Is the Supreme Court rethinking the federal courts’ mission?

My latest piece for the New England Law Professors blog takes a look at the Supreme Court’s recent decision in Home Depot, Inc. v. Jackson, and asks whether the Court is quietly reevaluating the mission of the federal court system.

Give it a read, and while you’re there, check out the wonderful posts by my colleagues in areas as widespread as criminal law, immigration law, and constitutional law.

Why did France just outlaw legal analytics?

Palais de Justice AngersThere has been quite a bit of shock this week over new French legislation that bans anyone from publicly revealing the pattern of judges’ behavior in court decisions. Article 33 of the Justice Reform Act would impose a prison sentence of up to five years for anyone who uses the identity of judges or magistrates “with the purpose or effect of evaluating, analyzing, comparing or predicting their actual or alleged professional practices.”

The law seems targeted to a growing number of legal analytics firms in France and elsewhere, which use technology to look for patterns in judicial decisions in order to predict future outcomes. But the law is written broadly, and could also apply to lawyers, legal academics, good government groups, and others who study the courts and judicial decisionmaking.

The new law is wildly disproportionate and draconian — five years in prison for simply analyzing publicly available documents? But the motivation behind it is more understandable than you might think. More after the jump.
Continue reading “Why did France just outlaw legal analytics?”

Massachusetts dallies with, and rejects, judicial term limits

My colleague Lawrence Freidman — a sometime guest contributor to this blog — praises the decision here:

The measure the Committee rejected proposed amending the state constitution to provide that judges be reviewed every seven years by the governor’s council. In an interview with The Lowell Sun, the author of the “Proposal for a Legislative Amendment to the Constitution Relative to the Term of Judicial Officers,” Representative Tom Golden, stated that the goal was judicial accountability, particularly for those judges “who consistently make poor legal decisions. 

There are two problems with this justification. First, it is far from clear that there ever could be universal agreement – or even agreement among the members of the Governor’s Council – as to the definition of a “poor legal decision.” It is a fact that, in every civil and criminal case, one party is bound to be disappointed by some judicial ruling, whether it concerned scheduling, procedural mattersor the admissibility of evidence—not to mention the end result. In other words, decrying a “poor legal decision” is in many instances another way of saying you simply do not agree with that particular decision. 

This is not to say that judges are infallible, or that no judicial decision can be deemed objectively wrong. But this leads to the second problem with the proposal: the notion that the only effective form of accountability is one that involves the democratic removal of constitutional officers from their posts.

Read the whole thing!

Tennessee considers bill to require legislative confirmation of judicial appointees

Tennessee uses a version of the Missouri Plan to select its state appellate judges. Known (unsurprisingly) as the Tennessee Plan, it calls for an independent nominating commission to present a slate of qualified candidates to the governor, who must appoint a judge from that slate. (This is akin to most merit selection plans around the country.) The judges then stand for retention elections.

Trial court vacancies are filled using a similar process. A nominating commission (whose members are appointed by the legislature) presents a slate of names to the governor within 60 days of a judicial vacancy, and the governor must choose a new judge from that slate.

Under the current system, legislators no direct role in filling judicial vacancies, but a bill working its way through the state legislature is aiming to change that. For new trial judges, House Bill 1257 would require the governor to provide a written notice of appointment to the clerk of each legislative chamber, which would trigger a 60-day period for each chamber to confirm the nominee. If both the Senate and House reject the nominee, or if even one chamber rejects the nominee by a two-thirds majority, the appointment would fail. If neither of these things happens within 60 days, however, the appointment would be deemed valid.

There is nothing inherently wrong with the legislature wanting to have a say in judicial appointments, but in the absence of a pressing concern about the current process, it’s hard to see why this is a good idea. The use of an independent commission is already designed to cut down the risks of partisanship or patronage, and to ensure qualified candidates. And because a nominee may not take the bench under this bill until legislative confirmation or the passage of sixty days after nomination, the judiciary would be left with longer periods of unfilled vacancies.

