The latest ABA essay on judicial independence comes from Justice Ming Chin of the California Supreme Court.
When I began this blog in February 2017, I hoped that its growth would coincide with a renewed interest in the organizational nature of court systems, as well as a renewed appreciation for the history of court administration and management. Whether by coincidence or design, that wish has come true in at least one respect: a batch of new scholarship on Chief Justice William Howard Taft.
In addition to Jeffrey Rosen’s fine new biography of Taft and my own piece on Taft’s role in setting the stage for federal procedural rulemaking, this year has seen the publication of Kevin Burns’s lucid assessment of Taft’s chief justiceship in The Journal of Supreme Court History. Burns sets out the historical context of Taft’s time in the center chair, and beautifully illustrates Taft’s efforts to turn the federal court system into a truly centralized, autonomous branch of government. It’s a terrific introduction for those who are new to Taft’s legacy, and a useful reference for those already familiar with his career.
Burns adds his own take as well, arguing that many of Taft’s reforms were motivated by the explicit desire to increase court access for the poor. This was not merely a manifestation of the Progressive ethos of the 1920s: Burns argues that Taft understood access, in the form of faster and less expensive litigation, to help the courts as well as the litigants. More efficient case processing would lead to more confidence in the courts and less cynicism that the courts were simply the protectors of moneyed interests.
While I do not believe that access to courts was the sole–or even the primary–motivation for Taft’s reforms, the value of access was certainly consistent with his work, and Burns is right to bring it to light. Access also fits nicely with other values that motivated Taft’s administrative efforts, such as increasing the courts’ legitimacy, instilling respect for the Constitution and the rule of law, and securing greater internal control over the management of court resources. Burns’s piece is well worth the read.
I am delighted to announce that my new article, The Federal Courts’ Rulemaking Buffer, is now available on SSRN. Please download it early and often!
The article arose in response to two perplexing questions about the federal court system’s civil rulemaking process. First, why do the courts engage in rulemaking at all? The courts pride themselves on being highly efficient and countermajoritarian, but rulemaking is time-consuming, quasi-democratic, and policy-driven. Making rules by committee, then, seems particularly unsuited to the work of the judicial branch.
Second, why have the courts made the rulemaking process more complicated over time? Initially, the entire work of formulating and amending rules was assigned to a single committee. Today, the rulemaking process must navigate at least five levels of the court system hierarchy, with additional opportunities for public and special interest input. As a result, amending a single rule often taken three to five years.
So what gives? Why would the courts embrace a task outside of their expertise, and then make it more and more complex?
The article offers an explanation to both questions that is grounded in organizational theory. I explain that the court system initially developed the rulemaking process as a buffer, to protect its core work from the instability of its larger environment. The power to make procedural rules gives allows the court system to respond to a drop in resources, or a surge in cases, without the entire judicial process grinding to a halt. But the rulemaking process also requires external legitimacy to function, and when that legitimacy has been challenged from time to time, the courts have responded by making the process more open, complex, and transparent.
The article touches on many of themes of this blog, including the federal court system’s resource dependence, neoinstitutional theory, and the influential role of other organizations (such as executive agencies, the ABA, and Congress) in altering court-centered rulemaking over time. And it features appearances from William Howard Taft, Earl Warren, Warren Burger, Roscoe Pound, Tom Clark, and others.
The article will be formally published in the William & Mary Law Review later this year. I welcome any thoughts from readers, privately or in the comments.
Pictured: Thurgood Marshall Federal Judiciary Building
Jonathan Remy Nash (Emory) has posted his new article, Judicial Laterals, on SSRN. It is a short and interesting empirical study of “lateral” moves by sitting judges, either from a state court to the federal bench, or vice versa.
Nash’s data set confirms many intuitions about such lateral moves. Unsurprisingly, a move from state court to federal court is overwhelmingly more common than a move from federal to state. Judges do occasionally leave the federal bench to join a state court, but almost always to “step up” within the court hierarchy (by moving, for example, from a federal district court to a state supreme court). Nash also examined connections between lateral decisions and factors such as the professionalism of the state court, the length of the judicial term on a state court, and the expected judicial salary.
The study was understandably limited to moves from one judicial position to another. But at some point it would also be very interesting to explore judges who leave the bench entirely for other legal (or law-related) jobs. We are accustomed to thinking about a judgeship as a capstone of a legal career, but there is no shortage of judges who leave before their terms are up to seek a different opportunity outside the courts. In recent years, for example, both state and federal judges have resigned their seats to take appointed political positions, run for elected office, enter academia, create think tanks, or even join the private sector.
The systemic explanations for these moves might well be complex and varied. State judges might be motivated in part by mandatory retirement ages, looming reelection or retention campaigns, higher salaries, better quality of life, or restlessness to try something new. Federal judges, with lifetime job security, are giving up something more. What motivates the change for them?
Perhaps some day we will be able to dive more deeply into that question. In the meantime, I commend Professor Nash’s piece to the reader.
