Archive for the ‘Courts’ Category

Sherrilyn Ifill’s The Chief Strikes Out

posted by Danielle Citron

Lucky for us, guest blogger and my brilliant colleague Sherrilyn Ifill has written a guest post on Chief Justice Roberts’s defense of the Court’s recusal standards and his dismissal of related concerns with regard to upcoming cases, including the health care challenge.  Here is Professor Ifill’s post entitled “The Chief Strikes Out.”

The Chief Justice of the United States is too polite to tell those of us who’ve raised concerns about Supreme Court ethics and recusal standards to go jump in a lake.  So instead, he invited us to a baseball game.  In his 2011 State of the Judiciary address to Congress, Chief Justice John Roberts invoked the 1919 Chicago White Sox baseball scandal to explain why, in his view, the justices of the Supreme Court need not formally adhere to the Code of Judicial Conduct that governs the conduct of every other judge in the country or modify its current recusal practice.  It’s not worth arguing with the Chief about the significance of the Judge Kennesaw Landis‘ role in resolving what was then the worst scandal in sports history.  I have elsewhere taken issue with what I regard as the Chief Justice’s inadequate conception of the role of umpires in his confirmation hearing opening statement.   But as every true sports fans knows, you can’t win a sports argument.

Justice Roberts deserves credit for devoting his entire State of the Judiciary address to responding to the growing swell of critics in Congress, in the academy and in the advocacy community for changes in the Court’s recusal practice [although very persuasive critiques suggest that the Chief might well have spoken in his remarks directly to the crises effect the lower federal court judges] .  Given the fact that one of the biggest problems with the Supreme Court’s ethics and recusal practices is the silence and secrecy that shrouds them, Roberts’ public and detailed defense constitutes a welcome indication that the Court is willing to engage respectfully with its critics. But Roberts’ forthrightness cannot overcome the fundamental inadequacy of his response to the concerns raised about the Court’s ethics and recusal practice.

I found Justice Roberts’ defense of the status quo in the Supreme Court’s recusal practice to be the most unsatisfying aspect of his remarks.  As the Chief notes, Title 28, section 455 (a) of the United States Code requires federal judges to withdraw from cases in which their “impartiality might reasonably be questioned.”  Unlike the Code of Judicial Conduct which, by its express terms does not cover Supreme Court justices, 455(a) applies to justice on the High Court which even Justice Roberts concedes when he tells us that “individual Justices decide for themselves whether recusal is warranted under 455.”  The Supreme Court has said that this standard does not require proof of actual bias and is to be judged by an objective standard, not the subjective view of the judge about his own impartiality.  The standard is based on that of the “reasonable person.”  In this regard, even the mere appearance of bias may require withdrawal.  This comports with the Supreme Court’s view even before 455(a) was amended that include an objective standard that  “justice must satisfy the appearance of justice.”

In addressing the recusal question, Justice Roberts rejects outright calls for Justices Thomas and Kagan to recuse themselves from hearing the case involving challenges to the health care law. But concerns about the Court’s recusal practice transcend the particulars of the health care case.  Questions about the Court’s contemporary recusal practice date back to Chief Justice Rehnquist’s decision to participate in the Laird v. Tatum case in 1973, a year after he had testified before Congress in defense of the surveillance practices at issue, as an Assistant Attorney General in the Nixon Administration, and continued through Rehnquist’s decision sit in the 2000 Microsoft case, potential conflicts among several justices in Bush v. Gore , and through the controversy surrounding Justice Scalia’s duck-hunting trip with then-Vice President Dick Cheney while a case against the Vice President was pending in the Court.

The key issues at the center of the controversy are those of transparency and consistency.  How do individual justices apply the standard for recusal set out in 455(a)?  The Court’s recusal practice is entirely opaque.  Justices are not required to, and most often do not, write decisions explaining why they have declined to recuse themselves from cases in which their withdrawal has been requested by parties.  That’s why Justice Scalia’s 22-page memorandum opinion in response to the duck hunting controversy was so extraordinary and welcome, despite the many flaws in Scalia’s reasoning.  We simply have no sense of how the justices apply the reasonable person standard in recusal cases.

