Category: Courts

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7 Member Supreme Court Votes 4-1 to Suspend One of its Own

This is ugly.  PA Supreme Court has voted to suspend one of its members for various infractions, including the dissemination of pornographic emails from work computers.  The suspension order issued per curium, but apparently only attracted the votes of 4 of 7 possible justices.  One justice, dissenting, would have sent the matter to a judicial conduct board. The suspended justice didn’t vote, and neither did a justice who just accused the suspended justice of trying to blackmail him over yet more pornographic emails.  One of the four votes comes from a justice appointed by Pennsylvania’s governor, to replace another justice who had been suspended after being indicted.

Still with me? Here’s where the fun starts.  Pennsylvania’s Chief Justice, who has been long-involved in a heated fight with the newly suspended justice over control over Philadelphia’s court system, concurred in the per curium opinion. His “concurring statement,” destined for the headlines, contains the following astonishing paragraph:

wowThat, friends, is what it means to vent your spleen.

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Cognitive Biases, the Legal Academy, and the Judiciary

It’s a pleasure to be here at Concurring Opinions.  I would like to thank Dan, Sarah, and Ron for inviting me.  During my visit, I hope to talk a bit about my core research areas of land use and local government law (including why you, who are statistically unlikely to be interested in either land use or local government law, should be interested), but also about other issues such as the current state of the legal academy and the legal profession, often using land use or local government law to examine these broader issues.

On Cognitive Biases

On that last note, Slate.com recently ran a great piece by Katy Waldman regarding how the human brain processes information, observing that people have a predilection to believe factual claims that we find easy to process.  Waldman synthesizes the results of several interesting studies, including one eye-opening study that identifies three persistent cognitive biases that humans possess.  As Waldman summarizes these biases: “First, we reflexively attribute people’s behavior to their character rather than their circumstances.” Second, “we learn more easily when knowledge is arranged hierarchically, so in a pinch we may be inclined to accept fixed status and gender roles.” And third, “we tend to assume that persisting and long-standing states are good and desirable, which stirs our faith in the status quo absent any kind of deep reflection.” The studygreen-lizard-1427838-s attributes these biases to the basic human need, rooted in the primitive recesses of our lizard brain (pictured), to manage uncertainty and risk.

While Waldman argues that there is some relationship between these biases and conservative political beliefs, what struck me about these findings is how well the biases describe judicial behavior.

Read More

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Residence Requirement of the Federal Circuit

One of the most curious provisions in federal law is 28 U.S.C. Sec. 44(c), which states the following:

“While in active service, each circuit judge of the Federal judicial circuit . . . and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia.”

There is a residency requirement for active circuit judges in the other circuits (you have to live in the circuit), but drawing a 50 mile circle around DC for all federal circuit judges seems really silly.  First, it sharply limits who can be on that court.  Second, what’s so special about where you live when you hear (mostly) patent appeals.  And finally, why 50 miles?  Folks can easily take a train from New York to DC or live, say 60 miles away and commute.  Congress ought to consider repealing this residency rule.

UPDATE:  I wonder how this requirement could be enforced against an Article III judge.  Impeachment for Federal Circuit judges who move to New York?  Does the Chief Judge bar the person from hearing new cases until he or she moves back into the 50-mile zone?

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En Banc Review

The DC Circuit is considering a petition for rehearing en banc in Halbig (the Affordable Care Act case).  I have no opinion on what the Court should do, and I think that it’s silly for outsiders to advise judges on a discretionary matter.  (In other words, there is no “expertise” on whether to go en banc.)

I thought this would be a good opportunity, though, to reflect on how circuits differ with respect to en bancs.  Some have many and others have few.  Why is that?  One answer is that large circuits (I’m talking to you–Ninth) tend to go en banc more often.  In part this is because a panel is more likely to be unrepresentative of the court as a whole, and in part because large circuits are just less collegial because there are more judges who live further apart.  Another thought is that circuits that are badly split along ideological lines (I’m talking to you–Sixth) go en banc more often.

But there is also a distinctive culture that develops in each circuit about this issue.  The Second Circuit (where I clerked) has long had a strong aversion to going en banc.  (Indeed, the year that I clerked there were no en banc hearings.)  This practice is usually attributed to Learned Hand, who thought that en bancwere a waste of time and showed disrespect for the judges on the panel.  I think all of us would be interested to hear from former DC Circuit clerks about their thoughts on the norms there.

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What Berkshire Hathaway Teaches About Hobby Lobby

Eleven years ago tomorrow, the abortion issue led Berkshire Hathaway, the huge conglomerate Warren Buffett built and now owned by one million different shareholders, to end its shareholder-directed charitable contribution program. Under the program, Berkshire’s board earmarked an amount for charitable giving and then let the company’s class A shareholders designate the charities to which their share went. In twenty-two years, the program distributed $197 million to thousands of different charities.

