Saturday, June 28, 2003

To Pack or Not to Pack: Getting Control over the Judiciary

I have little use for many of the innovations that FDR gave us. They innovated in how to steal American republican democracy from the people by legalizing macrobribery.

One of the ideas that FDR had that is usually pilloried is his plan to increase the size of the Supreme Court so that he can appoint new justices to the bench that would support his New Deal agenda. This idea went down in flames.

However, there may be some new value in that old notion. Even if pushing that idea has the same effect that it had in the 1930's -- scaring the Court -- it would be valuable.

Simply put, the Supreme Court could have an additional three members added to it. This would give Bush the ability to name more conservative justices and increase the rate of turnover in the Court. As it is today, our justices can stay on the bench for decades because our healthcare system is spectacular.

This increase in the size of the bench would allow more subtlety in opinions to be aired. It would allow the Congress to have a greater impact on the course of the Court's activities -- reinforcing the check and balance effect. It would force Congress to regularize and control the advise and consent process because higher profile nominations would have to go through more often.

The importance of getting one or two appointments to the bench per presidential term would diminish. As much as I would hate for Clinton to have had a greater impact on the bench, even his appointing more members would have been healthier, since each appointment would be less powerful.

Let's look at this mathematically how appointments to the Court have worked in practice over history. I am going to make some broad generalizations since I have not researched my understandings in depth, but the information is readily available by doing a detailed analysis of the historical composition of the Court.

When John Jay was appointed to the Court by George Washington, life expectancy for the segment of society that was put on the bench (the educated, wealthy, etc.) was better than society at large. I would hazard a guess that it was still only about 65. Persons when appointed were usually well established in the lives. So, ignoring the turmoil of the Court's membership and other neophyte aspects, Court members did not last much longer than 15 years. Even for a 6 member Court you could get a new court appointment every two out of five years -- a ratio of 2:5.

As John Marshall came to dominate the bench for his nearly 35 years on the Court, we probably had an average stay on the bench of 20 years. Effect 6 appointments every 20 years. (Bear with this unscientific approach, please.) Ratio 3:10.

During FDR's term, my recollection of history is that he appointed about 6 members to the 9 member Court over his eleven years in the White House. This is a 1:2 ratio. Since that time, we have entered a period of very long tenures on the bench. The current bench had its first members appointed in 1973 and 1975 or so. Since that time, the entire bench was appointed. (That is only one appointment per seat, if you ignore the technically very significant double appointment of Rehnquist first as associate justice and second as Chief Justice of the United States. In another context, this is not significant to votes since Rehnquist's vote counts either way.) The bench has been replaced been replaced as at a rate of 3:10 or nearly once every 3 years.

Looked at another way, four Congresses have had no voice about the composition of the Court. That is more than one whole Senate cycle that had no voice about the composition of the Court. We are now working our way to completing another Congress with no voice. (This one will likely only have a voice if a retirement is annouced before October 1, 2003, if one of the justices dies or retires due to health issues prior to the next election.)

The checks and balances on this Supreme Court have been woefully inadequate. The argument put forward by Scalia, Thomas, and the Chief Justice are falling on ears tired of hearing them. The middle is soft. The left is devoid of intelligent argument on some of the most important cases of the day (see, e.g., University of Michigan undergrad case).

With Scalia, Thomas, Bryer, Kennedy, and Souter so young, we could see Rehnquist, O'Connor, Ginsburg, and the elder Stevens be replaced in the next 5 to 10 years. Once that cycle is done, we might see the next Court stay together 15-20 years with no change, except by the intervention of God. This is a daunting prospect.

If the immediate need of Bush looks too self-serving, Bush should suggest that that Court size be increased in size to eleven or thirteen over the next two presidential terms -- the current one excluded. The benefits would be many:

1. More justices to cover the increasing number of Circuit Courts of Appeal;
2. More justices to divide the opinion writing between, hence allowing more cases to be heard;
3. More appointment opportunities to increase the checks and balances on the Court;
4. More chances for politicians to voice their opinion on the Court thereby dilluting the intensity of debate over any one appointment;
5. More openings for talented voices to enter opinions on the significant questions of the day;
6. More chance to debate the proper procedure for managing debate on appointments if the number of appointments is known over the transition period;
7. More chance for the debate over the Court to be spread through the grass roots and honestly reflect the opinions of the less political and probably more moderate portion of the country (contrast Schumer and Santorum to the middle of the country).

What was once a political chance to shift the middle of the Court for greedy president may be the answer to our current breakdown and failure in today's system.

Monday, June 23, 2003

Justice Thomas Hits a Home Run!

In the just-released racial quota in law school admissions case, Justice Thomas sums up the entire problem with the liberal position.

