rather than denying cert? Nonetheless, I think it is an interesting question. What do you think would happen? Any state courts out there who would like to help us find out?!

Oh, and I suppose there is at least one more option:

5. The Court revisits the question whether the FAA applies in state courts and overrules its precedents. Thomas and Scalia are votes in favor of that. We don't know for sure how the new justices feel about it. It would strike me as pretty extraordinary for the Court to overrule here. This is a statutory precedent (well, very loosely anyway!), and those are supposed to be stronger. And there are multiple cases, not just one. Seems like a "super precedent," as Arlen Specter might put it.

Arizona Tax Standing Case and the Kagan dissent

This case is within Rick Garnett's baliwick and if he is torn, as his post indicates, far be it from me to offer any wisdom.  But I do commend to you Justice Kagan's remarkably coherent, rigorous, and lawlerly dissent.  Kennedy v. Kagan . . . "it's on," the wrestling referee might say!

The insistence by the newest justice that there is an equivalence between an appropriation and a tax credit (captured shrewedly by Harvard's Stanley Surrey in his original conception of tax expenditures) seems accurate.  There may well be compelling policy arguments to configure a difference for the purpose of taxpayer standing in Establishment clause jurisprudence, but EK seems sharply persuasive in suggesting that AK hasn't conjured up much in his florid (!) majority opinion. 

In any case, there's just a lot of stuff packed into this well-written dissent.  There is an interesting exegesis on the purposes behind state tax policymaking; there are some meaningful comments about the survivability of Flast; there are some lucid notes about Madison and the concerns about expropriation in the religious context; and there are hard-hitting, though mannerly, criticisms of the majority's reasoning.  One should be cautious about tea leave reading in the middle part of a justice's freshman year I suppose, but this well-composed dissent in (perhaps) an otherwise unremarkable taxpayer standing controversy intrigues nonetheless.

Oral argument is for the justices?

Interesting article in today's Washington Post about the way oral argument is becoming even-more dominated by justices' questions rather than attorneys' answers to those questions. One explanation is that Justices Sotomayor and Kagan are more aggressive than the justices (Souter and Stevens) they replaced. Another is the statement, originally attributed to Kagan, that oral argument is for the justices, not for the advocates:

Lawyers have their say in the briefs they file with the court, she said, and oral arguments are for the justices.

"The argument is for us to say, 'Well, yes, we've read your brief, we know what you think of the case, but here are the questions that that inspired in us,' " Kagan said, noting that the justices do not discuss a case beforehand. "So oral argument provides the first chance for you to see what your colleagues might think about a case, what's worrying them about a case, what interests them about a case."

Thoughts?

The Persistence of Legal Error

When I was in my first semester of law school, I was given a short memo assignment involving some principle of Connecticut contract law. I quickly found a case stating the relevant rule of law--every contract needs consideration, or something. But it quoted an earlier case. Being a good historian, I knew I couldn't just use the more recent case--I had to track this down to its source. So I looked up the earlier case. But that in turn cited an even earlier one for the same rule. So I looked up that one. After about nine or ten iterations of this, I was in the 18th century, and courts were still citing earlier cases, now from English reporters that I couldn't look up as easily. I gave up, and concluded that legal authority worked differently than historical authority--if an earlier court said it, that's good enough, no matter where it originated or what the original context was.

The upside of this is that rules can get transmitted from case to case much more efficiently. The downside is that errors can spread just as easily. Take the idea from copyright law that contributory infringement liability is derived from the tort law concept of enterprise liability. This explanation is widespread in the case law. See, e.g., Perfect 10, Inc. v. Visa Int'l Serv. Ass’n, 494 F.3d 788, 794-95 (9th Cir. 2007); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293 (D. Utah 1999); Polygram Int'l Pub., Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1320 (D. Mass. 1994). It's also featured in the influential Nimmer treatise: "A separate avenue for third-party liability in the copyright sphere is contributory infringement, which forms an outgrowth of the tort concept of enterprise liability," Nimmer § 12.04[A][3]. And, it's taught in law schools. The textbook I used to teach copyrights from 2007 through last year used to have only a one-paragraph introduction to secondary liability, followed by cases such as Fonovisa, which included the "enterprise liability" explanation. So, I dutifully repeated it to my students in both copyright and Internet Law, even though I was not really sure what "enterprise liability" was.

It turns out that it is flat wrong. Contributory infringement liability has nothing whatsoever to do with enterprise liability.

The earliest citation for the enterprise liability suggestion, and its apparent origin, is Demetriades v. Kaufmann, 690 F. Supp. 289 (S.D.N.Y. 1988). Demetriades was a case involving copyrighted architectural plans; the plaintiff claimed that the real estate agent and realty firm that had sold an empty lot were contributorily liable for the house built using infringing plans on that lot. The court had to determine whether those two defendants were indirectly liable for the infringement.

The Demetriades court began by correctly noting that "[i]n delineating the contours of this third-party liability, and because copyright is analogous to a species of tort, 'common law concepts of tort liability are relevant in fixing the scope of the statutory copyright remedy . . . .'" But then the court moved from that premise to a surprising conclusion: "Guided, therefore, by well-established precepts of tort liability, it appears that two avenues of third-party liability in copyright have grown up in the law--'vicarious liability' (grounded in the tort concept of respondeat superior) and 'contributory infringement' (founded on the tort concept of enterprise liability)."

Contributory infringement as defined in copyright law is liability for knowingly providing encouragement or assistance to an infringer; it's thus the analog of contributory tortfeasor liability for knowingly aiding a tortfeasor. See Rest. 2d Torts §§ 876, 877. It's not a form of strict liability. Enterprise liability is something completely different. Enterprise liability is a theory of tort liability that emerged in order to hold an entire industry responsible for harm caused by an industry-wide standard when identifying the particular tortfeasor in a given case is impossible. See Black's Law Dictionary, 9th ed. The classic case involves injuries caused by blasting caps to children. It can be impossible to determine after the fact who made a blasting cap that exploded. If the entire industry manufactures blasting caps that are unreasonably dangerous, enterprise liability permits a suit against everyone for their share in the harm. See Hall v. E. I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353, 376 (E.D.N.Y. 1972).

Bill Patry, in his recent copyright treatise, spends an entire section refuting the "enterprise liability" connection. See 6 Patry on Copyright § 21:44. He goes out of his way to point out that the Demetriades decision was issued by a court that, although within the confines of the Southern District of New York, was in fact located in White Plains. I take it the suggestion is that once you leave the sophistication of Manhattan, knowledge of copyright law decreases proportionately. But in fact the Demetriades court seems to have made its mistake out of an excess of caution. Not simply satisfied to repeat earlier claims about contributory liability's origins in tort law, it attempted to ground that claim. The problem is that it did just enough research to be dangerous.

The court didn't provide any direct support for the problematic sentence, but a sentence later it dropped a footnote that indicates what may have happened. First, the court complained that the relevant authorities were unhelpful in distinguishing between contributory and vicarious infringement. As to the canonical decision in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971), this criticism seems unfair, but it is certainly accurate as to the Supreme Court's then-recent decision in Sony v. Universal, the "Betamax" case, and may have been accurate as to the Nimmer treatise as it existed at the time. The Demetriades court next noted "the plain distinctions between vicarious and enterprise liability in tort" and cited the 4th edition of William Prosser's Handbook on the Law of Torts §§ 69 & 72, published in 1971, even though an updated 5th edition was released in 1984. It was probably what the judge had available.

Prosser's 4th edition does not mention enterprise liability at all. For theories of imputed liability, it covers, in § 69, vicarious liability, and in § 72, liability among members of a "joint enterprise." That is, if two people or two businesses engage in a joint enterprise, one member might be held liable for the tortious acts of the other. This is just close enough to the rules of liability for contributory tortfeasors to be confusing. Somehow the word "joint" dropped out, and the Demetriades court referred only to "enterprise liability."

For whatever reason--probably because most federal judges, like me, didn't know what enterprise liability was either--the Demetriades court's suggestion was picked up and repeated. Indeed, the popularity of the Demetriades court's suggestion shows that subsequent courts not only didn't know what enterprise liability was, but they also didn't know where contributory infringement liability originated. First, the enterprise liability suggestion was picked up by the influential district court decision in Polygram International v. Nevada/TIG. At some point, it also made its way into the Nimmer treatise, which cited Demetriades. Both Demetriades and Nimmer were cited by the Ninth Circuit in its even more influential decision in Fonovisa v. Cherry Auction in 1997. From there the enterprise liability suggestion has continued to spread, including in the Ninth Circuit's recent Perfect 10 v. Amazon decision.

Fortunately, in none of these cases did the reference to "enterprise liability" actually matter. In Demetriades itself, the court later went on to cite Section 876 of the Second Restatement of Torts--which provides for contributory tortfeasor liability. No court has held that contributory liability in copyright law is a form of strict liability that requires apportioning damages among defendants according to market share. But the repeated citation of contributory liability as originating in enterprise liability poses the danger of such a result, and in the meantime obscures contributory infringement's actual origins. Despite its wrongness, and despite the efforts of people such as Bill Patry to remove it, it's got a lot of case law inertia behind it now. I expect "contributory liability as enterprise liability" to have a long life to come.

[Cross-posted on the Marquette Law Faculty Blog.]

The Supreme Court's World War II Channel

This month I'll be blogging at least once about a symposium piece I've written examining rules and standards in three recent First Amendment cases: Citizens United, US v. Stevens and Holder v. Humanitarian Law Project (HLP).  But for now I'd like to share an interesting tidbit that I found when reading Citizens United and HLP.  As everyone knows, in Citizens United Justice Stevens took issue with the majority's "glittering generality" that the First Amendment does not allow identity-based restrictions on political speech.  As part of his analysis, he pointed to Tokyo Rose, the (apparently generic) name for English-language Japanese propaganda announcers during World War II, rhetorically suggesting that the majority's analysis would presumably have frowned on restrictions on "her" right to speak based on "her" identity.

Interestingly, a few months later in HLP Chief Justice Roberts also referred to Imperial Japan.  He mocked the dissent's argument that the speech restrictions at issue should be reviewed more stringently because the restricted speech consisted of helping terrorist groups utilize peaceful means of dispute resolution.  He speculated that under the dissent's analysis the Court would have had to allow analogous assistance to the Imperial Japanese government during World War II.

Coincidence?  Maybe.  But a very quick search reveals no similar analogies in Court opinions over the past five years.  It's also probably relevant (or at least "not irrelevant," as we cautious folk like to say) that in HLP Justice Stevens deserted his Citizens United co-dissenters and joined Chief Justice Roberts' majority.   This is not to say that Justice Stevens was enticed to join the majority in HLP by an analogy to events that he alone on the Court was old enough to have experienced as an adult.  But if Chief Justice Roberts in HLP was going to abandon rigid First Amendment rules and point to some alleged absurdity in applying those rules in that case, he could have done a lot worse, in terms of attracting at least some support from the liberal bloc, than to use the same World War II-era hypothetical Justice Stevens used in Citizens United.  I'll soon be blogging about the merits of the Chief's analysis in HLP, but for now this is one of those nuggets that potentially reveal the human motivations behind the drafting choices the Justices make.

Seeking thoughts about the SCOTUS docket in the CJ Roberts era

With thanks to Dan and the other permanent members of the Prawfs family, I am so very pleased to have a guest stint here in order to discuss topics beyond the sentencing issues that are my obsession on my blog.   Though I suspect sports and the holiday season may be the subject of some future posts, I am especially eager to use my guest stint to generate discussion in the PrawfsBlawg universe about the federal judiciary and especially about (1) the first 5 years of the Roberts Court, and (2) the early work of Obama judges.

As the title of this post reveals, I want to start by seeking thoughts about the size and nature of the Supreme Court docket during the early Roberts era.  I recall the Chief Justice during his 2005 confirmation hearing suggest that the Court's docket had shrunk a bit too much during the prior decade.   But, as this chart from SCOTUSblog reveals, the number of SCOTUS decisions over the last five years has been largely in line with the prior five.   Though I doubt there is a perfect size for the SCOTUS docket, I do feel that it might benefit the work of the Court if it took more cases (and then perhaps wrote less when resolving some them).

Even more important than the number of cases, of course, is the type and posture of the cases that SCOTUS takes up.  In this arena, I feel and fear that the Justices continue to worry too much about resolving circuit splits and not quite enough about issues that could benefit from greater jurisprudential clarity.  But my opinion here is likely colored by my sentencing obsessions and the many cert petitions I see coming from federal criminal defendants raising issues that have not produced a crisp split but that, in my view, merit SCOTUS attention.

