Category: Courts

15

Depublishing Opinions

My participation at a conference last week got me interested in the power of the California and Arizona Supreme Courts to depublish lower court opinions while letting the judgment stand.  This is obviously a docket management technique, but I wonder about why it is justified.

Let’s start with the observation that courts often affirm a result without affirming the reasoning that led to that result.  When they do that, though, they write an opinion turning that new reasoning into law.  Federal courts can also wipe out a published district court opinion by reversing it with a summary order.  (The U.S. Supreme Court cannot do this.)  Affirming a result and wiping out a published opinion without a new one, though, is peculiar. The problem is that the losing litigant is not told why he or she lost and nobody can figure that out in a subsequent case.  If there is other published authority on that issue, then you could say that the ones that remain are the law, but if the issue is one of first impression then no guidance is provided.

I’d be curious to hear from folks in these states about what they think about this practice.

 

0

Post-Soviet Russia: Just Like 15th Century England?

Yesterday I noted that I would blog a bit this month about the rule of law in Russia.  Today’s Wall Street Journal carries a front-page feature article by Guy Chazan that offers a rare look into the world of Russia’s oligarchs.  I’m interested in the fate of Mikhail Khodorkovsky, once Russia’s richest man, now its most famous prisoner.  Chazan’s story focuses on two more oligarchs: Boris Berezovsky and Roman Abramovich.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, they relied on its weakness to amass their wealth.

Now that those empires need protecting, however, it is to law that the oligarchs turn.  Berezovsky, once the éminence grise behind Boris Yeltsin, now lives in luxurious self-imposed exile in London.  The WSJ reports that he is worth about $750 million.  Abramovich owns the Chelsea Football Club and the world’s largest yacht; his worth is estimated at about $16.5 billion.  Berezovsky has sued Abramovich for $6 billion, alleging that the latter violated oral agreements about various oil and metal companies in Russia.  Berezovsky claims he left his stake in them in Abramovich’s hands after he fled to London to escape the wrath of then President Vladimir Putin.

According to Abramovich’s attorney, Jonathan Sumption, there is nothing to this claim.  The dispute arose, he says, in a “society without law,” and the deal the two men made was itself “corrupt.”  That might seem like a strange legal defense but, as Sumption continued, “the reality was that that was how business was done in Russia at the time.” 

The case is being heard at London’s High Court.  To help the judge understand the millieu in which the oligarchs did business, Sumption told the court: “In our own national experience, we have to go back to the 15th century to find anything remotely comparable.” 

Maybe.  But the average Russian citizen observing this legal squabble might note that 15th century England had something that 21st century Russia lacks: Robin Hood.

3

In Praise of Complexity

Earlier this month, right here on this very blog, Dave Hoffman pontificated about two of my favorite subjects: empirical legal studies and baseball. Primarily, Dave wondered about whether empirical legal research was facing might face the same problem as sabermatic baseball analysis: inaccessible complexity. I won’t rehash his argument because he did a very good job of explaining it in the original post. Although I completely agree with his conclusion that empirical legal studies should seek to be more accessible (which I always note at the end of my introduction of my empirical work), I disagree with his contention that empirical legal studies are facing might face widespread incomprehensibility due to growing complexity. Because I think it is a helpful analogy, I’ll borrow Dave’s example of advanced statistics in baseball. Read More

5

What is “Practical” Scholarship?

Due to a public comment by the Chief Justice and as a side issue in the ongoing ScamProf debacle, the criticism that legal scholarship in law reviews is worthless to real lawyers has reemerged with a vengeance. As someone who enjoys doctrinal, empirical, theoretical, and completely esoteric scholarship, I’ve struggled to figure out why people in these discussions essentially equivocate doctrinal with practical. Why would Chief Justice Roberts think that a doctrinal article in a law review which might be out of date by the time he reads it is better suited to persuade him than the extensive briefing in the case he is reviewing? For Supreme Court Justices, who have party and amicus briefs so numerous that they don’t read them all, it seems strange to want law reviews to become redundant with other materials that they don’t bother to review.

For lower federal courts, the situation is a bit different. There, I think a strong case can be made that doctrinal scholarship can play a substantial role. Yet, when I have looked through cases that cite law reviews, it seems like the propositions cited are rarely doctrinal in nature. As someone who reads more federal cases for my scholarship than any sane person should, it seems as though law reviews are most often cited for propositions other than legal argument. At least if citations are a good proxy for the utility of law reviews for courts, it appears like the far more used portions of law reviews concern factual, empirical, or historical claims. Even broad theories of law seem to receive more attention than strict doctrinal points. Of course, no one has really studied this issue to confirm my impressions, but, to me, law reviews are most “practical” when they fill a niche distinguishable from other forms of legal writing. Why would anyone want a law review to simply become a legal brief (even one that was more even-handed than the average party brief)? I think many of these complaints about legal scholarship are simple railings against academia, but when they are made by people like Chief Justice Roberts they take on special significance. Although the Chief might not read law reviews in their current form, I hope for the sake of scholarship that he doesn’t get his wish to make them “practical” as he understands the concept.

1

Ten

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

18

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.

0

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

20

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

1

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.

1

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