“'[D ]iversity,' for all of its devotees,,is more a fashionable catch-phrase than it is a useful term,especially when something as serious as racial discrimination is at issue.Because the Equal Protection Clause renders the color of one ’ s skin constitutionally irrelevant to the Law School ’s mission,I refer to the Law School ’s interest as an “aesthetic.” That is,the Law School wants to have a certain appearance,from the shape of the desks and tables in its classrooms to the color of the
students sitting at them.

"I also use the term “aesthetic ” because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged.Cf .Orr v.Orr,440 U.S.268,283 (1979)(noting that suspect classifications are especially impermissible when “the choice made by the State appears to redound ...to the benefit of those without need for special solicitude ”)."

Dissenting opinion of Justice Thomas in Grutter v. Bolliner, 539 U.S. __, slip opinion at 6, n. 3 (2003).

He describes the liberal position as being entirely about appearances without regard to impact.

Let's up we can get through the batting line-up quickly. We need another case on this issue soon, so that this slugger can take another shot at the fence. Let's just make sure we have some new justices on the bench that are more likely to get on base than to cry about the pitches being too fast.

If Justice Scalia is to be believed in his dissenting opinion, this case opens up so many new issues for lawsuits that we just need to wait a few short years, then Slugger Thomas will be back at the plate!!!

Sunday, June 22, 2003

Concerns about "Gay Marriage"

During my morning rant at the television embodying Howard Dean on Russert's program, my wife raised a question that stopped me cold.

"If gays can marry, what would keep two women living as roommates after college, for example, from deciding to 'marry' for benefits? One may have a job in big corporate America and the other employed by a four-person business. Now big corporate America would end up with another medical bill. Doesn't this seem like a huge invitation for fraud? How do you assure that the two women are lesbians or not?"

All I would add is that the biggest case of marriage for benefit and government observation is immigration. And we all know that the INS has terribly efficient at identifying marriage fraud in that case, right?

Thursday, June 05, 2003

Life-Long Appointments vs. Tenure

Two of the biggest areas where arguments can impact the political debate have somewhat similar institutional protections: federal courts and universities. Judges are appointed for life. Professors are given tenure. The principle behind both is the ability to freely express opinions without fear of losing their jobs.

Once you dig beneath the surface, the similarities are not very strong.

Trial court judges may be guaranteed a job, but their ideas are not guaranteed to go unedited. The trial court judge can be appealed. This threat of being overturned has varying impacts on individual judges. Some judges take great pride in the percentage of cases that stand after appeal. Others issue their opinions without much consideration of the actions that the appellate court will take. At least, it may seem that way. However, even these judges must follow a set of rules and acceptable methodologies for issuing opinons. These judges who wish to stick their finger in the eye of the appellate court still need to hew to the line that the appellate system dictates, otherwise the appeal will knock over the trial court's action like puff of air gives flight to a feather. This tends to moderate nearly any opinion or action of a trial court.

That is not all that different from academia, right? When a professor writes a piece that sticks his finger in the eye of the university administration or the proponents of a conflicting idea, there is no moderating force on the loose cannon. The only way to put controls on a professor is if the professor violates a provision of the university's code.

The ideal promoted in academia is that tenure promotes the free expression of ideas. As is long since a widely known secret, for many years there is little freedom of expression on campus, unless the speaker hews the liberal line. Simply put, on many campuses, conservatives are not given tenure. In 1969, my law school at Indianapolis became a full-time institution rather than merely the night school branch of the other Indiana University law school. This anomoly of two law schools in one small state's university system arose in no small part because conservative professors rarely were given tenure on the Bloomington campus. To this day, nearly 25 years later, that political segregation still remains. This institutional division was necessary to truly allow nearly any expression of conservative position and obtain tenure.

The largest reason for this liberal dominance is that universities are one of the few insitutions that completely ignore the basic need in all human society to check outrageous behavior. The founding fathers manage to build into the Constitution the concept of checks and balances. This institutional concept has done more to preserve freedom than any status-conscious system ever has. Academia tries to preserve freedom of speech by a grant of privileged status. This is the equivalent of the king's favorite having freedom of speech.

Freedom does not come from institutional grants of status. Freedom comes from systems having separate institutions overlapping charges. Checks and balances. Universities have preserved the freedom of speech of only favored persons who tend say similar things.

Universities then end up with these protected persons rotting in place until retirement day. Only then does the institution receive a jolt of new thought.

Tenure may have made sense when Ph.D.'s were a rare commodity. They are not now. Universities need to have more potential for adaptation and moderation.

I am not actively involved in academia, so I am not well informed about the alternatives to fix the problem. The symptoms are all too clear. Academia is not immune to the hubris that develops without countervailing persons supervising or monitoring behavior. How many people do you know that can live up to the standard of morality of doing right even though no one else sees you? We have assumed all tenured professors can. Does this make sense?

