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Category: Courts

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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.

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Science, Technology, Judges, and Juries

A study recently published in Science—one of the top scientific journals—terrifyingly explains that “[g]laciers along the Amundsen Coast of Antarctica are thinning” and suggests that the “full-scale collapse” of the Thwaites glacier “may be inevitable.” I don’t want to delve into a debate about whether our Earth is undergoing climate change, or whether any such climate changed is being caused by human activities. However, I do want to talk about the relevance of science to law, and the fact that science, as well as its partner technology, are moving at an incredibly rapid pace.

Questions about the relevance and meaning of science and technology to law can be found in matters ranging from the use of neuroscience to assess criminal culpability or physical injuries, to the use of epidemiological studies to establish causation in toxic tort cases, to the novel liability risks associated with the use of unmanned vehicles. One of the difficulties of employing scientific and technological knowledge in legal matters is that many judges and lawyers are not trained in the nuances of scientific reasoning or the details of understanding modern technology.

I occasionally teach Law & Science courses to judges, and several judges have expressed to me their difficulties in wrestling with science in their cases. This problem of judges trying to understand science is exacerbated when judges are tasked with determining the reliability of scientific evidence under the Daubert standard, which a majority of jurisdictions now use. Some judges try to better understand the science at issue, but they might do this by independently researching the issue. (Perhaps the judicial independent research that has received the most attention is Judge Posner’s “experiment with a novel approach” that he conducted pursuant to deciding Mitchell v. JCG Industries, Inc., where he had the court’s staff don and doff specialized clothing and equipment to determine how long the process took.) This practice may be suspect under the applicable code of judicial conduct, but some judges engage in it nonetheless.

A commonly cited example of judges struggling with technology can be seen in the somewhat embarrassing exchange among the Supreme Court Justices in Ontario v. Quon. In that case a police officer had sued the city, claiming that the police department’s review of his text messages violated the Fourth Amendment. In oral argument, Chief Justice Roberts inquired: “Maybe—maybe everybody else knows this, but what is the difference between a pager and e-mail?” And Justice Kennedy asked what would happen if someone were to text an individual while he was texting with someone else: Does the individual have “a voice mail saying that your call is very important to us; we’ll get back to you?” At least the judges were doing their best to understand the technology at issue, though, before handing down an important opinion on the matter.

On some science- and technology-related subjects that judges decide, there may be other, possibly more qualified decisionmakers available. On some such questions—especially when the science and technology is intermingled with moral determinations—juries are possible decisionmakers. Now juries have a bad reputation with many lawyers. Yes, I’ve seen jurors fall asleep during trial, and I’m all too familiar with some jurors’ focus on details like what kind of shoes a female lawyer wears to court. But juries can offer something that judges cannot. They are ordinarily more representative of their communities than a single judge could be. They serve as a bulwark between the government and the people. They serve to legitimate the law. Through their process of deliberate democratic decisionmaking they can make excellent determinations. Most relevant to decisions involving science and technology, though, juries—by virtue of including more than a single deliberator—can draw on a wide variety of knowledge and experiences. On a jury of twelve, there may be a mother, father, school teacher, engineer, recent college graduate, veteran, victim of assault, retired person, social worker, devout Catholic, plumber, and truck driver. And of course each juror would bring many more characteristics to the table. As a group, then, this deciding body can draw on a broad range of knowledge and experiences. Additionally, jurors often include decisionmakers who are younger than the judges presiding over the case and may be more on the pulse of cutting-edge science and technology. In a case in which a court faces a question such as whether continuous drone surveillance constitutes a Fourth Amendment search because it violates reasonable expectations of privacy, then, a diverse jury might prove to be a better decisionmaker than a judge.