Berkshire terminated the program on July 3, 2003 because activists boycotted products of one of its subsidiaries to protest giving to organizations they opposed on religious grounds: some designated Planned Parenthood, which facilitates a woman’s choice to abort an unwanted pregnancy, while others gave to Catholic Social Services, which opposes abortions.

Berkshire stood for neither position, of course, because it is a business organization whose mission is to increase its intrinsic economic value, which has nothing to do with religion. Berkshire’s board chose to terminate the program because the boycotts hurt Berkshire’s business and its personnel while offering shareholders only a slight convenience and tax advantage.

The scenario speaks to the debate that erupted this week between foes in the abortion debate thanks to the Supreme Court’s decision in the Hobby Lobby case. The issue in that case, narrower and more technical than accompanying rhetoric suggests, was whether the word persons in a federal statute about religious freedom includes corporations owned by a small number of people with a specific set of religious beliefs. If so, then regulations implementing Obamacare cannot require them to fund birth control devices in conflcit with their religious beliefs.

A majority of the Court concluded that closely-held corporations are persons for the purpose of the statute because they are readily seen as merely a convenient legal form through which individuals do business. The dissent complained that only individuals can have religious beliefs and therefore corporations, whether closely held or otherwise, aren’t persons for purposes of the federal law.

The Berkshire example is instructive on both opinions. Buffett has always boasted that Berkshire, though using the corporate form, adopts a partnership attitude. The shareholder charitable contribution program epitomized this attitude. It gave the decision to the owners, as is done in partnerships and closely held corporations, not the board, the practice in public corporations. Those owners, moreover, were the class A shareholders, a subset of Berkshire’s shareholder body made up of people with larger and older stakes—including hundreds who really were Buffett’s original partners.

Berkshire shareholders, class A and class B, readily agree on a wide variety of business and ownership topics. For example, in a vote earlier this year on the company’s dividend policy, 98 percent ratified the existing—and unusual—no-dividend practice. But put a question about hot-button religious or political  issues of the day such as abortion and expect deep divisions.

Berkshire’s shareholders may be able to act like partners or closely-held shareholders on business issues while the charitable giving program proved they were unable to do so on others. For the Court in Holly Lobby, this perspective supports the majority’s holding about the nature of close corporations while validating the dissent’s appetite for a sharp boundary between them and the typical business organization.

Lawrence A. Cunningham is the author of the upcoming Berkshire Beyond Buffett: The Enduring Value of Values and editor of The Essays of Warren Buffett: Lessons for Corporate America. He teaches business-related courses at George Washington University Law School.

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Judge Posner and Anti-Abortion Protestors

Based on Judge Posner’s recent piece on slate.com, I think that the next time he is on a panel in a case involving a free speech claim by anti-abortion protestors their counsel should file a motion seeking his recusal.  Consider this passage discussing yesterday’s Supreme Court decision on buffer zones around abortion clinics:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

I submit that this calls into question whether Judge Posner could fairly adjudicate the First Amendment rights of these “nuts” who make a “negligible contribution.”

 

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Intellectual Disability and Uncertainty in Hall v. Florida

I’ve been meaning to post about the Supreme Court’s decision last week in Hall v. Florida—the case in which the Court struck down as unconstitutional Florida’s law for determining whether an offender is intellectually disabled and thus cannot be executed. In its 2002 case of Atkins v. Virginia, the Court concluded that it is unconstitutional under the Eighth Amendment to execute a “mentally retarded” individual. (Thankfully, in Hall, the Court switched over to the term “intellectually disabled.” I’ll be using the terms interchangeably in this post.) In Atkins, the Court stated that it was leaving it up to individual legislatures to determine when a person is “mentally retarded”—in the Court’s words, it was “leav[ing] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Now, other states and the medical community generally agree with Florida that a defendant is intellectually disabled if he has (1) “significantly subaverage intellectual functioning,” (2) “deficits in adaptive functioning,” (3) and “onset of these deficits during the developmental period” (by age 18). The first prong—the one at issue in Hall—is ordinarily determined by a defendant’s IQ score. States have concluded that an IQ score that is 70 or lower meets the “significantly subaverage intellectual functioning” standard. The Hall case raises the issue as to whether uncertainty in obtained IQ scores (or confidence intervals) ought to be included in determining the defendant’s true IQ score for the purpose of this first prong of the intellectual disability test.

