Tuesday, November 01, 2022
Affirmative action alternative? (Guest Suzanna Sherry)
The following post is by Suzanna Sherry (emerita at Vanderbilt and friend of the blog).
On Monday, the U.S. Supreme Court heard oral arguments about the legality of affirmative action. Some time before the end of June, the Court may well hold that it is illegal – either under the Constitution, a federal statute, or both – for colleges and universities to use race as a factor in deciding which students to admit. Conservatives hope, and liberals fear, that this will mean the end of affirmative action in educational institutions.
Continue reading "Affirmative action alternative? (Guest Suzanna Sherry)"
Posted by Howard Wasserman on November 1, 2022 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Monday, October 31, 2022
Alex Bregman in World Series
Game 3 of the World Series was rained out, with the teams tied 1-1. Alex Bregman homered in Saturday's Game 2; this was his sixth career World Series home run, most among Jewish players, one more than Hank Greenberg (and Joc Pederson).
Posted by Howard Wasserman on October 31, 2022 at 09:53 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Civ Pro Halloween
Civ Pro is a spring class around here, so no in-class costumes. Still, I got a visit from a student in my office. She is 4'11" tall; she wore a white t-shirt with the word "statement" on it.
Posted by Howard Wasserman on October 31, 2022 at 05:20 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)
Saturday, October 29, 2022
Defending "Your Honor"
I'm grateful to Judge Benjamin Beaton for publishing his article Judging Titles, and to the VC for calling attention to it. Judge Beaton argues against the practice of calling judges "Your Honor," calling it (in the article abstract, at least) "un-American" and arguing that the simple appellation "Judge" is enough. I find plenty of points of agreement. Accidentally calling a judge "Sir" is no hanging offense. Law clerks (and everyone else) should avoid showering judges with obsequies--and that's true twice over for Supreme Court Justices. (I think he's wrong in suggesting that "this manner of speech" might come easier to clerks "who studied under dons and socialized at final and eating clubs." Those types--the U's, as Alan Ross and Nancy Mitford would say--know to the second when and where to shift into the assumed familiarity of informality with the powerful, and don't waste a moment in doing so. His speculation to the contrary is frightfully non-U.) Judges should avoid being changed by the bowing and scraping that surrounds them. All correct. But on the main point, I think he's dead wrong.
From my perspective, Judge Beaton himself helpfully distills into a sentence how and why he is wrong when he asks the rhetorical question, "Why are you addressing my honor (whatever abstract portion that might represent) and not the man in full?" He further elaborates on his error later in the piece by adding, "[T]hat distinction--between a professional duty and a personal rank--is what I'm trying to highlight."
On the first point, it seems to me to be precisely the point that under a sound system of government and of rule of law, we don't have to address "the man in full," and don't, or oughtn't, want to. We want to address the officer: not the whole woman (or man) in full, but the woman in her capacity as the holder of an office, and only in that capacity. We do not want to rely directly on her personal goodness, or the quantum of empathy she possesses (even if it's a useful quality in the performance of the office), or anything else other than her awareness that she occupies an office, that an office is ultimately not a collection of powers but a set of duties--"What are the highest places," asked an English judge long ago, "but obligations of the greatest dewties?"--and that she must fulfill them faithfully.
That is not to say the person is irrelevant, however. "Judges aren't the law," as Beaton writes, and despite his wisecrack I don't think they teach otherwise even at Yale. But the law is not an algorithm and the act of interpreting it is not mechanical. (I don't think anyone would argue otherwise even outside of Yale.) And transforming interpretation into decision and explanation, to use Beaton's terms, is not mechanical either. Certainly it would help if every decision were publicly explained. But judges make countless decisions and micro-decisions, including decisions not to act, that have no occasion for public explanation; and even if it were otherwise, the space between interpretation, decision, and explanation is vast and murky. Some need for character, judgment, and virtue is an ineluctable part of the performance of any office by any actual human being.
And that, in my view, is where honor, properly understood, comes back in. Calling someone "Your Honor" has nothing to do with "personal rank," but a great deal to do with reminding the judge both that he is supposed to fulfill his "professional duty" honorably, and that his reputation in the eyes of his peers and in his own eyes--his honor, in short--is at stake whenever he performs his office. To treat "professional duty" as if it is quite separable from one's honor, as if it's some job that simply is undertaken during office hours, so to speak, is a mistake. As the sublime Laurence Laurentz would say, "Would that it were so simple."
