Debris
«chaque notaire porte en soi les débris d’un poète.»Archive for judges
Justice O’Connor’s husband “reportedly in the final moments of life”
Retired Supreme Court Justice Sandra Day O’Connor was to have visited Greensboro and Elon Law School tomorrow. Sadly, her appearance has been canceled as a result of her husband’s worsening health. An announcement from the law school stated that John Jay O’Connor III, whose condition prompted Justice O’Connor’s retirement, “is reportedly in the final moments of life.”
Despite legal and political differences, I admire Justice O’Connor for her pioneering role as the Court’s first female Justice, and for the fact that she is an accomplished fly angler. She has been a good friend to Elon, speaking at the law school’s formal opening. My best wishes go out to her in this difficult personal moment.
UPDATE (Nov. 12, 2009): John O’Connor died yesterday at age 79. Condolences to Justice O’Connor and all of their family.
Textualist my ass
The Supreme Court on Monday heard argument in a case involving an interesting and important question of statutory interpretation. In 1996, Congress amended the Federal Gun Control Act to provide that the statute’s restriction on gun ownership would apply to convictions for “a misdemeanor crime of domestic violence”, rather than only felony convictions. The purpose of the amendment was to close a loophole arising from the common situation where a defendant in a domestic violence case is permitted to plead to a misdemeanor assault charge rather than a felony.
During Monday’s argument, Justice Antonin Scalia engaged in the following colloquy with the Justice Department lawyer arguing that the statutory restriction applied in a case where the defendant had pleaded guilty to misdemeanor assault.
JUSTICE SCALIA: And this was misdemeanor assault and battery, wasn’t it?
MS. SAHARSKY: Yes, that’s right. I mean, I really—
JUSTICE SCALIA: So it’s not that serious an offense. That’s why we call it a misdemeanor.
MS. SAHARSKY: Well, I mean, certainly the offense is this particular case was serious. The charging document reflects that Respondent hit his wife all around the face until it swelled out, kicked her all around her body, kicked here in the ribs—
JUSTICE SCALIA: Then he should have been charged with a felony, but he wasn’t. He was charged with a misdemeanor.
Apart from revealing Justice Scalia’s cavalier attitude toward domestic violence (“not that serious an offense”), this exchange demonstrates his cavalier disregard for the statutory text.
The fact that the defendant in this case was convicted of a misdemeanor, rather than a felony, is completely immaterial to the issue before the Court. The statutory provision expressly applies to “misdemeanor crime[s] of domestic violence”. Nor does it matter at all whether Justice Scalia considers the misdemeanor assault in this case to be “not that serious an offense”. In amending the statute to apply the restriction on gun ownership to those convicted of misdemeanor convictions, Congress has made the policy determination that the legal distinctions between a misdemeanor and a felony are not sufficient to justify different treatment under the statute.
The issue in this case is not whether the statute applies to a misdemeanor; the statutory text is plain and unambiguous on that point, and a self-proclaimed “textualist” like Justice Scalia ought to consider that issue closed.
Rather, the issue is whether the phrase “crime of domestic violence” refers specifically to crimes under domestic violence statutes, or whether it refers more descriptively to crimes that, in fact, entail acts of domestic violence. There may be good arguments for either interpretation, though I believe the broader interpretation is more faithful to the statutory purpose of keeping guns out of the hands of violent domestic abusers. But Justice Scalia’s emphasis on the distinction between a felony and a misdemeanor suggests either that he entirely misses the point of the statute, or that he just doesn’t like what Congress did and is looking for a way to substitute his own policy judgment. So much for judicial restraint.
New DOJ report offers data on civil trials
According to a new U.S. Department of Justice report on state court civil trials in the nation’s 75 most populous counties. In 2005, plaintiffs prevailed in 56% of cases that got to trial (of which, the report notes, there were less than half as many as in 1992). It isn’t especially surprising that plaintiffs would win more often than not in cases that actually get to trial, as it would seem likely that plaintiffs with weak cases are more likely to be weeded out on preliminary dismissal and summary judgment motions.
What does appear surprising is the fact that plaintiffs were more successful in cases tried before a judge (68% in favor of plaintiff) than in jury trials (54.4% in favor of plaintiff). These figures seem contrary to the popular notion that lay jurors are more sympathetic to plaintiffs than legally-trained judges. The apparent anomaly is likely explained by the fact that juries heard about 90% of the tort and employment discrimination cases covered in the study, while judges were more likely to hear breach of contract and real estate cases. However, among tort cases, bench trials still showed a higher rate of pro-plaintiff outcomes (60.8%) compared to jury trials (52.8%).
