Dead judges cannot decide cases

That was the recent ruling of the U.S. Supreme Court in Yovino v. Rizo, a case decided at the end of February. The Ninth Circuit Court of Appeals had issued its opinion, which included the vote of Judge Stephen Reinhardt, eleven days after Reinhardt passed away in March 2018. The Ninth Circuit panel justified the decision to include Reinhardt’s vote by noting:

“Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”

The Supreme Court disagreed, explaining that federal judges “are appointed for life, not for eternity.”

Donald Scarinci has a nice breakdown of the opinion and the underlying case in The Observer.

 

Federal courts seek cloud-based Learning Management System

File this one under: Things courts do because they are big organizations.

Earlier this month, the Procurement Office of the United States Courts issued a Request for Information for a cloud-based learning management system that could accommodate up to 20,000 users. The purpose is to update the court system’s existing learning management system, and make it easier for federal court employees across the country to engage in web-based training.

This got a lot of attention among the private organizations that provide IT services to the government, but virtually no attention anywhere else. But it is a reminder that the primary theme of this blog — that court system are massive organizations whose day-to-day behavior mirrors that of other massive organizations — is in evidence behind the scenes on a regular basis.

 

The Affirmation Alternative: A Religious Case for Atheist Oaths

A guest post by M. Ryan Groff

On March 30, 2019, Clarence Thomas, Associate Justice of the U.S. Supreme Court, spoke at Pepperdine University School of Law’s 2019 annual dinner. He reflected broadly on the relationship between faith and judicial duty, drawing from his own experiences and also from past conversations with his former colleague, the late Antonin Scalia. During a brief aside, Justice Thomas questioned the meaning of oaths made by atheists:

“As an aside, I think it’s really interesting that people in a profession where we all take an oath, that they would look at people who have strong faith as somehow not good people when, if you’re an atheist, what does an oath mean? If you are a Christian, and you believe in God, what does an oath mean? You know, what do you say at the end of it? ‘So help me God.’ And you have taken an oath to God, and, as Mother Theresa said, it’s between you and God. So, you have given your word… when you give your word to God, is that special? And I think if you are faithful, you think it is special, and you work doubly hard to make sure you live up to it… Not only doesn’t it [faith] interfere in any way, it actually enhances your view of the oath.”

It is not difficult to understand what Justice Thomas means. If someone swears on something he does not believe exists, then there is good cause to question the trustworthiness of whatever was promised. However, the concern with these comments, ironically, has to do with oathtaking in colonial America and one of Congress’s earliest interpretations of the Constitution. Continue reading “The Affirmation Alternative: A Religious Case for Atheist Oaths”

Decline in jury trials the “single biggest loss” to the legal profession, judges say

At a conference at Berkeley this week, several prominent federal judges address the rapid decline in jury trials at the federal level, with Judge David Campbell of Arizona calling the decline the “single biggest loss” to the legal profession.

Law360 has a good roundup, including efforts by judges to make trials affordable and efficient again:

The trend has driven judges to try to incentivize lawyers and their clients to accept expedited litigation schedules so that the parties aren’t embroiled in protracted pretrial disputes for years, according to federal judges speaking at the event, which was hosted by the University of California, Berkeley School of Law’s Berkeley Judicial Institute and the California Law Review.

Judge Campbell said he tried giving parties the option of sending their cases to trial within four months of filing suit. At the outset, he would require the lawyers to provide their clients with two budgets: one budget that estimated the costs of “old-fashioned” litigation and another that would estimate how much it would cost to go to trial within four months, which was always cheaper, he said.

Out of about 800 civil cases, Judge Campbell said not a single one went to trial under the expedited format.  About 80 to 100 parties expressed an interest in the shorter litigation schedule, but the counter party in the case wouldn’t agree to it, the judge said. In three instances, both parties took him up on the offer, but then all three cases were either settled or dropped before trial, Judge Campbell said.

The decline of the jury trial is deeply troubling on many fronts, not the least of which is that is denies affected parties the opportunity to tell their stories in a dignified and open forum. The power behind the opportunity to be heard cannot be stressed enough — it is one of the primary reasons why courts have maintained their legitimacy as institutions.

Not every case should go to trial, of course. But too many cases settle for the wrong reasons — cost, delay, emotional toll, or the desire for secrecy. Restoring a culture of jury trials in our courts would be an important step toward restoring confidence in American democracy as a whole.

 

Ontario Court of Appeals allows livestreaming of carbon tax dispute

Ontario’s highest court is allowing livestreaming this week of an important case between the provincial government and Canada’s federal government over the latter’s imposition of a carbon tax. CBC cameras are being allowed to capture the arguments and share the broadcast with other media. These are the first televised arguments at the Ontario Court of Appeals since 2007. The first day of oral arguments can be found here.

Earlier this year, the Saskatchewan Court of Appeal also allowed livestreaming in a case involving a provincial challenge to the carbon tax, underscoring the special nature of this litigation. The real lesson: don’t get too comfortable with cameras in Canadian provincial courtrooms; the practice is still remarkably rare.

The opioid crisis and the state courts

The Indianapolis Star has published an interesting op-ed from Indiana Chief Justice Loretta Rush and Tennessee State Court Administrator Deborah Taylor Tate, exploring (at a high level) how the national opioid epidemic has affected state courts. A snippet:

[O]ne fact remains: the state court justice system is now the primary referral source for addiction treatment in the country.

This reality has put enormous strain on our nation’s state courts, many of which have been overwhelmed by growing dockets and shrinking resources. In a recent survey of chief justices and state court administrators, 55 percent ranked the opioid epidemic’s impact on the courts as severe. The survey results are unsurprising, given the complexity of opioid cases: it takes an enormous amount of time to figure out what’s best for people who are addicted, how to care for their children, and what resources are available for them. And those who are placed in a treatment program with court oversight may remain involved with the court for years.

The courts are often the place of last resort for problems facing society, and have no choice but to address those problems creatively and (usually) with limited budgets. The opioid crisis is certainly playing out that way.

Texas judge accidentally resigns via Facebook

William “Bill” McLeod, a well-respected Houston-area trial judge, was contemplating running for the Texas Supreme Court in the 2020 general election. Earlier this month, he stated as much on his Facebook page, unaware that such a declaration triggered an automatic resignation from his current position under Article 16, Section 65 of the Texas Constitution.

Harris and his supporters appealed the automatic removal, but this week Harris County commissioners voted 4-1 to uphold the resignation. It appears to have been a difficult decision, given that McLeod was a popular and experienced judge who won a sizable majority in the last election.

Still, there were important countervailing considerations: Continue reading “Texas judge accidentally resigns via Facebook”