In the absence of an opinion, even when the justices do recuse themselves, the parties and the public have little understanding of the basis upon which an individual justice took that action.  It’s easy enough when there is an actual financial connection between a justice and one of the parties, or when the child or close relative of a justice is a lawyer for one of the parties.  But the “appearance” standard set out in 28 U.S.C. 455 does not require actual bias.  As a result we have very little sense of what – to the understanding of members of the Court – actually constitutes the appearance of partiality.  This has the effect of increasing the controversy when, for example, Justice Thomas’ wife engages in high profile political behavior in opposition to the health care law, and Thomas makes comments that appear to approve her recent conduct.  There is endless speculation, but very little Supreme Court precedent to guide a sound discussion of whether in fact recusal is warranted.

Roberts may be right that neither Thomas nor Kagan should recuse themselves.  But this is not a matter the Chief can simply determine based on his confidence in the integrity of his colleagues.  The question of recusal in neither instance is as much of a slam-dunk as Roberts and some ethicists have suggested, and is entitled to careful consideration by each of the justices in accordance with the standards of 455(a).  While it is a comfort that Justice Roberts has “complete confidence in the capability of his colleagues to determine when recusal is warranted” that is simply not the standard set out in 455, or in the Court’s jurisprudence interpreting that statute. And frankly, many Americans simply do not share that confidence.  Moreover, the lawyers who practice in the Court should have the opportunity to rely on more than the assurances of the Chief, in assessing the adherence of individual justices to the legal standard for recusal. Read the rest of this post »

  January 4, 2012 at 12:14 pm   Posted in: Courts   Print This Post   3 Comments

Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

posted by Jeffrey Kahn

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here. 

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

  December 31, 2011 at 9:24 am   Posted in: Civil Rights, Courts, Criminal Law, Criminal Procedure, Current Events, Uncategorized   Print This Post   No Comments

Original Habeas Writ

posted by Danielle Citron

My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus.  He’s a wunderkind.  One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams.  Professor Kovarsky is also writing ground-breaking articles.  Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:

In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.

Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.

I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.

  December 25, 2011 at 2:53 pm   Posted in: Capital Punishment, Civil Rights, Constitutional Law, Courts, Criminal Procedure, Law Practice   Print This Post   No Comments

Ira Glass v. Amanda Williams: Knockout Punch

posted by Sarah Waldeck

In the event you read this prior post and missed the coverage in the news today, Judge Amanda Williams has agreed to resign from the bench in January and has also promised not to seek another judgeship.  In exchange the Georgia Judicial Qualification Commission dropped the complaints of misconduct against the Judge, who presided over the state’s largest drug court.  On one level, this result is unsurprising because resignation is the usual result when complaints are brought by the Commission.  The resignation, however, is a dramatic fall from grace for a judge who recently won re-election to a sixth term.

 

  December 22, 2011 at 1:04 am   Posted in: Courts, Culture   Print This Post   No Comments

“The Legal Elephant Parade That Is the Ninth Circuit”

posted by Kyle Graham

In an editorial published yesterday, the Wall Street Journal casually referenced “the legal elephant parade that is the Ninth Circuit.”

Though the Journal gets points for originality, the wittiest critique of the United States Court of Appeals for the Ninth Circuit that I’ve heard remains a comment attributed to a district-court judge within the circuit.  This judge reported thusly on the status of a decision that had been appealed from his court to the judges above: “I’ve just been affirmed by the Ninth Circuit, but I still think I’m right.”

Interestingly, the quote immediately above seems to have originated with (or at least, been popularized by) Stanley Weigel, a rather liberal, now-deceased Kennedy appointee. More likely than not, to the extent that this comment provides some insight into the thoughts of its speaker, Weigel was lamenting the tendencies of the relatively conservative Ninth Circuit panels of a bygone era.

  December 10, 2011 at 1:59 pm   Posted in: Courts, Humor   Print This Post   3 Comments

Barry Bonds: The Likely Sentence

posted by Kyle Graham

Yesterday, federal prosecutors asked that Barry Bonds be sentenced to 15 months in prison, following his conviction on one charge of obstruction of justice (18 U.S.C. § 1503). A probation officer has recommended that Bonds receive only probation, and Bonds himself (understandably) agrees with the officer’s assessment.  How realistic are these respective sentencing requests?

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably similarly situated to Bonds, have received in recent cases. Here, I sifted through data collected by the Administrative Office of the United States Courts for FY 2003 – FY 2007, which I compiled into a single database for another project a while back. (For full citations of these datasets, please go to footnote 119 here.)