The report also lends some badly-needed perspective to the anecdotal “horror stories” about “outrageous” damage awards bandied about by “tort reform” advocates. The median damage award (including compensatory and punitive damages) for prevailing plaintiffs was $28,000. More than 14 percent of plaintiff winners were awarded damages of more than $250,000, while a mere 4 percent got more than $1 million. In addition, only 5% of prevailing plaintiffs were awarded punitive damages, and half of those awards were under $64,000. Median damage awards in tort cases did not differ significantly as between jury and bench trials, while in breach of contract cases, the median jury award was about three times as much as the median award by a judge.
Judge to Federalist Society: “Pro bono work is ‘antisocial’”
Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit declared, at a recent gathering of the conservative Federalist Society, that “Pro bono work primarily is an ‘antisocial’ and self-serving activity lawyers use to develop their skills, firms use to recruit and “give solace” to associates, and nonprofits use to further a political agenda”.
As it happens, I concur in part with that assessment. Much “pro bono” work does indeed serve the function of enabling Big Law attorneys to reconcile their self-identification as “liberals” with their occupation as servants of power. And I suppose, from the perspective of people like Judge Jacobs and his Federalist comrades, for whom the greatest social values are private property and wealth maximization, litigation asserting claims on behalf of anyone other than property owners or wealth producers would be considered “antisocial”.
In a sense, it is refreshing to see someone like Judge Jacobs openly declare his animosity to pro bono impact litigation. Far more disturbing is the usual pattern of conservative judges adamantly insisting, despite all indications to the contrary, that they can and will preside over and decide such cases impartially. It is curious though, given his admitted bias, that Judge Jacobs does not appear to have given any assurance that he will disqualify himself from hearing all such cases in the future.
The world is full of freaks
Some of them are federal judges:
Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.”
[* * *]
Kozinski said he would delete some material from his site, including the photo depicting women as cows, which he said was “degrading . . . and just gross.” He also said he planned to get rid of a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.
Kozinski said he must have accidentally uploaded those images to his server while intending to upload something else. “I would not keep those files intentionally,” he said. The judge pointed out that he never used appeals court computers to maintain the site.
Far be it from me to question the credibility of a respected federal judge. But I have to wonder how Kozinski would respond to a criminal defendant who offered such an eyebrow-raising excuse for his offense.
Lost pants judge looses robe too
Roy Pearson, the Washington, D.C. administrative law judge who garnered attention when he sued a dry cleaner for $54 million over a lost pair of pants, was not reappointed after his term expired last Spring. This belated coda to the Pearson saga is only now being reported, thanks to a FOIA request by the Associated Press.
Irascible jurist disciplined for “inappropriate behavior”
Judge Samuel B. Kent, of the U.S. District Court for the Southern District of Texas, Galveston Division, has long been notorious in legal circles and beyond for his strongly-worded opinions. Now he’s in the news, and in the soup, for abusiveness of a different nature. The Fifth Circuit Judicial Council has reprimanded Judge Kent and placed him on a four-month leave, following a sexual harassment complaint by a court employee.
(Thanks to Workplace Prof Blog for the tip.)
Here’s to the Courts of Pennsylvania
The Pennsylvania state court system, in which I practiced for seven years, resembles something conjured up in a novel co-authored by Charles Dickens, Franz Kafka, and James L. Cain — filled with overstuffed nomenclature, byzantine procedures, and a general air of sordidness. The tale of Superior Court Judge Michael Joyce, currently facing federal mail fraud and money laundering charges while simultaneously running for re-election, is a nice illustration of the latter:
According to the nine-count indictment, Joyce received $440,000 in settlements for injuries he claimed “affected his professional and personal life in a very significant way” after an SUV rear-ended his state-leased Mercedes Benz at a traffic light in Erie.
Joyce claimed the accident made him unable to play golf, scuba dive or exercise. He also claimed the injuries prevented him from pursuing higher judicial office, according to the indictment.
The judge complained of constant neck and back pain, headaches, difficulty sleeping, anxiety and short-term memory loss, according to the indictment. He claimed he was in such pain from May to July 2002 that he could not play a round of golf or hold a cup of coffee in his right hand, the indictment said.
During the same period Joyce made these claims, he played several rounds of golf in Jamaica, Florida, New York and Pennsylvania, went scuba diving in Jamaica and renewed his diving instructor’s certificate, prosecutors said.
The indictment also alleges Joyce used some of the settlement money to buy a Harley-Davidson motorcycle, a share in a single-engine Cessna airplane, property in Millcreek Township, Pa., and to pay down a personal line of credit.
Ethics charges against litigious ALJ
Roy Pearson’s $65 million lawsuit over a lost pair of pants has landed him in hot water. The American Association for Justice, which represents plaintiffs’ trial lawyers, has filed an ethics complaint against the D.C. administrative law judge. Its great to see the plaintiffs’ bar taking a firm public stand against truly frivolous litigation. If only the Chamber of Commerce would show similar integrity and condemn abusive defense tactics. Don’t hold your breath.
