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Category: Courts

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World Trade CenterWhere 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 More

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Justice by Designation

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.

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

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 More

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

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 More

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Does the Supreme Court Get It In Turner?

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.

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

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 5th 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 5th 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 5th 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 5th 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

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Beneath the Lamp Post

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)

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Corporate Control in the Courtroom

Corporate litigation has long followed a predictable pattern. When a corporation announces a restatement or similar bad news, shareholders race to the courtroom, filing nearly identical complaints in multiple courts. Congress sought to halt this practice in federal securities cases through the Private Securities Litigation Reform Act, but the practice continues unabated in state law cases. The Delaware Court of Chancery has been the clear loser of this filing strategy. Empirical evidence suggests that shareholder lawsuits are leaving Delaware in droves. Defense lawyers even claim that plaintiffs now use an “Anywhere but Chancery” approach when filing state law class actions and derivative suits.

The Delaware Court of Chancery recently suggested one way for corporations to protect themselves from these practices. Last summer, Vice Chancellor Laster stated in dicta that “if boards of directors and stockholders believe that a particular forum would provide an efficient and value-promoting locus for dispute resolution,” these corporations should adopt a charter provision selecting this forum as the exclusive venue for shareholder lawsuits.  This idea was not unprecedented—a small number of companies had already included such provisions in their governing documents—but it was the first time (to my knowledge) that the concept received judicial approval.  The defense bar quickly picked up the charge, with Wachtell, Lipton, Rosen & Katz recommending to its corporate clients that they adopt a charter amendment requiring that the Delaware Court of Chancery be the “sole and exclusive forum” for any breach of fiduciary duty suit filed against the company or its officers, directors, or shareholders. A recent memorandum by Latham & Watkins reports that more than 70 companies have included these provisions in their bylaws or charters.

This development raises intriguing questions about how much control corporations should have when it comes to lawsuits filed by their shareholders. Read More

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LGBT Judges

Yesterday, the Massachusetts Governor’s Council confirmed (by a split 5-3 vote) the first openly lesbian or gay member of the Massachusetts high court. And, of course, in recent weeks, there has been much discussion in the media and in the blogosphere about the relevance of Judge Walker’s sexual orientation with respect to his qualifications and ability to judge impartially. The appointment of Justice Lenk and recent events involving Judge Walker offer us a good opportunity to reflect on the status of LGBT people in the state and federal judiciary.

In the last several years, openly LGBT people have joined a number of state high courts. There are two openly LGBT justices on the Oregon Supreme Court — Justice Rives Kistler and Justice Virginia Linder, who became the “first openly lesbian judge to serve on a state supreme court anywhere in the US” when she was appointed to the court in 2007. Earlier this year, Justice Sabrina McKenna became the first openly LGBT person to join the Hawaii Supreme Court. Just months earlier, Justice Monica Marquez joined the Colorado Supreme Court as its first openly LGBT member. Although actual statistics are hard to come by, it appears that there are a number of openly LGBT judges sitting on lower state courts. It has been reported, for example, that there are 15 openly LGBT judges sitting on state courts in Cook County, IL. And this past fall saw the first election of an openly transgender judge, Judge Victoria Kolakowski.

While there unquestionably are more openly LGBT judges today than there were 10 or 20 years ago, they still comprise a very small percent of all judges, and this is particularly true on the federal level. In 1994, Judge Deborah Batts became the first openly gay Article III federal judge. Close to 20 years later, with the retirement of Judge Vaughn Walker, Judge Batts once again holds that title. Judge Batts is a federal district court judge; there are no openly LGBT members of the federal appellate courts.

Given that many people look to the federal government as a source of protection for vulnerable groups, it is interesting to consider why the states seem to be doing a better job of getting qualified LGBT people on the bench.

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Drug Policy in the U.S.: A Turn Towards a Pragmatic, Therapeutic Approach?

The Maryland General Assembly will soon consider House Bill 323 that eliminates mandatory minimum penalties for drug-related offenses, substituting them with  maximum penalties.  The bill also would expand eligibility for court-ordered drug treatment as an alternative to incarceration.  This proposal could be seen as part of a broader trend away from criminalization towards more pragmatic therapeutic approaches for drug abusers.  But, as Richard Boldt’s thoughtful scholarship suggests (see here, here, and here), the concerns animating drug policy in the United States are complex and anchored in moral judgments that may be difficult to dislodge.  Professor Boldt rejects framing drug policy in the U.S. as a clean distinction between a moral/criminal approach and a therapeutic one.  His work offers a far more nuanced exploration of the complex interactions between culture and social practice, positive law and public health policy to get a better handle on how a given society negotiates the moral and practical features of the problem.

In his most recent work entitled Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom (volume 62 of the South Carolina Law Review), Boldt traces the legal and social history of drugs, drug abuse, and drug control in the United States.  In the U.S., twentieth-century drug policy reflected an intense moral disapproval of drug use that reinforced and sustained social opprobrium of drug users.  Recall Nancy Reagan’s “War on Drugs” and the message of disapproval captured by that campaign.  As the article explains, in the United Kingdom, the nature of legal regulation and practice followed a different path in its pragmatic, therapeutic approach that emphasized the importance of physicians in dealing with drug abuse.  Boldt dispels the notion that “the history of drug policy in Britain and the United States served as “distinct perfect types, the former a nonjudgmental medical approach and the latter a morally tinged criminal prohibition approach.”  Instead, the “reality likely was somewhat more complex and the similarities between the two more pronounced than might have seemed the case.”  More recently, Boldt argues, there has been something of a convergence of the two systems with the U.S. signaling a willingness to adopt some features of the pragmatic, therapeutic approach characteristic of the U.K. and with the U.K. turning more towards the criminalization of drug users so typical of twentieth-century U.S. drug policy.

In Boldt’s view, this pattern of convergence will likely be incomplete: a U.S. turn towards a more pragmatic, therapeutic approach, if it is to occur, must be “executed against the inertial force generated by policy commitments and social practices of more than seventy-five years in which the most dominant feature has been an intense moral disapproval of drugs.”  To be sure, federal and state legislators suggest a modest turn to the pragmatic, therapeutic approach.  Examples include President Obama’s signing of a bill repealing a twenty-one-year-old ban on federal funding for programs that supply clean needles to intravenous drug users and the Maryland bill.  Yet, as Boldt’s piece develops, the engine of pragmatic reform will be dragged down by the moral understanding of drug abuse in this country.  The extreme moral disapproval that has been fixed in this country will likely continue to serve as an anchoring-and-adjustment heuristic” that “filters the complex array of information a pragmatist would want to consider in formulating sensible public policy in this area.”  Read More