The Faculty Lounge

Roadside Crosses and the Establishment Clause

 As I mentioned, I am teaching a Supreme Court seminar this Fall.   For one assignment, students write a cert pool memo on a pending petition, and then conference in groups of nine to decide the petitions.   As one of these petitions, I selected an interesting Establishment Clause petition.  

Davenport v. American Atheists involves a challenge to a road side cross erected by a private organization to honor fallen highway patrol troopers.   The Tenth Circuit held that the crosses violated the Establishment Clause under the endorsement test.    SCOTUS Blog has identified Davenport (and its companion petition, Utah Highway Patrol Ass'n v. American Atheists) as a "petition to watch."

I'll be comparing my students' results with the Court's decision.   I am not a First Amendment scholar, and I'd be curious to hear whether others think these petitions will be granted.  

Facebook and Ex Parte Communications

Might a witness's post on a judge's Facebook page, wishing the judge a happy birthday, constitute an ex parte communication?  The South Dakota Supreme Court addressed that issue in an opinion handed down this week.  You'll find the opinion here.

(Hat tip:  South Dakota law prof Roger Baron.)

An American in Strasbourg: Transatlantic Legal Culture Shock

Back in June 2006, I traveled to lovely Strasbourg, France to facilitate my study of the European Court of Human Rights (ECHR), the Council of Europe's judicial organ.

While there I stopped by the U.S. Consulate where I had interned as an undergraduate a decade earlier. The Consulate serves as the Strasbourg Office of the U.S. Permanent Observer to the Council of Europe and as such follows its proceedings, including those of the ECHR. The Consul General, an American-trained attorney, introduced me to her interns and asked me to tell them what things an American legal audience might be interested in learning about the ECHR.

I suggested that, for starters, I would personally be interested in learning about the jurists' backgrounds, i.e. his/her legal training, prior judicial service, and political and jurisprudential commitments.

A French intern, a student at the well regarded Faculté de Droit de Strasbourg, was scandalized by the suggestion.

"Why would the identity and background of the adjudicator matter?" I attempted to elaborate the problem of vagueness in construction and the more than occasional interstitial lawmaking in which judges may necessarily engage. I explained too that my suggestion was not making any normative claim about the way judges ought to judge, just a descriptive one. No good. She dismissively snapped: C'est un truc américain. Roughly translated: "that's an American thing."

The irony of the exchange still amuses me. I occasionally use the example when talking with students about interpretation and legal culture. In the United States, I am considered a formalist, but in the land that exported Derrida and critical theory my suggestion branded me a rank hyperrealist!

It is my sense that the dominant official legal discourse in France remains a variety of formalism, where judging is talked about more like a deductive science proceeding apodictically from the Code’s premises to a legal ruling. My colleague Chaim Saiman recently directed me to Mitchel Lasser’s interesting 1998 Yale Law Journal article arguing there is an unofficial discourse about the role of judges in mainstream French academic doctrine and in judicial magistrat argumentation that does admit gaps in legislative coverage and a discretionary judicial role. Either the French intern didn’t get the memo or the message is not made clear in the classroom.

My interest in judicial selection was what had brought me to Strasbourg. It is my prediction that the judicial selection processes for the COE's ECHR and the EU's European Court of Justice will grow increasingly contested as the prevailing official portrayal of judging changes and the public recognizes judging for what it is. The calls of EU parliament members for greater democratic participation in the ECJ appointment process suggest that day may not be far away.

Article III Tenure for Bankruptcy Judges and the Prestige of Office

Many thanks to the Faculty Lounge for having me guest blog this month. 

In late June, the SCOTUS handed down Stern v. Marshall, its most recent decision to touch on Article III, legislative courts and the increasingly complicated world of bankruptcy adjudication. Congress could greatly simplify this area by just giving bankruptcy judges Article III tenure. Many of the constitutional complications would simply disappear (well, except perhaps that pesky Appointments Clause issue) and bankruptcy could be streamlined. So why not give bankruptcy judges Article III tenure? We could even make the judges PAS appointees.

The last time that was seriously tried in Congress, the proposal was killed by the political opposition. Who were the chief opponents of Article III tenure for bankruptcy judges? It wasn't Congress, but the Article III judiciary itself. 

One of the arguments offered against tenure was that so enlarging the Article III judiciary would diminish the prestige of individual membership in the Club. That diminished prestige would, like flagging judicial compensation, make it more difficult to attract the best legal talent to the federal bench in the future. 

Assuming, arguendo, we ought to pursue a certain level of judicial prestige as a recruitment incentive, is minimizing the growth in the size of the judiciary the best way to do it and what is the background level of prestige that ought to be maintained?

