Category: Behavioral Law and Economics

13

Must District Judges Give Reasons?

gavel.jpgJonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.

The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

Kozinski wrote:

I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]

So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?

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12

Why Do We Sign Letters?

signature.jpgI have spent some time recently signing hundreds of clerkship recommendation letters. In itself, the process is a minor irritant, which I’m happy to do to help deserving students obtain jobs with judges after graduation. But, like many tedious things, the process inspires thoughts about what I could do to shortcut it.

Not signing letters isn’t an option. (Unless OSCAR sweeps the world of state courts too). In thinking about why, I’ve come to conclude, with no scholarly studies to back me up, that there is something interestingly persuasive about a signature.

Anecdotal evidence for the point comes every day in the mail. Not a day passes without receipt of “signed” letters from various selling agents (goods, services, political ideologies). Those agents have invested capital in an autopen, or in time, but either way they’ve put their money behind the persuasive force of a writing.

But this is strange. We all know that sales documents received in the mail, like clerkship letters, aren’t individualized. Signatures are rote (at best) or robotic (at worst). Rational buyers, and judges, ought to be indifferent between an inked signature and a “/s/electronic/s/” version. But inked signatures persist, despite their inefficiency. Why do they work?

I have a theory. I think that when we see a signature, we associate it with a contract, and our totemic beliefs (exposed in the beginning of every contract law class) in the ritual power of writing things down and signing them. In popular culture, contracts exist when they are signed (and, less frequently, sealed). So when we see a signature on a letter, I think it suggests a sort of warranty.

What is the content of the warranty? I bet it looks something like this:


My name is Dave Hoffman, and I endorse this message.

Even though you don’t know me from Adam, you can’t help but rely on that ritually-created warranty a little in deciding whether to buy what I’m selling. That is, signatures help bridge the gap between purely impersonal sales (the internet is the paradigm, surely) and the door-to-door salesmen of the past. By signing a letter to a judge, I’m associating myself with the message, making it marginally harder to ignore. (Any effect is smaller for my signature than for a professor that the judge has heard of, no doubt.)

In arriving on this explanation, I reject two other stories. It can’t be the identity-assuring role, because (1) we don’t know these agents’ handwriting; and (2) in the case of recommendation letters, the court can more cheaply rely on other proxies (letterhead) to serve that purpose. I also don’t think that inked John Hancocks are really analogous to the “signatures” on emails – the persistence of that convention is just habit, reinforced by moribund cultural norms.

Are there other theories?