Here’s the abstract for Peter Martin, District Court Opinions that Remain Hidden Despite a Longstanding Congressional Mandate of Transparency – The Result of Judicial Autonomy and Systemic Indifference (2018):

The E-Government Act of 2002 directed the federal courts to provide access to all their written opinions, in text-searchable format, via a website. Ten years later the Judicial Conference of the United States approved national implementation of a comprehensive database of those opinions through a joint venture between the courts and the Government Publishing Office (GPO). Despite the promise implicit in these initiatives, public access to many thousands of federal district court decisions each year remains blocked. They are effectively hidden. Many court websites lack a clear link to opinions, only a bare majority of district courts transmit decisions to the GPO, and far too many courts and judges fail to take the steps necessary for opinion distribution beyond the parties.

Using the large volume of district court Social Security litigation to measure and illustrate these failures, the article examines their dimensions, consequences, and causes. It concludes that the problem is a large one, that it poses a major challenge to those carrying out empirical studies and judicial analytics, and that the courts’ radical decentralization combined with judicial autonomy will continue to frustrate goals of public access unless serious measures are taken at the national level. Finally, it argues that inclusion in the GPO database of federal judicial opinions should cease being optional.

From Brian Higgins’ California Appeals Court Denies Defendant Access to Algorithm That Contributed Evidence to His Conviction, Artificial Intelligence Technology and the Law Blog (Oct. 31, 2018):

The closely-followed issue of algorithmic transparency was recently considered by a California appellate court in People v. Superior Court of San Diego County, slip op. Case D073943 (Cal. App. 4th October 17, 2018), in which the People sought relief from a discovery order requiring the production of software and source code used in the conviction of Florencio Jose Dominguez. Following a hearing and review of the record and amicus briefs in support of Dominguez filed by the American Civil Liberties Union, the American Civil Liberties Union of San Diego and Imperial Counties, the Innocence Project, Inc., the California Innocence Project, the Northern California Innocence Project at Santa Clara University School of Law, Loyola Law School’s Project for the Innocent, and the Legal Aid Society of New York City, the appeals court granted the People’s relief. In doing so, the court considered, but was not persuaded by, the defense team’s “black box” and “machine testimony” arguments.

Here’s the text of the opinion.

Kudos to Carl Malamud! The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia’s laws, including annotations, are not covered by copyright, and it is not infringing to post them online. From the opinion in Code Revision Commission v. Public.Resource.Org:

The OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not “law,” the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them “official” and has chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process — namely bicameralism and presentment — that is ordinarily reserved for the exercise of sovereign power.

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

As a result, no valid copyright can subsist in these works.

From Ben Grunwald, Strategic Publication, 92 Tul. L. Rev. 745 (2018):

Under the standard account of judicial behavior, when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.

This Article argues that a divided panel has a third option: strategic publication. The panel can choose not to publish any opinion at all and thus sap its decision of precedential weight and insulate it from further scrutiny by higher courts. This Article also reports the results of a novel empirical analysis of case-level data on published and unpublished decisions in one federal circuit court. While it finds little empirical evidence that majority-Democrat panels in the sample engage in strategic publication, it finds evidence that majority-Republican panels do. The Article concludes by offering several policy proposals to diminish strategic publication by separating the publication decision from judicial negotiations over the merits.

— Joe

From Clifford Carrubba et al., Who Controls the Content of Supreme Court Opinions? 56 American Journal of Political Science ___ (2012?):

Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court’s median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.

— Joe

From the abstract for A Rose by Any Other Name: Understanding Judicial Decisions that Do Not Cite Precedent, 15 Journal of Empirical Legal Studies 563 (2018) by Kawin Ethayarajh, Andrew James Green and Albert Yoon:

In common-law countries, legal precedent serves as a foundation of judicial opinions. Judges cite precedent to explain their decision, and it is this use of precedent that threads one decision to another. The Supreme Court in India stands in contrast to its counterparts in other countries in that it annually decides not dozens, but thousands, of cases. Perhaps unsurprisingly, nearly half the Court’s decisions do not cite any precedent at all. This article examines this phenomenon, specifically how it affects judges’ commitment to the common law, in substance if not in form. Examining every Court decision for the period 1950–2010, we textually analyze the opinions using machine learning to determine what connection, if any, exists between cases. We find that it is possible to accurately model how the Court cites to existing precedent and that even for decisions without any citations, there is almost always at least one prior decision the Court could have cited. Our finding suggest that time and resource demands are primarily responsible for the failure to cite relevant precedent, but that the Court acts efficiently, given the constraints placed on it, in deciding in which decisions to include precedent. This research, however, leaves unanswered whether the Court provides sufficient guidance to lower courts.