In a 6-3 decision, the Hall Court concluded that Florida’s approach—of finding that an obtained IQ score greater than 70 may be determinative of the fact that the defendant is not intellectually disabled—is unconstitutional. In reaching this conclusion, the Court took a detour from its ordinary Eighth Amendment analysis, focusing heavily on the opinions of professional organizations. As in prior opinions, the Court was loose with the numbers in the state-counting aspect of its Eighth Amendment analysis, concluding that a “significant majority of States” have adopted procedures contrary to Florida’s approach. The dissent explains that, of the death penalty states, nine have adopted an approach similar to Florida, nine have not addressed the issue, and twelve take the approach that the Court finds to be constitutionally required. It is difficult to find a national consensus in these numbers. In finding a consensus, though, the majority includes the eighteen states that have abolished capital punishment. Whether to include non-death-penalty states in this calculus is an issue that the Justices have debated before. But the Court’s approach to finding a consensus in this case is especially interesting because of the metric it uses in doing so. Instead of looking at the number of states that have categorically prohibited a punishment—such as tallying the number of states that have banned executing the “mentally retarded,” the “insane,” or juveniles—the Court is counting the number of states that take into account standard errors of measurement (SEMs) in determining whether a defendant is intellectually disabled. This metric accounts for the uncertainty inherent in obtained IQ scores and provides a range in which it’s likely the defendant’s true IQ score falls based upon his obtained score. In examining this metric, the Court frames the question as whether it is unconstitutional for a state to not take into account SEMs in determining whether a defendant is intellectually disabled. But is it really this procedural matter that’s at issue here? Or do we instead care about whether individuals who actually have true IQ scores of 70 or below are being executed? For example, if a state were to conclude that a defendant is intellectually disabled if he has an obtained IQ score of 90 or below, and if the test used in the state has a SEM of 2.5—suggesting that it is quite unlikely that a defendant scoring above 90 on an IQ test would have a true IQ score of 70 or below—would it be unconstitutional for that state’s courts not to take into account the SEM in determining whether a defendant is intellectually disabled? The dissent suggests that another way to probe the uncertainty is to admit multiple obtained IQ scores—a practice the Florida procedures in question allowed. While multiple obtained IQ scores are relevant to determining the reliability of the obtained scores, using this evidence, alone, means working with a fairly small sample size. In Hall, the defendant submitted nine obtained IQ scores, and two were excluded by the sentencing court.

The Court’s decision in this case continues to chip away at the death penalty, albeit quite slowly. The majority’s departure from its traditional Eighth Amendment framework for analysis—a step that is far from new for the Court—injects further uncertainty into the limits on punishments under the Constitution. The Court’s willingness to think more deeply about the methodologies, math, and science underlying some of its decisions, though, furthers the understanding that the meaning of the prohibition on cruel and unusual punishments is evolving. Unfortunately, uncertainty remains about how the Court gathers information about these complicated aspects of law and fact, and how adept the Court is at understanding and employing these concepts.

There is much more that could be said about the Hall case, the Eighth Amendment, and judges’ uses of science and technology, but it has come time for me to sign off of Concurring Opinions for now. Thanks again to the Co-Op gang for asking me to visit, and I look forward to the next time!

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James Risen and the reporter’s privilege status quo

Many thanks to Danielle, Frank, and the Concurring Opinions crew for inviting me to guest blog this month. As Danielle mentioned, I’m primarily an IP and media law guy, and I anticipate blogging about things like Aereo, trolls, and the future of newsgathering. (Like Harry, I can be found commenting on lots of other things @bradagreenberg.) I start today with a reporter’s ability to protect the identity of confidential sources…

This week the Supreme Court denied the petition of New York Times investigative reporter James Risen. For years, Risen has fought government efforts to compel disclosure of whether a former CIA official was Risen’s source for a story about a botched CIA plot to infiltrate Iran’s nuclear agency. Risen included this confidential information in his 2006 best-selling book State of War. The former CIA official is being prosecuted for leaking to Risen, and, last July, the Fourth Circuit ruled that Risen must testify at the trial. In a last gasp, Risen petitioned the Supreme Court, asking whether  journalists in a federal criminal trial have a qualified constitutional privilege against revealing confidential sources or should have a common law privilege under Federal Rule of Evidence 501.

The Court having declined to answer this question, Risen now faces testifying or being held in contempt. (Or he must throw himself on the “hinted” mercy of the Justice Department.) This is a great tragedy for a great journalist. But it is not necessarily a great tragedy for great journalism.

Risen’s appeal was a case of Be Careful What You Wish For.

At the core of Risen’s protest is the often-mistaken belief that reporters cannot be compelled to disclose their confidential sources. The Supreme Court first addressed this question forty-two years ago in Branzburg v. Hayes, in which the Court effectively split 4-1-4 on whether journalists had a constitutional privilege against compelled disclosure. The majority opinion held that journalists do not.

