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Category: Courts

3

The Legitimacy Crisis in Federal Law Clerk Hiring

This week, law professors are encouraged to call federal judges and ask them to pull from an enormous pile of clerkship candidates particular students whose merits might be otherwise obscured.  (Applications were delivered Tuesday to those Judges who are still “on plan“, and interviewing calls are supposed to go out Friday.) Unfortunately, the plan has entirely fallen apart, as wealthy law schools now are more than willing to package applications in the spring and summer.  This unravelling, long-predicted in some quarters, has two pernicious consequences – apart from encouraging judges to take applicants earlier in their law school careers, and consequently increasing the importance of first-year grades.

  1. A re-emphasis on the importance of private and expensive networks of information about what judges are up to. When judges hire at different dates, it becomes crucially important to have sources inside the courthouse who know the scoop – former clerks, for example. This will tend to make it harder for applicants from poorer and less established law schools to break into the clerkship market.  (Indirectly, this becomes yet another subsidy for wealthy schools.)
  2. Because some judges don’t particularly enjoy the competitive scrum, the death of the plan will accelerate the trend to hire either permanent clerks or clerks from practice. This is,variously:
    • Bad for current law students;
    • Good for associates in practice who want to make a move;
    • Good for researchers who will be able to collect more expansive data about law clerk influence;
    • Bad for those who fear that law clerks already have too much influence – the more experienced the clerk, the more likely that his or her views are influencing the judge’s decision;
    • Bad for the budget, as more experienced clerks are more expensive.  (Federal judges clearly don’t directly bear the costs of hiring more expensive clerks.)

The class, race, and gender effects insular hiring networks are well-known in general.  Basically: when it’s all-but-impossible to figure out how to get a job, only people who don’t need the job get it.

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Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

1

The Partisan Foundations of Judicial Campaign Finance

The Center for American Progress has just issued a report on judicial campaign finance that documents the increasing costs of campaigning in judicial elections and raises alarm that “[i]nstead of serving as a last resort for Americans seeking justice, judges are bending the law to satisfy the concerns of their corporate donors.”  Jeffrey Toobin followed up in the New Yorker that “the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. . . . [b]ut it’s clear now that in many states you should worry—a lot.”

My colleague Joanna Shepherd and I study judicial campaign finance and argue that what is regularly missed in this simple narrative is the crucial role of the major parties.  In our empirical work, we find a very real relationship between contributions to judges and judicial decisions favorable to contributors, but the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger realities of modern judicial elections.  The Republican and Democratic Parties broker connections between contributors and their candidates, and we argue that parties, not elections, seem to be the key to money’s influence on judges.

In a new paper still in progress, The Partisan Foundations of Judicial Campaign Finance, we identify broad left- and right-leaning political coalitions, allied with the Democratic and Republican Parties, whose collective contributions exercise systematic influence across the range of decisions by judges who receive their money.  The parties appear to coordinate judicial campaign finance under partisan elections where their investment and involvement is greatest, and what is more, we find that the robust relationship between money and judicial decisions largely disappeared in our data for judges elected in nonpartisan elections where parties are relatively less involved.

In addition, we go on to find a striking partisan asymmetry between Republicans and Democrats in judicial campaign finance.  Money from conservative groups in the Republican coalition, as well as from the party itself, is associated with more conservative judicial decisionmaking by Republican judges, even controlling for individual ideology.  However, decisionmaking by Republican judges is not responsive to money from liberal sources.  Decisionmaking by Democratic judges, by contrast, is influenced by campaign support from both liberal and conservative sources and thus cross pressured in opposite directions.  The result is that judicial campaign finance reinforces party cohesion for Republicans while undermining it for Democrats.  Campaign finance thus predicts judicial decisionmaking by judges from both parties in some sense, but is much more successful in serving partisan ends for Republicans, netting out in a conservative direction between the two parties.

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Stanford Law Review, 64.6 (2012)

Stanford Law Review

Volume 64 • Issue 6 • June 2012

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Volume 59, Issue 5 (June 2012)

Volume 59, Issue 5 (June 2012)


Articles

Implicit Bias in the Courtroom Jerry Kang et al. 1124
The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law Lumen N. Mulligan & Glen Staszewski 1188


Comments

Techniques for Mitigating Cognitive Biases in Fingerprint Identification Elizabeth J. Reese 1252
Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases Jonathan Slowik 1292
Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law Aaron Sussman 1342
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Stanford Law Review, 64.5 (2012)

Stanford Law Review

Volume 64 • Issue 5 • May 2012

Articles
The City and the Private Right of Action
Paul A. Diller
64 Stan. L. Rev. 1109

Securities Class Actions Against Foreign Issuers
Merritt B. Fox
64 Stan. L. Rev. 1173

How Much Should Judges Be Paid?
An Empirical Study on the Effect of Judicial Pay on the State Bench

James M. Anderson & Eric Helland
64 Stan. L. Rev. 1277

Note
How Congress Could Reduce Job Discrimination by Promoting Anonymous Hiring
David Hausman
64 Stan. L. Rev. 1343

4

Spitzer’s Loose Public Talk and Private Emails

The angry Eliot Spitzer, former New York attorney general and quick-term governor, continues to have the habit of loose talk, bordering on the defamatory.