The bill has only worked its way through the House Judiciary Subcommittee, and has a long road to travel before becoming law. But it’s hard to see why this idea is particularly wise, necessary, or beneficial to those who rely on Tennessee courts to be efficient and effective.

New scholarship: Levy on Visiting Judges

Professor Marin Levy has posted a new article, Visiting Judges, on SSRN. It’s a very useful piece which describes the origins of the visiting judges program in the federal courts, and provides some insider perspective on the use of visitors on the federal courts of appeal (drawn from 35 interviews with appellate judges and staff).

One persistent theme in the judicial interviews is that visiting district judges benefit from learning about the appellate process and appellate culture. That makes good sense: a trial judge who better understands and appreciates how appellate panels think is more likely to structure a written opinion with appellate reviewers in mind. And many of the circuit courts in the study had formal programs that invited new district judges within the circuit to sit by designation in their first few years on the bench.

The appellate judges recognized that they, too, would benefit from sitting by designation more frequently on the district courts. Their circuits, however, had no meaningful tradition of doing so, and indeed, many of the appellate judges worried about their own competence on the trial bench.

But the benefits of trial experience for appellate judges are just as strong, if not stronger, than the benefits of appellate experience for trial judges. Appellate panels are routinely called upon to determine whether the trial court abused its discretion, or whether its assessments of witness credibility withstand scrutiny. Having to sit as a trial judge–to rule on evidentiary objections, instruct jurors, pore through records on summary judgment, sentence a defendant, or make quick decisions on motions for preliminary injunctions–would give appellate judges an essential perspective on the litigation trenches. (It’s worth noting that many judges interviewed stated that they had already served as trial judges or at least trial attorneys. But of course, that it not the case for all appellate judges, many of whom come from academia, state appellate courts, or some other non-trial practice.)

One might even imagine a formalized shadowing or training system, in which district and appellate judges take the time to show each other the ropes of their respective benches. Of course, such a program would require administrative planning and quite likely Congressional support and approval, but it would allow the benefits of experience to inure to both levels of the federal judiciary.

 

 

 

Maine considers tripling daily juror pay

A legislative committee in Maine has endorsed raising the daily pay of state court jurors from $15 to $50, a move which would shift the state from the nation’s bottom tier of juror pay to its top echelon. Legislators appear to understand that the current rate provides incentives to potential jurors not to show up to court. The proposed raise would require an annual outlay of an additional $1 million by fiscal 2020.

The PACER class action and the problem of court funding

Which is the best model for charging for access to court records: a rest stop, a bus pass, or a bake sale?

What (if anything) should the judiciary charge for public access to records, and how should that decision be made? That question is now squarely facing the federal courts and Congress.

I have blogged periodically about the 2016 class action lawsuit alleging that the federal courts overcharged users for access to its electronic public records system (known as PACER), and used the surplus to fund a variety of internal projects. Last spring, a federal district judge granted partial summary judgment to the defendants as to liability, but concluded that some of the project funding had indeed exceeded Congressional authorization. The decision is now on appeal.

Although no decision will be coming for a while, a number of recent events have returned the case to the public eye. In late January, several prominent, retired federal judges filed an amicus brief arguing that the courts should not charge any fees for public access to court records. That brief led to a story in the New Republic entitled “The Courts Are Making a Killing on Public Records.” All the while, the five-week federal government shutdown forced the courts to use up all of their “rainy day” resources and put them on the verge of operating without funding, illustrating the relative financial fragility of the courts as an organization.

I take as a given that the federal court system, as a whole, is committed to providing public access for all. But it is also a given that on an organizational level, the court system feels an obligation to protect its core activities from environmental disruption, including financial disruption. The current lawsuit provides an excellent illustration of the underlying tension between those values, and also suggests a solution. More below. Continue reading “The PACER class action and the problem of court funding”