Want a lighter sentence? Wait for your birthday

That’s the bottom line of this fascinating study by Daniel Chen and Arnaud Philippe. The authors looked at more than four million sentencing decisions in France, and another 600,000 in the U.S. federal courts. They found that French sentences are 3% shorter, and U.S. federal sentences are 33% shorter in the day component, when the defendant is celebrating a birthday. (Month components were unaffected.) The authors also found that in the U.S. courts, significant birthday leniency exists only where the defendant and the judge share the same race.

I am always cautious about making too much of one study, but there certainly seems to be some basis for the authors’ conclusion that “social norms transmitted through rituals can perversely lead to unfair or incorrect decisions in important situations even when professional norms have been designed to mute them.”

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.

 

Wheeler on the public and the federal judiciary

Liberals frustrated with the current direction of the U.S. Supreme Court have initiated another round of Court-packing schemes. These proposals are nothing more than sound and fury for an agitated left-of-center base, but Russell Wheeler of the Brookings Institute offers a typically insightful and sober analysis on a possible disconnect between the Court and the public, and what might result after 2020. It’s well worth the read.

Why the Judicial Conference is asking for more judges

Last week, the Judicial Conference of the United States recommended that Congress add 73 permanent judgeships around the country. These are new judicial positions which would have to be filled, above and beyond the more than 120 existing federal judicial vacancies nationwide.

Political commentators have predictably seen this request through partisan lenses, noting (for example) that if all the requested judgeships were added and filled in short order, President Trump could “flip” the ideological composition of the Ninth Circuit. Given the current ugliness in Washington over proposals to pack the Supreme Court for partisan gain, it’s not entirely surprising that some would see the Judicial Conference’s request for more judges as having similarly political dimensions.

But the Conference must make its recommendation to Congress every two years, and that recommendation is based on hard evidence concerning the workload of the courts. Law360 has a good breakdown of the statistics behind the request, noting that nearly a third of the federal district courts have per-judge workloads that far exceed the recommended level.

It’s not clear if and when Congress will act on the request, although I certainly would not hold my breath on anything happening soon. In the meantime, the federal court system will continue to rely on internal strategies to manage its workload, including the use of senior judges and visiting judges in courts with otherwise crushing dockets.

Growing dockets, many vacancies in the federal courts

I have a new op-ed in The Hill, noting the unfortunate conflation of growth in federal case filing, the mass of ongoing judicial vacancies, and ugly partisanship in the judicial confirmation process. Key grafs:

These partisan inquisitions are embarrassing and wholly unnecessary. The vast majority of federal cases do not raise political questions. Whether a contract was breached or a patent infringed is neither a matter of liberal or conservative ideology nor one of broad significance. By contrast, the ongoing vacancies crisis in the courts is a matter of national concern. For private litigants, a shortage of judges means longer waits for trials and orders, and increased financial and emotional cost on clients resulting from the delays. For the general public, fewer judges means a justice system that is less efficient, less transparent, and even less trustworthy.

Just imagine if other important civic institutions such as police and fire services, churches and synagogues, and schools and hospitals had to rely entirely on politicians to meet their staffing needs. Imagine if the career of a promising doctor, teacher, or firefighter depended not on her relevant skills and experience, but whether she belonged to the right kind of civic organization or took the wrong stand on an issue in college. What kind of applicants would seek those jobs and run that gauntlet? What quality of employee would it ultimately produce? How long could people endure all the resulting delays and inefficiencies before it became too unbearable?

Please read the whole thing!