A court last week ordered New York’s current A.G., Eric Schneiderman, to find and disclose email files Spitzer created using a private account while working as a state employee. Such files, if they exist, are covered by the state’s freedom of information law, the court held.

The files are sought by a defendant, Howard Smith of AIG, in a civil prosecution Spitzer launched 7 years ago while A.G.   The emails, which Spitzer says do not exist, are rumored to contain characteristic loose talk that could prove embarrassing to Spitzer and compromise cases he brought.  As I am researching and writing about AIG, my work would benefit greatly from seeing any such emails.

Spitzer is not likely to cooperate. He blasted Schneiderman this week over his handling of the matter.  He also took pot shots at Smith, as well as Hank Greenberg, former head of AIG, that appear libelous, in much the way Spitzer last year drew a defamation lawsuit for comments about other people he targeted as A.G.

Here are excerpts from a report published by the New York Law Journal (requires subscription).  Read More

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Stanford Law Review, 64.4 (2012)

Stanford Law Review

Volume 64 • Issue 4 • April 2012

Articles
The Tragedy of the Carrots:
Economics and Politics in the Choice of Price Instruments

Brian Galle
64 Stan. L. Rev. 797

“They Saw a Protest”:
Cognitive Illiberalism and the Speech-Conduct Distinction

Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski
64 Stan. L. Rev. 851

Constitutional Design in the Ancient World
Adriaan Lanni & Adrian Vermeule
64 Stan. L. Rev. 907

The Copyright-Innovation Tradeoff:
Property Rules, Liability Rules, and Intentional Infliction of Harm

Dotan Oliar
64 Stan. L. Rev. 951

Notes
Testing Three Commonsense Intuitions About Judicial Conduct Commissions
Jonathan Abel
64 Stan. L. Rev. 1021

Derivatives Clearinghouses and Systemic Risk:
A Bankruptcy and Dodd-Frank Analysis

Julia Lees Allen
64 Stan. L. Rev. 1079

11

KSM’s Resistance Defense

Jenny Carroll is a former public defender and Prettyman Fellow. She currently teaches criminal procedure, criminal law and evidence at Seton Hall Law School.

Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned.  Instead of pleading, the defendants resisted.  KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety.  The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.

These are obviously unusual defendants. They claim to have planned a devastating act of terrorism that forever changed our nation’s sense of security and itself.  They have been held by their self-proclaimed enemy for nearly ten years awaiting trial.  During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition — according the military’s own records, KSM was water boarded a total of 183 times in a single month.  When their day in court finally arrived, the venue was not the federal court in New York, the most logical jurisdiction and the one Attorney General Eric Holder would have preferred, but a military commission.  And while these commissions may have improved markedly since their inception in the Bush Administration, they remain shrouded in mystery with uncertain procedural or Constitutional protections.

Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new.  The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate.  A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself.  In my forthcoming article, The Resistance Defense, I examine the implications of this defense.  As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law.  First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value.  The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome.  If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow.  Second, these procedural rights have a substantive component.  They help to define notions of guilt and appropriate punishment.  If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.

In the context of these cases, the resistance defense raises larger questions:  What do we really have to lose by trying this case, or any of the military commission cases, in the federal court system that we trust every day with our most difficult cases and complex constitutional issues?  Why couldn’t New York, the city that no matter what seems to endure and constantly rise ever higher, not handle the trial of the men accused of killing so many of its citizens?   I, like everyone else, have heard the warnings of the high costs of security and risk of reprisals.  But in allowing these trials to remain in these military commissions so besieged on all sides by questions of their legitimacy and sufficiency, have we lost something is more difficult to quantify but is infinitely more valuable?  Have we struck a blow against ourselves as frightening as those imagined by KSM or anyone else who would plot against us?  Have we abandoned the procedure and Constitution that we claimed to defend because we were more afraid of the men who would challenge it?  In some cruel twist, have we forgotten the very freedom we claimed we were defending?

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Stanford Law Review, 64.3 (2012)

Stanford Law Review

Volume 64 • Issue 3 • March 2012