JOTWELL review of Reichman et al. on technology and the regulation of judges

I am delighted to have a new essay up on JOTWELL, reviewing Amnon Reichman, Yair Sagy, and Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges. It’s a terrific look at the Israeli’s courts’ development of case management technology, and the impact of that technology on its judges, all told through a subtle organizational lens. A snippet from the start of the review:

Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.

Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.

Please read the whole thing!

 

How far can Congress probe the judicial thought process?

Over at the Volokh Conspiracy, Josh Blackman has a fascinating post (really, a series of posts) about the efforts of ten Democratic Senators to force two Eleventh Circuit judges to “explain” their involvement in Florida’s felon disenfranchisement cases.

The brief background is this: the Florida Supreme Court heard oral argument on a challenge to state legislation conditioning the restoration of a convicted felon’s right to vote on the payment of legal financial obligations. Two of the Justices on the court at the time, Robert Luck and Barbara Lagoa, had been nominated for seats on the Eleventh Circuit Court of Appeals. Both Justices asked questions during oral argument, but were confirmed to the Eleventh Circuit just weeks later. Accordingly, neither Justice had any role in the outcome of the case.

On July 15 the plaintiffs, having sought review in federal court, requested that both judges recuse themselves from the Eleventh Circuit’s deliberations. The request was grounded on the fact that the judges had merely asked questions during oral argument while on the Florida Supreme Court, even though they had taken no part in the decision. (This was factually reminiscent of the Ninth Circuit case of Yovino v. Rizo, involving a judge who had voted on a case but died before it was announced; here, however, the judges did not vote at all.)

Professor Blackman had a very sensible take whether recusal was necessary in the Eleventh Circuit case:

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge’s questions during oral arguments, and even a conference vote, are not “immutable.” Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge’s impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court’s published decision. Therefore, they are not disqualified.

But it’s 2020, and legal arguments aren’t good enough for the political class. Hence, the subpoenas. Blackman’s take (which you should read in its entirety) concludes:

I have serious doubts about whether Congress has the power to subpoena a judge to testify about internal judicial matters. I think Congress could justify that subpoena as part of an impeachment inquiry. But a general need for information to craft legislation would not be suitable.

I am not a constitutional scholar, but that strikes me as correct.

The intricacies of courthouse design

Law360 has a very interesting article about the design of courthouses, a task which must balance a number of overlapping and occasionally competing goals:

  • Conveying respect for the rule of law and the courthouse as the physical “home of the law” (reminiscent of Chief Justice Taft’s moniker of the Supreme Court building as the “Temple of Justice”);
  • Assuring access to justice for court users and observers;
  • Providing adequate working space for judges and court staff; and
  • Protecting the safety of everyone in the building.

The modern courthouse is simultaneously an office building, a processing station, a public space, a secular temple, a democratic icon, an entertainment complex, and a playing field. Capturing all of those needs in one building is a profound architectural challenge.

Some of the newer courthouses were designed with extra space and wiggle room to accommodate changing needs. I especially like the design of the federal courthouse in Boston (below), notwithstanding its questionable interior artwork. But older courthouses are increasingly bursting at the seams or in need of major retrofitting, and the funding may not be available.

Moakley courthouse

Interested readers should check out the wonderful, and coffee table-worthy, Representing Justice by Judith Resnik and Dennis Curtis, which tracks the history of American courthouses and the evolving goals behind their design.

Gunman opens fire at federal judge’s home, killing her son and wounding her husband

Several sources are reporting that a gunman came to the home of U.S. District Judge Esther Salas yesterday, and shot her son and husband when they answered the door. Her son, age 20, was killed and her husband was badly injured. Judge Salas was apparently in the basement at the time and was not hurt. The gunman, who was apparently dressed as a delivery driver, is still at large.

The motive for the shooting is unknown, although Judge Salas has presided over some high profile criminal cases since taking the federal bench in 2010. Unfortunately, attacks on judges and their families have happened before.

This is very sick, terrible news to start the week.

Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?

