New research on the internal dynamics of court rulemaking

Amending a Federal Rule of Civil Procedure is an act of intricate teamwork. Finally, some evidence of just how intricate.

Since 1934, the federal court system has been empowered to craft its own rules of procedure and evidence. That work is primarily done by five Advisory Committees, each composed of judges, attorneys, and law professors, who review the existing rules and periodically make recommendations to amend or update them.

FRCPNo rule proposal makes everyone happy, and academics in particular often critique the rule changes that the Committees take up (or fail to take up). But in recent years, that criticism has shifted from the substance of the Committees’ work to the composition of the Committees themselves. In particular, academic critics are increasingly content to assert, without any rigorous evidence, that the makeup of the Committees leaves them prone to engage in groupthink or other cognitive biases.

Are those allegations supported by a careful review of the Committees’ work? A rigorous, four-year case study says no. In fact, far from being entities mired in groupthink, the Committees are more akin to expert teams whose decisions are carefully researched and thoroughly considered.

Continue reading “New research on the internal dynamics of court rulemaking”

First Circuit rejects state judge’s criminal appeal as premature

The First Circuit Court of Appeals has rejected an appeal by Massachusetts state judge Shelley Joseph, claiming that it is premature. Readers will recall that in 2019, Judge Joseph was charged in federal court with obstruction of justice, after she allegedly helped an illegal immigrant avoid an ICE agent who was waiting in her courtroom to arrest him.

In federal district court, Joseph moved the dismiss the charges on the grounds of “absolute judicial immunity.” The district judge declined to dismiss, and Joseph appealed. But the First Circuit held that the appeal was premature because the trial court’s ruling did not operate as a final decision on the merits.

Interlocutory appeals — those taken up before the substance of a case is decided — are rarely granted, and there is no particular reason why this case should be an exception. As the First Circuit noted, even if Joseph can invoke judicial immunity as a defense, such immunity “does not provide a right not to be tried.” The case will return to the district court for further proceedings.

Judge, Jury, and … Defendant?

A former public defender sued the federal judiciary’s lead administrative institutions for mishandling a harassment claim. Can those same institutions select the judges who hear the case?

Next week, the Fourth Circuit Court of Appeals is scheduled to hear argument in Roe v. United States, a case involving allegations that federal court officials — including those in the Administrative Office of the U.S. Courts (AO) — mishandled a workplace harassment claim. But none of the judges hearing the Fourth Circuit appeal are actually from the Fourth Circuit, just as the judge who heard the original case in the Western District of North Carolina was not from that district. Nearly two years ago, Chief Justice John Roberts reassigned the case to a district judge in Massachusetts and a “Fourth Circuit” panel composed of judges from other circuits.

From the courts’ perspective, this reassignment of the case was ordinary and ministerial, a way of avoiding the appearance of partiality or bias by taking the case away from judges in the district and circuit where the key events took place. But the plaintiff, whose case was eventually  dismissed, suggests that the process of reassignment was itself so flawed as to create “blatant conflicts of interest” and a “severe appearance of impropriety.” Accordingly, she is seeking to vacate the judgment of dismissal. 

The controversial reassignment process involved the Chief Justice, the Judicial Conference Intercircuit Assignment Committee, and staff from the AO and the Fourth Circuit. The judiciary’s brief recounts that a Fourth Circuit staffer informed an AO staffer about about the need for an intercircuit assignment — both for the district court and appellate proceedings. The AO staffer then consulted a roster of judges who had previously indicated their willingness and availability to serve on panels in cases in which one or more judges had been recused. The AO staffer then contacted each of the judges to confirm availability and willingness to serve on the case. Once the judges were confirmed, the staffer notified the Chair of the Intercircuit Assignment Committee, who finalized the necessary administrative paperwork for the Chief Justice’s signature.

The court system (represented, interestingly enough, by the Department of Justice) repeatedly characterizes this process as “routine,” noting that none of the individuals involved in the reassignment had any stake in the outcome of the case. Still, the plaintiff is unsatisfied. Although she does not claim that any of the reassigned judges are actually biased against her, the mere fact that individuals from the Judicial Conference and AO were involved in their selection is a glaring red flag. As plaintiff’s brief puts it, “[w]here following a routine process would create a conflict of interest in a particular case, the routine is supposed to yield–through proper recusal–in order to avoid the conflict of interest.”

