Category Archives: Courts

Federal Courts Web Archive launched

From the announcement:

The Federal Courts Web Archive, recently launched by the Library of Congress Web Archiving Team and the Law Library of Congress, provides retrospective archival coverage of the websites of the federal judiciary. … These sites contain a wide variety of resources prepared by federal courts, such as: slip opinions, transcripts, dockets, court rules, calendars, announcements, judicial biographies, statistics, educational resources, and reference materials. The materials available on the federal court websites were created to support a diverse array of users and needs, including attorneys and their clients, pro se litigants seeking to represent themselves, jurors, visitors to the court, and community outreach programs.

This collection includes the websites of the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts. This collection also includes the sites of the federal judiciary’s specialty courts, including the U.S. Court of Federal Claims, U.S. Court of International Trade, U.S. Tax Court, U.S. Court of Appeals for Veterans Claims, and U.S. Court of Appeals for the Armed Forces.

H/T to Gary Price, InfoDocket. — Joe

The constitutional cost of PACER’s per-page fee model

From the abstract for Stephen Schultze’s The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records, 106 Georgetown Law Journal __ (2018, Forthcoming):

This paper argues that the federal judiciary has erected a fee structure that makes public records practically inaccessible for many members of the public and for essential democratic purposes. The per-page fee model inhibits constitutionally protected activities without promoting equally transcendent ends. Through this fee system, the judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely other purposes — in an era in which the actual cost of storing and transmitting digital records asymptotically approaches zero. PACER should be free.

This paper examines the public’s interest in free electronic access to federal court records, and consider the relative strength of legal and policy arguments to the contrary. Section I performs an accounting of the true costs of a free-access regime. Sub-section I.A. examines the monetary cost of providing electronic access. Sub-section I.B. considers the privacy costs to individuals who are identified in electronic court proceedings when digital records erase some of the “practical obscurity” that prevailed in a print-only era. Section II details the benefits of free electronic access to federal court records. Sub-section II.A. describes how this access benefits the public’s understanding of the law, whereas Sub-Section II.B outlines how free access enhances the transparency and legitimacy of the courts. Section III argues that, in the tradition of Richmond Newspapers v. Virginia, free access electronic to court records is a constitutionally necessary element of the structure of our modern judiciary.

Recommended. — Joe

DOJ argues that Title VII does not protect gay rights

BuzzFeed’s Dominic Holden is reporting that the DOJ filed an amicus brief in Zarda v. Altitude Express, No. 15-3775, at the US Court of Appeals for the Second Circuit that argues that Title VII of Civil Rights Act of 1964 does not cover sexual orientation and only applies if men and women are treated unequally. Details and the text of the DOJ brief at The Justice Department Just Argued Against Gay Rights In A Major Federal Case. — Joe

On the clarity of SCOTUS opinions

US Supreme Court Opinions and their Audiences (Cambridge UP, 2017) by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions. For more, the work was reviewed in the April issue of Law and Politics Book Review here. — Joe

A general approach to predicting SCOTUS behavior

Summarizing their work, Daniel Katz, Michael Bommarito and Josh Blackman wrote in A General Approach for Predicting the Behavior of the Supreme Court of the United States:

[W]e offer the first generalized, consistent and out-of-sample applicable machine learning model for predicting decisions of the Supreme Court of the United States. Casting predictions over nearly two centuries, our model achieves 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently over the past century, we outperform an in-sample optimized null model by nearly 5 %. Among other things, we believe such improvements in modeling should be of interest to court observers, litigants, citizens and markets. Indeed, with respect to markets, given judicial decisions can impact publicly traded companies, as highlighted in [Katz DM, Bommarito MJ, Soellinger T, Chen JM. Law on the Market? Evaluating the Securities Market Impact of Supreme Court Decisions 2015], even modest gains in prediction can produce significant financial rewards.

Here’s the abstract:

Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time evolving random forest classifier which leverages some unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently, over the past century, we outperform an in-sample optimized null model by nearly 5%. Our performance is consistent with, and improves on the general level of prediction demonstrated by prior work; however, our model is distinctive because it can be applied out-of-sample to the entire past and future of the Court, not a single term. Our results represent an important advance for the science of quantitative legal prediction and portend a range of other potential applications.