The AOUSC data capture any and all criminal cases that terminated in federal district court between October 2002 and September 2007, providing a wealth of information regarding each matter. I separated out from this mass of data the handful of cases that entailed a single conviction under 18 U.S.C. § 1503, without any convictions for other offenses. The data do not relate whether the defendant in each of these cases was sentenced as a first offender, or not; nor do they indicate whether any departures or enhancements applied in a particular case. But they do reveal the sentence that was imposed in each matter.

What I found was that 30 of the 83 defendants whose cases terminated within this time frame and who were arguably similarly situated to Bonds, in that they were convicted upon plea or guilty verdict at trial of a single count under 18 U.S.C. § 1503, received only probation (and, in some cases, a fine) as their sentences. The remaining defendants received prison time, with the median term being 24 months (again, some of these defendants were almost assuredly not first offenders, accounting for the longer sentences). The prison sentences were quite spread out, such that they did not form a bell curve; no more than five defendants received any specific term. Of these, five defendants received five-month terms, five received 12-month terms, and another five received 18-months terms.

So, if these numbers are any guide (which, I concede, they may not be), it looks like Bonds has a pretty good argument for probation.

  December 9, 2011 at 1:14 pm   Posted in: Courts, Criminal Law, Criminal Procedure, Current Events   Print This Post   No Comments

Goodwin Liu’s First Three Months on the California Supreme Court

posted by Kyle Graham

Goodwin Liu now has been an associate justice of the California Supreme Court for just over three months. And while he has not yet written a majority, dissenting, or concurring opinion, the (very) early returns suggest that the comparisons between Justice Liu and former Chief Justice Rose Bird that circulated at the time of his nomination to the court may have been a tad overstated.

Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored by Justice Carol Corrigan, a Schwarzenegger appointee.

Meanwhile, just last month the court unanimously affirmed judgments of death in two separate cases. Though neither matter raised particularly complex issues, Justice Liu’s votes in these cases belie suggestions that, if placed in a position to review capital cases, he would “overrule death penalty convictions given any excuse, no matter how far-fetched.”

  December 6, 2011 at 3:56 am   Posted in: Capital Punishment, Courts, Jurisprudence   Print This Post   3 Comments

AALS “Hot Topics” Program: Russia’s “Dictatorship of Law”

posted by Jeffrey Kahn

I am glad to announce that the AALS Committee on Special Programs selected my proposal as a “Hot Topics” panel for the 2012 AALS Annual Meeting in Washington D.C. next month.  The program is called: “The Dictatorship of Law: The Khodorkovsky Case, Human Rights, and the Rule of Law in Russia.”  William Pomeranz, Deputy Director of the Kennan Institute for Advanced Russian Studies at the Woodrow Wilson International Center for Scholars, will chair a panel that includes Kim Lane Scheppele (the University of Pennsylvania and Princeton), Bruce Bean (Michigan State University), Christopher Bruner (Washington and Lee University), Alexei Trochev (Nazarbayev University) and me.  The program will begin at 10:30 on Friday morning, January 6. 

Below is a description of the panel, which will occur (as perhaps a “hot topic” should) between two central events on the Russian calendar: the surprising results of yesterday’s parliamentary elections in Russia and presidential elections scheduled for March 4 that (at least until yesterday) everyone was saying would be certain to return now Prime Minister Vladimir Putin to the presidency currently held by his protégé, Dmitrii Medvedev.

During his first campaign for President of Russia in February 2000, Vladimir Putin defined democracy as a “dictatorship of law.”  This was meant to signal a shift away from the perceived lawlessness of his immediate predecessor’s governance, and to feed the nostalgia for Soviet-era stability.  As Putin starts his gambit to return to the Russian presidency, this panel examines which half of that slogan will dominate the other.  Recent developments in the most well-known case in the courts of both Russia and the Council of Europe present an opportunity to do so at a pivotal moment not only in that case but for the future of the rule of law in Russia.