Katherine Macfarlane (Idaho) has posted her new article, Pro Se Prisoners’ Posner Problem (Missouri Law Review, forthcoming), on SSRN. It is a review of Judge Posner’s recent self-published book, Reforming the Federal Judiciary. Cribbing from the abstract:
This book review … is focused on what Posner deemed the book’s “most important theme”—“the need for better treatment by the federal courts of pro se litigants.” His staff attorney proposals offer the most reform potential. This review examines the assumptions underlying Posner’s desire to assist pro se litigants, including the conclusions that pro se litigants are: “very often poorly educated and/or of limited intelligence”; “ignorant of the subtleties of the law”; and “basically fairly normal people who because of bad luck, psychological problems, poor judgment, lack of family support, or other internal or environmental misfortunes, simply have great difficulty living a law-abiding life.” In examining Posner’s newfound empathy for the pro se, this review will argue that empathy is a poor proxy for meaningful institutional change, concluding that though Posner has identified unjustifiable structural inequality, he has stopped short of fixing it. If pro se litigants deserve equal treatment, then eliminate all staff attorney programs. Assign pro se cases directly to judges’ chambers, make staff attorneys law clerks, and allow the new law clerks to work directly with jurists like Richard Posner.
Macfarlane’s review lucidly points out the strengths and weaknesses of Posner’s discussion of the treatment of pro se litigants — and there are indeed many strengths and weaknesses. The review is a good, short read for those who want a summary of Posner’s arguments — and a clear-eyed analysis of the argument’s shortcomings.
The Honorable Scott Makar (First District Court of Appeal, Florida) has written a short and interesting article suggesting that Florida’s mandatory judicial retirement age should be raised from 70 to at least 73. The article revisits arguments that he made twenty years ago, and finds that those arguments are still well-supported. Among the factors supporting raising the retirement age:
- Judging is a “late peak, sustained activity” where performance peaks later in life;
- The average American life expectancy at birth is now nearly 79 years, more than eight years higher than when the current retirement age was adopted in 1972;
- Technology helps older judges continue to do their jobs efficiently;
- Florida’s demographics are consistent with older citizens working later into their lives; and
- The current constitutional provision contains a loophole that allows some judges to stay on the bench until age 73 anyway.
The judge for whom I clerked recently left the bench due to Colorado’s mandatory retirement age, and he is as sharp, fair, and thoughtful as ever. There may be good arguments against life tenure for judges, bur forcing years of accumulated experience, wisdom, and intellectual capital off the bench simply because a particular birthday rolls around seems utterly self-defeating.
(Link may require a subscription.)
Citation: Scott D. Makar, A Modest Proposal: Raise the Mandatory Judicial Retirement Age, 18 Fla. Coast. L. Rev. 51 (2016).
At JOTWELL, Marin Levy has a nice post on Tara Leigh Grove’s new article, The Origins (and Fragility) of Judicial Independence. Check it out.
Itay Ravid (JSD candidate, Stanford) has posted his new article, Tweeting #Justice: Audio-Visual Coverage of Court Proceedings in a World of Shifting Technology, on SSRN. It should be of significant interest to readers of this blog who follow issues of comparative law and court transparency. From the abstract:
The debate over whether to allow cameras into courtrooms refuses to fade away. In 2015 alone, U.S. federal courts completed a five-year experiment with cameras in courts, New Zealand published new guidelines for audio-visual coverage, and Scotland completely revised its former broadcast policy. These jurisdictions, and others around the globe, constantly struggle to design model practices that successfully balance freedom of the press, transparency, and public access to information, with rights to a fair trial and privacy. The constant need to rethink coverage policies can be attributed in large part to the advancement of technology, providing the media innovative tools to report from within courtrooms even when formal legal norms bar direct reports. These advancements often result in an unsettling disparity between formal norms and the reality of court coverage.
Drawing on the Israeli example, this Article seeks to address this timely issue, illustrating how social media and technological advancements can push regulators to re-evaluate legal regimes that seem to lag behind the law in action. The Article provides a systematic analysis of both doctrinal arguments and empirical data on the policies adopted by different common law jurisdictions, aiming to devise a policy framework for audio-visual coverage of courts in the age of hyper-technology. By synthesizing lessons from these jurisdictions, the Article first traces the evolution of the doctrine on audio-visual coverage across various jurisdictions, and its constitutional framing. Moreover, the Article exposes the politicization of constitutional law: how courts adopt flexible frameworks with regard to policies on constitutional issues that affect them. Second, the Article suggests that existing empirical data are generally supportive of coverage, showing almost no adverse effects resulting from the presence of cameras in courtrooms. Third, the Article provides practical tools for reaching balanced coverage policies, offering the first analytical framework for the design of coverage policies. The Article utilizes the Israeli case study—a country with currently no audio-visual coverage policy—in order to implement the suggested framework and offers a comprehensive coverage policy within Israeli courts.
Professor James Duane has a very short and interesting article up on SSRN about the potential perils of correcting a judge’s mispronunciation during oral argument. He focuses on one recent case where an excellent young lawyer twice corrected a Supreme Court Justice’s mangled pronunciation of “antecedent” simply by later pronouncing it correctly. Duane thinks this was the wrong approach, and counsels lawyers to either mispronounce the word in the same way going forward, or avoid using the mispronounced word altogether for the remainder of the argument.
That seems like odd advice to me. Judges are human beings, and they are not immune from basic mistakes any more than the rest of us.* Were I in the situation of that young advocate, I would be inclined just to use the word correctly the next time. Mimicking the error would seem to call even greater attention to it.
What do readers think? Feel free to weigh in.
* Some judges are more comfortable admitting mild linguistic ignorance (Chief Justice Roberts’ interruption a few years back to ask about the meaning of “orthogonal” comes to mind). But accepting that you mispronounced a word, and that it’s no big deal, seems to me a basic example of judicial humility.