— Joe

Active judging: Solving the pro se crisis in America’s state civil courts

About Active Judging and Access to Justice, 93 NOTRE DAME L. REV __ (2018), Anna E. Carpenter (Tulsa) wrote

This Article offers a window into a small slice of the civil justice system, a single court where a group of judges is doing their best, with the tools at their disposal, to handle pro se cases fairly and impartially while also helping those parties navigate the complexities of civil litigation. Where they have authoritative guidance, they do their best to follow it. Where they lack guidance, they make choices guided by principle, and they focus on being consistent from case to case. Their approaches are not monolithic, though they are guided by shared values. Most seem to recognize that they are imperfect and working within an imperfect system.

Here’s the paper’s abstract:

Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.

— Joe

Are robots still how judges envision them?

From the abstract of University of Washington School of Law prof Ryan Calo’s very interesting essay Robots as Legal Metaphors, 30 Harvard Journal of Law & Technology 209–237 (2017):

This essay looks at the role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies courts select for emerging technology can be outcome determinative. For example, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection the court is prepared to extend it. But next to no work examines the inverse: when and how judges invoke metaphors about emerging technology when deciding cases about people. Robots represent an interesting case study. The judge’s use of the robot metaphor can be justice enhancing in that it helps translate obscure legal concepts like agency and fault into terms understandable to a lay reader. But the use of the metaphor is also problematic. Courts tend to apply the metaphor to remove agency from individuals whom society already tends to marginalize. Further, judges’ mental models of robots are increasingly outdated, which could lead to judicial error as advanced robots enter the mainstream.

— Joe

Do Court of Appeals judges turn more partisan during presidential elections?

According to Carlos Berdejó and Daniel L. Chen, the answer to that question is “yes.” Here’s the abstract for their Electoral Cycles Among U.S. Courts of Appeals Judges:

We find field evidence for what experimental studies have documented regarding the contexts and characteristics that make individuals more susceptible to priming. Just before U.S. Presidential elections, judges on the U.S. Courts of Appeals double the rate at which they dissent and vote along partisan lines. Increases are accentuated for judges with less experience and in ideologically polarized environments. During periods of national reconciliation — wartime, for example — judges suppress dissents, again, especially by judges with less experience and in ideologically polarized environments. We show the dissent rate increases gradually from 6% to nearly 12% in the quarter before an election and returns immediately to 6% after the election. That highly experienced professionals making common law precedent can be politically primed raises questions about the perceived impartiality of the judiciary. We cannot rule out the possibility that judges — who profess to be unbiased — are intentionally biased, which also raises the question of intentional bias of professionals who claim to be unbiased.

Interesting. — Joe

Gorsuch confirmation hearings gear up: “Find as much information about the new Supreme Court nominee as possible.”

“The idea for the Gorsuch Project was born after law librarians from several universities and government offices faced a similar question from their patrons: ‘Find as much information about the new Supreme Court nominee as possible.'” — From the Gorsuch Project.

The Gorsuch project “is the result of the collaborative efforts of several libraries to research and collect a comprehensive set of materials relating to the Hon. Neil Gorsuch’s career on the 10th Circuit Court of Appeals. Majority opinions, dissents, and concurrences authored or joined by Gorsuch and references to his published work and speeches are presented here.” The academic law libraries involved are located at the Univ. of Illinois College of Law, the Univ. of Richmond School of Law, the Univ. of Virginia School of Law (host site of the Project), plus the Free Law Project and the US Railroad Retirement Board contributed to the project.

See also Neil M. Gorsuch a Law Library of Congress bibliography that was last updated February 2, 2017.

H/T to Michel-Adrien Sheppard’s Slaw post. — Joe

Risk assessment algorithm used in bail hearings

“As part of a bold effort at bail reform,” writes Ephrat Livni, “the state of New Jersey replaced bail hearings with algorithmically informed risk assessments this year. Anyone’s eligible for release, no money down, if they meet certain criteria. To ensure unbiased, scientific decisions, judges use a machine-generated score. … The Public Safety Assessment (PSA) formula that New Jersey is now using for bail—along with about 20 other jurisdictions that employ it less extensively—aims to make risk calculations neutral, purely evidence-based, and premised on data. It compares risks and outcomes in a database of 1.5 million cases from 300 jurisdictions nationwide, producing a score of one to six for the defendant based on the information.”