Tuesday, June 03, 2003

Reforming the Concept of Judicial Reform

Every young Sunday school student knows the story of King Solomon and the baby. The story goes that two women presented themselves before King Solomon to settle a dispute. The two women claimed the same baby as theirs. King Solomon listened to stories presented by each woman. After some consideration, he called for his sword. He declared that he would split the baby in two and give each alleged mother half.

One of the women, in tears, screamed, "Give the baby to her! I don't want half!"

King Solomon awarded this tearful mother the baby. His logic: only the real mother would love the baby enough to give it up in order to save it. (For a humorous re-interpretation of this story, see Joseph Heller's God Knows.)

This message has been interpreted many ways. As I understand the law of the era: disputed property was divided equally. (Let us lay aside the distasteful suggestion that a baby is property.) Let me suggest an interpretation that is particularly relevant today: forceful and rapid enforcement of rules leads to rapid resolution.

Many of the modern efforts to fix our out of control legal system are addressing the symptoms of the problems in our legal system. As a lawyer working in the courts, judges have been taught that the phrase "split the baby" means "find the middle ground between two arguments." Like the phrase Uncle Tom, the vernacular use of phrase is nearly completely the opposite of what the original story describes. We think of splitting the baby now as meaning compromising to avoid judicial action. In truth the story is about resolute judicial action invoking compromise.

Many of the court cases I have been involved in, the judge listens to arguments, delays making decisions, pleads for the parties to settle, makes meaningless and irresolute decisions, and complains privately of their overwhelming schedule.

The court rules were not designed for this treatment. The court rules are designed to question whether every case belongs in court. See, e.g., Federal Rule of Civil Procedure 12(b). The rules on this have been so watered down that situations exists where one of my clients has no idea who the person suing him is or what my client is supposed to have done wrong to end up getting sued. Yet the case law interpreting rules similar to FRCP 12, noted above, prevent this case from being dismissed because the court procedure is supposed to uncover this cryptic information. If a case is completely out of line, the attorney bringing the case could be sanctioned by the court. FRCP 11(c). This procedure is rarely used.

Next the court rules are supposed to inquire if after the plaintiff has stated his case and the defendant has answered that complaint, the court is supposed to inquire whether the case can be settled without further inquiry. See, e.g., FRCP 12(c). This rarely happens because the defendant always denies everything of relevance. Some judges have been heard to say in open court that the procedural requirement of answering a complaint is a waste of time. After judgments are entered, most reasonable persons wonder why the parties could not agree on more of the story at this early stage.

Next the court rules allow a procedure for exchanging information. The federal concept of this process of discovery is that everyone surrenders all of their evidence or information to the other side without any particular procedural requirements. Nevertheless, conflict that judges need to resolve happen often in cases. See FRCP 26 to 37. Failure to follow these rules is supposed to incur sanctions. FRCP 37. This threat is rarely carried out.

The next step is to find out if there is any legal reason why the matter needs to go to trial. This is done through the process of summary judgment. See, e.g., FRCP 56. The idea here is based around the delegations of responsibilities between the judge and the jury. The judge as the ultimate voice on law is entitled to resolve all issues of law. The jury is the ultimate voice to resolve what happened. If, at summary judgment, the judge does not believe that the key points of what happened are in dispute, he can decided as a matter of law who wins. While this is not always likely to happen, because there is usually a dispute about which direction had the red light, what promises were made to make a contract, or who committed adultery. Even in these cases, just deciding what the rules of the game are is helpful. If a judge limit the parts of the story that are in dispute because everyone agrees that the parties met face to face to make their contract and that no evidence contradicts that $50,000 was the onlyoffer of payment, why put to a jury the question of what amount of money was offered? We know $50,000 was offered. Now the jury can focus on what actions were promised to be performed in exchange.

This is where judges procrastinate and avoid making decisions. All too often judges just say, "No one wins at summary judgment. Let's go to trial." Now the parties have to argue in front of the jury about how much money was offered to be paid. Summary judgment is a game of logic. Too few judges are well enough trained on issues of logic to feel comfortable focusing the issues for the jury.

This is one of the most damaging parts of our legal process as practiced today. More cases should be meticuously focused on this stage. The sharper the judge's knife in carving out the details of the dispute, the less there is to dispute. If the matters to dispute are reduced by resolute decision-making, the parties can more clearly forecast their odds of winning at trial.

Since preparing for trial is among the most time-intensive parts of litigation, this is the best point to resolve to disputes out of court.

This is where most efforts to avoid trials truly begin in earnest. Many states are now requiring that parties be forced to bring in a third party, called a mediator, to supervise and manage face-to-face settlement discussions. The mediator can't decide any issue because his job is to facilitate. Since this process results in nearly 60-80% of cases settled, it has rightly been hailed as a successful addition to the repetoire of resolving cases short of trial.