— Joe

“Most analyses of this topic, including a lengthy opinion by the Justice Department’s Office of Legal Counsel in 2000, overlook a Supreme Court case in which five Justices apparently favored the idea that the President can be subject to criminal prosecution. (The other four Justices did not exactly disagree either.),” wrote Ryan Goodman in his analysis of Nixon v. Fitzgerald, 457 U.S. 731 (1982). For more, see Goodman’s analysis here. — Joe

From the abstract for Elizabeth Earle Beske’s Rethinking the Nonprecedential Opinion, UCLA Law Review, Vol. 65, 2018:

Nearly 90 percent of the opinions issued by the federal courts of appeal are unpublished and lack precedential effect, and where these cases lay out new legal rules, this phenomenon cannot be reconciled with the Supreme Court’s settled retroactivity jurisprudence. Harper v. Virginia Board of Taxation and Griffith v. Kentucky, both moored in Article III, require that any case’s new rule apply not only to future litigants but also to those whose cases are pending. A nonprecedential case by definition has no application beyond its litigants. This raises no problem where a case adds nothing new, as other litigants already have access to the precedents on which it relies. However, the majority of circuits allow nonprecedential opinions to break new ground, and these nonprecedential opinions frequently make law, command dissents, create or deepen circuit splits, and go up on certiorari to the Supreme Court.

Many commentators have debated the practical and legal implications of nonprecedential opinions, but this Article is the first to identify the inconsistency between groundbreaking nonprecedential opinions and settled principles of adjudicative retroactivity. This Article concludes that permitting nonprecedential opinions as an exception to adjudicative retroactivity threatens to drain Harper and Griffith of all but symbolic significance. Although a handful of circuits have guidelines for when an opinion must have precedential effect, this Article proposes use of the “new rule” construct, already familiar and well-developed in the context of habeas corpus and official immunity, as a mechanism for differentiating those opinions that may be designated nonprecedential from those that—under settled doctrine—may not.

— Joe

From the abstract of Nina Varsava’s The Citeable Opinion: A Quantitative Analysis of the Style and Impact of Judicial Decisions (July 22, 2018):

Many commentators surmise a relationship between the style of judicial opinions and their legal impact or precedential power. However, little empirical work has been done to explore this relationship quantitatively. If writing style matters legally we should expect elements of style to vary systematically with a given decision’s uptake in subsequent decisions. Studying the relationship between style and citations can put that hypothesis to the test, and can help illuminate how and to what extent style matters to the law. I employ methods of computational textual analysis and natural language processing to uncover patterns between legal impact and stylistic features such as certainty, informality, and suspense. I derived my stylistic features of interest from the literature on judicial writing and measured their frequency or density in a sample of federal appellate opinions. I then investigated the relationship between these features and the number of cases that cite the decision. My results, generated from a series of regression analyses, suggest that readily measurable elements of style have strong associations with a decision’s precedential power. Qualities such as deference, lengthiness, and hesitancy are all positively associated with citation counts, whereas qualities such as certainty, suspense, and informality are negatively associated with citations. In general, the more citeable opinions are those that are relatively dull and legalistic in terms of style.

H/T beSpacific. — Joe

Two excerpts from Judicial Opinions of Judge Brett M. Kavanaugh (R45269, July 23, 2018):

Arguably, Judge Kavanaugh’s authored opinions provide the greatest insight into the nominee’s judicial approach, as a judge’s vote or decision to join an opinion authored by a colleague may not necessarily represent full agreement with a colleague’s views. This report provides a tabular listing of 306 cases in which Judge Kavanaugh authored a majority, concurring, or dissenting opinion.