A guest post by Lawrence Friedman

In his recent essay, The cravenness of Democratic “Court reform” proposals, Jordan Singer responds to the left-leaning critics of the Supreme Court term just ended who have lamented the results in cases on choice, immigration and employment discrimination—not because the Court, led by Chief Justice John Roberts, failed to reach the results these critics support, but because it did. Democratic pollster Mark Mellman, for example, concludes that Roberts, “by refusing to inflame passions further,” may have stemmed “the tide and accomplish[ed] the coveted goal of his GOP critics—preserving the Court’s current conservative majority.” And law professors Kent Greenfield and Adam Winkler prophecy “the moderation shown by Roberts has all but guaranteed a conservative Supreme Court for a generation.”

As Singer explains, these critiques reveal a Democratic goal since the failed Merrick Garland nomination in 2016: “to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself.” The restructuring plans have taken many forms, from imposing term limits on Supreme Court justices to expanding the number of justices who sit on the high court. These reform efforts turn on the belief that, since McConnell and the Republicans refused even to consider Garland, the Court’s legitimacy has suffered—with decisionmaking in controversial cases compounding the problem. The argument for Court reform falters, however, in the face of outcomes that tend to match the views of a majority of Americans – as they did this term in cases concerning choice, immigration and employment discrimination, in all of which Chief Justice Roberts either wrote or sided with the majority.

Professing concerns about the legitimacy of the Court’s decisonmaking is a broad brush with which to paint, and such concerns tend to be overblown: an institution that has survived decisions in cases like Brown v. Board of Education, Bush v. Gore, and District of Columbia v. Heller is not likely to be cast aside by the American people any time soon. Still, there is a tendency among the Court’s current membership that should be cause for genuine concern: the near-abandonment in cases involving the structural constitution and the separation of powers of any sense of judicial restraint. Continue reading “Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?”

The peculiar environment of reopened courtrooms

As the summer passes its midpoint, debates are raging in every corner of the country about how to approach the coming school year. Some feel that reopening schools will place teachers and students at unacceptable risk; others note that the mental and emotional damage to children from continued social isolation requires every effort to conduct classes in person. On two points, however, everyone seems to be in agreement. First, no option is particularly good. And second, even if schools do reopen, their layout, schedule, and operation will be markedly different than before.

Courts are facing the identical crisis, as their social and constitutional responsibilities to administer justice without delay brush up against their responsibilities to protect public health. And those courts that have reopened look and feel very different than they did six months ago.

This article points out some of the changes that have been implemented in reopened state courthouses. They feel at once dramatic and mundane: requiring attorneys and clients to communicate only by passing notes through a plexiglass window, holding trials in convention centers (or even fairgrounds!), and asking attorneys and judges to hold sidebars by walkie-talkie (with white noise pumped into the courtroom to avoid others overhearing). And notwithstanding these changes, the general fear of COVID-19 exposure remains pervasive.

This is all deeply unsettling, yet there may be a silver lining. Although unwelcome, the pandemic is forcing an explosion of creativity in our institutions. Some of today’s courthouse solutions may be jettisoned as soon as it is safe to do so, but I also suspect that some will prove worthy of keeping around.

In Memoriam: Stephen Susman

This morning brought the sad news that renowned trial lawyer Stephen Susman has passed away from the novel coronavirus. He was 79.

Steve was widely known for his remarkable trial skills, and as a founder of the Houston litigation firm Susman Godfrey. But his professional energy and interests extended far beyond the courtroom. He was deeply active in efforts to improve the civil justice system and to preserve the civil jury trial. A few years ago, he founded the Civil Jury Project at NYU Law School for that express purpose, bringing together lawyers, judges, jurors, and scholars to study and advocate for the importance of civil juries.

I first met Steve about ten years ago, at the Duke Conference of the federal Advisory Committee on Civil Rules. As judges and lawyers struggled to determine the best way to rein in discovery costs, Steve pointed out how much can be done when opposing counsel simply act like adults and professionals. As proof, he submitted a two-page checklist of discovery agreements that he claimed to use in every case. It was a straightforward and sensible list, agreed to by counsel in advance, covering issues like the order of depositions and the labeling of exhibits — the type of things that would naturally keep discovery within reasonable limits and avoid pointless cost to the client. My favorite item remains the very first on the list:

As to any discovery dispute, the lead lawyers will try to resolve [it] by phone and no one will write letters to the other, including letters attached as pdf’s to emails and phone calls.