Prestige (ill defined in the marketing literature) seems to me to be a subjective reaction elicited from others in response to the perceived status of a position, product, etc., that one usually associates with being elite (e.g. high quality and possibly scarce in supply). That suggests we need to know who the relevant "prestige" community intended to have this reaction is. If the goal is to assure effective recruitment of well-qualified candidates to be federal judges, then presumably the target market should be peers of federal judges who are talented enough to do the job. 

But who is that relevant community? Partners at (especially large) law firms, federal legislators, officers in the executive branch, state judges, law professors, the practicing bar generally, the legal press and media that will transmit the message to these groups? Those groups have grown significantly over time. What year should form the baseline ratio of judges to lawyers that maintains the requisite prestige? 

One could always aim to increase federal judicial prestige by increasing the number of lawyers to judges. That may increase the prestige component of federal judicial "compensation."

But if we were to eliminate the initial stipulation that prestige ought to be something we pursue, would it just be better to compensate judges with other perks of office, e.g. better compensation (which I suppose might in turn have some positive effect on prestige)? Do we really want to encourage recruitment of judges who seek the position, in not insignificant part according to the prestige rationale, for the fawning of others? 

Frozen Judicial Salaries and Resigning Judges

The New York Times features a story today about the rapid pace of resigning state court judges due to frozen judicial pay:

There is perhaps no more fitting finale to a long legal career than a judgeship. Ascending the bench after years appearing before it can bring power, respect, personal satisfaction, reasonable hours and, often, free parking. There have traditionally been few steps beyond: Retirement. Or death....

Now, for the first time in memory, judges are leaving the bench in relatively large numbers — not to retire, but to return to being practicing lawyers. Turnover in New York has increased rapidly in the last few years: nearly 1 in 10 judges are now leaving annually, a new study shows.

I admit that I am torn about this issue.  On the one hand, it seems ridiculous that judges with decades of experience often make less than first-year associates and law professors.  Surely their level of dedication and expertise deserve some more financial reward, right? With the current situation, we lose our best judges due to financial pressures.  We don't want to end up with a system in which only the rich can afford to become judges.

On the other hand, however, with legal employment at a standstill, with the economy in a ditch, and funding scarce, it's hard to justify substantive raises for the judiciary, deserving or not.  It's hard to feel sorry for the NY judge in the article who had to sell her "summer home in the Hamptons" to continue to serve in the judiciary when unemployment is so high and prospects so dim in the legal profession. 

Thoughts, comments?

 

 

 

 

 

Mack and Brown-Nagin on "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy"

The second day of the AALS workshop on "Women Rethinking Equality" featured luncheon addresses by legal historians Kenneth Mack (Harvard) and Tomiko Brown-Nagin (UVa).  The theme was "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy."  

Professor Mack spoke about civil rights lawyer Pauli Murray (picture at right) and her development of a "Jane Crow" theory of gender discrimination.  Professor Mack is completing a book entitled Representing the Race: Creating the Civil Rights Lawyer, 1920-1955, to be published by Harvard University Press.

Professor Brown-Nagin shared her work on Constance Baker Motley, the civil rights lawyer, judge, and government leader.  In her public remarks, Judge Motley never acknowledged that she had experienced gender discrimination. Professor Brown-Nagin's work with Judge Motley's private papers reveal the Judge's awareness of gender inequality and its deleterious effects.  Professor Brown-Nagin is working on a biography of Judge Motley.  

In the film clip below, Judge Motley talks about how she first became interested in the law.

 

I'm interested in these two historical figures and the work of these two legal historians.  Looking forward to reading both forthcoming books!

Graduate Fellow and Visiting Scholar Opportunities With Duke’s New Center For Judicial Studies

Duke Law School has just established a new Center for Judicial Studies, the brain-child of Dean David Levi, who served as Chief United States District Judge for the Eastern District of California prior to his appointment as dean in 2007.  A core component of the center is a new master’s program in judicial studies, which will be open to an inaugural class of 10 to 15 judges entering in summer 2012. The program will examine the history, institutions, and processes that shape the judiciary and affect judicial decision-making.

The part I find most exciting, however, is the center’s intended role as an incubator for innovative scholarly research on the judiciary, under the direction of my colleague Jack Knight, a professor of political science and law at Duke University and a renowned expert in the study of judicial institutions.  And this is probably the part that most interests you, too (or, at least, most appeals to your self-interest).