In future posts on this topic, I may explore in greater detail some of the developments in the criminal justice  side of the SCOTUS docket that I have noticed in the Roberts era.  For now, though, I would like to hear what others think about these modern SCOTUS docket matters.

What Can You Accomplish as a Lawyer? Renowned Lawyer and Legal Scholar Bruce Winick Has Died

I've just received the sad news that my friend and former colleague Bruce Winick, distinguished professor of Law & Medicine at the University of Miami School of Law for some 36 years has died.  Bruce will be most remembered as the co-founder, along with David Wexler of the University of Arizona, James E. Rogers School of Law, of the extraordinary scholarly and law reform enterprise known as Therapeutic Jurisprudence. TJ to its many friends, is the scholary study of how law and legal procedures influence the psychology of those who are subject to it (or practice in it), as well as the law reform project of altering the law to optimize its psychological advantages and minimize its psychological disadvantages.  TJ had its intellectual problems.  As Elyn Saks argued some years ago, there are all too many circumstances when the psychological consequences of legal choices are cross cutting (as for instance in forcibly medicating a person suffering severe psychosis).  Still, one would be hard pressed to name a body of academic legal scholarship that has had more law reform significance in the past quarter century.  Scores of drug courts, mental health courts, and other "problem solving" courts of all kinds in the US, Europe, Australia and elsewhere no doubt, trace their intellectual DNA to TJ.  In an era when criminal law in the US has been dominated by a widespread surrender to populist punitiveness, TJ was practically the only significant counter force in law reform.

Amazingly, Bruce came to TJ well into his career,  after years of impressive legal accomplishments including overturning New York's death penalty in the late 1960s, litigating many of the most influential selective service cases in the Vietnam era, and joining with Miami colleagues Irwin Stotzky and Ira Kurzban in litigating the Haitian refugee cases before the Supreme Court in the early 1980s.  Bruce was the author of more than ten books and scores of law review articles, mostly in the last decade and half during which he was functionally blind.

More than anything I will remember Bruce's sheer joy at being a lawyer and a law professor.  Oblivious to the slings and arrows that puncture most egos, Bruce was simply carried away by a sense of the enormous privilege it was to argue before courts on behalf of clients, to teach law and medical students, and to share his ideas though his prodigious ability as a writer and speaker.  In this latter aspect, Bruce will be with us for decades to come.  Just today, well before I heard the news, I was reading several of his articles on TJ and civil commitment (also the subject of 2005 book) for some of my own research on reforming California's civil commitment law. 

The Huge, Obvious Problem with the Law

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

A mighty swamp is our law.
(Image: Nat'l Park Service)

I know - it's not news. But that's the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized. Nonetheless, the legal profession ought to take a hard look at the ugliness. If we cared to do something about it, I think we could.

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

Why is this so? The basic features of our courts, our procedural law, and our means of recording and organizing substantive law were designed in an era of quill and parchment. And the biggest changes since then arose in an era of typewriters - before there were photocopiers, even. Since that time, an explosion in population, technology, and wealth has overwhelmed the law's operating system. It's like trying to run new, bulky software on a really old computer. It's slow as heck.

To appreciate the absurdity of the burden we've imposed upon ourselves, it's helpful to get some context. Let's compare civil litigation to health care. A medical problem costs nearly the same amount to treat for a rich person as it does for a poor person. Sure, there are always more tests you can run, wallet willing. But in health care, the key variable is the disease.

That's not true at all for civil litigation. The key variable in a lawsuit is the amount of money at stake. The exact same ambiguous contractual language could cost mere hundreds of dollars to litigate or well into the tens of millions. If you think about it, that's crazy. The cost of a civil dispute scales directly with the dollar amount on the line. That's why plaintiffs' lawyers can sensibly charge straight percentages of a contingent recovery. The mathematical relation is bankably certain.

Sadly, to the extent anyone has tried a real game-changer here, it has been binding arbitration. Instead of trying to fix our courts, whole sectors of industry are just doing without. And that turns out to be very undesirable for a lot of reasons - at least in my opinion, and I know many agree. With arbitration, particularly when it comes to consumers, convenience is often obtained at the price of fairness.

For all the codes and rules and hortatory language of “professional responsibility,” our profession ought to take responsibility for the law as a whole - and the mighty swamp we've made of it.

Should U.S. Attorneys Have Offices in Courthouses?

The Spring Street Courthouse in Los Angeles, which houses the offices of the U.S. Attorney for California's Central District and the chambers and courtrooms of more than a dozen federal judges.

In many places around the country, the United States Attorney's office is in the same building as the federal courts. I've never liked this arrangement. Sure, it's convenient. And it probably saves the taxpayers money in many cases. But in a field where much is said about "avoiding even the appearance of impropriety," it is unseemly, I think, to have the government's advocates down the hall from the judges.

In a court case, "the government" always refers to one party on one side of the v. "The government" is not inclusive of the court, the judge, and the clerks. So why put them under the same roof?

Of course, I personally am not worried about our third branch being able to maintain its integrity despite being roommates with the U.S. Attorney's office. But I'm a law professor. I know a few federal judges, a few federal prosecutors, and a slew of ex-clerks. Whether I am worried is irrelevant. The question is, do these office arrangements cause any regular people on the street to have some inkling of doubt about the independence of the judiciary? I think the answer is, of course they must.

We seem to agree that appearances matter when it comes to the courts. Judges wear robes. Courtrooms look grand and dignified. There is copious use of granite and marble. And on and on. It just seems like the right thing to do is to have all attorneys and litigants walk through the same doors.

The Rule of Law Trampled on the Red Carpet

Director Roman Polanski in France on the set of the 1979 film Tess, following his arrest and flight from U.S. authorities. (Promotional photo from Columbia Pictures)

Roman Polanski has just been freed by Swiss authorities who were detaining him under house arrest. Switzerland decided against extraditing Polanski to California, where the Oscar-winning film director has been wanted since 1978 after he drugged, raped, and sodomized a 13-year-old girl.

Several pundits and a slew of Hollywood glitterati who are friends or wannabe-friends of Polanski have decried his arrest and continuing status as a fugitive.

They point out mitigating circumstances: Polanski lived through the Holocaust, with his father surviving Mauthausen and his mother perishing in Auschwitz. Then in 1969, Polanski's pregnant wife, Sharon Tate, was murdered by Charles Manson's followers.

Does Polanski's tragedy-filled life mean we should show him leniency? I don't think so. I think he should spend the rest of his life in prison. But that's not my point here. What saddens me is the contemptuous regard for the rule of law that's been put on display by this debacle.

Arguing for clemency for Polanski is, in my opinion, deeply wrongheaded. But such a position is not beyond all bounds of decency. What is outrageous – actually morally bankrupt – is for people to defend Polanski yet not speak up on behalf of other sexual predators.

It is common that violent and sexual offenders have suffered abuse in their pasts. Many offenders endured lives of utter horror and ceaseless despair before committing the crimes that put them behind bars. If Polanski deserves empathy, why not them? Where are the throngs of adoring celebrities – who gave the absent Polanski a standing ovation at the 2003 Academy Awards – to advocate for pedophile rapists who are poor, unsuccessful, and bereft of artistic talent or handsome charm? 

Our courthouse statuary upholds blind justice as the ultimate virtue. But oh-so many people do not. For the blithe cowards stumping for Polanski, it is natural and right-feeling to balance the scales of justice with eyes wide open. And that's a deep shame.

Today's arbitration decision in Rent-A-Center v. Jackson

Hello, Prawfs readers. I guest-blogged here a couple months ago and wrote about Rent-a-Center v. Jackson. The case concerns who - court or arbitrator - decides an unconscionability challenge to certain aspects of an arbitration agreement, where the arbitration agreement itself purports to assign the decision to the arbitrator. Permablogger Matt Bodie has also been following the case, and he invited me to do a one-off return engagement now that the case has been decided. (For those who want to view the previous posts from a couple months back, my original post is here, and Matt's comments on the oral argument are here.)

Matt will be posting his own thoughts later today, either in comments here or in his own post. Check back for them, as I'm sure they'll be insightful.

Let me state at the outset that this is an early, tentative response rather than a polished, fully deliberated one. And I'm not trying to address every issue in the case. That being said, here are four thoughts in reaction to Rent-A-Center v. Jackson.

1. On the opinion’s logic. The opinion essentially takes the logic of the Prima Paint separability rule and pushes it one step further. In the usual separability scenario, we have an arbitration clause embedded in a container contract (which is a contract for consumer services, employment, whatever). In that kind of case, separability tells us that challenges that would invalidate the arbitration clause go to the court but that challenges to the contract as a whole go to the arbitrator. The two agreements are regarded as distinct, even though they are in the same document. In Rent-a-Center, the two agreements we are separating are 1) the agreement to arbitrate employment disputes, and 2) the agreement to arbitrate disputes over the enforceability of agreement #1. Again, they are on the same piece of paper, but that doesn’t really matter for Prima Paint. (The agreements logically could be separate documents, signed at different times.) The Court’s opinion tells us that challenges to agreement #2 would be for a court to decide. But the opinion reads Jackson’s complaints as not going to agreement #2. Because agreement #2 is valid, Jackson has agreed to let the arbitrator decide his complaints about agreement #1.

Whether or not one likes this result as a matter of policy (I’ve noted I would like to see major congressional action to take some categories of disputes out of the regime of binding pre-dispute arbitration), this result represents one logically reasonable interpretation of the precedents. Now, that probably sounds like damning by faint praise, and maybe it is, but many people have argued that it is somehow incoherent or illogical to permit the arbitrator to rule on any kind of unconscionability challenge to an arbitration agreement. It’s not, provided there is a valid agreement #2 in place. Again, whether this the all-things-considered best way to handle the important policy phenomenon of adhesive arbitration agreements is a different matter.

2. On the opinion’s breadth. As stated, the Court says that Jackson’s complaints went to the fairness of the arbitration clause in general, not to the agreement to delegate disputes over enforceability to the arbitrator (#2) in particular. The fact that Justice Scalia’s majority opinion lingers over what exactly Jackson was complaining about in his various filings might lead one to think that things could have come out the other way if only Jackson had phrased things a bit differently. That would reduce the case to a lesson in artful pleading. I don’t think such a reading of the case is correct. As Scalia notes at p. 10, it would be pretty hard to cast Jackson’s complaints as good complaints against agreement #2 in particular. Take discovery. If Jackson can’t get any discovery, that could make it very hard to win his employment discrimination claim, which might show there is a problem with agreement #1. But it is harder to say that lack of discovery makes agreement #2 unconscionable. All that being said, it seems there would be some arguments that would attack #2 in particular. As I’ve stated in previous posts and comments, this could include things like arbitrator bias, which can’t be separated out under Prima Paint.

3. The newly partisan nature of arbitration. It wasn’t always the case that these cases split 5-4 along the usual political lines. Indeed, people like Justice Brennan wrote some of the early pro-arbitration opinions. Stolt-Nielsen and this case show the breakdown of the old coalition. This seems important.

4. What does this mean for AT&T v. Concepcion? The Supreme Court recently granted cert. to decide whether a ruling invalidating an arbitration clause on unconscionability grounds is preempted by the FAA. (The preemption inquiry essentially turns on whether the lower court is discriminating against arbitration by applying a more searching unconscionability analysis than usual.) AT&T v. Concepcion is going to be a very hard case to decide in a responsible way. The Court is ill-equipped to resolve whether a lower court is discriminating against arbitration. First, unconscionability analysis often requires a fact-intensive inquiry. Second, and more important, determining whether a lower court is using unconscionability differently when it comes to arbitration requires an engagement with the details of state law and a comparison of lots of prior unconscionability cases. Third, and maybe most important of all, a holding that the lower court is applying unconscionability unfairly, especially when the lower court says it is applying the same analysis it applies elsewhere, is tantamount to accusing the lower court of dishonesty. Rent-a-Center assigns more of these unconscionability decisions to arbitrators. That makes cases like Concepcion much less important going forward: it doesn’t matter whether courts are getting unconscionability right or wrong, because the courts won’t be making the decisions. This is a good reason to DIG in Concepcion.

P v. D = Non-Formalist v. Formalist?

Here’s a proposition that I don’t think I’ve seen articulated, but which rings true to me: Being on the D (both civil and criminal defense) side of litigation tends to involve urging courts to engage in formalist analysis, while being on the P (plaintiff & prosecution) side tends to involve advocating some version of non-formalism.  Caricature, observations, and questions follow the jump.