While this report identifies and briefly describes judicial opinions authored by Judge Kavanaugh during his time on the federal court, it does not analyze the implications of his judicial opinions or suggest how he might approach legal issues if appointed to the Supreme Court. Those matters will be discussed in a forthcoming CRS report.

H/T beSpacific. — Joe

Trump’s executive order ending the separation of refugee families detained in the US may run afoul of the Flores settlement because Flores requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Here’s the text of Flores v. Meese – Stipulated Settlement Agreement Plus Extension of Settlement.

Here’s links to two recent CRS reports:

Unaccompanied Alien Children: An Overview (R43599, Jan. 18, 2017)

Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions (R43623, Jan. 27, 2016)

— Joe

“The data make clear that headnote assignments are far from scientific. In fact, they appear somewhat arbitrary, at least based on the discrepancies described in this article. Further study is warranted,” wrote Peter A. Hook and Kurt R. Mattson in Surprising Differences: An Empirical Analysis of LexisNexis and West Headnotes in the Written Opinions of the 2009 Supreme Court Term, 109 Law. Libr. J. 557 (2017). Here’s the abstract:

The number of headnotes assigned by LexisNexis and West are empirically examined for opinions of the 2009 Supreme Court Term. Additionally, Citizens United is examined in detail to determine the overlap of headnote-worthy language. Discrepancies in the number of headnotes assigned and disagreement as to headnote-worthy language call into question the rigor with which headnotes are created.

H/T to Legal Skills Prof Blog. Interesting. — Joe

From the US District Court for the Southern District of New York’s holding in Knight First Amendment Institute v. Trump, 17-Civ-5205, May 23, 2018:

Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.

— Joe

According to the press release, “More than 225 years of Supreme Court decisions acquired by the Library of Congress are now publicly available online – free to access in a page image format for the first time. The Library has made available more than 35,000 cases that were published in the printed bound editions of United States Reports. … The digital versions of the U.S. Reports in the new collection were acquired by the Law Library of Congress through a purchase agreement with William S. Hein & Co. Inc. The acquisition is part of the Law Library’s transition to a digital future and in support of its efforts to make historical U.S. public domain legal materials freely and easily available to Congress and the world.” You can access the collection here. — Joe

Here’s the abstract for Adam Steinman’s Non-Majority Opinions and Biconditional Rules, Yale Law Journal Forum, Vol. 128 (Forthcoming):

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).

Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to coherently apply Marks to non-majority opinions that endorse biconditional rules.

— Joe

Here’s the abstract for Katherine Shaw’s Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Texas Law Review ___ (2017):

The president’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the president. The president speaks to the entire population; about the full range of domestic and international issues we collectively confront; and on behalf of the country to the rest of the world. Speech is also a key tool of presidential governance: for at least a century, presidents have used the bully pulpit to augment their existing constitutional and statutory authorities.

But what sort of impact, if any, should presidential speech have in court, if that speech is plausibly related to the subject matter of a pending case? Curiously, neither judges nor scholars have grappled with that question in any sustained way, though citations to presidential speech appear with some frequency in judicial opinions. Some of the time, these citations are no more than passing references. Other times, presidential statements play a significant role in judicial assessments of the meaning, lawfulness, or constitutionality of either legislation or executive action.

This Article is the first systematic examination of presidential speech in the courts. Drawing on a number of cases in both the Supreme Court and the lower federal courts, I first identify the primary modes of judicial reliance on presidential speech. I next ask what light the law of evidence, principles of deference, and internal executive-branch dynamics can shed on judicial treatment of presidential speech. I then turn to the normative, arguing that for a number of institutional reasons, it is for the most part inappropriate for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions. That general principle, however, is not absolute. Rather, in a subset of cases, a degree of judicial reliance on presidential speech is entirely appropriate. That subset includes: cases in which presidential speech reflects a clear manifestation of intent to enter the legal arena; cases touching on foreign relations or national security; and cases in which government purpose constitutes an element of a legal test. In light of the rhetorical strategies of President Donald Trump, the question of the impact of presidential statements in the courts is quickly becoming a critical one.

Interesting. — Joe