Mikhail Khodorkovsky was the CEO of the Yukos Oil Company and the richest man in Russia when in 2003 he and his business partner, Platon Lebedev, were arrested and charged with crimes connected to Yukos, Russia’s most profitable and well-known private corporation.  They were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion and sentenced to eight years in prison.  Yukos was seized and sold to state-controlled companies.  In December 2010, as their sentences drew to a close, Khodorkovsky and Lebedev were convicted by another court of embezzlement and money-laundering, charges arising out of the same time period and concerning the same corporate activities that were the basis for the first conviction.  On the eve of that verdict, Prime Minister Vladimir Putin informed a nationwide television audience that “a thief should sit in jail,” a reference to a well-known Soviet mini-series that would have been quite familiar to viewers (the quote continues: “… and people don’t care how I put him away.”).  In midsummer 2011, a Russian court upheld the verdict, extending the defendants’ sentences until 2016. 

A bit more on the tension this case embodies for Russian law and human rights after the break …

Read the rest of this post »

  December 5, 2011 at 11:33 am   Posted in: Corporate Law, Corruption, Courts, Criminal Procedure, Current Events, Law School, Uncategorized   Print This Post   3 Comments

Ira Glass v. Amanda Williams

posted by Sarah Waldeck

If you missed the story Very Tough Love when it aired last March on This American Life, it put a new spin on that old adage about local politics mattering most.  When you are a drug court defendant, the judicial philosophy and temperament of the judge who manages your case matters a lot, particularly since entering the drug court means waiving many procedural rights.  The story, which focused on a drug court judge who had recently won reelection to a sixth term, was remarkable for its laser focus on judicial discretion and how much can go awry when that discretion is abused.  It was also impossible to listen to the story without speculating about how furious the judge must have been when she heard it.

Furious enough, it turns out, to threaten to sue This American Life and reporter Ira Glass for libel.  She sent her letter,  Glass responded, and for a while all seemed to be quiet.

This past week, however, Georgia’s Judicial Qualifications Committee filed a formal complaint against the judge—Amanda Williams, who presides over the drug court in the Brunswick Judicial Circuit.   Among other allegations, the complaint states that Judge Williams jailed defendants indefinitely, ordered a suicidal defendant into solitary confinement for more than two months, and ordered a defendant jailed when he disputed the results of a drug test.

Judge Williams has the opportunity to respond to the charges in writing.  Unless she and the Committee settle (which usually results in a judge stepping aside), the Commiittee will hold a trial-like proceeding on the charges.

We’ll see what happens next.  But if you haven’t been following this, it’s worth clicking on the links to get up to speed.  Reality radio is way more interesting than reality television.

 

Photo Credit:  Krista Johansen

 

 

 

  November 13, 2011 at 1:06 am   Posted in: Courts, Culture   Print This Post   One Comment

Depublishing Opinions

posted by Gerard Magliocca

My participation at a conference last week got me interested in the power of the California and Arizona Supreme Courts to depublish lower court opinions while letting the judgment stand.  This is obviously a docket management technique, but I wonder about why it is justified.

Let’s start with the observation that courts often affirm a result without affirming the reasoning that led to that result.  When they do that, though, they write an opinion turning that new reasoning into law.  Federal courts can also wipe out a published district court opinion by reversing it with a summary order.  (The U.S. Supreme Court cannot do this.)  Affirming a result and wiping out a published opinion without a new one, though, is peculiar. The problem is that the losing litigant is not told why he or she lost and nobody can figure that out in a subsequent case.  If there is other published authority on that issue, then you could say that the ones that remain are the law, but if the issue is one of first impression then no guidance is provided.

I’d be curious to hear from folks in these states about what they think about this practice.

 

  November 11, 2011 at 10:18 am   Posted in: Courts, Uncategorized   Print This Post   15 Comments

Post-Soviet Russia: Just Like 15th Century England?

posted by Jeffrey Kahn

Yesterday I noted that I would blog a bit this month about the rule of law in Russia.  Today’s Wall Street Journal carries a front-page feature article by Guy Chazan that offers a rare look into the world of Russia’s oligarchs.  I’m interested in the fate of Mikhail Khodorkovsky, once Russia’s richest man, now its most famous prisoner.  Chazan’s story focuses on two more oligarchs: Boris Berezovsky and Roman Abramovich.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, they relied on its weakness to amass their wealth.