I spent the bulk of the litigation portions of my time in practice on the D side, with a roughly equal split between civil and criminal.  Based on that experience, a rough caricaturization of the dynamic goes like this:  P asserts that some bad stuff happened, and offers up a handful of legal theories that P hopes support the imposition of consequences.  P’s inclination is to emphasize the badness of the stuff that happened (‘twas very bad indeed), and not to be too precise about the specific connections between the nature of the bad stuff and the requirements of the legal rules (it was bad enough that it’s got to fit somewhere, and did we mention that it was bad?).  D, on the other hand, is very well aware that a given legal theory requires elements A, B, C, and D to be established (every single one of them), and wishes to emphasize that by God P has done nothing to establish C (nothing! And sure maybe some things that could be perceived as not good happened but hard cases make bad law, dontcha know).  If you’re a P there seems to be an incentive not to commit yourself to specifics until you have to, while as a D you want to nail things down as precisely as possible so that you know what you’re fighting against and can get to work attacking it.

Maybe that’s so obvious as to be unremarkable.  (Even if it is, there are of course exceptions and qualifications aplenty to be made.)  But it seems to reveal a split that’s not ordinarily accounted for in the standard depictions of the politics of the various sides.  For example, the American Trial Lawyers Association is open only to civil plaintiffs' and criminal defense lawyers.  And my guess would be that most (probably all) empirical researchers would code judicial decisions in favor of the prosecution and civil defendants as conservative, and decisions in favor of criminal defendants and civil plaintiffs as liberal.  On the other side of the coin, I think it helps tell the story about how it is that Justice Scalia has been behind so many decisions that favor criminal defendants.

Is this obvious?  Is it wrong?  Assuming it’s correct, what are the implications?  Do long-time practitioners on one side or the other become habituated to certain modes of thought, which would in turn be reflected in their behavior as judges?  Has this been discussed somewhere, and I’ve just missed it?

Judicial Neutrality

I’m a little late to the judicial neutrality party, having locked myself out of the Internet yesterday afternoon to get some grading done, but thought I might still weigh in on the Solum/Solove/Horwitz/DeGirolami discussion.  One of the aspects of that discussion that seems worth highlighting is the distinction between the descriptive and normative aspects of the interaction between ideology (or non-legal factors more broadly) and judicial decision making.  
 

Starting with the descriptive aspect – how do judges act – I take it that everyone agrees with the proposition that, no matter how judges conceive of or attempt to go about their role, they will be influenced by non-legal factors.  The disagreement concerns just how strong this influence is.  And in fleshing the matter out further it seems that we ought to recognize that the extent to which law constrains judicial behavior (in the sense of limiting the operation of non-legal factors) will vary along with at least a couple of factors. One is the level of the judiciary we’re talking about.  At least with respect to questions of law, lower court judges are much more constrained than higher court judges, both as a product of institutional structure and (particularly in courts with discretionary jurisdiction) the nature of the questions typically before them.  We may all agree with the proposition that it is impossible for judges to act as neutrals, and I think it’s also important to recognize that what it means for a judge to act neutrally differs depending on the type of judge.  Of course, the discussion here was sparked by the Kagan nomination, and thus involves the sort of judge who is least constrained.
 
Another factor is individual differences between judges.  Even if all judges subjectively were to view themselves as equally constrained by, and acting pursuant to, law, I’m confident we would (were we able to measure it) find differences in the extent to which their decisions were in fact bound by law.  Put differently, even members of a set of judges committed to, say, some rigid version of formalism would come to different resolutions given some non-easy case.  I think we’d see non-legal influences operating more strongly on some of these judges than others. And this is so even though, subjectively, each judge would perceive herself as acting in rigid compliance with law.  People are very good at believing that they are not acting in ways that are biased, unfair, and so forth.  Yet we all know people who seem able to conjure up a post hoc justification for whatever course of conduct happened to suit them, and others who agonize over such things. We don’t need to posit that judges are intentionally acting in the instrumentalist ways that the attitudinal model of judging suggests in order to have a world in which at least some judges engage in decision making that appears to take substantial advantage of the underdeterminacy of legal standards.
 
Descriptively, then, we have a world of underdeterminacy, in which non-legal factors have room to operate, and in which types of judges and individual judges vary in terms of their susceptibility to these influences.  Add to this the concern – which seems to underlie much of Larry’s discussion – about the possibility of this phenomenon feeding back on itself.  Such feedback could occur in that open recognition of the inevitable influence of non-legal factors may seem to legitimize less formalist (though perhaps Posner’s term “legalist” fits better here) approaches to judging, thereby leading to even less constraint.
 
The normative dimension – how should judges act – involves opening an even bigger can of worms. The range of prescriptions extends (at least) from the Scalian “rule of law as the law of rules” to a world in which judges have license simply to see that justice is done in each case. There are arguments to be made for and against each of these approaches, including the fact that none of them can assure us that judicial behavior will operate uninfluenced by factors that are deemed improper by any given approach.  Judges of course take differing positions on the normative questions about their role, which in turn adds to the individual variance discussed above.
 
Where does this leave us?  I think it leaves us in a world in which, wherever any of us comes out on the normative issues, we have to acknowledge and account for judges who do not act in accordance with our own conceptions of how judges should act.  One might think the Scalias have it right, but one must still acknowledge the existence of the Warrens, or vice-versa.  For my part, because I am mindful of the existence of judges who, whether intentionally or otherwise, take advantage of underdeterminacy, I think it important to focus on creating institutional structures and processes that foster a regime in which judges are led naturally to be transparent about the factors that are driving their decisions.  Some of these can be relatively concrete, such as requirements relating to opinion production and formatting and other aspects of court processes.  But some of it is more diffuse, as is much of what works to channel judicial behavior.  Here I am thinking of things in the nature of the “situation sense” and norms of professional socialization that Karl Llewellyn focused on a half-century ago.  When it comes to Supreme Court nominations, although I find confirmation hearings nearly unwatchable and the whole spectacle of the larger debate that breaks out in the wake of a nomination to be somewhere in the vicinity of excruciating, perhaps there is some value to it as a sort of final imprinting of the nominee.

 

Judicial Process Course Materials - Version 2

It’s good to be back at Prawfs just in time for another Supreme Court nomination, which is sure to generate all manner of discussion over the proper nature of the judicial role.  In order that I might get the blatantly self-promotional portion of my stint out of the way early, allow me to suggest that I have just the thing for those about to participate in those discussions.  That’s right: a new, expanded, and improved (Now with Table of Contents!) version of the Judicial Process course materials that made their debut in this very spot back in November 2008.  Get yours here.

As was the case with the initial set of materials, there remains much for me to add.  Still, I hope that this version will be useful to those looking to teach or do research in the area.  I welcome all suggestions for improvement, including by those who wish to recommend their own work for inclusion.

"Formation is a very basic existential analysis": Thoughts on the Rent-a-Center Oral Argument

Those who are interested in contract law, arbitration, labor & employment law, and federal courts should check out the oral argument for Rent-A-Center, West v. Jackson.  The quote above is from Robert Friedman, counsel for Rent-A-Center, and as a Contracts professor I enjoyed the sentiment.  But ultimately Rent-A-Center's argument hinges on a effort to separate unconscionability into two different categories -- a separation that has no basis in common law or statute.

The question before the Court is "Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (FAA) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this 'gateway' issue to the arbitrator for decision?"  The case involves a Sec. 1981 racial discrimination claim brought by employee Antonio Jackson against Rent-A-Center.  Jackson signed an arbitration agreement which stated:

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.

In the opinion below, the Ninth Circuit held that courts must decide whether the agreement to arbitrate is unconscionable as a threshold matter, regardless of what the agreement itself says.

In his argument, Friedman conceded -- indeed, he had to concede -- that if an arbitration clause was fraudulently induced, it cannot force the defrauded party into arbitrating whether there was fraud.  He also conceded that some cases of duress -- namely, "a gun to somebody's head" -- would not go to the arbitrator.  What Friedman was trying to distinguish was cases in which no contract was formed (due to fraud or duress) and cases in which there is a contract but it needs reformation in some way.  Some on the court seemed sympathetic to this, looking to draw a line perhaps between "total" and "partial" unconscionability.  As Chief Justice Roberts put it, "[O]nce you get past that [g]ateway question of whether the formation of the contract was not unconscionable, then claims that particular provisions were unconscionable are by definition for the arbitrator to decide."

The First Circuit suggested something along these lines in Awuah v. Coverall N. Am., Inc., 554 F.3d 7 (1st Cir. 2009).  In that case, the First Circuit said that a court could refuse to enforce an arbitration agreement if it were "impossibly burdensome" or provided only "illusory" relief.  But the common law of unconscionability makes no such distinctions between "illusory" contracts and "non-illusory but unconscionable" contracts.  All unconscionable agreements are subject to judicial reform.  And it would make no sense to say that an agreement to arbitrate is possibly unconscionable, but the arbitrator -- whose power derives solely from that possibly unconscionable agreement -- gets to decide whether it is unconscionable and, if so, what the remedy shall be.  As Ian Silverberg, counsel for Jackson, pointed out, Rent-A-Center wants "a rule where certain unconscionability challenges went to the court and other unconscionability challenges didn't go to the court."  There's no basis for this in the FAA.

The Supreme Court has a legitimate concern that some state courts have been pushing the bounds of unconscionability with respect to arbitration agreements. Justice Ginsburg, in particular, seemed to think that the agreement at issue was not all that unconscionable.  But that's the bed the Court made for itself in Gilmer.  Once it said: (a) litigants can agree to arbitrate statutory rights prior to the dispute, but (b) they cannot waive those rights and (c) normal contractual remedies apply, a result like the one in Rent-A-Center was in play.  The Court itself has said: “Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’ ” Mitsubishi, 473 U.S. at 627 (quoting FAA Sec. 2).  The Ninth Circuit has to be upheld, I believe, unless the Court is going to start mucking around in state common law.  It could make the argument that the Ninth Circuit is disingenuously applying unconscionability law here.  But that's not the question presented.  I don't see any way to give the arbitrator the ability to decide the legitimacy of the agreement to arbitrate itself.

Justice Breyer, author of First Options, summed it up this way:

[First Options says that] unless it's clear and unmistakable that they wanted this matter [--] the matter of whether the arbitration clause itself is unconscionable [--] referred to the arbitrator, whether or not they wanted that referred to the arbitrator has to be clear and unmistakable. And they are claiming no, because . . . the provision that says that is itself a product of unconscionability. . . . [W]hy isn't that the simplest, most direct and four-sentence ground for deciding this case?

If you haven't done so already, check out this great preview post by Aaron Bruhl.  I hope Aaron will weigh in with his thoughts on the argument.

Oman on judges and umpires

Nate Oman has a great post at CoOp defending Chief Justice Roberts' judges-as-umpires analogy, which is back on the blogs and op-ed pages with the coming Supreme Court appointment and a recent Times op-ed by Geoff Stone. Nate defends the analogy by arguing that Roberts was not proposing an account of law or judicial decisionmaking, but rather a theory of judicial virtue. A virtuous judge, like a virtuous umpire, fairly applies the law (even if we disagree about what the law is or how it applies), with distance from the outcome in favor of allegiance to the law. This precipitated a great exchange in the comments among Nate, Norman Williams, and TJ; the whole thing is worth a read.

I disagree with Nate on several points. First, I do believe Roberts was attempting to propose a normative account of law, not just of judicial virtue. Second, Roberts' intent is somewhat irrelevant because the bigger problem is that the umpire analogy has been seized on by everyone else (notably Senate Republicans and some conservative advocates) as a vision of law and judicial decisionmaking to which every judicial nominee now must pay fealty. This may not be Roberts' fault (assuming Nate is right that Roberts is being misconstrued), but it does require that we debunk the umpire analogy as it proposes a theory of law. Third, agreeing with a point Norman makes in the comments, the analogy does not work even as a theory of judicial virtue because it is so thin as to do no work. No one believes that a judge should care who wins a case and that a judge's role is to decide whether something is unlawful (a ball) or lawful (a strike); we do not need the umpire analogy to tell us that. Which brings us back to my first point--if the analogy does nothing to illustrate virtue, the context suggests Roberts was making a different, more substantive point.

