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.
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.
A new gold rush has come to California, with the state’s massive legal system open for mining as courts and lawyers move to new technology. Investor Warren Buffett’s right hand man has joined in the race along with enormous software and publishing companies from around the nation. “It’s truly the wild west here in California,” said an industry insider, “a land grab.”
They are scrambling for a mother lode of multi-million-dollar contracts for software and licensing, vast additional sums for upkeep, and the right to set up a toll booth on Court Road for 38 million people. — Maria Dinzeo, Courthouse News Service
Why? Dinzeo explains that “the rush of deal-making follows the collapse of a half-billion-dollar, ten-year state project to develop a Court Case Management System for all California’s 58 trial courts. Widely savaged by judges as a ‘fiasco” and a “boondoggle,’ the software developed by Deloitte Consulting was abandoned last year.” For much more see Tech Gold Rush Strikes CA Courts. — Joe
“It’s always interesting to see how a lawyer’s oral argument marries up to their briefing, and for me, it helps give greater context to the points,” wrote Jason Wilson at The Annotated Oral Argument: Tucker v. Thomas (#SCOTX). Check out his example of annotating an oral argument conducted before the Supreme Court of Texas. (NB: the annotation links to open source texts of court opinions and statutory code sections.) He adds, “If y’all like these annotated arguments, I can start posting more here or on Annotations.”
I think Jason is onto something here. While I have little need for Lone Star State annotated oral arguments here in the Buckeye State, I think e-publishing high court annotated oral arguments by an editorial staff that actually knows something (and links to open or opened resources) is a great idea. Hell, that’s why I buy Jones McClure’s annotated federal codes instead of … well, you know.
I would be very interested in annotated US Supreme Court oral arguments, ditto for the Supreme Court of Ohio, if produced by a reliable publisher like Jones McClure. At the SCOTUS level, who might that be? Hint — who is the sponsor of SCOTUSblog and the publisher of USLW?
In Link Rot within SCOTUS Opinions and Law Reviews [SSRN], Jonathan Zittrain and Kendra Albert found that 49% of URLs in surveyed SCOTUS opinions no long send the reader to the cited web source. Raizel Liebler and June Liebert’s recently published article, Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010), 15 YALE J.L. & TECH. 273 (2013), reports a SCOTUS link rot rate of 29%. Obviously there’s a problem. But it is not with the difference in survey findings. Clearly SCOTUS must get its act together by linking to a self-hosted openly accessible archive of the web content that was cited and currently only stored in the Court’s files. How about naming the archive “Last Visited On”?
Zittrain and Albert’s article is recommended but I found Liebler and Lieber’s much more informative. Here’s the abstract for Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010):
Citations are the cornerstone upon which judicial opinions and law review articles stand. Within this context, citations provide for both authorial verification of the original source material at the moment they are used and the needed information for later readers to find the cited source. The ability to check citations and verify that citations to the original sources are accurate is integral to ensuring accurate characterizations of sources and determining where a researcher received information. However, accurate citations do not always mean that a future researcher will be able to find the exact same information as the original researcher. Citations to disappearing websites cause serious problems for future legal researchers. Our present mode of citing websites in judicial cases, including within U.S. Supreme Court cases, allows such citations to disappear, becoming inaccessible to future scholars. Without significant change, the information in citations within judicial opinions will be known solely from those citations. Citations to the U.S. Supreme Court are especially important of the Court’s position at the top of federal court hierarchy, determining the law of the land, and even influencing the law in international jurisdictions. Unfortunately and disturbingly, the Supreme Court appears to have a vast problem with link rot, the condition of internet links no longer working. We found that number of websites that are no longer working cited to by Supreme Court opinions is alarmingly high, almost one-third (29%). Our research in Supreme Court cases also found that the rate of disappearance is not affected by the type of online document (pdf, html, etc) or the sources of links (government or non-government) in terms of what links are now dead. We cannot predict what links will rot, even within Supreme Court cases.
Hat tip to Adam Liptak’s In Supreme Court Opinions, Web Links to Nowhere (NYT, Sept. 23, 2013).