Judicial Ethics at the Second Circuit

A three judge panel on the Second Circuit made an extraordinary intervention to remove a district judge from a case last week. Anil Kalhan has some tough questions about the matter:

Both Judge Gertner and Judge Kopf have suggested that the bizarre nature and circumstances of the motions panel’s order raise questions about whether it is Judges Cabranes, Walker, and Parker, rather than Judge Scheindlin, who have “breached the rules” of judicial conduct. In a manner rich with irony, coming from a panel that had just faulted Judge Scheindlin for her application of the Southern District’s related cases rule, the three judges announced that, “[i]n the interest of judicial economy,” the motions panel would retain jurisdiction to hear the merits of the appeal “in due course,” rather than having that case randomly assigned to another panel. (“Evidently when it comes to related cases,” writes Professor David Cole, “what’s sauce for the district court is not sauce for the court of appeals.”)

The entire post is well worth reading.

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CELS VII: Data is Revealing Part 2

 

Shouldn't it be "data are revealing?"

Shouldn’t it be “data are revealing?”

[This is part 2 of my recap of the Penn edition of CELS, promised here. For Part 1, click here.  For previous installments in the CELS recap series, see CELS IIIIVV, and VIVII.]

Where were we?  I know: throwing stink-bombs at a civil procedure panel!

At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was Ian Ayres, presenting Remedies for the No Read Problem in Consumer Contracting, co-authored with Alan Schwartz.  Florencia Marotta-Wurgler provided comments.  The gist of Ayres’ paper is that consumers are optimistic about only a few hidden terms in standard-form contracts. For most terms, they guess the content right. Ayres argued that should be concerned only when consumers believe that terms are better than they actually are.  The paper  proposes that firms make such terms more salient with a disclosure box, after requiring firms to learn about consumer’s knowledge on a regular basis. Basically: Schumer’s box, psychologically-calibrated, for everyone.  Florencia M-W commented that since standard-form contracts evolve rapidly, such a calibrated disclosure duty might be much more administratively complex than Ayres/Schwartz would’ve thought.  A commentator in the crowd pointed out that since the proposal relies on individuals’ perceptions of what terms are standard, in effect it creates a one-way ratchet. The more people learn about terms through the Ayres/Schwartz box, the weaker the need for disclosure. I liked this point, though it appears to assume that contract terms react fairly predictably to market forces. Is that true?  Here are some reasons to doubt it.

Zev Eigen then presented An Experimental Test of the Effectiveness of Terms & Conditions.  Ridiculously fun experiment — the subjects were recruited to do a presidential poll. The setup technically permitted them to take the poll multiple times, getting paid each time.  Some subjects were exhorted not to cheat in this way; others told that the experimenters trusted them not to cheat; others were given terms and conditions forbidding cheating. Subjects exhorted not to cheat and trusted not to cheat both took the opportunity to game the system significantly less often than those presented with terms and conditions. Assuming external validity, this raises a bit of a puzzle: why do firms attempt to control user behavior through T&Cs? Maybe T&Cs aren’t actually intended to control behavior at all! I wondered, but didn’t ask, if T&Cs that wrapped up with different formalities (a scan of your fingerprint; a blank box requiring you to actually try to sign with your mouse) would get to a different result.  Maybe T&Cs now signal “bad terms that I don’t care to read” instead of “contract-promise.”  That is, is it possible to turn online T&Cs back into real contracts?

Next, I went to Law and Psych to see “It All Happened So Slow!”: The Impact of Action Speed on Assessments of Intentionality by Zachary C. Burns and Eugene M. Caruso. Bottom line: prosecutors should use slow motion if they want to prove intent. Second bottom line: I need to find a way to do cultural cognition experiments that involving filming friends jousting on a bike. I then hopped on over to International Law, where Adam Chilton presented an experimental paper on the effect of international law rules on public opinion. He used a mTurk sample.  I was a concern troll, and said something like “Dan Kahan would be very sad were he here.” Adam had a good set of responses, which boiled down to “mTurk is a good value proposition!”  Which it is.