Finally, this gives me an excuse to publicize a roundtable discussion at Law & Society next month, titled Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. The panel consists of Mark Graber (Maryland), Neil Siegel (Duke), Mitch Berman (Texas), Aaron Zelinksky (about to graduate Yale), journalist Bruce Weber, and myself. For those of you up first thing in the morning on the first day of the program (Thursday), it should be an interesting discussion.

Solicitor General confessions of error

It has been a pleasure guest-blogging here for the past month.  I thank Dan and the other perma-Prawfs for inviting me.  And thank you, readers, for your thoughtful comments.  I had thought that my previous post, on "controversial GVRs," would be my last one.  But today the Supreme Court has issued some more unusual GVRs, so I can't help myself from posting one last item.  In particular, I wanted to point out that today four Justices (the Chief, Scalia, Thomas, and Alito) dissented from the GVR in Machado v. Holder, which was triggered by the Solicitor General's confession of error.

Now, SG confessions of error aren't that unusual.  Most years there are a handful of cases in which the Supreme Court GVRs in light of the government's statement that the lower court erred.  Often the reason the lower court erred is because it accepted an argument that the government advanced below but that the SG (now) thinks is wrong.  (Of course, confessions of error come up in contexts besides the SG's responses to petitions for certiorari; I'm just focusing on that context.)  The way the Court has handled these circumstances has changed over the course of several decades, and some of the Justices are not happy about it.  Here is a brief account of the history:

At one time, the Court’s usual practice was to conduct its own independent review of the record in order to satisfy itself that the judgment was indeed erroneous.  Then it would order an appropriate disposition, such as a new trial.  See, e.g., Penner v. United States, 399 U.S. 522, 522 (1970) (vacating and remanding with instructions to dismiss the indictment “[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record”); Baxa v. United States, 381 U.S. 353, 353 (1965) (vacating and remanding for new trial “[o]n consideration of the confession of error by the Solicitor General and upon examination of the entire record”).  For the last few decades, however, the Court has instead GVR’d so that the court below can consider the confession of error and what (if anything) to do about it.  There was some opposition to this switch.  See Mariscal v. United States, 449 U.S. 405, 407 (1981) (Rehnquist, J., dissenting).  But all members of the Court now appear either comfortable with or at least resigned to the practice of GVR’ing when the government concedes error in the bottom-line judgment. See Lawrence v. Chater, 516 U.S. 163, 183 (1996) (Scalia, J., dissenting) (objecting to the practice but recognizing that it “is by now well entrenched”). 

More controversial is the Court’s more recent practice of GVR’ing in cases where the government does not admit error in the judgment but instead only in the reasoning below.  Several Justices complained when that started to happen.  See Alvarado v. United States, 497 U.S. 543, 545 (1990) (Rehnquist, C.J., joined by O’Connor, Scalia, and Kennedy, JJ., dissenting).  Chief Justice Roberts previously indicated his agreement with that complaint, joining Justices Scalia and Thomas in a 2008 dissent.  Today’s GVR was another case in which the SG did not concede that the judgment was wrong.  Justice Alito joined the dissent, signaling that he too objects to the practice.  (Or, at least, that he objects in this case, which included an additional wrinkle concerning whether the petitioner had properly preserved error.)  But notably, Justice Kennedy appears to have reconciled himself to this practice; he did not dissent today, for instance, when he would have been the decisive vote against a GVR.

A more fully cited version of this history is available here.

Farewell!

Controversial GVRs and the "degradation" of the GVR

The Supreme Court's GVR practice has traditionally been a sleepy backwater of appellate procedure.  The GVR (i.e., grant, vacate, remand) is most commonly used when a lower court decision might be affected by a recent Supreme Court case that came down after the lower court ruled (though there are other types too).  Over the course of the last few years, there have been several controversial GVRs that have raised the device's profile a bit.  Generally these have been cases in which some Justices, usually led by Justice Scalia, dissent from the GVR and charge that the Court is improperly expanding the GVR power.  In effect, the dissenters say, the GVR is becoming, in different cases, either a way to make the lower court write a better opinion or a lazy substitute for a summary reversal.  These cases reflect, in Scalia's words, "the systematic degradation of [the] traditional requirements for a GVR." 

To list some of these cases:

- In Wellons v. Hall(2010), the Chief, Scalia, Thomas, and Alito all dissented, arguing that the new development that supposedly necessitated the GVR could not affect the lower court judgment, which (they argued) rested on a separately adequate foundation.

- In Webster v. Cooper (2009), the Court GVR'd in light of a decision that pre-dated the lower court's ruling and that the petitioner did not raise before the lower court.  Scalia dissents.

- In Youngblood v. West Virginia (2006), the Court GVR'd in light of a decades-old case that the lower court did not discuss in its opinion, though it was presented to the lower court.  The Supreme Court said that "if this Court is to reach the merits of the case, it would be better" to have the lower court's views on the matter.  Scalia, joined by Thomas, said this was a not-so-veiled threat that the lower court had better reconsider or the Court will have to go to the trouble of reversing.  Kennedy separately dissents.

Justice Scalia's complaint about the alleged expansion of the GVR is three-pronged: formal, historical, and prudential.  He is certainly correct that these are not ordinary GVRs and that they raise some concerns.  Nonetheless, here I will register some doubts about his criticisms, though all of this is necessarily tentative and brief.

Regarding the formal issue, he says that the Court has the power to set aside judgments for error, not to void them on suspicion of error or send them back because the opinions are incomplete.  That sounds right in the abstract.  Yet the Court's practices display some flexibility.  The Court often doesn't end a case with its judgment; it might only be reversing on one ground out of several that, on remand, might lead to the reinstatement of the prior judgment.  It sometimes vacates decisions that use the wrong standard without itself saying how the case should come out under the correct standard.  And of course even the run-of-the-mill GVR vacates a judgment without any finding of error.  So once you are doing all of that, the formal arguments get hard to maintain.

On the historical front, the charges of "degradation" of tradition, the attempt to rein in a wooly area of practice, and the more general declinist spirit are pure Scalia.  I can't go into detail in a blog post, but, based on my study of GVRs, it seems to me that the history is somewhat more complicated.  It might be that today's very standardized GVR practice - in which 98% of GVRs are run-of-the-mill vacaturs in light of a new precedent - doesn't reflect the way things always were.  The device might have been more multifarious in the past.

This brings us to the prudential arguments.  Is this a good thing for the Court to be doing?  A good use of its time?  A proper way to treat lower courts?  Here I will just say that I am not sure.

Allocating power between courts and arbitrators - and why scholars of federal courts should care

The Federal Arbitration Act makes arbitration agreements as enforceable as all other contracts.  In April, the Supreme Court will hear argument in Rent-A-Center v. Jackson, which concerns the question of who - court or arbitrator - decides a claim that an arbitration agreement is unconscionable and thus unenforceable.  In this case, the arbitration agreement itself assigns (or at least purports to assign) that power to the arbitrator.  The Ninth Circuit, however, held that unconscionability was an issue for the court.  This case holds obvious interest for those who study ADR, consumer law (most consumer contracts have arbitration clauses, whether or not you know it), and employment law (this case is an employment discrimination suit).  What I hope to show you is that it is just as interesting for those who study federal courts and judicial politics.  Beneath the surface, the case is, in a sense, more Bush v. Gore than Williams v. Walker-Thomas Furniture.

To see why the case is so intriguing, one has to appreciate what one might call its strategic context.  The Supreme Court is strongly pro-arbitration.  Some state and federal courts are not quite so enthusiastic, at least when it comes to consumer and employment contexts with their largely adhesionary contracts.  (Please note that I'm not discussing whether the Court's decisions in this area, and its broader pro-arbitration stance, reflect sound interpretations of the relevant statute, good policy, etc.)  Over the course of the last couple of decades the Supreme Court has shut off most avenues for challenging arbitration agreements at the wholesale level - state law cannot declare particular fields like consumer transactions off limits from arbitration, courts cannot deem arbitration per se violative of public policy, etc.  All such arguments are preempted by the Federal Arbitration Act.  What remains, though, is the possibility for retail-level challenges to particular arbitration clauses under section 2 of the Act, which allows ordinary contract defenses that would invalidate any contract.  So arbitration itself cannot be questioned, but a particular arbitration clause might be invalidated as the product of duress, fraud, etc. 

In the last few years, as other routes for challenging arbitration have been closed off, unconscionability has become a surprisingly common and surprisingly effective way of attacking arbitration agreements.  The challenges do not attack arbitration per se - federal law favors arbitration - but instead target various aspects of a particular arbitration process: a given clause might forbid class arbitrations, bar punitive damages or otherwise restrict remedies, sharply curtail discovery, require a consumer to pay hefty arbitrator's fees, etc.  There have been many cases on these topics in recent years, and a good number of them sustain the challenge to the arbitration clause.

These cases have generated lots of petitions for certiorari in which businesses, assisted by amici like the Chamber of Commerce, charge that some state courts and lower federal courts are using unconscionability to discriminate against arbitration in violation of federal law.  That is, while ordinary contract defenses can be used to invalidate an arbitration clause, those doctrines are not supposed to be used differently in the arbitration context in order to disadvantage arbitration.  Perhaps surprisingly, given its pro-arbitration stance, the Supreme Court has for years let these petitions go by.  My suspicion is that the Court has avoided these cases because it feels ill-equipped to resolve whether a lower court is discriminating against arbitration.  First, unconscionability analysis often requires a fact-intensive inquiry.  Second, and more important, determining whether a lower court is using unconscionability differently when it comes to arbitration requires an engagement with the details of state law and a comparison of lots of prior unconscionability cases.  Third, and maybe most important of all, a holding that the lower court is applying unconscionability unfairly, especially when the lower court says it is applying the same analysis it applies elsewhere, carries with it some serious expressive baggage.  Essentially, it requires the Supreme Court to say that the lower court is being dishonest.  That happens, but when it does so, it is a big deal (think cases like Bush v. Gore or the cases from the 50s/60s rejecting supposed procedural defaults in the state courts).

The nice thing about a case like Rent-A-Center v. Jackson, at least from the point of view of a pro-arbitration court, is that it concerns not the merits of an unconscionability challenge but instead the allocation question - a question of who decides.  That doesn't require diving into the weeds of state law and the record.  If the Court assigns the issue to the arbitrator, that will be a very easy rule to monitor for compliance (unlike deciding whether the lower court applied unconscionability correctly).  All of those unconscionability cases out there will instantly become not wrong but irrelevant - because courts won't be deciding the issue anymore.  And it won't matter whether some lower courts can be trusted to apply unconscionability correctly, because they will be cut out of the picture.

All of the analysis above suggests reasons why the Supreme Court would find it useful to assign unconscionability to the arbitrator.  On the other side, there are some reasons for it not to do that.  Notably, it might be that judicial review for unconscionability operates as a sort of safety valve that makes arbitration of consumer and employment disputes palatable.

If you find this line of argument compelling, or at least interesting, I explore it in an NYU Law Review article available here.  A much shorter and more accessible version is available here.

To this point I haven't said anything about the more narrowly doctrinal aspects of the case.  I think that, as with many cases that reach the Supreme Court, the conventionally authoritative legal materials leave enough room here that acceptable legal reasoning could get you to either result.  In brief (and this compressed summary probably won't make sense to non-specialists):  On Jackson's side, one might say, as the Ninth Circuit did, that the Prima Paint separability doctrine does not apply here because this is a challenge specifically to an agreement to arbitrate.  (Indeed, this was a stand-alone arbitration agreement, not a larger contract that included an arbitration clause.)  On the other side, I can imagine Rent-A-Center arguing that there is a separable agreement to arbitrate here.  After all, the agreement to arbitrate is not itself unconscionable - it can't be.  Rather, the problem is the limitations on remedies and so forth.  So one could imagine that there is an underlying theoretical agreement to arbitrate that remains uninfected, and then Jackson is supposed to go to arbitration to try to get the arbitrator to invalidate the offensive restrictions.  That would be slicing separability pretty thinly, of course.

Trivia from the Supreme Court order list

Anybody can read the Supreme Court's opinions, but the real nerds read the order list.  Here is an order from the Court's January 19, 2010 list:

Linton v. United States, No.09-7408 - The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.  The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of United States v. Booker, 543 U.S. 220 (2005).

Does anything about that seem strange?  Yes, you read it correctly, last month the Supreme Court issued a GVR (grant-vacate-remand) in light of a case decided five years ago.  Had the Fourth Circuit somehow not heard of Booker?  How could that be?  Answer below the fold . . .

