7

How Much Should Judges Get Paid?

Uh, oh.

In his first year-end report Chief Justice John G. Roberts, Jr. repeats the dubious claim his predecessor William H. Rehnquist made for years: the Republic will fall unless Congress immediately increases the salaries of federal judges.

Roberts says that the low current pay is a “direct threat to judicial independence” because it means judges can serve only “for a term dictated by their financial position rather than for life.” Judges will be forced to take more lucrative private jobs to support themselves in old age. Unless salaries increase substantially, Roberts claims, the federal bench will become less diverse because only the “independently wealthy” will be able to serve.

Federal district court judges make $165,200 a year. Circuit court judges make $175,100. Associate justices rake in $203,000. And the Chief Justice himself is paid $212,100.

Is it really so difficult to make ends meet on these princely sums?

Sure, lawyers in private practice can earn much more. Partners at top-flight firms make several million dollars annually. But federal judges have way more interesting jobs with all kinds of wonderful perks, including a permanent place in history.

If the “low” salary means some people don’t apply to be judges, then so be it. After all, does a lawyer who is in it for the money really have the right temperament to be a judge? Does the average American have a decent chance of receiving justice before somebody who considers a six-figure income a vow of poverty?

Chief Justice Roberts points in his report to the recent increase in the number of federal judges leaving the bench for private practice. That’s too bad. But would the judge who is scraping by on $165,000 (or more) really stick around for the 30% increase Roberts is asking Congress for?

For the record, when jurors serve in federal court they earn $40 per day plus bus fare.

By that standard, judges are paid very nicely, thank you.

8

DRM, Copyright, and Contract

Cory Doctorow at BoingBoing discusses a post from a blogger about an insert in the new Coldplay CD from Virgin Records. The insert states that the CD contains extensive Digital Rights Management (DRM) restrictions:

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According to some of the restrictions, the CD cannot be copied onto a computer hard drive; songs cannot be converted into MP3 files; and it might not play in some CD players, such as portable CD players, car CD players, and others. I love the special rhetorical touches, such as that by purchasing the CD, you’re helping the anti-piracy cause and that the DRM is “special technology” added “for you to enjoy high quality music.” It reads as if the purchaser should be giddy with excitement that the CD contains this really cool technology that makes the CD less functional. Doctorow writes:

Coldplay’s new CD comes with an insert that discloses all the rules enforced by the DRM they included on the disc. Of course, these rules are only visible after you’ve paid for the CD and brought it home, and as the disc’s rules say, “Except for manufacturing problems, we do not accept product exchange, return or refund,” so if you don’t like the rules, that’s tough.

I’m not a contracts or commercial law expert, but since most CDs do not have such restrictions, it is reasonable for a purchaser to assume that the CD will have a similar level of functionality as other CDs. To the extent that a person is sold a CD with much less functionality, it would strike me that the purchaser would not be out of luck, but would have some potential legal remedies. Since the issue is beyond my range of expertise, I pose the question to readers more well-versed in this area of law: To what extent would a purchaser of the Coldplay CD have any right to return the CD notwithstanding the clause that prohibits returns absent a manufacturing defect?

0

Oyez! Oyez! Article III Groupie Is Back In Session

underneaththeirrobes1.jpgUnderneath Their Robes, the controversial blog by the no-longer anonymous Article III Groupie (David Lat) is back online. Recently, news reports revealed that David left his job as an AUSA in Newark. So, as Article III Groupie would certainly ask: What is David up to next? The news accounts are vague about her his future plans, only indicating he’s on his way to Washington, DC. We’ll have to wait for more details at Underneath Their Robes.

Related Posts:

1. Solove, Article III Groupie Disrobed: Thoughts on Blogging and Anonymity

2. Solove, The Mysterious Disappearance of Article III Groupie

2

The Funniest Justice

scalia_smiling.jpgFor all of those law geeks who obsess over Supreme Court trivia, here is a new question: Who is the funniest justice? Well, the data has been carefully analyzed by Professor Jay Wexler in a new article in the Greenbag, and the answer is in. As summarized in a NYT article on the study:

Transcripts of oral arguments at the United States Supreme Court have long featured the notation “[laughter]” after a successful quip from a justice or lawyer. But until October 2004, justices were not identified by name, making it impossible to construct a reliable index of judicial wit.

That has now changed, and Jay D. Wexler, a law professor at Boston University, was quick to exploit the new data to analyze the relative funniness of the justices. His study, which covers the nine-month term that began that October, has just been published in a law journal called The Green Bag.

Justice Scalia was the funniest justice, at 77 “laughing episodes.” On average, he was good for slightly more than one laugh – 1.027, to be precise – per argument.

Justice Stephen G. Breyer was next, at 45 laughs. Justice Ginsburg produced but four laughs. Justice Clarence Thomas, who rarely speaks during arguments, gave rise to no laughter at all.

Of course, it is not clear that Scalia’s victory is evidence of humor and wit on any absolute scale. I found during law school that my sense of what was funny became seriously warped. I started finding even mild judicial humor uproariously funny, and would read sections of opinions to my speech-pathologist wife. For a while she would listen with an indulgent expression on her face, but eventually she gave me the news with the air of a woman telling a child the awful truth about Santa Claus. “Nate,” she said, “I don’t think that legal humor really counts as real humor.”

6

Whistleblowing, Journalist Privilege, and NSA Surveillance

whistleblowing1a.jpgThe DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times:

“The leaking of classified information is a serious issue. The fact is that al-Qaida’s playbook is not printed on Page One and when America’s is, it has serious ramifications,” Duffy told reporters in Crawford, Texas, where Bush was spending the holidays.

This probe will raise several important questions in the months to come.