“The automated recommendation”, Livni adds, “serves as a guide and doesn’t replace judicial discretion. Still, the program raises questions about the claimed neutrality of machine reasoning, and the wisdom of reliance on mechanical judgment.” For more, see In the US, some criminal court judges now use algorithms to guide decisions on bail. — Joe

SCOTUS Style Manual available for purchase

In Supreme Court’s Style Manual is Private No More, Tony Mauro reports that the US Supreme Court Style Guide, 2013 ed. can be purchased through Amazon without Court approval because a court aficionado named Jack Metzler is making it available for sale under his own imprint. Metzler reportedly photocopied the 200+ page long manual in the Supreme Court’s law library. The style manual “could be an important resource for brief-writing advocates as well as judges and clerks of other courts seeking to match the sometimes quirky style rules of the nation’s highest court,” writes Mauro. — Joe

LexPredict on SCOTUS cases that will be affected by Justice Scalia’s death

“LexPredict has developed an algorithm, {MARSHALL}+, that the company says can accurately predict Supreme Court cases. Using their algorithm, they’ve come up with predictions on which cases will be affected [by Justice Scalia’s death]” writes Bob Ambrogi. According to LexPredict, there are 14 cases whose decisions are likely to be impacted. “These changes will result in either reverse to affirm or vice versa switches, or by changing the opinions from precedential to non-precedential.” Details here. — Joe

End Note: On a related note, SCOTUSblog’s Amy Howe examines whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. Read more about it. See also Lyle Denniston’s Is a recess appointment to the Court an option?, also on SCOTUSblog.

Justice Scalia

The fact that Justice Scalia passed away over the weekend from natural causes is, of course, all over the news.  There are any number of articles speculating on how nominating a successor would affect the coming presidential election; who are the potential nominees; how this changes the ideological make-up of the Court, and so one.  All are worthy questions for speculation.  I’d like to highlight what this event means for coming decisions.  The Court has had a certain stability despite the two appointments resulting in the confirmation of Justices Sotomayor and Kagan.  As a side note on that, check out the CNN story by David Axelrod where Justice Scalia quietly expressed a preference for Elena Kagan to replace Justice Souter.  He got his wish when Justice Stevens retired.

Court watchers were always interested in Justice Scalia’s questions in oral argument given the Court’s ideological split, mostly 4-4 with Justice Kennedy in the middle.  While he was identified as a conservative, he didn’t always side with a conservative point of view.  I remember that he was fairly protective of the Fourth Amendment (See U.S. v. Jones, 132 S. Ct. 945 (2012) as an example) when the trend in Federal Courts seemed to find plenty of exceptions in its prohibitions).  Justice Scalia’s questions were as much a clue to his influence on the resulting decision as it was a bit of theater.  He certainly seemed to enjoy the intellectual banter with those presenting arguments.  CNN has another article listing six cases the site highlights as more significant cases than others.  How the Court will handle these and other issues will send Court watchers back to re-analyze the arguments.

The cases that concerns me is the potential appeal of the Google Books case and the Apple antitrust case, both affirmed by the Second Circuit.  The Authors Guild has filed a petition for cert which is pending.  Apple has yet to file its petition but has indicated that it intends to do so.  Justice Scalia will not be a participant in the case whether the Court accepts the cases or hears them.  These cases may stand if the Court splits 4-4 on the issues.  If it makes any difference, Justice Scalia joined Justice Ginsburg’s dissent in the Kirtsaeng v. John Wiley & Sons, Inc. first sale doctrine case.

I have a minor personal story about Justice Scalia.  He came to DePaul several years ago and spoke to the faculty in our Rare Book Room.  Security was exceptionally tight.  I believe it was the first time ever I had to show multiple IDs just to get into the building.  I was sitting at the Reference Desk when the Justice was shuttled up to his engagement via the service elevator.  That was less than 100 feet from where I was sitting.  That is effectively the closest I will likely get to a member of the Court.  It was amusing to have security watch me while I answered the occasional reference question.

I have written pointed things about Justice Scalia in the past.  I’ll remember him as the Justice who rejected legislative history in all possible forms as a vehicle for interpreting statutes.  He did not join all of Justice Ginsburg’s dissent in Kirtsaeng.  He skipped every section that mentioned legislative history, even if appearing only in a footnote.  His attention to original intent had him questioning whether the King could hide a sentry in a coach as an analogy to whether the government could place a tracker on a defendant’s car in some circumstances.  That’s from the Jones case mentioned above.