The Court ordinarily uses its GVR power to direct lower courts to reconsider a case in light of a new development that followed the lower court's decision.  Although it wouldn't be unprecedented for the Court to issue a GVR in light of a case decided before the lower court ruled, especially where the lower court seemed unaware of the Supreme Court precedent, that isn't exactly what happened here. 

What happened is that Linton had previously appealed his conviction and sentence to the Fourth Circuit, the Fourth Circuit affirmed, and then Linton's appointed counsel failed to file a petition for certiorari when he or she was supposed to, which violated Linton's rights under the Criminal Justice Act.  All of that was years ago.  In the new litigation, Linton filed a 2255 motion for resentencing, which the Fourth Circuit construed as a motion to recall its earlier mandate.  The Fourth Circuit granted the motion, recalled the mandate, and entered a new judgment in July 2009, so that Linton could file a timely petition for certiorari.  And then he got a GVR.  Now we'll see what the Fourth Circuit does with it.  In a prior case that presented similar circumstances, the Fourth Circuit remanded to the district court for resentencing, but there's no guarantee that will happen here.

When is finality . . . final?

At this Friday's conference, the Supreme Court is scheduled to consider a petition for rehearing in Melson v. Allen.  (SCOTUSblog posted an item on the case a couple of months ago, when the Court requested a response to the petition for rehearing.)  It is pretty rare that a petition for rehearing has any chance of going anywhere, but this one is worth watching because the Court at least thinks it is worth requesting a response.  The case involves an interesting problem of appellate procedure.

The basic facts, as I understand them, are these: Melson is a habeas petitioner.  The Eleventh Circuit denied his habeas petition as untimely.  He then petitioned for certiorari, which the Supreme Court denied on October 5, 2009.  Then, on October 13, the Supreme Court granted certiorari in Holland v. Florida, another Eleventh Circuit habeas case that raises a similar issue of timeliness.  Melson then filed a petition for rehearing of the denial of cert., and the Court requested a response from the state.  It is highly unlikely that the Court would grant Melson's case for plenary consideration; Melson's more reasonable hope is that the Court will now hold his case for Holland and then, if Holland comes out in a way that might help him, vacate the denial of certiorari and issue a GVR (grant, vacate, and remand for further consideration) in light of Holland.[fn*]

The reason I find this case interesting is because it implicates the question of when we decide that a case is over.  This gets very complicated because of the habeas context that is involved here, but to speak in more general terms, we usually treat a case as over when the Supreme Court denies certiorari. If the law changes before that, you might get a GVR instead of a denial of cert., but if the law changes after that, you don't.  (I'm simplifying a lot here; for example, one could try to reopen the case in the district court, etc., etc.)  In some ways it seems arbitrary to allow litigants' fate to turn on the difference between Monday and Tuesday, but it is hard to avoid that problem in any system with a cutoff date.  Further, granting relief here would create its own arbitrariness, because this isn't the sort of thing the Court can or would want to do in every case.  The Court wouldn't want to encourage lots of petitions for rehearing.  All of these factors favor denying rehearing.

Yet on the other side, there are considerations that support holding the case and later granting rehearing and GVR'ing if Holland comes out in the petitioner's favor.  The fact that the denial of cert. in Melson's case came so soon before the grant in Holland tends to heighten the sense of inequitable treatment.  This is a capital case, which raises the stakes further.  Plus, one can easily imagine a scenario in which the Melson petition was not denied on Oct. 5.  The Court often realizes that multiple pending petitions raise related issues and processes them in a coordinated way.  Perhaps that didn't happen here because the conference at which Holland was considered wasn't until Oct. 9; since the cases were on different timetables, maybe nobody inside the Court saw the possible connection.  (As should be obvious, this is all speculation.) 

In any case, there are reasons to go either way.  I would note that, in a relatively small number of instances in the past, the Court has vacated a denial of certiorari, granted rehearing, and GVR'd in light of a case decided after the denial of cert.  (See here at p. 48 n.162.)  One would expect the Court to be most willing to do that if it thinks that an imperfection in its own case-handling procedures led to a case not being held when it should have been, though I'm not sure that can explain all of the prior cases.  If the Supreme Court's upcoming orders list doesn't show a denial of rehearing in Melson, we might have another case to add to the list.

[* For those who aren't familiar with GVRs, the Court issues these couple-sentence orders all the time.  The most common situation in which they are used is when a new Supreme Court ruling casts doubt on a lower court case that was decided before the new precedent came down.  The GVR lets the lower court take another look at the case under the new law.]

Deciding When To Decide - Appellate Procedure and Legal Change

Suppose you are a judge on the court of appeals.  The case before you concerns some rule or doctrine from a thirty-year-old case, X v. Y.  A couple of months ago, the Supreme Court granted certiorari in a case that also concerns the rule in X v. Y.  You are almost certain the Supreme Court will repudiate X v. Y.  (Perhaps last year the Court harshly criticized the old rule in considered dicta and suggested it was ripe for overruling in an appropriate case.)  What should you do? 

A helpful agent might suppose that the best approach is to decide every case by asking, What would SCOTUS do?  If that is the right question to ask, it would be clear to you that you should not follow X v. Y.  All the same, you also know that the Supreme Court itself has cautioned that lower courts should not be proactive in overruling but should instead wait for the Court itself to deal the final blow to a staggering precedent.  So, dutifully, you follow the existing precedent of X v. Y.  A few months later, the Supreme Court inters X v. Y.

When commentators discuss this problem, the issue is typically framed in terms of whether anticipatory overruling is desirable or appropriate; more generally, the debate concerns whether lower courts should attempt to predict how the Supreme Court would decide a case or instead must strictly follow existing precedents.  Those are good questions, but framing the problem this way overlooks another dimension of the problem.  Rather than now ruling in either direction, the lower court could just wait until after the Supreme Court decision and then rule accordingly.  To be sure, waiting might not always be the right choice.  The point is just that the lower court has to choose not just which way to decide, but when to decide.

If this problem interests you, I have just posted a draft paper addressing these topics here.  The abstract follows:

Legal change is a fact of life.  The need to deal with legal change has spawned a number of complicated bodies of doctrine.  Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent.  How such questions are answered affects the size and the distribution of the costs of legal change.  Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions.  In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled? 

The Article has both positive and normative aspects.  It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s law of legal change.  The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system.  A majority of the appellate courts that addressed the question upheld the federal guidelines during this transitional interval.  Beneath the surface, however, the various courts upholding the guidelines managed cases very differently.  Some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts.  Based on the insights gleaned from this episode, I suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods.  Case management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.

 

Dear Judge: No Glory Days For You

If you're a judge with a Facebook page...and if any of your old high school friends are lawyers...and if they may appear before you...then no "friend"ing on Facebook to relive those high school days of youthful prowess. At least according to Florida's Judicial Ethics Advisory Committee, because "[t]he Committee believes that listing lawyers who may appear before the judge as 'friends' on a judge's social networking page reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge." So stay away from the Boss. You'll just get depressed. Learned about this development from the NYT today, which indicates that the opinion is merely advisory, and quotes ethics guru Stephen Gillers from NYU as saying that this goes too far.  Because, I'm sure, it's disrespectful to the Boss.

Standards of review and instant replay: A different take

Joseph asks a great question: Why is instant-replay review not subject to de novo review as opposed to a more-deferential standard. I have not been writing much lately, so I thought I would turn a comment into a separate post. First, let me say that long have hated replay in sports, so perhaps take this with a grain of salt and recognize that I would argue for any way to limit the full effect of replay.

I would argue that the deferential use of replay review reflects (implicitly, if not explicitly) an understanding of the limits of video. Video does not provide an objectively "right" answer. It simply provides another angle/perspective/viewpoint of the events, usually one different than what the official had. And not just because it can be slowed down and played backwards and rewatched multiple times, but because of differences between where the camera is and where the official was standing. And, of course, what the video "shows" is as dependent on the perceptions of the official watching the replay as was the original call on the field.

Given the reality of how film operates and how we view and understand film, deferential review makes sense because there is a form of institutional competence at work here (which, as Joseph notes, is the general rationale for differing standards of review). Video is not better situated to give an obviously, objectively correct answer than the initial call, at least not in all (many? most?) situations. That being so, there is no reason to give preference to the new viewpoint/perspective over the initial on-field one, unless review clearly shows a mistake. If video cannot necessarily produce a better (in the sense of more accurate) result, then it makes sense to leave control with the initial decision, absent an obvious error.

Why Aren't Instant Replays Reviewed De Novo?

Many thanks to the whole Prawfs crowd for having me here. Throughout the month I’ll try to blog a bit about constitutional law and being a first year law professor, but I’m going to start with a question of much broader significance: Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call?  Why not review them de novo?

These are familiar questions for lawyers, of course. Standards of review insulate factfinders’ decisions from being overturned on appeal, even when reviewing judges disagree with them. A decision about trial management, for example, can be in some sense “wrong” without being an abuse of discretion. As long as it’s not the latter, it'll stand.

And there may be good reasons for this. If standards of review are essentially a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, then it probably makes sense that the former get primary control over factfinding and trial management (i.e., their decisions on those matters are subject only to clear error or abuse of discretion review), while the latter get a fresh crack at purely “legal” issues (i.e., such issues are reviewed de novo). Heightened standards of review apply in areas where trial courts are in the best place to make correct decisions.

But I don’t see how those arguments apply at all to instant replay in sports, which after all are just appeals of a different kind. An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay?

While puzzling through this momentous issue during last night’s Saints-Pats blowout, I learned that illustrious (aren’t they all?) Prawfs alumnus Chad Oldfather has done some actual, longer-than-a-blog-post thinking about it. He and Marquette 3L Matthew Fernholz have co-authored an interesting new piece called Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, __ Ind. L. Rev. (forthcoming 2010), which as I read it doesn’t take a stand in favor of de novo review (see n. 97) but does use the process of instant replay in the NFL to elucidate some general principles of appellate review.

And for a multimedia version of the principle in action, check out the review of Brad Miller’s possible-buzzer-beater against the Nuggets last month.

The Supreme Court of the United Kingdom

This month marks a historic moment in the history of the Anglo legal tradition. As of October 1, 2009, the United Kingdom did away with the judicial function of the House of Lords and opened a new court, the Supreme Court of the United Kingdom, to be the highest judicial authority in the country. 

This is no small break with tradition. Remember, this is a country where lawyers still wear wigs in the courtroom. Until this month, the House of Lords had been the tribunal of last resort for most cases since 1399, which was when the House of Commons stopped hearing petitions for reversal from lower courts. In 1876, the judicial authority of the House of Lords was modernized when professional judges were appointed as Lords of Appeal in Ordinary to carry out the judicial functions of the House of Lords. But these law lords maintained a legislative role by having the power to vote in parliament – though they rarely did so.

All that has changed. As of this month, the law lords are now “justices.” And although the current justices retain their title of “lord,” the Supreme Court members are now disqualified to vote in the House of Lords. Moreover, as absences occur on the new Supreme Court, seats will be filled by judges who may not bear the title of “lord” at all.

For American lawyers and law professors, the creation of the new U.K. Supreme Court provides some cause for reflection: Our American legal tradition evolved from the U.K.’s. Our common law tradition, our courts, and our ideals of jurisprudence all come in large part from the Mother Country. It strikes me as a tremendous compliment to the USA that, in the 21st Century, traditions appear to be flowing back across the Atlantic. The U.K. has followed the American exemplar not only in concept, aiming for a strictly independent judiciary, but in in name as well, using the appellations “Supreme Court” and “justices.” 

Now, let me admit that I am not a scholar of British law. Thus, I cannot say how much of the new U.K. court structure is directly modeled on the U.S. example. (If anyone can chime in on to what SCOTUK and the Constitutional Reform Act of 2005 owes to SCOTUS and the U.S. Constitution, I’d be grateful to hear it.) But I, for one, take it as a sure sign of Ameriphile sentiment that Britain chose to call their new high court by the same name as ours – especially since the U.K. has such a tradition of super cool names for judicial tribunals: “Privy Council,” “Exchequer of Pleas,” and “Court of the Queen’s Bench” to name just a few.

A couple of interesting trivia bits to point out: 

• The crest for the new court is built around a Greek omega – a reference to the institution’s status as the court of last resort. 
• The court has been given spectacular new digs at a renovated courthouse, Middlesex Guildhall, which is next to the Houses of Parliament and Westminster Abbey. 
• The U.K. Supreme Court has colorful pdf-based forms for aspiring litigants, such as a very friendly looking fill-in-the-box cert petition (called an “application for permission to appeal”) with instructions on where the completed form can be e-mailed. (Anyone who has dealt with the PACER system or the elaborate document formatting rules for U.S. appeals courts might find the British approach highly refreshing.)