This is a matter of substantial organizational complexity. Taken at face value, the plaintiff’s position suggests that any lawsuit naming the Judicial Conference or AO as a party would necessarily invalidate any reassignment, unless a completely different administrative apparatus is tasked with that responsibility. That could be accomplished only with considerable inefficiency. Even if the AO were to hand over its files on available judges to another office within the federal court system so as to wash its hands of the decision, the files themselves might arguably be tainted by having come from the AO. And, of course, the mechanism for selecting new judges would be placed into the hands of individuals and institutions who are not readily equipped to perform that function. 

Unfortunately, the plaintiff does not offer any clear solutions here, other than blanket vacatur of the lower court decision. That is her right, and perhaps it is good strategy. But it is hard to see how the current panel would simply throw the reassignment process into disarray without some idea of how the challenge could be met in the future.

CBO puts $43 million price tag on federal courtroom cameras

The Congressional Budget Office (CBO) has issued its estimate of the cost for implementing S. 818, the Sunshine in the Courtroom Act of 2021. That bill would authorize federal judges to record and broadcast court proceedings as long as doing so would not violate the parties’ due process rights. The authorization would last for three years.

Recognizing that the vast majority of federal judges would likely decline the bill’s invitation to record proceedings, the CBO estimates that only 10% of courtrooms nationwide (about 200 courtrooms total) would be fitted with modern video equipment. Still, the CBO expects that it will cost about $75,000 to set up each courtroom, and another $50,000 annually to administer the program. In all, a rough estimate of $43 million would have to be expended between now and 2026, when the program would automatically sunset.

Forty-three million dollars is a staggering number to most people, especially since ordinary video recording technology is now relatively cheap and accessible. To be sure, there are security and privacy issues, but wow, that’s a lot of money for a program that doesn’t even have staying power.*

* Of course, the federal government once spent $100 million on unused plane tickets in a six-year stretch, so your perceptions may vary.

Belva Lockwood and the admission of women to the federal bar

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On this day in 1879, President Hayes signed into law a bill permitting women to practice before all federal courts, including the Supreme Court of the United States. The legislation was largely the handiwork of Belva Lockwood, a pioneering attorney who had lobbied Congress on the matter for years.

Lockwood fought tenaciously to advance her legal career, as well as that of others. When the National University School of Law (now George Washington University) refused to give her a diploma upon completion of her studies, she appealed directly to President Ulysses S. Grant. (She received her diploma a week later.) Even though local judges professed to have no confidence in her, she built a successful law practice in Washington, DC. And when she was rejected for admission to the Supreme Court bar on account of her gender in 1876, she worked to pass legislation that, three years later, opened the Court to all qualified women. Lockwood would argue her first case before the Supreme Court in 1880, and later sponsored for admission Samuel R. Lowery, the first black lawyer to argue a case before the Court.

The landmark 1879 legislation did not open all doors for women in the legal profession. It would be many more decades before most law schools would admit women, and even then on largely unequal terms.* And, of course, the push to create a fully equal workplace (in and out of court) continues today. But Belva Lockwood played a central role in creating a path for so many successful female lawyers over the past 150 years, and it is fitting that we remember her today.

* Here I once more have to kvell about the honor of teaching at New England Law Boston, which in 1908 became the first law school exclusively for women.

Two federal bankruptcy courts move to combat forum shopping

Mayer Brown’s blog, Real Bankruptcy Intel, explains:

Following the controversy surrounding Purdue[‘s careful filing of a bankruptcy petition designed to land specifically with Judge Robert Drain], as well as a lull in filings nationwide, in November, the SDNY elected to adopt a random case assignment system. Specifically, subdivision (f) of Local Bankruptcy Rule 1073-1 now states:

    1. Mega Chapter 11 Cases. Notwithstanding subdivision (a) of this rule, the Clerk shall assign a mega chapter 11 case to a Judge in the District by random selection irrespective of the courthouse in which the case is filed. A chapter 11 case qualifies as a mega chapter 11 case if the assets or liabilities of the debtor are equal to or greater than $100 million. A multi-debtor chapter 11 case qualifies as a mega chapter 11 case if the cumulative assets or cumulative liabilities of the filing debtors are equal to or greater than $100 million.[5]

Therefore, as of December 1, cases filed in the SDNY are to be assigned on a random basis to judges irrespective of the courthouse in which they are filed. As part of this rule, any SDNY judge can preside over a case in a courthouse where he or she is not usually assigned. Chief Judge Cecelia G. Morris explained that she hopes the adoption of this system will result in a more balanced utilization of judicial resources.[6] Judge Drain himself also commented that he “supported the change unanimously.”[7] Such adaptation now places the SDNY on par with the District of Delaware—another longstanding hotspot for mega chapter 11 cases—which already had a random assignment system in place. This move is likely to prevent debtors from “judge shopping” within the district.