Goodbye Justice Scalia.  You were larger than life on the Court.  While you will be replaced, there will never be a Justice exactly like you.

Mark

Nebraska Courts To Drop Printed Opinions

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark

End of Supreme Court Term Is Not The End of Controversy

I never got a chance to write about the end of the Supreme Court term.  Different commentators have called the term “historic.”  Given the major decisions at the end of term

and a few others, this term provided more controversy than previous terms.  The dissents were fast and furious, with emphasis on the furious.

Justice Scalia observed in the King case:

Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

And that was one of the nicer passages.  He concluded with:

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

Justice Scalia called the Court a threat to democracy in his dissent in the Obergefell case.  He further stated:

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Thomas wrote in his dissent in the Arizona redistricting case:

The ballot initiative in this case, unlike those that the Court has previously treated so dismissively, was unusually democracy reducing. It did not ask the people to approve a particular redistricting plan through direct democracy, but instead to take districting away from the people’s representatives and give it to an unelected committee, thereby reducing democratic control over the process in the future. The Court’s characterization of this as direct democracy at its best is rather like praising a plebiscite in a “banana republic” that installs a strongman as President for Life. And wrapping the analysis in a cloak of federalism does little to conceal the flaws in the Court’s reasoning.

It’s almost as if the two Justices took personal offence at the outcome of each case.

There is no doubt that several of the cases the Court decided were highly charged political issues where the outcome did not end the debate.  Roy Moore, Chief Justice of the Alabama Supreme Court, was very displeased with the same-sex marriage decision.  The Oklahoma legislature is doing its best to opt out of Obamacare despite the ruling in King.

The Court, in theory, never acts politically—in theory. There are multiple stories suggesting that the Chief Justice is solidifying his legacy with successive rulings upholding the ACA.  Gallup reports that the reaction to the Court is dramatically split over political lines. The Court’s job approval rating by Republicans is 18%.  Democrats, on the other hand, give the Court a 76% rating.  Further polls show that support for same-sex marriage is stable after the Obergefell decision with 58% of the population in support.  A majority of Democrats support same-sex marriage at 74% while Republicans are opposed at 67%.  Politics and society have become more and more polarized over the years where it seems to be the norm at this point.  I personally regret that this is creeping into the Supreme Court.

Mark

Justice Scalia on Law Schools

The two stories I’ve read about Justice Scalia’s recent commencement address at William & Mary made me laugh.  He offered a few comments on law schools and their curriculum, including this quote from the Wall Street Journal:

It is something of an open secret now that the second and third years of school offer a student the chance to study whatever strikes his or her fancy—so long as there is a professor who has the same fancy… In more than a few law schools, including some of the most prestigious (the University of Chicago, for example), it is possible to graduate without ever having studied the First Amendment.

The follow-up appears in Business Insider:

“Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law?” he said. “And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?”

This is one of those shocking times when the Justice and I have agreed that law schools should place more emphasis on teaching substantive law throughout a student’s law school career. – Mark

Short Takes On The News: Tenure, Wikipedia, Campaign Finance, and Viacom Settles With Google

The ABA Council on Legal Education and Admissions to the Bar met over the weekend.  The Council decided to leave the faculty tenure requirement in place.  The news that the Council had considered weakening it to a requirement of job security met with intense opposition from individual faculty and the Association of American Law Schools.  Readers will probably know that I was in favor of the change because I believe it would law school administrations more flexibility in dealing with law school costs in times of lower enrollment (like now).  The National Law Journal published details surrounding the decision as well as a few others made at the meeting.

Harvard is seeking a Wikipedian in Residence.  That person, according to an article in The Atlantic, is “someone who can serve as a kind of liaison between Wikipedia and the academic, cultural, and intellectual institutions whose source material its entries rely on.”  That would be Harvard and its collections in this case.  Other major institutions such as the British Museum have such a person in place.  I think it’s a great idea though I wonder how the Wikipedia community will take to the idea.  There have been situations in the past where pages became battlegrounds between historians and the editors.

Salon features a story about McCutcheon v. FEC which is an election case pending before the Supreme Court.  The question presented is:

Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee (“PAC”) ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:

1. Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.

2. Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.

3. Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.

4. Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

5. Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.

If one hated Citizen United for striking down contribution limits, one will hate this case as well if the Court strikes down the remaining limits.  On the other hand, plutocrats with political interests everywhere should rejoice.