ABOVE: The home of the new Supreme Court of the United Kingdom, Middlesex Guildhall.

front-page news

With my habit of glancing at the news online in the am, I didn't pick up on why exactly District Judge Jed Rakoff's rejection of the SEC-Bank of America settlement appeared on the front page of the New York Times, bumping little ol' President Obama's speech to Wall Street to the business pages. 

Until I looked at the print version last night. And there on the front page of the New York Times, the article said that Judge Rakoff's ruling "invoked justice and morality."

I get it now. A judge invoking justice and morality. That is front-page news. 

More about the European Pharmaceutical Sector: Procedural Changes

Earlier, I described the European Commission’s recent examination of the pharmaceutical sector.  Part of the EC's inquiry focuses on procedural concerns. 

 

Perhaps the most pressing concern for the EC is the lack of any unified system of litigation. The EC’s pharmaceutical sector inquiry examined transaction costs needed to enforce rights across all member states and concluded that, “[t]he total cost of patent litigation in the EU relating to the 68 medicines on which litigation was reported for the period 2000 – 2007, is estimated to exceed € 420 million, of which a significant proportion could have been saved” if a cross-border litigation system could have been enacted.

 

A separate review of the European patent system by Prof. Dietmar Harhoff, Ph.D states:

 

The results obtained here suggest that currently, between 146 and 311 infringement cases are being duplicated in the Member States. By 2013, this number is likely to increase to between 202 and 431 cases. Total private savings in 2013 would span the interval between EUR 148 and 289 million.

 

Meanwhile, it appears that the EC is rapidly moving toward a unified litigation system for all types of patents. This raises a more profound question: to what degree is a uniform litigation system desirable?

The Harnoff study considers literature studying the U.S. Court of Appeals for the Federal Circuit, which has provided a unified system for patent litigation at the appellate level since 1982.  This includes Rethinking Patent Law's Uniformity Principle, a paper by Craig Nard and John Duffy, which, as Harnoff describes "questions the values of uniformity altogether."   In their paper, Nard and Duffy point out that "uniformity is not a proxy for quality," and propose a "polycentric decisionmaking structure that would allow for a diversity of peer appellate voices to be heard."  Certainly, Nard and Duffy's proposal has been subject to debate, including an article co-authored by Lynne E. Pettigrew and the Federal Circuit's Hon. S. Jay Plager, Rethinking Patent Law's Uniformity Principle:  A Response to Nard and Duffy, 101 Nw. U. L. Rev. 1735 (2007).  It will be fascinating to see whether the EC considers these issues when contemplating these large structural changes to its system.

Empathy for Schoolmasters, Bong Hits 4 Jesus, and Lawyers for Change

There’ve been some interesting observations in the legal editorial pages and blogosphere lately about what role empathy does – and should – play in judicial reasoning. There’s a short debate about it in the LA Times between Ilya Somin and Erwin Chemerinsky, and some interesting posts on the subject from Orin Kerr and Ilya Somin at The Volokh Conspiracy, and from Mark Graber and Susan Bandes at Balkinization (and I’m sure many others I haven’t read). But as far as I can tell no one’s yet mentioned the First Amendment decisions in the “Bong Hits 4 Jesus” case (aka Morse v. Frederick) and in Legal Services Corporation v. Velazquez, which I think help shed some interesting light on the question (even if they’re not the only potential sources of such light).

As Orin Kerr rightly points out, there’s an important distinction to be drawn between empathy which is “doctrinally-relevant” and that which is “doctrinally-irrelevant.” He presents a clear-cut example of the former: “if a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is ‘very painful’” then judges will find it hard to apply that rule without drawing upon their capacity for empathy. Even if they’ve never been on death row awaiting execution – and I’m guessing the closest many Supreme Court Justices have come to that situation is the time when they’re waiting for a skeptical Senate to decide whether to confirm their nomination – they have to find some way to imagine what would be “very painful” for someone in the prisoner’s position. One can also imagine situations where empathy would be completely unnecessary, such as determining whether a particular person is old enough to be a Senator, Representative, or President.

I’d add that for empathy to be a legitimate part of judicial-reasoning, its doctrinal relevance should not only be present in the case, but als the source of the judge’s motivation for drawing upon empathy. Imagine, for example, a situation where a judge shifts his or her favored methods of judicial interpretation in order to get the best result for a favored party or interest group. In other words, an empathic judge might be a textualist when it favors the little guy, and then – to help out the next suffering petitioner – switch to focusing on statutory purpose or legislative history. Empathy might plausibly be said to be doctrinally-relevant in both the first and second cases, but I think something is likely going wrong if a judge is changing judicial philosophies or switching interpretative frameworks simply to get a result that is more emotionally-satisfying for him because it helps a disadvantaged litigant. The same would be true of a a judge who switches interpretative methods to help a certain industry, or big business more generally, because he or she has been a businessperson before (or had lots of clients who were) and finds it easier to identify with their concerns.

I suspect that there are subtle variants of this framework shifting that might sometimes take work and self-reflection to avoid. Imagine, for example, that a Supreme Court Justice is applying the factors set out in Planned Parenthood v. Casey to determine whether they should vote to overrule an existing Supreme Court precedent. It’s quite possible (I’d guess) that varying degrees of empathy with different parties might affect judges’ determinations about when a certain “reliance” interest is or isn’t strong enough to weigh in favor of retaining that precedent, or whether a certain precedent is or isn’t “workable” in the real world – and that judges would thus have to ask tough questions of themselves (and each other) about the legitimacy for deeming a certain reliance or workability concern stronger or weaker than another.

What the Bong Hits 4 Jesus and Velazquez cases highlight, I think, is that it will often be very hard – particularly in Supreme Court cases – to find empathy “doctrinally-irrelevant” and that, for this reason, empathy will often play some role, and present some danger in Supreme Court decision-making. Take the Bong Hits 4 Jesus case, Morse v. Frederick. . As most readers of this blog probably know already, that was the case where the Supreme Court held that a school principle did not violate the First Amendment in punishing a student for displaying a huge “Bong Hits 4 Jesus” banner at a gathering near the school to view and cheer a portion of the Olympic Torch Relay in 2002 Unlike the hypo Orin Kerr offers, where a statutory rule practically requires judges to imagine the perspective of a prisoner in order to decide if an execution method is “very painful,” none of language in the court-crafted rules at issue in Morse clearly required the Court to place themselves in the shoes of school officials or students. The Tinker case required them to judge whether a certain student’s speech would cause a “substantial disruption of or material interference with school activities,” Hazelwood to decide if a certain speech was an example of a “school-sponsored publication, theatrical production, and other expressive activit[y] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” and if so, whether the school’s restriction was “reasonably related to legitimate pedagogical concerns,” and Fraser to ask whether the school’s speech restriction was part of its exercise of its “highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse” (or perhaps some other school function that is equally appropriate?).

One might argue that judges could have made each of these inquiries entirely from where they sit (as judges) instead of by imaginatively placing themselves in the position of a school official or student. But that’s not what they did. Rather, there were plenty of attempts on the part of the Justices to imagine how it would be if they were principals or teachers confronting different kinds of student speech under different possible rules. Justice Roberts observed in the plurality opinion that “principals have a difficult job,” and that the principal in that case “had to decide to act – or not act – on the spot.” In the oral argument, Justice Breyer expressed similar concerns about what it was reasonable to demand of a school principal forced to make quick, on-the-spot decisions about what speech about drugs constitute a threat, and what didn’t: “He doesn’t know the law, the principal. His job is to run the school. And so I guess what I’m worried about is . . . we’ll suddenly see people testing limits all over the place in high schools . . . I want some help here and I’m worried about the principal.” Justice Kennedy noted that a decision in favor of the students’ damages suit would hurt “this principal who has devoted her life to the school.” And Justice Roberts added that such a decision in favor of damages might leave “principals and teachers around the country hav[ing] to fear that they’re going to have to pay out of their own personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school’s educational mission.”

Part of this questioning was made in the context of the argument over whether the principal had qualified immunity, when the Justices were asking the party’s lawyers about whether the relevant law could have been clear enough to someone in the prinicipal’s situation to justify removing such immunity. But empathy was clearly playing a more larger role here: It was contributing to a decision not merely about whether the principal’s judgment was reasonable at the time, but whether an equivalent decision made by another principal (taken after the Morse) decision should or shouldn’t be considered reasonable under the First Amendment going forward. And empathy was playing such a role, I think, because even though there’s no clear verbal command in the First Amendment’s language requiring the Justice to determine someone else’s feelings in a certain circumstance (as a hypothetical statute does when it requires judges to determine if a certain experience is “very painful”) , it’s very difficult for them to understand how a First Amendment regime will work in a school, and the day-to-day consequences it will have, except by imagining how it will look and feel from the vantage point of principals, teachers, students, and their parents.

All of this is consistent with Orin Kerr’s statement that empathy is often indispensable when judges “to try to assess the real-world impact of a particular practice on a person or group of people.” But I also think that, although I haven’t done any kind of survey or case count, that it’s likely to be true of a large percentage of the Supreme Court’s high-profile cases. Justices (and judges elsewhere, for that matter) will often have to get a sense of how the world looks from some party’s perspective in Fourth Amendment search cases, for example, when deciding whether someone had a reasonable expectation of privacy in a certain environment, or in deciding just how significant an intrusion into privacy takes place in a particular warrantless search regime (like a random school or employment drug testing regime). They may likewise have to do so when balancing individual and government interests,, and assessing the risk of existing procedures, and value of additional procedures, in applying the Mathews v. Eldridge test to determine if a person has received the process that is due to her.

Morse v. Frederick also highlights something else about empathy. While having a diversity of backgrounds and life experiences on a court may well make a positive difference in this regard, there’s no way such diversity can possibly provide for all the perspective-taking that happens (and is arguably indispensable) in judicial decision-making. I don’t believe any of the Justices were high school principals before they had their current job. None of them, as noted earlier, were sitting on death row awaiting execution. And none of them, of course, are non-lawyers. So all of them might have to go far beyond their own experience to show doctrinally-relevant empathy no matter how diverse the court is.

And no matter how much capacity for empathy judges bring to the Court, it will probably take a good deal of self-questioning on their part to avoid the dangers of using it selectively and unfairly. As Susan Bandes points out at Balkinization, “despite our best intentions, [empathy] is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions.” Justice Scalia, I think, suspected that precisely this kind of selective empathy was at play in the Court’s decision in Legal Services Corporation v. Velazquez. That case held that First Amendment prohibited Congress from telling Legal Service Corporation what kind of legal arguments lawyers could make with legislative funding for welfare-related legal work. (Congress had told LSC the funds could not be given to any organization challenging existing welfare laws). But it came only a few years after the Court’s decision in Rust v. Sullivan, which permitted Congress and government administrators to impose very similar speech limits on doctors receiving certain federal funds for planning services – limits that barred them from “counseling, referral, and the provision of information regarding abortion as a method of family planning.” Scalia protested that Velazquez was in fact indistinguishable from Rust and guessed that the Court had reached a different result only because the case involved the “work of lawyers” rather than that of doctors and the Court was “display[ing] an improper special solicitude for our own profession.” I’m not sure that’s the right explanation for why Velazquez came out the way it did. But it probably is true that, after decades in the legal profession, it will sometimes take some efforts on the part of judges not to display “an improper special solicitude for [their] own profession.” Some, like Erwin Chemerinsky, have also worried that there are other systematic biases in the way empathy works on the Court. He writes in his LA Times debate with Ilya Somin that “today’s Supreme Court justices apparently feel it more for businesses than employees, and more for victims of crimes than criminal defendants.”

One way of addressing this problem, perhaps, is the one Ilya Somin proposes: that judges determine mental states rather than identify with those mental states. That kind of move sometimes makes a good deal of sense, but it won’t always suffice for the judge’s task. For example, I think it would have been hard for judges trying to get a sense of the challenge facing a school principal to understand that challenge by relying on a purely external indicia of the principal’s feeling state. They needed, and sought to obtain, an internal understanding of the principal’s experience: a sense of how the world looked (and would look) from a principal’s own vantage point. This isn’t to say that their identification with the principal’s visions in Morse, for example, should have led them to ultimately come down on her side. Other legal considerations may trump whatever concerns they have about the difficulties that would face principals in a certain First Amendment regime, including perhaps concerns about what kind of an environment public schools will be for students if the Court adopts a First Amendment regime that is overly generous to certain teachers and principals. Moreover, the result of judges’ placing themselves in another party’s shoes may sometimes cut against that party’s legal position. If, for example, such an imaginative exercise tells them that a certain First Amendment regime **would not** be as burdensome as a party is claiming it is, that may hurt rather than help the case of the party in whose place they are imagining themselves.