The center will host academic conferences on topics related to judging and judicial institutional design. The center also will fund graduate fellows and visiting scholars who undertake original research projects with special relevance to the judiciary. A web-based journal is planned to disseminate research on the judiciary, report on conference proceedings, and provide a forum for discussion and comment. So, if you’re interested in the judiciary, the Center for Judicial Studies is interested in you.

The press release is here.

Goodwin Liu Withdraws From 9th Circuit Consideration

Berkeley Law Professor Goodwin Liu has formally withdrawn from consideration as a Ninth Circuit nominee.  He did so by requesting that President Obama withdraw his nomination.  Liu, a former Rhodes Scholar who (notwithstanding this particular burp) may yet find his way onto the Supreme Court, has been the lightning rod for criticism among the conservative court-watching set.  I, for one, was wondering if he'd get a recess appointment a la Bill Pryor. 

I guess that's not happening.  (There is, however, a push to make a recess appointment of Elizabeth Warren for chief of the Consumer Protection Financial Bureau.) 

Professor Goodwin Liu and the Senate Judiciary Committee Questionnarie

Amidst the confirmation controversy over Berkeley Law Professor Goodwin Liu, you might be interested in his Questionnaire for the Senate Judiciary Committee.  It is here.  The Questionnaire has an extensive list of his publications beginning at page 8.  The Questionnaire also has links to many of Professor Liu's articles and speeches.

The Senate Judiciary Committee's webpage with materials for other nominees in the 112th Congress is here.

The WiscSup Clan: Bitches And Drive-Bys Animate State Judicial Race

Justice Prosser David Prosser, of the Wisconsin Supreme Court, is up for reelection.  But according to the NYT, the race has turned into a referendum on Governor Scott Walker and his union-busting efforts.  That really irks Justice Prosser and he made the following comments according to the Times:

“I feel like the victim of a drive-by shooting,” Justice Prosser, 68, said in an interview in which he described his record on the court as moderate. “Here I am, I’m walking along, I should win this race going away. But I mean, not if people aren’t thinking about what they’re doing.”

I am sympathetic to the Justice  (although perhaps he mightn't have called his colleague, Chief Justice Shirley Abrahamson, a "total bitch" and threatened to "destroy" her).  

But is this really what a victim of a drive-by shooting feels like?   File this one next to "high tech lynchings." 

And I beg people  more talented than I to try to imagine how the Justice might tell this story in song.   (e.g., "I'm a mean ass Justice on the WSC...")

In Memoriam: Judge Blane Michael

Fourth Circuit Judge M. Blane Michael, who sat in West Virginia, died last Friday.  He was 68.  He had been appointed to the bench by President Clinton in 1993.

Matt Bodie shares thoughts about Judge Michael for whom he clerked for in 1996-97.  

A Judge Michael clerkship launched a number of careers in law teaching.  Other former Michael clerks in the academy include Jonathan Witmer-Rich, John Taylor, Vic Fleischer, Sean Andrussier, Caroline Mala Corbin and Alex Kreit.

Judicial Clerkships 2011: A Little Crystal Ball Action

A couple of years ago in a post titled The Coming Judicial Clerkship Application Crush I suggested - accurately, as it turned out -  that the economic crisis would cause a surge in judicial clerkship applications among the most highly credentialed law students.  Federal clerkships have long been highly sought positions, but all evidence suggests that the rise in applications has made them even more difficult to secure. 

That 2009 crush continued and only increased this past fall according to this report.  Now the question is whether things will ease up now that we see a soft bounce in entry level associate hiring.  My prediction is: just a little.  If that comes to pass, it'll be good news for students at not-quite-super-elite national schools and strong regionals. 

Pepperdine Names New Law Dean

Pepperdine law prof Greg McNeal shares the news that Pepperdine University has named federal appellate judge Deanell Reece Tacha as the next dean of its law school.  Story here.

Chief Justice John Roberts

Chief Justice John Roberts is the "cover story" in the current issue of Fortune magazine (1-17-11).  Here's a link to an online version of the article.

Catching Up with Michael McConnell

The Deseret News recently printed this story on former law professor and former federal appellate judge Michael McConnell (now directing Stanford's Constitutional Law Center), including a few paragraphs devoted to McConnell's first encounter with a certain law review editor who would one day occupy the White House.

In reading Professor McConnell's bio at the Stanford website, I note this sentence:  "He is the only full-time professor of law in the nation who has previously served as a federal judge."  That's quite an interesting piece of trivia (and, I assume, a claim that excludes law deans [such as Duke's David Levi, a former federal district judge]).