Now that those empires need protecting, however, it is to law that the oligarchs turn.  Berezovsky, once the éminence grise behind Boris Yeltsin, now lives in luxurious self-imposed exile in London.  The WSJ reports that he is worth about $750 million.  Abramovich owns the Chelsea Football Club and the world’s largest yacht; his worth is estimated at about $16.5 billion.  Berezovsky has sued Abramovich for $6 billion, alleging that the latter violated oral agreements about various oil and metal companies in Russia.  Berezovsky claims he left his stake in them in Abramovich’s hands after he fled to London to escape the wrath of then President Vladimir Putin.

According to Abramovich’s attorney, Jonathan Sumption, there is nothing to this claim.  The dispute arose, he says, in a “society without law,” and the deal the two men made was itself “corrupt.”  That might seem like a strange legal defense but, as Sumption continued, “the reality was that that was how business was done in Russia at the time.” 

The case is being heard at London’s High Court.  To help the judge understand the millieu in which the oligarchs did business, Sumption told the court: “In our own national experience, we have to go back to the 15th century to find anything remotely comparable.” 

Maybe.  But the average Russian citizen observing this legal squabble might note that 15th century England had something that 21st century Russia lacks: Robin Hood.

  November 7, 2011 at 11:16 pm   Posted in: Corruption, Courts, Current Events, International & Comparative Law, Uncategorized   Print This Post   No Comments

In Praise of Complexity

posted by Corey Yung

Earlier this month, right here on this very blog, Dave Hoffman pontificated about two of my favorite subjects: empirical legal studies and baseball. Primarily, Dave wondered about whether empirical legal research was facing might face the same problem as sabermatic baseball analysis: inaccessible complexity. I won’t rehash his argument because he did a very good job of explaining it in the original post. Although I completely agree with his conclusion that empirical legal studies should seek to be more accessible (which I always note at the end of my introduction of my empirical work), I disagree with his contention that empirical legal studies are facing might face widespread incomprehensibility due to growing complexity. Because I think it is a helpful analogy, I’ll borrow Dave’s example of advanced statistics in baseball. Read the rest of this post »

  September 28, 2011 at 11:32 pm   Posted in: Courts, Empirical Analysis of Law   Print This Post   3 Comments

What is “Practical” Scholarship?

posted by Corey Yung

Due to a public comment by the Chief Justice and as a side issue in the ongoing ScamProf debacle, the criticism that legal scholarship in law reviews is worthless to real lawyers has reemerged with a vengeance. As someone who enjoys doctrinal, empirical, theoretical, and completely esoteric scholarship, I’ve struggled to figure out why people in these discussions essentially equivocate doctrinal with practical. Why would Chief Justice Roberts think that a doctrinal article in a law review which might be out of date by the time he reads it is better suited to persuade him than the extensive briefing in the case he is reviewing? For Supreme Court Justices, who have party and amicus briefs so numerous that they don’t read them all, it seems strange to want law reviews to become redundant with other materials that they don’t bother to review.

For lower federal courts, the situation is a bit different. There, I think a strong case can be made that doctrinal scholarship can play a substantial role. Yet, when I have looked through cases that cite law reviews, it seems like the propositions cited are rarely doctrinal in nature. As someone who reads more federal cases for my scholarship than any sane person should, it seems as though law reviews are most often cited for propositions other than legal argument. At least if citations are a good proxy for the utility of law reviews for courts, it appears like the far more used portions of law reviews concern factual, empirical, or historical claims. Even broad theories of law seem to receive more attention than strict doctrinal points. Of course, no one has really studied this issue to confirm my impressions, but, to me, law reviews are most “practical” when they fill a niche distinguishable from other forms of legal writing. Why would anyone want a law review to simply become a legal brief (even one that was more even-handed than the average party brief)? I think many of these complaints about legal scholarship are simple railings against academia, but when they are made by people like Chief Justice Roberts they take on special significance. Although the Chief might not read law reviews in their current form, I hope for the sake of scholarship that he doesn’t get his wish to make them “practical” as he understands the concept.

  September 19, 2011 at 10:52 pm   Posted in: Courts   Print This Post   5 Comments

Ten

posted by Kaimipono D. Wenger

Where were you?