First is the issue of whistleblowing. Somebody leaked classified information about the NSA surveillance program. Should that individual be punished? On the one hand, we don’t want people leaking classified information that could impact national security. On the other hand, the President possibly violated a federal criminal statute. Whether he did or not is something that Congress and the courts must settle, but very few of those defending the legality of the President’s actions believe that it is a very easy clear-cut case. At best for the President, the issue is contestable; at worst, he broke the law. Without the whistleblowing, there would be no way for the Congress or courts to address the issue. Even if it turns out the President lawfully engaged in the surveillance, there’s another issue: Is the President lawfully allowed to keep it secret for as long as he desires? At the very least, should the President be allowed to keep it secret from other branches of government?

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3

More on NSA Surveillance

bush2a.jpgThere are some recent blog posts and news stories worth reading about the NSA surveillance scandal.

Orin Kerr at the VC has a new post examining the argument that Article II of the Constitution grants the President the “inherent authority” to conduct warrantless surveillance in violation of the Foreign Intelligence Surveillance Act. He concludes:

I don’t think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it’s really hard to see where the Administration could get 5 votes for the claim. That’s my ballpark guess, at least.

In particular, Kerr examines nine words in an opinion by the FISA Court of Review, In re Sealed Case, that many cite as support for the Article II argument. Kerr observes:

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14

Finding God in Chess and the Appellate Brief

chess_piece_photo.jpgWhen my professional life is going well it consists of reading and writing appellate briefs. Fortunately, this is not nearly as pathetic as it sounds.

At its most basic, an appellate briefs is a written argument presented to a court explaining the claims of your client and how those claims are supported by the law. As such, it represents one of the great triumphs of human civilization. I am serious. Law rests on a basic commitment to resolving the disputes of human life by resort to reason rather than violence. In the days before appellate briefs (or something like them) we resolved disputes through blood feuds, trial by combat, or by throwing women into ponds to see if they floated. Deliciously dry and intricate arguments about precedent, controlling authority, pleading, and statutory construction represent one of the few unequivocal leaps forward in human history. Post-modernism, historical relativism, and skepticism of Whig history all have their place, but at the end of the day, the rule of law is simply a lot better than trial by combat. Generally speaking, the progress of reason is told in Enlightenment terms as a story about the ebb of faith down the shingles of Dover Beach. However, it is possible to see the triumph of reason in the brief in terms of an older vision of reason: The trace of the divine.

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17

A Philadelphia Story

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This story from the Philadelphia Inquirer caught my eye. (And gave me an opportunity to steal a picture from Dan’s airline screening playset post.) Janet Lee, a Bryn Mawr student, was on her way home from the holidays. At the Philadelphia Int’l Airport, she was arrested because her checked bags contained condoms full of flour, which the police mistakenly identified in two field tests as cocaine and amphetamines. According to Lee, she and hall-mates had created the bags as stress balls as an exam-time gag. The system held Lee in jail for three weeks on $500,000 bail:

Lee acted tough to protect herself. She did modern-dance moves to keep limber. Inmates saw this and gossiped: “Everyone thought I knew karate because I’m Asian.” She certainly didn’t discourage the stereotype.

Inmates saw the high volume of visitors and figured she was important. Again, she did not discourage the notion. She did not tell her cell mates that the visitors were actually volunteers from Catholic churches in Philadelphia who had taken up her cause.

The volunteers helped her hire [a lawyer, and former prosecutor, named David] Oh.

“I believed her story because things just didn’t add up,” Oh said. For one thing, Oh said, the field tests were odd because they detected the presence of not one drug but three.

“People don’t mix drugs like that,” Oh said.

First, Oh contacted Bryn Mawr and confirmed that Lee’s dorm mates had, in fact, made the condoms together during a pre-exam session they call a “hall tea.”

Then, Oh said, he called Assistant District Attorney Charles Ehrlich, who agreed to expedite laboratory tests. Ehrlich also agreed to help seek reduced bail, Oh said. A day after the new test came back and confirmed that the substance was flour, Lee was released.

She flew home first class.

There are a few notable things about this story. The draconian D.A.’s office (all considered) gave Lee a huge break because of her connections – a social capital that most defendants do not have. It is also surprising (and heartening) that Philadelphia Airport is screening luggage well enough to catch this (potential contraband). I also wonder about the remarkably high bail set for a college student who had no prior record that we know about, and the jail authorities apparent decision not to put her into protective custody. On the other hand, I’m not surprised at all at the error with the tests. I wonder if the police department has studied the false positive rate carefully.

Needless to say, Lee has now filed a civil rights claim against the police (and probably a claim against the city for their poor drug-testing training). Given her story, the City should settle. But knowing the City Solicitor’s inflexible litigation strategy, I doubt they will anytime soon.

7

The Gifts You Can No Longer Return

My-Date-With-Drew.jpgIn the fun and light documentary, My Date With Drew, an average guy named Brian Herzlinger chronicles his attempt to get a date with Drew Barrymore. The documentary was made on a shoestring budget of just $1100, and Brian cut costs by buying a video camera at Circuit City, using it until the 30-day return window was up, and then returning it to the store for his money back.

But Herzlinger’s documentary may one day be notable not for his quest to meet a celebrity but for capturing what might be a quaint piece of nostalgia — the easy and hassle-free ability to return merchandise.

Returning merchandise has become much harder these days. Those unwanted gifts you received this holiday season might be much more difficult to return. According to a WSJ article (don’t bother clicking the link, as the article can’t be accessed without paying a massive fee):

Retailers are further clamping down on return policies, imposing penalty fees and using sophisticated computer databases to flag serial returners trying to game the system. Some are also adding exceptions and caveats to their return policies — for instance, making it particularly hard to return certain kinds of products, such as electronics.

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