 

Today's Prop 8 Decision - Increasing the Chances of Mootness Before the Supreme Court Gets the Case

Back in August, I wrote that the Prop 8 case might never get decided by the Supreme Court.  The theory was that by the time the Supreme Court could hear and decide the case, the California voters would vote to repeal Prop 8.  As I understand things, advocacy groups in California are working to get a repeal on the ballot for November 2012 with the thinking being that demographics will be more favorable (i.e., younger people become voters, older people die off, attitudes generally become more tolerant, etc.).

The Ninth Circuit's expedited hearing in December put a bit of a kink in my theory, but today the chances of the case being mooted increased by a lot.  The Ninth Circuit decided to punt the case . . . for now.  In its decision, the Ninth Circuit certified the question of standing to the California Supreme Court.  I don't have any information about the general timeline for questions certified to the California Supreme Court, but there's no arguing that this doesn't delay the case, possibly substantially.

Now, the following things must happen before the case is decided by the Supreme Court:

• Briefing, argument, and decision by the California Supreme Court.
• Decision by the Ninth Circuit (with possible re-briefing and re-argument depending on what the California Supreme Court says).
• Certiori briefing and decision by the Supreme Court.
• Merits briefing, argument, and decision by the Supreme Court.

Under my theory that Prop 8 will likely be repealed by California voters, this all has to happen before November 2012, just 22 months from now.  (And my list of things that have to occur doesn't even include a possible en banc process in the Ninth Circuit.)

I just can't see the wheels of justice moving this quickly, so I'm sticking with my original post - this case will probably be mooted.

Cross-posted at the Feminist Law Professors blog.

UC Berkeley's Goodwin Liu Passed Over For Ninth Circuit

For those of you who haven't noticed, the nomination of UC Berkeley law professor Goodwin Liu to the Ninth Circuit died at year's end.  In exchange for passing over Liu and several other nominees, the President managed to score 19 appointments before the end of 2010.  Overall, he did quite poorly in getting judges confirmed: according to the WSJ, President Obama got 62 judges approved in his first Congress compared to 100 for President George W. Bush.

Don't be surprised if Liu is renominated this year.

Judging Women Judges

Stephen J. Choi, G. Mitu Gulati,  Mirya R. Holman, and Eric A. Posner have a new article up on ssrn, "Judging Women."  Here's their abstract:

Judge Sonia Sotomayor’s assertion that female judges might be “better” than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the U.S. Court of Appeals and the federal district courts. 

I saw an earlier version of this this summer and it (no surprise) generated a ton of discussion.  One conclusion I took away from this is that the quality of judging (as measured by the measures here) is pretty even across courts.  I'm not sure what that says about judges' quality or the measures that Choi et alia employ to measure quality.

But this also makes think that there's some application for these methods in legal history.  Take the Jacksonian era, for instance.  The conventional wisdom is that Whigs were better lawyers, treatise writers, and judges than were Democrats.  (Of course, this conventional wisdom comes to us largely through Whig writers -- like Kent and Story!)  To put a blunt point on this, we think of Andrew Jackson as a president who did what he wanted and ignored the law.  So I wonder if we applied these sorts of measures, would we find that Whigs were "better" judges--did they write more and longer opinions than Democrats, were they cited more than Democrats outside their jurisdiction, and were there more disagreements between Whigs than Democrats?  I'm not sure what we'd find.  One thing that I'd also be interested in, is a measure of judges' "aspirations."  How often did they look to treatise and more general evidence (like treatises on history and economics) to bolster their opinions?

As with everything those folks do, I'm sure it'll generate a lot of attention.

"It is just an old picture of a person best left unremembered.”

Well, that's the question, isn't it?  No sooner have I finished writing about last night's fabulous lecture by Justice Albie Sachs about how South Africa's Constitutional Court is made the site where a terrible prison once stood, but I see from our friends at abovethelaw that the Second Circuit is grappling with a question of what to do with a portrait of a disgraced judge. 

The New York Times has the story about the portrait of Judge Martin T. Manton, who in 1939 resigned from the Second Circuit in the wake of charges that he took bribes.  He subsequently served 19 months in prison. For many years Judge Charles L. Brieant displayed Manton's portrait as a reminder of judges' fallibility.  And of human frailty more generally, I might add.  Yet, now that Judge Brient has passed away, the Second Circuit's Chief Judge, Dennis Jacobs, wants the portrait back.  “The portrait is not much in the way of art ... It is just an old picture of a person best left unremembered.” 

And there you have it: is Judge Manton a person best left unremembered ... or someone we ought to remember?  That's one of the central questions of monument law, nicely wrapped up in one sentence. 

Alfred Brophy