I was probably less than a mile away, but I didn’t see the airplanes. I was on the train, heading in to Brooklyn for my second day on the job as a law clerk in the Eastern District of New York. Read the rest of this post »

  September 11, 2011 at 1:14 am   Posted in: Courts, Current Events   Print This Post   One Comment

Justice by Designation

posted by Gerard Magliocca

I was listening to a discussion on NPR about Supreme Court recusal practices, and the point was made (as it frequently is when this topic is raised) that the Justices must adopt narrower recusal standards than other judges because nobody can replace a missing Justice.  Now there is a proposal by Senator Leahy to make senior Justices eligible to sit on Supreme Court cases in place of a recused Justice, but that is problematic because the pool of senior Justices capable of hearing cases is usually so small and the ideological views within that pool will be well-known to litigants who want to game the system.

This leads to wonder whether we should say that when a Justice is recused then any federal circuit judge can be tapped to “sit by designation” on the Supreme Court.  After all, we let federal district judges sit by designation in the circuits all the time.  This could be subject to some limits (only active judges, or not judges from the federal circuit whose ruling is being reviewed), the most of important of which is that the selection should be random instead of under the control of the Chief Justice. I think the judicial system might be improved if the Justices were subject to the same recusal standards that other judges follow and if there was an occasional “special guest star” appearance by other judges on the Court.

  August 25, 2011 at 4:59 pm   Posted in: Courts   Print This Post   18 Comments

Jack Balkin’s Constitutional Redemption: A Much-Needed Dose of Optimism

posted by Douglas NeJaime

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin’s book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution’s promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin’s descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin’s theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues – from race to abortion to labor – and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental – to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff’s claim, it is often because that claim has already affected the culture more generally.

Balkin’s second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

Read the rest of this post »

  August 1, 2011 at 9:00 am  Tags: balkin, constitutional redemption, lgbt rights, marriage equality  Posted in: Constitutional Law, Constitutional Redemption Symposium, Courts, Legal Theory, LGBT, Sociology of Law, Uncategorized   Print This Post   No Comments

Sherrilyn Ifill on What the Chief Justice Should Read on Summer Vacation

posted by Danielle Citron

My colleague and CoOp guest blogger Professor Sherrilyn Ifill has written an insightful post responding to Chief Justice Roberts’s comments at the Fourth Circuit Judicial Conference.  I’m including her post below.  Thanks, Professor Ifill!

In response to a question at last weekend’s Fourth Circuit Judicial Conference in White Sulphur Springs, West Virginia, Chief Justice John Roberts expressed his agreement with the views of D.C. Circuit Court of Appeals judge Harry Edwards, who has long argued that the scholarship produced by today’s law professors is largely irrelevant to judges.  In fact the Chief Justice doubled down on Edwards’ argument that legal academics focus their scholarly attentions on matters that more concretely assist the judiciary and legal decisionmakers in understanding and working with difficult areas of law practice.  Roberts contended – jokingly albeit – that too often the average law review article will be focused on “the effect of Kant on the evidentiary rules of Bulgaria.”  The line got a laugh.  But it wasn’t very funny.  It also wasn’t very true.

Legal scholars will on occasion indeed take up Kant (and there’s no shame in that), but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.  Such scholarship can assist judges in explaining complex legal doctrine, but also in working through the application of that doctrine to modern legal controversies. Take, for example, the work of my colleague Renee Hutchins, who in her 2007 article Tied Up in Knotts:  GPS Technology and the Fourth Amendment, 419 U.C.L.A. L.Rev. 409 writes about whether and how the use of GPS devices by law enforcement should be assessed under the Fourth Amendment.  Her article was so illuminating in exploring this underdeveloped area of law that Judge David Tatel on the D.C. Circuit Court of Appeals cited it in last year’s U.S. v. Maynard, in which the court unanimously held that the police use of GPS tracking on a criminal suspect over several weeks constitutes a “search” and requires a warrant. Read the rest of this post »

  July 1, 2011 at 4:06 pm   Posted in: Civil Rights, Constitutional Law, Courts, Criminal Law, Culture, Current Events, Supreme Court   Print This Post   19 Comments

Does the Supreme Court Get It In Turner?

posted by Peter Edelman

The underlying facts are awful.  South Carolina is not the only state to have a modern debtors’ prison.  Men are being locked up, sometimes for long stints, for not paying child support.  There are certainly far too many deadbeat dads in this country, and imprisoning a solvent scofflaw father, but with due process, is an acceptable way to put on the squeeze.  But that’s not what’s happening.  Men who simply can’t pay or have other defenses are being jailed without having had a fair chance to put forward their side of the story.