The other solution offered is arbitration. Often arbitration cases are decided without the legalities of court. This is promoted as an improvement because it makes the process faster. (Note my prior comments on speed in the movement of money for a corroborating concept for this argument.) However, this is based on hiring an outside party to make a fast decision with less information available or considered. The worst part is that the arbitrator has little sense that anyone is truly supervising his activities. The courts by law have little recourse to fix erroneous decisions. This bothers me as lacking in checks and balances. Nevertheless, because the parties can cite their case as resolved faster and more cheaply, even if less reliably, this increases the number of cases settled short of trial. Hence, it is declared to be good.

Part of what this misses is that many ridiculous cases are settled in favor of the frivilous plaintiff because it is a better business decision to settle the dispute than go to a confused trial.

This problem arises because the judges are too reluctant to make resolute decisions earlier in the case. Admittedly, this is not only because judges are afraid to decide, although that happens all too often. Many times we have cases decided by appellate courts that overturn cases made on legal rules. The problem is this trend has lead to the increase of time-consuming and non-sensical cases.

I would propose a new standard to this process of focusing on resolved disputes short of trial. I would focus on increasing the number of cases thrown out of court through use of the above procedures. This would require a change of attitude rather than a new program. However, the costs to the system in new salaries, new computer systems, new courthouses, and additional billable hours would do more for helping than more arbitration, reduced punitive damage awards, picking and choosing parties immune from prosecution.

Using this standard, one of the more successful programs in the country is the Indiana medical malpractice review panel. The panel reviews all medical malpractice case before court cases start. The patient is not deprived of court, but he is forced to bring the science about why he should win very early. There are many other aspects of this law that I find helpful, but I would leave this for other commentaries. The net result the number of physicians that actually seek to practice in Indiana has increased dramatically over the past 20 years. The people of Indiana are blessed with one of the most talented pools of physicians in the country with unusually low medical costs. Granted the differences are not obvious enough because Indiana doctors participate in federal programs like Medicare and medical insurance that have regional and national effects on Indiana pricing. This decisive system reduces the incentive to sue doctors for questionable claims. It is a shame that this had to be grafted on to the court system rather done within the trial process.

The next problem is universal in the legal system. The number of persons that flat lie to the court is all too high. The reason for this is simple. With the growing number of people that take the oath to tell the truth, fewer and fewer feel a moral and religious obligation to tell the truth for fear of reprisals from God. So now we are faced with the need to judge those who lie on the stand as a matter of law.

This means that liars on the stand need to feel the heat for their lies. The only means are contempt of court procedures, which are poorly designed to handle this problem because the lie has to be too obvious, or prosecution for perjury.

Prosecutions for perjury are criminal cases that have to be brought by prosecutors. As elected officials in most states, prosecutors want high conviction rates for violent crimes. They don't want to spend their time and resources on prosecuting liars.

The consequences to the overall legal system are catastrophic and result in cascading failures and cascading lies supporting judgments by courts. The cascade is simple. A boyfriend is arrested for theft. The girlfriend comes to court to provide the boyfriend an alibi for the night of the crime. She lies. The jury finds reasonable doubt that the boyfriend was with the girlfriend. The boyfriend is acquitted and back on the street to commit more crimes.

Look at the girlfriend's decision-making process: she believes that she is better off with her boyfriend, so has an incentive to lie. Without a real threat of prosecution for perjury and without a fear of eternal damnation, she has no incentive to admit that he was nowhere near her on the night of the crime.

Let's change the prosecutor's policy on prosecuting perjury: aggressive prosecution even if low conviction rates are likely. Now consider the girlfriend's options. If she lies for her boyfriend, she may get him acquitted but at the personal cost of her own jail time. She now has a harder decision and the odds of the truth coming out increase.

Similarly in civil cases, if we return to the contract dispute, the businessman denying that he owed as much work to be performed is now facing jail time for misleading the court, even if he wins the contract case. Not all persons will change their decision toward telling the truth, but the reliability of witnesses increase marginally with each prosecuted claim for perjury.

The examples of indeciveness and lack of adherence to the rules results in a system that allows runaway ridiculous claims based on questionable testimony and evidence. Mediation gets the case resolution statistics higher, but this has the feel of Vietnam body counts: numbers that provide little evidence of the quality of action giving rise to the numbers.

These problems need to be addressed. Arguing about the value of strict constructionism are intellectually worthy and desirable, but they miss the real problem that exists at the trial court level.

The problems in our system is the gamesmanship that is allowed in the name of justice by the proliferation of cases and rules that, in the name of resolving disputes short of trial, increase the complexity and difficulty of actually deciding disputes quickly and accurately.