Nor is it by itself a corrective to unfairly one-sided exercises empathy for a President to appoint Supreme Court Justices who are unfair and one-sided in a different direction: I doubt individuals will feel much better about a constitutional law decision they perceive as unfair just because there are dissenting justices who are partial towards them instead of towards the winner. The hope must instead be that having judges with very different perspectives and backgrounds will make it likely that all judges will hear questions and arguments they otherwise wouldn’t have heard, and that this will make judges better able to draw upon the right kind of empathy when they need it, and better able to detect and stop themselves from finding themselves emotionally-pulled toward one side of the dispute, when the situations demands more even-handed exercise of empathy (or putting it aside altogether in favor of other sources of legal decision-making).

On the Brilliance of People like Judge Sonia Sotomayor and Barack Obama

Let me start with the obvious conclusion that anyone would draw if they were to get to know Judge Sotomayor and her work both intimately and deeply: she is an absolutely brilliant jurist and an absolutely brilliant person.  Having clerked for her, worked very closely with her over the course of a year, and then known her well for more than a decade, I have a very good take on who she is both as a judge and as a person.  Ordinarily, I would not weigh in on things like this, but, given some of the spurious comments that have been emerging from people who are less familiar with her, I feel a need to set the record straight.

 

I count myself privileged to have worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan’s graduate school, which was widely considered the best department in ethics in the world when I was there.)  Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter.  (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this.  And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison. 

 

Indeed, Judge Sotomayor reminds me in some ways of Obama himself in that she has surprising dimensions to her brilliance, which are completely original to her.  She knows how to pull out the best in people with whom she works, how to motivate people through her words and conduct, and how to forge deep and abiding relationships with people from all walks of life, and from all political stripes and ideologies.  She is courageous and fearless, but non-ideological, and wholly unimpressed by the kind of pomp and false theoretical excess that can sometimes make one look smarter in the short term but only at the expense of distorting the underlying issues.  One measure of the extraordinary judgment she has is reflected in her incredible life story: she moved unerringly, and without any hint of doubt or hesitation, from the Bronxdale Public Housing Projects to graduating summa cum laude from  Princeton, where she received the Pynes Prize (for their top graduate), and then to Yale Law School, the DA’s office, and the Second Circuit Court of Appeals.  The force of character that it takes to live such a life should never be underestimated: we have no other person on the bench with her experience and intellect who has come from these beginnings and who has developed with such clarity of purpose and vision.  The federal judiciary houses a number of intellectual giants, but, if we are honest with ourselves, we will have to admit that almost none of them would have made it to where they are from her starting point.  The temptations to take other paths would have been far too strong, and the absence of hope too stultifying.  Because of this, she also has the power to lift people up, and inspire.  Her story can bring unique hope to many for whom there is only despair; can help heal some of the deepest internal crises of faith that people struggling in this country have had to face; and can establish the fact (about which there is still far too much unwarranted skepticism) that brilliance comes in many surprising forms.  She can also give a concrete face to the American promise, and what we stand for as a country, and to the kind of change that will bring us directly back to our core human values.

 

Like Obama, there is thus something special and incomparable about this woman—though it lies in qualities that are not always seen by those who do not know just where to look.  In my view, the level of conviction and independence of mind that Judge Sotomayor displays is absolutely essential to the best work of a Supreme Court Justice, but it is in short demand, and rarely have we seen it on such full display in the federal judiciary. 

 

Given these facts, I should probably be less surprised than I am to see some of the initial reactions to Judge Sotomayor mirroring early reactions to Obama’s presidential candidacy.  Early in the last primary season, I remember a number of people saying that Obama was not “as smart” as Hillary Clinton—at least until people began to catch onto his sheer genius at things like (1) reframing seemingly intractable issues in ways that might move us forward and out of stale debates; (2) identifying and articulating the core values of social practices in ways in ways that people who were once skeptical find compelling; (3) charitably understanding the fullest range of seemingly diverse positions, and the kinds of concerns and warranted hopes that lead to their articulation; and (4) maintaining humility, and a sense of calm and perseverance, in the face of seemingly insurmountable difficulties.  (These are rare forms of brilliance, which Judge Sotomayor also has in spades—but that very few on the federal judiciary can claim for themselves.  They are also not qualities that one will typically see if one is a law clerk for another judge who receives suggested revisions on one’s work from another judge; or if one is an attorney, who is less than prepared before a judge who has particularly exacting standards of excellence.)  I also remember a number of people talking about how Obama rubbed senior colleagues in Congress the wrong way, when he—like Judge Sotomayor—displayed his native brilliance from the very start of his tenure in some ways that others found unsettling.  And I remember how some on the left expressed concern when Obama began to break the mold of democratic thinking, by drawing on his independent but genuine insights into how people work and mobilize in socially productive ways not only in urban but also in rural settings, to help push our collective thinking on matters of genuine importance.  I will confess that I myself did not see the full range of Obama’s brilliance at first, and that these things only began to become clearer to me after hearing his speech in Iowa and after Ted Kennedy came out letting people know that there is something special about the man.  But whereas Obama had an extended campaign period in which to introduce himself to people, and to overcome some of the difficult but inevitable first impressions that arise with brilliance in this form, Judge Sotomayor is being maligned by people who do not know her, and who may not be able to see of all of her qualities from afar.  I am—of course—no Ted Kennedy, but I do know what Senator Kennedy was talking about with regard to Obama, and I see special qualities of precisely this caliber not only in Obama but also in Judge Sotomayor.

 

I suspect that some people on the left may be concerned about Judge Sotomayor because she may not be the “liberal antidote to Justice Scalia” that some have desired.  But this is no indictment of her intelligence, but rather of their imagination.  Getting at the truth in the law, and beginning to change the tone on the Court, will not involve concocting a distinct but overly general, and ultimately erroneous, theory of how things like meaning or interpretation work to counter Justice Scalia’s.  Nor will it involve the development of ideas, or forms of expression, that increase the mutual sense of alienation and resentment among Americans in both parties toward one another.  In my view, the standard liberal expectations for a great jurist are thus behind the times in many ways, and it is a testament to Judge Sotomayor that she would much more likely break the mold for such expectations and bring us all forward in the process.  The time for endless tit-for-tats on the Court, as in politics, is coming to an end, and Judge Sotomayor would be the ideal justice to help move the Court into a newer, saner, more thoughtful, and more unified era.  Indeed, she is perhaps uniquely qualified to do so. 

 

To give you a sense of what I mean by some of the rare dimensions to Judge Sotomayor’s brilliance, let me quote several passages of a description I once wrote up of her in 2002, which begin to capture some of the social, emotional, and procedural brilliance that she has.  After describing the judge’s tireless work ethic, and the sheer quantity of work she was able to produce, I wrote: “The ultimate secret of the judge’s success lay not in the quantity, however, but rather in the quality of the work she inspired. The judge made it positively enjoyable to struggle to reach better legal resolutions together, due to another rare and surprising dimension to her brilliance.  Although we had come to the clerkship with very different backgrounds, strengths, and temperaments, the judge seemed to identify them almost immediately, to cultivate them and to create an atmosphere in which we each felt respected and as though we had something positive to contribute, coming from our own particular angle.  We were some of the strangest of bedfellows, but the judge orchestrated an environment in which we all forged very real and lasting friendships with one another and felt comfortable deliberating with one another and engaging with one another’s ideas.  We discussed each and every case with genuine vigor and concern that year, and the judge’s confidence gave us the confidence to push and develop one another’s thoughts to their limits.  Have no doubt: the judge knew when to take the lead and when to rein us in.  But she also helped us to see that we could have important ideas that, with the appropriate development, would help to push the envelope of the law and help clarify or harmonize legal doctrines in beneficial ways.  The judge thereby taught us the brilliance that goes with creating an environment in which deliberation is free from insecurity, and reasoning is vibrant and sincere.  The judge also showed us how valuable such a process can be, and how much it can add to one’s ability to perceive better, more probing and more honest answers to legal questions.  With regard to her peers on the Court, the judge took the same basic approach, both at oral argument and in her interoffice correspondences.  She thereby enlivened and enriched the tenor of the deliberations of the Court more generally.  This is, without doubt, one highly tangible and pervasive way in which the judge’s presence has already changed the Second Circuit Court of Appeals, and has helped produce a better jurisprudence within the Circuit.”

 

I then continued: “The judge’s ability to bring out and draw upon the best in others and her confidence and perseverance are not ultimately unrelated qualities in her.  It is the judge’s confidence that allows her never to be afraid or jealous of a thought that can help improve her reasoning or her views on things; and it is, in turn, her ability to identify and nourish such thinking, and to listen to sincere challenges to her own thinking, that allows her confidence to hit its mark and track the truth so unerringly.  The judge is, in fact, extraordinarily generous in her crediting of others.  During her induction speech for the Court of Appeals, in a room filled with senators, federal judges and other persons of relative power and social status, the judge went to great lengths to thank not only President Clinton, the senators, her peers and her legal mentors for helping her attain her numerous judicial accomplishments but also, in equal detail, the fed cap employees who had kept the hallways and chambers clean, the cafeteria staff, the security officers who had watched the doors to the courthouse and the numerous other persons who were part of the vast web of relations upon which her work had in fact depended from day to day.  She was not afraid to acknowledge the genuine role that each person had played in allowing her to succeed as a judge, regardless of the person’s perceived standing in the room, and her heartfelt expressions of gratitude had the power to motivate.  The judge also spoke of her mother, and of how her mother had worked extra hours as a nurse in a methadone clinic to save up enough money to buy the judge and her brother the one set of Encyclopedia Britannicas in the Bronxdale Public Housing Projects, where the judge had been raised; the judge spoke of her committed and lasting friendship with Theresa, her secretary, who has enriched all of our lives and has helped cement all of our relations with one another; and the judge spoke of family and love, including that of her mother for the man her mother would marry that night.  Anyone seeing the amount of goodwill toward the judge that filled that room, arising from every type of person with every type of background, could not help but get a sense of the very real power that the judge had invoked through her sheer force of character.  One began to get the sense that, without even trying, the judge had created and could move a small but silent army.  What makes the judge’s courage really shine, then, is that it involves the courage not only to express views that are worthy of consideration but also to listen, to be open to reason and to validate and acknowledge contributions that others can make to her own development and thinking.  We are all better for having a person with her type of character in a position of power.”   

 

Lastly, but importantly, Judge Sotomayor is a genuinely good person, with an enormous heart.  She is incredibly skilled on levels that push every imaginable envelope, and I really do hope that people will get to know who she is before taking the easy route of discrediting that which they do not yet understand. 

 

Professor Kar is a Professor of Law and Philosophy, and the Thomas Mengler Faculty Scholar, at the University of Illinois in Urbana-Champaign, beginning in the Fall of 2009.

Judicial writing, court structure, and the judicial process

Chad wrote yesterday about Bill Stuntz's argument that writing ability is an important (but overlooked) factor in selecting a Supreme Court justice because writing ability--as much as smarts and experience--define judges' influence. Let me take the point in a slightly different direction: How much should writing ability be considered in the scholarly literature on appellate decisionmaking? And how can it be taken into account as a variable?

I just finished reading an intriguing essay by Tracey George and Chris Guthrie (forthcoming in Duke Law Journal) arguing for a change to the structure of the Supreme Court, primarily by expanding the size of the Court (to 15 justices) and having most cases argued and decided in panels of three (with an en banc process for important cases, including those in which a state or federal law is challenged on constitutional grounds). This was a follow-up to a larger 2008 article proposing a panel structure for the Court (which I have not had a chance to read). They argue that the overwhelming majority of cases (almost 90 %) since 1953 would have come out the same if decided in randomly selected panels (based on how each justice voted), including in a high percentage of 5-3 and 5-4 cases.

But how does or should writing quality and the writing skill of different justices play in here?

Random re-distribution of justices into panels means random re-distribution of opinion-writing. It is likely that the original opinion-writer (or original dissenter) would not be on the panel. Or, if she were, she might not be assigned the opinion because the author-selection process will be different (in terms of who does the assigning, how assignments are made, and what other cases there were to be assigned). Prospectively, the distribution of opinions is likely to be different--subject to the randomness of panel selection, as well as the effects of a hoped-for increase in the Court's docket on who takes which cases.