The underlying issue is poverty, of course, and poverty has a long list of terrible consequences, including the heart of how the criminal justice system works, and much more.  In this case, the poverty means the man can’t pay no matter what we do to him and also can’t afford a lawyer to make the case for him.   I have to wonder whether the majority (forget the other four) gets it.  And these five are the good “guys.”

Okay, so they say there’s a better case for giving the defendant a lawyer when the state is the plaintiff.   That helps.  But it doesn’t deal with this case.  Yes, there’s an imbalance when the mother is not represented but, then again, she’s not at risk of being sent to jail.  To say that alternative measures would even the playing field is not to understand the world of trying to navigate the court system without a lawyer.  We and can should do everything we can to make pro se representation somewhat less disastrous but, face it, it’s not the same.  I have to wonder whether they get it.

So there’s an inch or two of progress here, but they could have done better.  For now, anyway, it places a responsibility on all of us who work on access-to-justice issues, including access to justice commissions like the one I chair in Washington, D.C., to redouble our efforts to get more funding for lawyers and our advocacy for every possible step to ameliorate the hazards of pro se representation.  But all of that is not the real way to run the railroad.

  June 27, 2011 at 9:20 am  Tags: Poverty  Posted in: Civil Rights, Constitutional Law, Courts, Supreme Court, Symposium (Turner v. Rogers)   Print This Post   One Comment

Turner — Inplications for Civil Gideon, the Use of Unbundled Legal Services to Provide Access, and the Lawywers Practice Monopoly

posted by Michael Millemann

Turner, as several commentators have observed, is a glass that is neither wholly empty nor largely full. The majority opinion is useful in my view in organizing the vigorous national efforts, on several complementary fronts, that should and will continue to implement the constitutional right of civil litigants to access to the courts. For readers, I equate procedural due process, as implemented through the Mathews balancing test, and the access-to-court right. Here is what I take from the Majority Opinion in Turner, which I assume was written for Justice Kennedy:

Civil Gideon: In introduction, I note that this argument has been extraordinarily successful (well beyond my expectations), when made to the ABA, state legislatures, state access to justice commissions, and other policy-makers, based on logic, equity, justice, several different federal constitutional provisions and common sense. I hope the national leaders of the Civil Gideon movement will continue with it. For them, I would say that Turner deals only with a blatantly contemptuous, non-custodial parent who four times initially refused to provide for his child, then on each of these four occasions paid his arrearages immediately after he was sentenced to prison, proving that civil contempt works. On the 5^th occasion, he “explained” that he was unable to pay because he “got back on dope…done meth, [and] smoked pot” after being released from prison the fourth time. Even then, in a compelling example of judicial patience, the court said: “If you’ve got a job, I’ll make you eligible for work release.” These facts lead to three thoughts:  First, Turner’s was truly contemptuous conduct and based on Turner’s history, there was no dispute about the only factual issue the Court identified in the case: “Could he pay”? The answer clearly was “yes” when he had to, except when he decided the 5^th time to spend his money on drugs. The majority said that the central can-he-pay issue can be, as in Turner, “sufficiently straightforward to warrant determination prior to providing a defendant with counsel.” Under this extreme set of facts, some alternative form of assistance other than counsel is what is constitutionally required. Note: Justice Breyer says that a lay neutral, e.g., a social worker, based on Vitek, might have been what was required. Second, this was a truly awful test case. Third, the justice who replaces Kennedy likely will cast the 5^th vote on future Civil Gideon cases, and hopefully this justice will be a second-term Obama appointment. (Justice Kennedy will be 75 this July.)

The future of Civil Gideon: To the leaders, I say: keep making Civil Gideon arguments to the ABA, state legislatures, especially to state access to justice commissions, and to other policy-makers based on logic, equity, justice, several different federal constitutional provisions and common sense. If you litigate, however, base the arguments on state declaration of rights provisions and procedural due process provisions (state and federal), the latter converting Civil Gideon into Civil Betts, as in Betts v. Brady, the precursor to Gideon, which recognized a right to counsel in criminal cases on a case by case basis.