The entire checklist was so simple, and yet so brilliant, that I immediately sought permission to share it with my law students. (Steve graciously granted that permission in short order.) I still assign the checklist to my law students as a paradigm example of how a lawyer can simultaneously be a zealous advocate of his client and a responsible officer of the court.

About three years ago, Steve asked me to join the Civil Jury Project as an academic advisor, an invitation for which I was both honored and grateful. It was a pleasure to see him in action, with his relentless energy and good cheer, as he brought together jurors and lawyers at “jury improvement luncheons” across the country, and held programs for scholars to share their insights into the jury system.

Our thoughts are with Steve’s family today. His passing is a profound loss for the entire legal community.

 

 

Coming soon to your local fairground: jury trials?

Court administrators have had to act nimbly during the entirety of the coronavirus pandemic, in order to balance public safety with the requirements of due process. Now, some county courts in Oregon are considering yet another creative solution: holding jury trials at local fairgrounds in order to meet the requirements of social distancing.

The fairgrounds are already owned by the respective counties where trials might be held. They are easy to get to, have ample parking, and offer wide-open and largely unused buildings, making them an attractive option for courts. Still, there are many logistics that have yet to be worked out:

So far in Deschutes County, court officials have developed lists of what will be needed at the fairgrounds. On the to-do list is to look at the costs of renting tents and other furnishings like chairs, tables, maybe a riser to put a bench up on.

Heating, air conditioning and restrooms will be needed to keep people comfortable, because jurors need to be focused only on listening to the evidence, Ashby said. Secure and private rooms are needed for lawyers to meet with clients and jurors and judges to deliberate. Boxes and boxes of computer and recording equipment must be relocated and tied in with the county IT system and the fairgrounds PA system. Security is another primary concern.

“Our number one priority is making the courthouse as safe as humanly possible,” Ashby said. “Competing with that are statutory timelines, which require us to try cases, the most pressing of which are in-custody criminal defendants.”

Plans like this are born of necessity, but it will be fascinating to see what courts learn from the experience, and how some of these options might influence court administration after the pandemic subsides.

The cravenness of Democratic “Court reform” proposals

The Supreme Court is doing its job and winning public support. Some Democrats are despondent.

Last week, The Hill published an op-ed by by Democratic pollster Mark Mellman, lamenting the Supreme Court’s recent decisions on abortion rights, immigration, and workplace discrimination. Each of these cases resulted in what might be termed a liberal victory, in the sense that the outcome was in line with prevailing left-wing views in the United States. One might think of this as a cause for celebration among the Democratic establishment. But not for Mellman, who with a tinge of sadness concluded that “by refusing to inflame passions further, [Chief] Justice Roberts may stem the tide and accomplish the coveted goal of his GOP critics — preserving the Court’s current conservative majority.”

A second op-ed, also published in The Hill (on the same day, in fact!) took a more academic tone but made essentially the same point as Mellman. Law professors Kent Greenfield and Adam Winkler argued that the Chief Justice’s “moves to the middle will likely assist conservatives in the long run by dooming plans by Democrats the pack the Supreme Court with justices.” 

Both articles expose the long game the Democrats have been playing with the Supreme Court since the failed Merrick Garland nomination in 2016. It is a game to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself. And it is a game that has been undermined by the Court’s own decency and independence.
Continue reading “The cravenness of Democratic “Court reform” proposals”

A renewed effort to create regional judicial elections in Pennsylvania

Pennsylvania state senator Ryan Aument reintroduced legislation this week to elect the state’s appellate judges by region. The goal is to assure fairness of geographic representation within the court system:

Aument noted that a cursory review of Pennsylvania’s Superior Court and Commonwealth Court judge compliment in 2018 when this proposal was first developed shows that more than half of all the members of those courts were from only two of Pennsylvania’s 67 counties, which only represent 21% of the state’s population.

He also pointed out that five of the seven Pennsylvania Supreme Court Justices, or over two-thirds of the justices, were from Allegheny or Philadelphia counties, leaving 79% of the state’s population unrepresented on Pennsylvania’s highest court.

I understand the goal of the bill, but it misses the larger point that Pennsylvania’s judicial election structure itself is highly flawed. As I noted earlier this year, “geographic representation could be achieved much more fairly and efficiently through a commission-based appointment system than through the messy (and litigation-begging) process of drawing election districts in the legislature.”