The best of 2019

As we reach the end of the year, I am resharing some of my favorite posts of 2019. For the first time, I was thrilled to feature the work of two guest bloggers, and several of their posts are included below.

On exasperated judges (January 10)

The importance of being Chief Justice (Lawrence Friedman, January 15)

For some state judges, lobbying is part of the job description (January 16)

The PACER class action and the problem of court funding (February 14)

The risk of upending settled doctrinal expectations (Lawrence Friedman, March 3)

What should we expect when Justice Alito and Kagan testify before Congress this week? (March 3)

Tweeting judges: a cautionary tale (March 20)

The affirmation alternative: a religious case for atheist oaths (Ryan Groff, April 22)

On federal laws and state courthouses (April 30)

Why did France just outlaw legal analytics? (June 7)

“Offended observers” and public religious displays: the question of standing (Lawrence Friedman, June 22)

On the politics of judicial identity (July 7)

Judge Larsen on State Courts in a Federal System (August 21)

The most pointless judicial election ever? (August 27)

A dispiriting 230th birthday for the federal courts (September 24)

On terrible judicial optics (October 3)

The importance of commitment to judicial accountability in Massachusetts (Lawrence Friedman, October 7)

What is the right level of court system transparency? (November 26)

The costs of judicial interdependence, Part I (December 26)

Here is the best of 2017 and 2018.

Thanks for reading, and please visit us frequently in 2020!

Connecticut ends newspaper publication of court notices

Pennoyer v. Neff noticeThe Hartford Courant reports that the Connecticut state courts will no longer require parties to publish court notices in local papers, effective January 2. Instead, notices will be published in a dedicated court website.

The practice of court notice by publication, sometimes called constructive notice, goes back centuries. It is designed to assure that all interested parties are informed of legal proceedings, especially when those parties cannot be found personally. Indeed, constructive notice played a central role in two of the most famous Supreme Court cases in history. In Mullane v. Central Hanover Bank & Trust Co. (1950), the Court signed off on constructive notice for parties who could not be reasonably ascertained at the time the suit was filed. In Pennoyer v. Neff (1877), the infamous bane of many a first-year law student, the Court based its personal jurisdiction analysis on the premise that constructive notice alone was not enough for the Oregon courts to exercise power over an out-of-state defendant.

Constructive notice is founded on the assumption that if notice is published somewhere, the interested parties are reasonably likely to learn about the proceeding. That itself is a bit of a fiction — the notice in Pennoyer v. Neff was published in a local religious publication called the Pacific Christian Reporter — hardly a paper of major import or geographical reach. But with the unquestioned dominance of the internet in our lives, and the ongoing struggles of the newspaper industry, it is probably more fair to post notices online that in the paper anyway. Newspaper publishers might be rightly angry about the development, but with 2020 on the horizon, it seems sensible for the Connecticut courts to embrace the twenty-first century.

Pictured: The newspaper notice in Pennoyer v. Neff

On due process and immigration policy

Two recent news stories have described how judges are pushing back against the Trump Administration’s immigration policies on the grounds that they violate due process.

The Wall Street Journal reports that immigration judges in San Diego are dismissing Migrant Protection Protocols (a/k/a Remain in Mexico) cases at a 33% rate, much higher than any other locality. The San Diego judges have repeatedly ruled that asylum seekers waiting in Mexico were not properly informed of their court dated or other due process rights. Among other examples, a San Diego immigration judge terminated the cases against a family from Honduras after concluding that the U.S. government did not properly fill out their notice to appear, leaving the migrants uninformed about the grounds upon which they could fight their case. While the immigration judges’ decisions do not necessarily improve migrants’ chances at asylum, they do assure that the affected migrants cannot be banned from coming the country for ten years, as is required under current protocol for those who generally fail to show up for hearings.

Meanwhile, in Boston, U.S. District Judge Patti Saris likewise ruled that the government had violated due process in its immigration court hearings, by requiring a detainee at a  bond hearing to show that he or she was not a flight risk. Judge Saris concluded that the  government properly bears the burden of showing, by clear and convincing evidence, that the detainee was dangerous or a flight risk. The ruling was part of a putative class action lawsuit filed by the ACLU and others on behalf of immigration detainees in New England.

I am no expert in immigration law or policy, and I want to take care to distinguish between immigration judges, who are technically employees of the Department of Justice, and life-tenured Third Branch officials like Judge Saris. But it is heartening, at least to me, to see judges at both levels insisting on basic due process for all those haled into the justice system.

Committee work — it’s not just for academics

With the start of its new fiscal year today, the Judicial Conference of the United States announced the chairs of several of its internal committees. Some of the chairs are new, and others are current leaders who will be retained for another year. The full press release is here.

Although the announcement is relatively pedestrian, it provides a wonderful insight into the inner workings of the federal court system. The names of the committees themselves are suggestive of the range of work that takes place outside of the eye of the general public: The Committee on Information Technology, the Committee on Federal-State Jurisdiction, The Committee on Judicial Conduct and Disability, and the Committee on Space and Facilities, among others.

The Committees are headed by, and mostly populated by, federal judges — the same judges that are managing complex dockets, holding trials and hearings, handling emergency motions, drafting detailed opinions, sentencing convicted felons, and otherwise addressing the judicial work that flows into their chambers daily. The Chief Justice hand-picks each member of each Committee — not just the chairs — and asks each member to take on additional administrative duties for the good of the overall court system. And like all committee work, it seems, the most effective and efficient members are asked to stay longer and do more.

Professors notoriously complain about their own committee work, which takes them away from class preparation, research, and writing (not to mention family). But most still take on the work cheerfully for the good of their respective schools. Judges are no different, and their service in this area is commendable.

Congratulations to all the new chairs.

PACER “can never be free”

On Thursday, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled “Federal Judiciary in the 21st Century: Ensuring the Public’s Right of Access to the Courts.” Like much of what Congress does, the hearing featured a lot of pomp and circumstance with relatively little substance. But there was an interesting revelation from U.S. District Judge Audrey Fleissig, who (along with U.S. District Judge Richard Story) testified before the Subcommittee on public access to the work of the federal courts. Specifically, Judge Fleissig asserted that “Our case management and public access systems can never be free because they require over $100 million per year just to operate.”

The $100 million figure was new to me. That is a lot of money. Now I suspect that the external part of that system — the PACER interface for public access — constitutes only a small part of that overall cost, and that most of the cost goes to internal case management software that the courts would use in any event. So perhaps Judge Fleissig is being a bit selective with her evidence.

Still, I am sympathetic to the statement that PACER can never be free. Someone has to pay for it–the direct users, the court system, or Congress.

I explored the PACER funding dilemma at length here. And I do not expect that a show hearing before a House Subcommittee would really explore these issues in depth. But I do hope (and expect) that someone — both in the court system and in Congress — is thinking about the PACER funding problem with the seriousness it deserves.