And finally, the Google/Viacom battle over alleged YouTube copyright violations was settled according to news reports.  Viacom lost twice at trial on the DMCA safe harbor provisions that YouTube claimed.  It took seven years to get to this point.  I’ve often said win, lose, or settle, the lawyers get paid.  CNET News has a good analysis of the case.  — Mark

Short Takes On The News: Justice Thomas, Big Law Money, Apple Appeal, and Firefox

Justice Thomas has made a few statements about race in the United States as reported in Salon and other sources yesterday.  Here are a few quotes:

“My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school,” Thomas said. “To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up.”

“Now, name a day it doesn’t come up,” he continued. “Differences in race, differences in sex, somebody doesn’t look at you right, somebody says something. Everybody is sensitive. If I had been as sensitive as that in the 1960s, I’d still be in Savannah.”

Here’s my favorite quote:

“The worst I have been treated was by northern liberal elites,” Thomas said. “The absolute worst I have ever been treated. The worst things that have been done to me, the worst things that have been said about me — by northern liberal elites, not by the people of Savannah, Georgia.”

Without further clarification, I would suggest that a good chunk of that criticism extends merely to the logic he uses in his opinions and their outcome.  That is fair game in my opinion, as it would be with any other Justice.  Justice Kennedy, for example, gets his share of criticism from religious organizations for his votes on same sex marriage and similar cases upholding privacy in sexual matters.  And don’t get me started on Justice Scalia!

The Atlantic is running an article called The Collapse of Big Law:  A Cautionary Tale for Big Med.  The article details how lawyers measure success in terms of money, not purely as a matter of greed, but in comparison to the competition.  Gone, apparently, are the days when doing something of value for society through law practice is a real metric.  The context of the article is the lack of jobs for recent law school graduates.  The rest of the article compares what’s happening in law to similar practices developing in the medical field.

I’ll give an anecdotal story about a law school application essay as related to me by the Admissions Director at one of the schools at which I have worked.  The Director told me that one student did not write an essay as such but drew a large dollar sign across the page.  I understand the applicant was admitted at least for being honest.  I have to believe there were other qualities that qualified the student for admission.  Anyone pulling that stunt today would be incredibly naive.  That shows how long ago I had that conversation.

Publishers Weekly reports that Apple lost its appeal at the Second Circuit on the limited issue of staying the order of Judge Denise Cote imposing the external compliance monitor on the company.  Apple has complained about Michael Bromwich, the appointee, being intrusive and expensive.  The article describes the Second Circuit’s order:

The court cited the government’s own statements that the monitor, Michael Bromwich, was “empowered to demand only documents relevant to his authorized responsibility” and to “interview Apple directors, officers, and employees” only on subjects relevant to his task. “We agree with that interpretation of the district court’s order,” the court held. “In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation.”

Oh well, better luck on the main appeal, or not, depending on one’s perspective.

Jonathan Band writes an interesting essay on the Future of Fair Use after Google Books in Project Disco.  That’s “Disco” as in disrupted competition.  Band wrote the amicus brief for the Library Copyright Alliance and was cited five times in Judge Chin’s decision.  The piece describes the ideas in the debate he had with Jon Baumgarten, former General Counsel of the Copyright Office.  I get the impression that the Authors Guild have an extremely limited view of fair use based on the exchange between the two.

And finally, ads in the Firefox browser?  ZDNet has the story. — Mark

What is government interest creep?

What is the government interest?

This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts.   Legislative listing of such interests – – – whether in preambles, legislative history, or litigation – – – provides language but not necessarily meaning.

The above quote is Ruthann Robson’s (Professor of Law & University Distinguished Professor, CUNY School of Law) lead-in from her Constitutional Law Prof Blog post about San Diego law prof Dov Fox’s forthcoming George Washington Law Review article titled Interest Creep [SSRN].

From the abstract:

Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.

— Joe

Judge Posner Likes Cats, the Supreme Court Not So Much

There is an interview with Judge Richard Posner that was published on The Daily Beast last Thursday.  Judge Posner states the obvious when he says he likes to write.  We learn that he isn’t interested in being considered for the Supreme Court:

At this point in your career, would you like to sit on the Supreme Court?

No. First I’m too old. I’m 74 and they don’t appoint people my age.

But you sound peppy.

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.

Judge Posner’s view of the Supreme Court is interesting, but that’s not the real news for me.  As to the matter of pets he says:

Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

Well, meow.

Mark