This means responsibility for the opinion in a given case could be placed in the hands of a different author, for better or for worse. At a minimum, this might alter the political and precedential influence of the decision, accepting Stunt'z point (and I think I do) that influence beyond the Court is, in part, a product of the craft of writing. The effect an opinion will have in political, policy, and academic debates is a product of the quality and style of the opinion. The ease and consistency with which lower-court judges can apply a precedent depends greatly on the clarity, power, rhetoric, and overall quality of the Supreme Court opinion. Keeping things focused on Justice Souter, one need look no further than the mess created by his weak, all-over-the-map opinion on pleading standards in Bell Atlantic v. Twombly. The panel proposal might, incidentally, have its greatest effect on the work of the lower courts.

And what of the influence of writing skill within the Court? How, if at all, might changing authorship alter case outcomes? For example, imagine the panel in an 8-1 case now consists of the dissenter and two of the non-writing majority; if that dissenter is an influential writer (or no longer has to argue against the original influential writer on the other side), might she convince at least one of her colleagues to vote differently?

Prospectively, George and Guthrie assume that future justices will behave consistent with how they have behaved in the past, thus future cases likely will come out much as we predict from the preferences of the full current Court. But does the variable of writing abilities of individual justices alter that conclusion, based on which justices are assigned to which panels and how opinions are assigned within the panel and what cases justices take? Might a case that likely would come out one way if an influential justice (say, Scalia) is writing the majority opinion now come out differently if Scalia is not on the panel and not able to exert the influence of the pen?

I am not sure the answer to the question. And I am not sure it is measurable in any meaningful way. But I put it out there for consideration.

Stuntz argues for Karlan & the importance of writing skills

Bill Stuntz recently put up a post advocating in favor of Pam Karlan for Justice Souter’s seat.  In the course of his advocacy Stuntz makes the case for writing skills as an important (and generally overlooked) component of a justice’s influence.  I think he’s onto something.  I just finished my maiden voyage teaching Con Law, and was struck by the extent to which the really well-written opinions stand out.  Stuntz’s post is well worth a read.

An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone

I noted in my first post here that I planned to do all of my posts this month on the grading and evaluation of students, but I came across an opinion today that I wanted to share with the wider audience of PrawfsBlawg because it deals with an issue that is becoming impossible to ignore:  How do we deal with the increasing intersection between adavnced technology and the right to trial by jury? A recent New York Times story identified the Google mistrial, i.e., the increasing use of Blackberrys and iPhones  by jurors gathering information about cases and wreaking "havoc on trials around the country, upending deliberations and infuriating judges." Last week, CrimProf Blog did a post about the judge in the trial of Brooke Astor's son prohibiting Blackberry use by jurors.  The week before the New York Times article, I had posted an entry on my blog about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdict after trial through allegations that "jurors allegedly exchang[ed] e-mail both during trial and during deliberations." At the time I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." 

Well, today, I read the recent opinion of the Court of Appeals of Indiana in Hape v. State, 2009 WL 866857 (Ind.App. 2009), and while it deals with a slightly different issue, it prompts me to wonder whether judges are as ill-equipped as Rule 606(b) to address what courts should do when technology has encroached upon the jury deliberation process. The issue: What should be done when a juror comes forward after trial and claims that jurors retrieved incriminating text messages from a cell phone that was admitted into evidence, but without either party or the court knowing that the messages existed.  According to the Court of Appeals of Indiana, the answer was "nothing." And according to me, that answer was wrong.

In Hape, Darby L. Hape appealed from his convictions for possession of methamphetamine with the intent to deliver and resisting law enforcement (Hape was also improperly found to be a habitual offender). One of the grounds for Hape's appeal was that he learned from a juror after trial that the jurors were able to turn on one of the cell phones taken from Hape during a search of him incident to a lawful arrest, which was admitted as an exhibit, and recover several text messages, including one from "Brett," which stated:

Hey man do you think you can do something 4 one of what I gave you the other night. I could care less about ours right now but my other dude keeps asking & I don't even have the funds to pay him back I guess I will freakin tell him to get it off the water tower.

Hape claimed that the trial court erred by denying his motion to poll the jury to determine the effect of this unadmitted text message on their verdict, but the Court of Appeals of Indiana found that this denial was improper pursuant to Indiana Rule of Evidence 606(b), which indicates that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occuring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

Indiana Rule of Evidence 606(b) is mostly similar to Federal Rule of Evidence 606(b), but the key difference that divides them explains the erroneous decision of the Court of Appeals of Indiana. You see, in Tanner v. United States, 483 U.S. 107 (1987), defendants sought to have jurors impeach their verdict through allegations that jurors were drunk, high, and sleepy during trial and deliberations. The Supreme Court found that the lower courts properly precluded such impeachment because there is an external/internal dichotomy in Federal Rule of Evidence 606(b), pursuant to which jurors cannot impeach their verdicts based upon anything internal or intrinsic to the jury deliberation process (such as misunderstood jury instructions or inferring guilt based upon the defendant's choice not to testify) but can impeach their verdicts based upon anything external or extrinsic to the jury deliberation process, whether it be external evidence (extraneous prejudicial information such as a biased newspaper article about the case finding its way to the jury room) or external influence (improper outside influence such as a threat from a family member of a party to a juror).

In explaining the common law precedent leading to the adoption of Federal Rule of Evidence 606(b), the Court noted that

Lower courts used this external/internal distinction to identify those instances in which juror testimony impeaching a verdict would be admissible. The distinction was not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. Clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful. For example, under a distinction based on location a juror could not testify concerning a newspaper read inside the jury room. Instead, of course, this has been considered an external influence about which juror testimony is admissible....Similarly, under a rigid locational distinction jurors could be regularly required to testify after the verdict as to whether they heard and comprehended the judge's instructions, since the charge to the jury takes place outside the jury room. Courts wisely have treated allegations of a juror's inability to hear or comprehend at trial as an internal matter.

The Court then applied this dichotomy to the allegations at hand and concluded that there could be no jury impeachment in the case before it because, inter alia, "[h]owever severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an 'outside influence' than a virus, poorly prepared foor, or a lack of sleep." In other words, the jurors' alleged conditions were conditions caused by them, not something that was improperly presented to them. 

What's clear from Tanner is that, unlike Indiana Rule of Evidence 606(b), Federal Rule of Evidence 606(b), does not contain an exception for post-verdict juror testimony concerning drug or alcohol use by jurors, and I'm betting that Indiana's rule, which was enacted in 1994, was a response to the Court's 1987 opinion in Tanner. Nonetheless, the Court of Appeals of Indiana in Hape adhered to Tanner's internal/external dichotomy, albeit in what I regard as a nonsensical manner.  According to the court in Hape, Hape's jury impeachment argument failed because

the text messages are intrinsic to the cellular telephone. The jury discovered the text messages at issue by turning on a cellular telephone that was admitted into evidence without objection....First, the text messages themselves are not extraneous to the cellular telephone. We agree with the State that text messages are intrinsic to the cellular telephones in which they are stored. "Intrinsic," as defined by Black's Law Dictionary, means "[b]elonging to a thing by its very nature; not dependent on external circumstances; inherent; essential." Black's Law Dictionary 842 (8th ed.2004). We conclude that the text messages at issue here are part and parcel of the cellular telephone in which they were stored, just as pages in a book belong to the book by their very nature, and thus they are intrinsic to the telephone. 

This ruling mischaracterizes the Tanner internal/external dichotomy. Under that dichotomy, the question is whether the information/influence at issue was intrinsic or extrinsic to the jury deliberation process, not whether it was intrinsic or extrinsic to something that was properly in the jury deliberation room. As the Court of Appeals of Indiana correctly noted, the text message was never authenticated and thus never deemed admissible, and as the United States District Court for the Southern District of New York noted in collecting cases in Benjamin v. Fischer, 248 F.Supp.2d 251, 261 (S.D.N.Y. 2002), "extrinsic information does not transform itself into admissible evidence simply because it is hidden within a properly admitted exhibit introduced into evidence without restrictions." As I noted above, the only quesion for the Court of Appeals of Indiana in Hape should have been whether the text message was something that was improperly presented to the jurors, and based upon Benjamin v. Fischer, that the answer is a clear "yes."

But even using the logic of the Court of Appeals of Indiana, do you agree that an incoming text message is "intrinsic" to a cell phone? Using the same definition as the court, is an incoming text message something that "[b]elong[s] to [it] by its very nature; not dependent on external circumstances; inherent; essential?" Again, the answer seems to me to be a clear "no," and an extension of the court's logic would lead to scary results. For instance, let's say that a friend sent a text message to a juror indicating that a news story just revealed that the defendant failed a polygraph test. According to the Court of Appeals of Indiana, this text message would be intrinsic to the cell phone and could not form the proper predicate for jury impeachment. Such a conclusion would be both nonsensical and troubling.

All of this leads me to believe that the Supreme Court of Indiana might reverse Hape's conviction, but what about cases with intra-jury e-mailing, which is indeed intrinsic under Federal Rule of Evidence 606(b)? Well, one of the arguments in my new article, Dismissed with Prejudice, is that courts should find that the Rule violates the right to present a defense, at least in criminal cases.  But what do readers think?  Is it, to paraphrase John McClane, an analog rule in a digital world? Or does it still make sense?       

Justice Jackson on Umpires and Judges

This post was written by John Q. Barrett of St. John's and the Robert H. Jackson Center; it was sent to the Jackson List (Link: http://new.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett/JacksonList.stj) and was forwarded by my FIU colleague, Tom Baker. Jackson's comments are in line with arguments I have made against Chief Justice Roberts's views of the judge-umpire connection.

On Thursday, December 13, 1951, Justice Robert H. Jackson spoke at the New York County Lawyers’ Association’s annual dinner, held at the Waldorf=Astoria Hotel in Manhattan. The Association and its 1,000 guests that evening honored senior federal Circuit Judges (and cousins) Learned Hand (age 79, and a judge since 1909) and Augustus Noble Hand (age 82 and a judge since 1914). To close the program, Justice Jackson delivered a “benediction” speech that included a now-famous line: “if I were to write a prescription for becoming the perfect district judge, it would be always to quote Learned and always to follow Gus.”

Justice Jackson also paid tribute to the Judges Hand that evening by drawing the analogy between an excellent judge and a baseball umpire. As Jackson put it,

the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

In recent years, the umpire-like work of judges has been described as much more mechanical than volitional. In 2005, then Circuit Judge John G. Roberts, Jr., nominated to serve as Chief Justice of the United States, testified to the Senate Judiciary Committee that

[j]udges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Chief Justice Roberts was, of course, confirmed. In the process, his description of judging as mere rule-applying umpiring became a topic of much attention and discussion. Among lawyers, law professors and judges, the consensus view seems to be that the Chief Justice knows better, and that confirmation candidate advocacy should be recognized for what it is.

Interestingly, a captivating new book, New York Times reporter Bruce Weber’s As They See ‘Em: A Fan’s Travels in the Land of Umpires (Scribner) (click here), takes direct issue with the robotic, rule-enforcer view of umpires’ work. According to Mr. Weber,

[t]hough fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.

Mr. Weber’s account of the umpireal job is not just his opinion. He quotes from major league umpires who explain their work as involving autonomy, responsibility and opportunities for judgment that resemble the work and responsibilities of, well, judges. The author explains that during two-plus years of attending umpire school and then interviewing almost 200 umpires and other baseball people,

[m]ore than one major league umpire spoke to me of calling balls and strikes as a kind of political enterprise, an activity requiring will and conscience and a point of view.

“It’s like the Constitution,” [current Major League Baseball umpire] Gary Cederstrom said to me. “The strike zone is a living, breathing document.” When I asked [MLB umpire] Tim Tschida why balls and strikes provoked so many arguments and so much enmity, he responded by comparing the rulebook strike zone to one of the most controversial Supreme Court decisions of the twentieth century. “Have you ever read Roe v. Wade?,” Tschida said. “It’s very clear. What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”

It seems, at least according to these umps, that Justice Jackson (who was, by the way, not a baseball fan) had it right about both their work and his own. Indeed, Jackson in his 1951 speech about “umpires” Learned and Augustus Hand seems to have been channeling some of the wisdom of one of that era’s, and humanity’s, greatest “judges”: an umpire’s qualities must include, said Branch Rickey, “the discretion of a judge….”