Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.
Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.
These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.
Continue reading “What is the right level of court system transparency?”
Regular readers of this blog know that I believe Judge Joan Larsen, of the Sixth Circuit Court of Appeals, to be a prime candidate to fill the next Supreme Court vacancy should another seat open up during the Trump Administration. Late last year, Judge Larsen delivered the Sumner Canary Memorial Lecture at Case Western Reserve Law School in Ohio, and that school’s law review has just published her remarks.
The lecture is a short and valuable exposition on the often nuanced relationship between state and federal courts–something Judge Larsen knows well. I highly recommend the entire piece to the reader. But a couple of points she made struck me as particularly interesting from an organizational perspective.
Continue reading “Judge Larsen on State Courts in a Federal System”
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.”
I am pleased to announce that my article, Judicial Recall and Retention in the #MeToo Era, has been published in the latest issue of Court Review. It is part of a symposium issue on the recall election of Judge Aaron Persky in California last June.
The article identifies strong similarities between the efforts to recall Judge Persky and later efforts to prevent the retention of Judge Michael Corey in Alaska and Justice Carol Corrigan in California. As I explain in the article, the parallels are troubling because recall elections and retention elections historically developed at different times and for different reasons. The utilization of recall tactics in retention elections is therefore a worrisome development.
Court Review is the official journal of the American Judges Association. I recommend the entire issue for anyone interested in the Persky saga and lessons that may be drawn from it.
The Institute for the Advancement of the American Legal System (IAALS) has released a new report entitled Recommendations for Judicial Discipline Systems. Authored by University of Arizona law professor Keith Swisher and Brookings Fellow Russell Wheeler, it is a careful and sober analysis of existing judicial discipline systems, with recommendations for improving the process in a way that protects judicial independence and integrity as well as public expectations about efficiency, fairness, and transparency.
Cribbing from the Preface:
Effective judicial discipline is an important part of a trusted and trustworthy court system. The public must know that judicial ethics and violations of the Code of Judicial Conduct are taken seriously. Absent that assurance, the system appears self-serving, protectionist, and even potentially corrupt. And it is not just the reality of the existence of effective systems that matters; it is also the appearance. A wholly effective system with no transparency and no public confidence will not suffice.
To explore the functioning of judicial conduct commissions, in March 2018, IAALS convened a 21-person group of commissioners, commission staff, judges, lawyers, and scholars (identified in Appendix A). They, along with IAALS Executive Director Rebecca Kourlis and a small number of IAALS staff, worked through the agenda in Appendix B. This Report draws on that Convening.
Longtime readers of this blog know how much I have come to respect William Howard Taft as a Chief Justice: his tireless efforts to modernize and autonomize the federal judiciary transformed the Third Branch forever. Now, Jeffrey Rosen has written a short and masterful book on Taft, ostensibly focused on Taft’s Presidency, but delightfully cognizant of Taft’s lifelong judicial temperament and ambitions.
I shall have much more to say about Rosen’s book soon, but in the meantime I was delighted to see him blogging at the Volokh Conspiracy last week. The subject: what would William Howard Taft do about the political challenges of our day? The final installment, on Taft’s approach to judicial independence in the face of persistent populist attacks by prominent politicians (sound familiar?) is here.
The University of California, Berkeley has launched a new Judicial Institute to explore the personal and professional issues that judges face. The Institute will be run by the Hon. Jeremy Fogel, U.S. District Judge for the Northern District of California, and for seven years the head of the Federal Judicial Center.
This is an exciting project, and landing Judge Fogel is a major coup. I’ll look forward to following the Institute’s work in the coming months and years.