Beaton objects to the phrase "Your Honor" because he thinks of it largely as a "term of nobility," and equates it mistakenly with "privileges" while contrasting it, equally mistakenly, with "duties." He's only half-wrong on the first point, both because it certainly connects to the history of nobility and because he also acknowledges in the footnotes that the term has long also been specifically connected to the idea of office-holding. And he's more seriously in error on the second point. Honor is precisely what connects the "man in full" to his "duties." Again, he is fair enough to acknowledge this point, albeit somewhat lightly, when he quotes Judge Edward Devitt: "The appellation 'Your Honor' is the trigger which commands our conscience to proper personal conduct and to the faithful performance of our duties." He cannot resist a jibe at Devitt, but Devitt is more right than wrong and more right than Beaton. It's not, pace Devitt, that the "appellation" serves as a "trigger." It's the concept and the virtue of honor that does it, and it's less a trigger than a bell, a reminder that the bell is tolling for the judge. Honor is, in fact, the virtue that connects the office to the man through the very judicial oath about which Beaton has more positive things to say. It's why the judicial oath, like other oaths, is said publicly. The public oath-taking is a forceful notice to the community that the judge has pledged herself and her honor to the sound performance of her office--a pledge of which "Your Honor" is an ongoing reminder. The point is perhaps best made by imagining the phrase spoken, not by rote or for flattery's sake, but in shocked or outraged tones, to remind a judge who has acted improperly that she has just dishonored herself, that the speaker knows it, and (because honor is as much an internal as an external quality) that the judge ought to know it too.
It's not the term that keeps me up nights. I'm more or less fine with whatever Beaton wants to call himself, although formality, like formalism (the latter, at least, in Beaton's view), shouldn't be dismissed too casually. But I think he's wrong about the thinking behind it. And although he falls into what might be thought a very contemporary habit of speaking about honor as aristocratic and archaic, there are plenty of people who could tell him that honor has much more to recommend it than that, that it is far from obsolete and, in altered form, has a full and necessary place in the modern liberal constitutional order, and that it's intimately connected to the "constitutional marriage of personality and impersonality" that is involved in the connection between office, oath, and honor. I don't care too much whether he reconsiders his practice, but he should reconsider his thinking. Just as long as you don't call him late for dinner.
Posted by Paul Horwitz on October 29, 2022 at 12:06 AM in Paul Horwitz | Permalink | Comments (1)
Friday, October 28, 2022
The Independent State Legislature Doctrine
Some of the briefs in Moore v. Harper are asking the Supreme Court to avoid the constitutional issues presented and find some narrow statutory ground (either state or federal) to resolve the case. Normally, I strongly favor this approach. But not in this case.
I thought that the whole point of taking Moore was to settle the independent state legislature arguments before the 2024 election. A narrow ruling won't do that. Then the Court may be forced to address the issue at the last minute in a heated presidential campaign. That would be unwise.
Posted by Gerard Magliocca on October 28, 2022 at 01:10 PM | Permalink | Comments (0)
Monday, October 24, 2022
JOTWELL: Bartholomew on Ormerod on qui tam
The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Peter Ormerod, Privacy Qui Tam, ___ Notre Dame L. Rev. (forthcoming 2023), proposing qui tam actions to enforce privacy rights.
Posted by Howard Wasserman on October 24, 2022 at 01:14 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
A World Series request
One game of the upcoming World Series must have
the Phillies wear this:
And the Astros wear this:
Wearing those uniforms, the Phillies beat the Astros in the best-of-5 1980 NLCS* 3-2, a series in which four games went into extra innings.
[*] The Astros joined the NL (as the Colt-45s) in 1962. They moved to the AL beginning in 2013 to establish two 15-team leagues with three five-team divisions. Of course, that re-balance was necessary because the Brewers had switched from the AL to the NL in 1998, a move that Commissioner Bud Selig engineered to help the team he had owned for 20+ years and that his daughter ran.
Posted by Howard Wasserman on October 24, 2022 at 01:04 AM in Howard Wasserman, Sports | Permalink | Comments (0)