After lunch it was off to a blockbuster session on Legal Education. There was a small little paper on the value of law degrees. And then,  Ghazala Azmat and Rosa Ferrer presented  Gender Gaps in Performance: Evidence from Young Lawyers. They found that holding all else equal, young women lawyers tend to bill somewhat fewer hours than men, a difference attributable to being less likely to report being highly interested in becoming partners while spending more time on child care.  What was noteworthy was the way they were able to mine the After the JD dataset. What seemed somewhat more troubling was the use of hours billed as a measure of performance, since completely controlling for selection in assignments appeared to me to be impossible given the IVs available.  Next, Dan Ho and Mark Kelman presented Does Class Size Reduce the Gender Gap? A Natural Experiment in Law. Ho and Kelman found that switching to small classes significantly increases the GPA of female law students (eliminating the gap between men and women). This is a powerful finding – obviously,it would be worth it to see if it is replicable at other schools.

The papers I regret having missed include How to Lie with Rape Statistics by Corey Yung (cities are lying with rape statistics); Employment Conditions and Judge Performance: Evidence from State Supreme Courts by Elliott Ash and W. Bentley MacLeod (judges respond to job incentives);  and Judging the Goring Ox: Retribution Directed Towards Animals by Geoffrey Goodwin and Adam Benforado.  I also feel terrible having missed Bill James, who I hear was inspirational, in his own way.

Overall, it was a tightly organized conference – kudos to Dave Abrams, Ted Ruger, and Tess Wilkinson-Ryan.  There could’ve been more law & psych, but that seems to be an evergreen complaint. Basically, it was a great two days.  I just wish there were more Twiqbal papers.

 

 

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Kozinski Unplugged

Alex_KozinskiWhat makes Alex Kozinski tick? That is the question that many have asked ever since the Romanian-born lad, who once considered himself a Communist, tasted the “forbidden luxuries” of bubble gum and bananas while in Vienna. It was at that pinpoint in time that he became “an instant capitalist.” Fast forward four decades or so and Kozinski, now the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, continues to baffle folks on all sides of the ideological divide. “I disagree with the liberals on the bench half of the time,” he chuckles, “and the conservatives the other half” is how he put it in a 2006 Reason magazine interview.

Ever the maverick, always the wit, and unvaryingly brainy, the trimmed jurist (he’s lost weight) is just as comfortable listening to a rough version of “Gloria” by Jim Morrison and the Doors as he is with taking in Beethoven’s Violin Concerto in D (recorded by Jascha Heifetz with the Boston Symphony Orchestra).

Make no mistake: Alex Kozinski is an acquired taste. Like anchovies, his flavor is bold – a true delight to uninhibited types, a true displeasure to staid types. Dating Game pick, Anthony Kennedy law clerk (while on the Ninth Circuit) and thereafter clerk to Warren Burger, assistant White House Counsel to President Reagan, Special Counsel of the Merit Systems Protection Board, chief judge on the Court of Federal Claims, and now circuit judge, he relishes a lively give-and-take during oral arguments and likewise welcomes the thrill of an exhilarating bungie jump. In other words, he likes to mix it up.

So who is this all-American with an accent who enjoys complex judicial work almost as much as a savory corned-beef sandwich at Attman’s Deli in Baltimore? Who is this man who flies his fanciful flag when others shy away into the quiet of the dark? Some answers to such questions can be found in a recent Reason magazine interview with the Chief Judge. Entitled “Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals,” the transcribed and video Las Vegas exchange with Matt Welch is quite revealing. At times serious, at times humorous, and at other times surprising, the interview exemplifies the kind of diverse brand of thinking and speaking that is quintessentially Kozinski.

With the kind permission of the folks at Reason, I am happy to share a few snippets of the recent interview with the Judge, who, by the way, is also my good-hearted friend . . . notwithstanding our sometimes different takes on life, law, and rock-n-roll. With that said, here’s Alex:

On tyranny:  “[O]ne time I [said] something that sounded somewhat critical of the government, and my father almost lost his job over it. . . . There was a newspaper called Free Romania, and I was seven years old. [People in my father’s office asked:] ‘Do you know how to read?’ And I said, ‘Oh, yes.’  And they said, ‘Can you read [the paper] here?’ And I said, ‘Well, why is it called Free Romania? All those people are in prison.”

On Communism: While Communism may seem good on paper, it is really “a prescription for oppression. It [is] a prescription to give people power over other people that are not subject to lawful control or lawful checks . . . . [I]t inevitably leads to corruption [and] it inevitably leads to oppression.”

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