Within a month of the SDNY’s announcement, the Bankruptcy Court for the Eastern District of Virginia (the district that contains Richmond and Alexandria) also implemented a similar rule.[8]

GAO questions judiciary’s system for prioritizing courthouse construction

Here is a very interesting example of the federal judiciary’s interdependence with the rest of the federal government. The responsibility for maintaining and operating the 420 federal courthouses across the country is shared by the judiciary, the U.S. Marshals Service, the General Services Administration, and the Federal Protective Service. And construction or maintenance of courthouses but also be authorized and funded by Congress, with oversight assistance from the General Accounting Office (GAO).

The upshot of this entanglement is that significant changes or improvements to federal courthouses must work their way through multiple layers of bureaucracy before anything gets done.

And so it is here. In 2008, after one significant wave of courthouse construction had been completed, the federal judiciary implemented an Asset Management Process (AMP) to prioritize courthouses most desperately in need of upgrades or new construction. Five years later, the GAO signed off on the process. The Administrative Office of the U.S. Courts (AO) then began the laborious task of assessing the condition of every federal courthouse in the country. By 2020, it had completed assessments of 385 courthouses, or 92 percent, with respect to security, space standards, functionality, the condition of judges’ workspaces, and the general condition of courtrooms and facilities. The judiciary assured the GAO that its assessments were accurate as of the time they were completed.

But the GAO was not satisfied. Asked to review the AO’s courthouse assessments, it concluded that several had become outdated and were therefore over- or under-prioritized for improvements. (For example, two courthouses were destroyed by recent hurricanes, yet their condition was not updated by the AO.) Yesterday the GAO issued a 62-page report outlining its concerns, as well as specific steps that the AO must take to improve the assessment process.

Some might look at the GAO as a necessary watchdog to make sure that the government does not spend money in the wrong places. Others might see this as wasteful bureaucracy run amok. The point here is simply that the business of operating courts is inextricably, and often invisibly to the public, tied to the demands, whims, and queries of many other actors. And that is interdependence in a nutshell.

Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

When senior status becomes political

Josh Blackman has some interesting comments on two federal appellate judges — one a Reagan appointee, the other a Clinton appointee —  who  rescinded their decisions to take senior status after learning, to their dissatisfaction, the identity of the nominees who would replace them. (Note the excellent reporting by David Lat.)

There is something deeply unseemly about this. Two rescissions do not necessarily represent a trend, but as Professor Blackman points out, conditioning senior status on the appointment of a chosen successor would effectively give judges a veto power over presidential nominations. This poses obvious problems for both the general balance of power in the federal government and our Constitutional fabric. 

The question is what to do about it. I see nothing in the governing statute that expressly forbids this type of gamesmanship. But there are certainly some opportunities for soft power responses. For one thing, the President need not kowtow to a judge’s demand for a specific nominee; if President Biden and his successors simply refuse to allow sitting judges to influence the nomination process, the likelihood of particularized conditional declarations of senior status will probably just dry up. 

It’s also possible for powers within the federal court system to respond. Neither the Chief Justice nor the Judicial Conference has coercive power to prevent judges from declaring conditional senior status. But they do have other forms of influence. It is hard to believe that a call from the Chief Justice, or a sternly worded communique from one’s peers about preserving the legitimacy and apolitical culture of the judiciary, wouldn’t make a difference to many on the bench.

To be sure, the federal court system needs judges to take senior status periodically. It is an important means of bringing in new blood and coping with voluminous dockets (since senior judges do not count against each district and circuit’s statutory allocation of active judges). But the internal culture also has to be preserved, and slowing some judges from taking senior status in order to maintain legitimacy is surely the right call.

 

A tentative settlement in the PACER fee lawsuit?

Reuters reports that a settlement is brewing in the class action lawsuit alleging that the federal judiciary overcharged users for PACER access. Terms of the deal were not disclosed, but after several years of litigation, including a trip to the Court of Appeals, it appears that the case may be coming to a private resolution in the next few months.

I shared thoughts on the PACER lawsuit, and the larger questions it poses for the court system, here.