Category: Courts

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Goodwin Liu’s First Three Months on the California Supreme Court

Goodwin Liu now has been an associate justice of the California Supreme Court for just over three months. And while he has not yet written a majority, dissenting, or concurring opinion, the (very) early returns suggest that the comparisons between Justice Liu and former Chief Justice Rose Bird that circulated at the time of his nomination to the court may have been a tad overstated.

Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored by Justice Carol Corrigan, a Schwarzenegger appointee.

Meanwhile, just last month the court unanimously affirmed judgments of death in two separate cases. Though neither matter raised particularly complex issues, Justice Liu’s votes in these cases belie suggestions that, if placed in a position to review capital cases, he would “overrule death penalty convictions given any excuse, no matter how far-fetched.”

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AALS “Hot Topics” Program: Russia’s “Dictatorship of Law”

I am glad to announce that the AALS Committee on Special Programs selected my proposal as a “Hot Topics” panel for the 2012 AALS Annual Meeting in Washington D.C. next month.  The program is called: “The Dictatorship of Law: The Khodorkovsky Case, Human Rights, and the Rule of Law in Russia.”  William Pomeranz, Deputy Director of the Kennan Institute for Advanced Russian Studies at the Woodrow Wilson International Center for Scholars, will chair a panel that includes Kim Lane Scheppele (the University of Pennsylvania and Princeton), Bruce Bean (Michigan State University), Christopher Bruner (Washington and Lee University), Alexei Trochev (Nazarbayev University) and me.  The program will begin at 10:30 on Friday morning, January 6. 

Below is a description of the panel, which will occur (as perhaps a “hot topic” should) between two central events on the Russian calendar: the surprising results of yesterday’s parliamentary elections in Russia and presidential elections scheduled for March 4 that (at least until yesterday) everyone was saying would be certain to return now Prime Minister Vladimir Putin to the presidency currently held by his protégé, Dmitrii Medvedev.

During his first campaign for President of Russia in February 2000, Vladimir Putin defined democracy as a “dictatorship of law.”  This was meant to signal a shift away from the perceived lawlessness of his immediate predecessor’s governance, and to feed the nostalgia for Soviet-era stability.  As Putin starts his gambit to return to the Russian presidency, this panel examines which half of that slogan will dominate the other.  Recent developments in the most well-known case in the courts of both Russia and the Council of Europe present an opportunity to do so at a pivotal moment not only in that case but for the future of the rule of law in Russia.

Mikhail Khodorkovsky was the CEO of the Yukos Oil Company and the richest man in Russia when in 2003 he and his business partner, Platon Lebedev, were arrested and charged with crimes connected to Yukos, Russia’s most profitable and well-known private corporation.  They were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion and sentenced to eight years in prison.  Yukos was seized and sold to state-controlled companies.  In December 2010, as their sentences drew to a close, Khodorkovsky and Lebedev were convicted by another court of embezzlement and money-laundering, charges arising out of the same time period and concerning the same corporate activities that were the basis for the first conviction.  On the eve of that verdict, Prime Minister Vladimir Putin informed a nationwide television audience that “a thief should sit in jail,” a reference to a well-known Soviet mini-series that would have been quite familiar to viewers (the quote continues: “… and people don’t care how I put him away.”).  In midsummer 2011, a Russian court upheld the verdict, extending the defendants’ sentences until 2016. 

A bit more on the tension this case embodies for Russian law and human rights after the break …

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1

Ira Glass v. Amanda Williams

If you missed the story Very Tough Love when it aired last March on This American Life, it put a new spin on that old adage about local politics mattering most.  When you are a drug court defendant, the judicial philosophy and temperament of the judge who manages your case matters a lot, particularly since entering the drug court means waiving many procedural rights.  The story, which focused on a drug court judge who had recently won reelection to a sixth term, was remarkable for its laser focus on judicial discretion and how much can go awry when that discretion is abused.  It was also impossible to listen to the story without speculating about how furious the judge must have been when she heard it.

Furious enough, it turns out, to threaten to sue This American Life and reporter Ira Glass for libel.  She sent her letter,  Glass responded, and for a while all seemed to be quiet.

This past week, however, Georgia’s Judicial Qualifications Committee filed a formal complaint against the judge—Amanda Williams, who presides over the drug court in the Brunswick Judicial Circuit.   Among other allegations, the complaint states that Judge Williams jailed defendants indefinitely, ordered a suicidal defendant into solitary confinement for more than two months, and ordered a defendant jailed when he disputed the results of a drug test.

Judge Williams has the opportunity to respond to the charges in writing.  Unless she and the Committee settle (which usually results in a judge stepping aside), the Commiittee will hold a trial-like proceeding on the charges.

We’ll see what happens next.  But if you haven’t been following this, it’s worth clicking on the links to get up to speed.  Reality radio is way more interesting than reality television.

 

Photo Credit:  Krista Johansen

 

 

 

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.

 

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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.

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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

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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.

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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.

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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.

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