Implications of Turner for the access-to-justice right: Supporting the provision of limited legal assistance (including “unbundled” representation) and the assistance of a lay advocate? The Majority Opinion recognizes that some form of law-related assistance is necessary to satisfy due process requirements in civil contempt cases, based on the Mathews formula. The necessary assistance might be the assistance of a social worker (e.g., Vitek), forms (probably based on the success of simplified pleading forms in limited-assistance family law projects), and whatever additional assistance provides a fair “opportunity at the hearing for the defendant to respond to” key factual disputes. Where the opposing party is represented by counsel, especially by government counsel, something more likely is required in civil contempt cases and may be required in other civil cases. That is, depending on the three Mathews factors, some of the forms of limited assistance that many legal services projects provide to indigent litigants in family law cases may be constitutionally required in some of those and other civil cases, thus validating the access to court right. Note: In Murray v. Giarratano, 492 U.S. 1, a civil post-conviction case (capital petitioner), Justice Kennedy, in casting the deciding 5^th vote, found that a form of unbundled legal assistance satisfied the access-to-court right.

Implications for the lawyers’ practice monopoly: There is a warning in prior cases, see e.g., Bounds v. Smith, as well as in Turner: In enforcing the constitutionally based access-to-court right, the lawyer’s practice monopoly will yield when a trained lay advocate can provide the assistance that the Mathews’ balancing test determines is minimally required and adequate. The lawyer practice monopoly may be at risk in some civil cases in the future. This gives paralegal programs new importance and may provide additional incentive to the organized bar to support the continuing and future Civil Gideon movement.

UPDATE (June 27 at 3pm):

Upon re-reading the above, let me clarify what seems like unduly harsh criticism of Turner. What I summarize about Turner from the opinion only (not the record) is based on his pro se appearance in court. With a lawyer, the record undoubtedly would have looked different. My point was not to suggest that the Majority Opinion correctly decided the issue—to the contrary, it should have held that Turner was entitled to a lawyer. Rather, my assessment of Turner and the Turner facts was intended to suggest how the Majority Opinion might be limited, and distinguished in future Civil Gideon cases.

Michael Millemann

University of Maryland School of Law

410-706-8340

mmillem@law.umaryland.edu

  June 26, 2011 at 8:28 pm  Tags: Unbundling  Posted in: Civil Rights, Constitutional Law, Courts, Supreme Court, Symposium (Turner v. Rogers)   Print This Post   One Comment

Beneath the Lamp Post

posted by Dave Hoffman

Though many bemoan the expense and terrible functionality of PACER, the federal government’s electronic docketing system, it is vastly superior to existing state alternatives.  While some states have decent, and searchable, e-dockets, others do not, and it’s often quite hard to figure out the scope of the state databases.  The result is that a researcher (or a lawyer) who wants to study live dockets at the state level is faced with a host of known unknowns, making aggregate statistical inference basically impossible.  Even descriptive statistics about state courts are hard to verify.  It’s a black hole. (With some illumination provided by the BJS and other bodies.)

This frustrates me, and if I could wave a magic wand (or controlled Google) I would create a national e-docketing system for all state filings, permitting full-text searchers across states for comprehensive data – including searches of motions and orders – in both civil and criminal litigation.  The current state of the world, by contrast, directs much of the new empirical legal research to focus on federal cases and federal outcomes, because PACER provides access to the kinds of data that researchers need.  The problem, of course, is that PACER collects only Federal dockets, which aren’t representative of the kind or scope of litigation nationwide. Though of course studying dockets is vastly superior to studying opinions – if you want to know what judges are doing – we’re left still peering through a dark piece of glass.  Worse, I think, is that researchers end up focusing their energies on topics for which federal litigation is the dominant way of resolving legal claims.  Thus, there’s much more, and much better, docket-centered empirical work about securities law and federal civil rights statutes than there is about common law adjudication.

Our sadly patchwork court records system  doesn’t just hurt academics looking to illuminate doctrinal puzzles.  (The horror! Tenured professors can’t write more papers!)  It also means that lawyers and corporate officers may be forced to rely on anecdote and salience when deciding how to engage with the litigation system — a calculation that may lead such repeat players to develop a long-term strategy to exit the litigation system altogether.  If the state courts want to preserve their business, they need to innovate.  One way to do so would be to join forces in data collection, archival, and search.

(Image Source: Flicker)

  May 15, 2011 at 5:49 pm   Posted in: Courts, Economic Analysis of Law, Empirical Analysis of Law   Print This Post   11 Comments

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