But Branzburg did not foreclose such protections. State courts have long shielded media from compelled disclosure, with forty-nine states and the District of Columbia offer varying statutory or common law protections. And Justice Powell’s concurrence suggested that journalists might have a constitutional privilege on different facts, particularly if the subpoena had not been issued by a grand jury. Since then, the circuit courts have recognized a variety of protections: “nine circuits have acknowledged, and only the Sixth Circuit has rejected, a qualified privilege for confidential information in civil cases, and … four circuits extend the privilege in criminal cases and some over non-confidential information in civil cases.” (That’s from this essay about the flawed Free Flow of Information Act of 2013; the federal media shield folly was also mentioned in my previous guest visit.) The result has been that journalists get different levels of protection in different jurisdictions—but in most jurisdictions they get some protection.

Had the Supreme Court agreed to hear Risen’s petition, it is likely that there would be uniformity regarding compelled disclosure of journalists’ confidential info. (It is unclear whether that uniformity would have been limited to confidential sources or would have extended to nonconfidential notes, unused materials, journalist observations, etc.) That uniformity could have increased protections and thereby decreased disincentives to sharing sensitive or confidential information.

Yet, in many circuits the uniformity might cut the other way, restating Branzburg in a manner that results in a weaker media shield. In fact, this seems more likely. In a post-legacy-media era in which people do journalism but aren’t necessarily journalists, legislators and judges have found it so difficult to determine to whom a reporter’s privilege should apply. (The debate over the federal media shield bill is paradigmatic. See n.5.) In this context, it is unlikely the Supreme Court would be willing to establish a broad reporter’s privilege—and in a national security case, for that matter.

Of course, just because the government can compel Risen to testify, does not mean that it should. The spirit of the First Amendment suggests otherwise…

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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548

 

 

 

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Marin Levy’s Judging Justice on Appeal in YLJ

Professor Marin Levy has a superb review of Injustice on Appeal: The United States Court of Appeals in Crisis written by my colleague William Reynolds and William Richman. Professor Levy is spot on when she says that “[o]ver the past thirty years, no one has contributed more” to the study of the federal judiciary and its crisis of its crushing workload “than two court scholars together—William M. Richman and William L. Reynolds.” As she notes: “Through a series of critical articles,Richman and Reynolds were able to pinpoint the precise effects of the caseload crisis, both on litigants and the system as a whole. Furthermore, they were able to show the interplay of these various effects, providing a holistic account of the problem in a way that no one else had done.” In her view, their “recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, stands as a culmination of their earlier work, bringing together vital analysis of the caseload crisis, the ways in which appellate review has suffered as a result of that crisis, and potential solutions. More broadly, Injustice on Appeal stands as one of the most comprehensive and thoughtful accounts of the largest problem facing the federal judiciary today.”Injustice on Appeal

In her review published in the Yale Law Journal, Prof. Levy concludes:

The story of Injustice on Appeal is one of ever-shrinking resources—the courts of appeals have had to perform the same set of critical functions with fewer and fewer means per appeal to do so. Yet there is another story here as well about the resources of the academy. Legal scholars in general spend a great deal of time devoted to theory and doctrine. And yet, we spend relatively few resources on studying the institutions that make up our legal system, particularly on the twin positive and normative questions about how they actually function and how they should function. Richman and Reynolds’s work serves as a call to arms for the academy to take up these critical inquiries.

Ultimately, Richman and Reynolds have provided a great deal for court scholars following in their wake. They have carefully and thoughtfully delineated the largest problem facing the federal judiciary in the past several decades—one that affects tens of thousands of litigants each year. With the quality of overall judicial review in doubt, it is for the academics to carefully study—using both qualitative and quantitative tools—the use of court practices. From judicial voting rules to visiting judges, from mediation to staff organization, there are numerous areas ripe for academic review about how to improve judicial review. In Injustice on Appeal, Richman and Reynolds have laid the groundwork; it is up to the next generation of court scholars to find the way.

Professor Levy has made her own formidable contributions to the discussion that Profs. Reynolds and Richman have been engaging in for a better part of 30 years. Her work includes “Judging the Flood of Litigation,” 80 U. Chi. L. Rev (2013), “Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals,” 82 Geo. Wash. L. Rev. 401 (2013), “The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts,” 61 Duke L. J. 315 (2011), and “The Costs of Judging Judges by the Numbers,” 28 Yale L. & Pol’y Rev. 313 (2010) with Kate Stith & Judge José A. Cabranes. Those interested in figuring out how to solve the problems facing the judiciary will do well to follow her work.