Court Gazing IV

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Would Justice Brandeis have watched "the Oscars"? I doubt it. This is what he wrote: "When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence." Warren & Brandeis, The Right of Privacy, 4 Harv. L. Rev. (1899). It seems clear from this that he wouldn't have approved of People magazine, wouldn't have subscribed to my new publication, Court Confidential, wouldn't have watched last night's "Oscars." While I don't agree with his views on gossip (click here for a mini-essay of mine on gossip), I think his bias would have steered him right last night. Whoopi Goldberg was awful, as usual; the ceremony was way too long and "took itself" too seriously; Hale Berry's acceptance speech was embarrassingly narcissistic (is she suffering from ASN?); Julia Roberts made a fool of herself again, insinuating herself into Denzel Washington's spotlight; etc., etc. My son wisely choose not to watch. Sometimes youth is wiser than age. (03.25.2002)

Rehnquist Confidential! When I was a teen, there was a Hollywood gossip tabloid called Confidential, a forerunner to today's National Enquirer. Somedays methinks there is enough "story material" to justify my publishing a separate

weblog/webzine called Court Confidential, which would take readers "behind the burgundy velvet curtains" and reveal "all the news that gives judges fits." Occasionally, I could have "special collector's editions," e.g., a special issue devoted to the other famous Swedish jurist (after Per Curiam), C. J. Wm. Rehnquist himself. There are a couple fairly current items on the internet newslines that I could use right now:

One is the story of C. J. Rehnquist's little hissy fit over a minor breach of the Chief's sense of courtroom decorum and dignity during a recent oral argument by Roopa Singh, a 24-year-old second-year law student intern at National Public Radio, who was sitting in the back row of the press gallery taking notes. Singh, who was wearing a scarf , noticed first that Rehnquist was "scowling" at her, then saw him leave the bench, after which a security officer approached her and asked her if she had a religious or medical reason for wearing the scarf. When she said no, the officer asked her to remove it. Singh now complains that Rehnquist treats women and minorities differently than others. A court spokesperson says the court has a long-standing rule against women wearing "hats" in the courtroom, but, according to a story in the San Diego Union-Tribune dated 03.08.2002, Singh says that Rehnquist "previously ordered women in the press gallery who were wearing pants rather than skirts to sit outside his line of vision."

Another is the A.P. story that on Wednesday, 03.13.2002 Senator Charles Schumer, D-NY, "lectured" a captive C. J. Rehnquist in front of other federal judges at a closed meeting at the court building of the Judicial Conference, which is a federal court policymaking group. Specifically, he reportedly "lectured" the Chief about what Schumer believes is an increasing attempt by the Court to usurp Congressional power. One, of course, is free to speculate over what the Chief and the other judges really thought about Schumer's remarks, but the public response of one judge was that the judges "took to heart" what Schumer said. More (Tallahassee Democrat 03.13.2002).

What else might our special collector's issue include? Oh, lots. We could talk about Rehnquist's specially-designed $30,000 black robe, the one John Dean has described as having "four gold chevrons on each arm -- inspired by Gilbert & Sullivan's Lord Chancellor from the comic operetta Iolanthe." More (John Dean, Writ 01.04.2002), more (Dahlia Lithwick, Writ 07.14.2000), and more ("Rehnquist's Scandalous Schmatte -- Did he deduct that $30,000 robe?" KausFiles 06.29.2000).

We could also talk about how Rehnquist managed to get appointed to the Court in the first place -- how, that is, President Nixon appointed him despite (or was it because of?) the fact Rehnquist showed up for the interview wearing "a pink shirt, psychedelic tie, Hush Puppies, and bushy mutton-chop sideburns," prompting Nixon to refer to him later as "a clown." More ("Clowns in Gowns -- How Nixon's Rehnquist nomination screwed up the way we pick judges," by David Greenberg, Washington Monthly December 2001).

Or we could.... (03.14.2002)

How the British deal with lawyer misconduct. A solicitor's clerk, Eric Adusei, claimed a senior barrister, Gordon Pringle, verbally abused him using racial epithets. "Mr Adusei...said yesterday: 'I was devastated by the process. Mr Pringle called me a 'coon', a 'wog' and a 'blackamoor'. I complained, only to be informed that unless an independent witness corroborated my account I would lose. The barristers closed rank, forgot what they had heard and supported Mr Pringle. Ironically, the judge said I must have been mistaken in my recollection due to the passage of time. These are not the things one forgets.'" More (UK Independent 04.15.2002).

Federal courts' "failsafe" plan. "And even if the Senate and the President were eliminated along with the Court [by a terrorist attack], there is little doubt as to how the Justices could be replaced...." Would their law clerks automatically succeed them? No.... More (SF Chronicle. 04.14.2002)

Have some judges used threats in order "to scare off potential election opponents"? It is widely believed in many jurisdictions that the organized bar "shuns" those attorneys who have the courage and/or foolishness to run against a sitting judge. But now in one jurisdiction two courageous and/or foolish attorneys have complained to the Judicial Qualifications Commission that some judges in fact have used threats to scare off potential opponents. "It is widely perceived in the legal community that [there is] an unwritten rule forbidding challenges to incumbent judges and the rule has been embraced by the judiciary. Lawyers have complained that when they considered running against a judge, they were threatened, although it's not clear if the threats came from judges, emissaries or lawyers acting on their own...." More (Sun-Sentinel 03.20.2002)

Iowa judicial branch online. The Iowa judicial system has one of the better online court sites (click here), far better than that of its supposedly superior neighbor to the north, Minnesota (click here). The difference between the two? Iowa's is designed to provide information, not just "Lite" p.r. designed to make the court look good to the voters and the legislature. For example, visitors to the Iowa site can gain access to the state's court information system, ICIS. Moreover, Iowa's site is not narcissistically "supreme-court-centric," as Minnesota's tends to be. Iowa's site represents at least a serious attempt to provide citizens with the information they need and deserve. Yesterday's New York Times contained a critique, in the wake of the Enron scandal, of annual reports issued by corporations to shareholders and potential shareholders. The story made the point that "while companies flaunt their new openness...it is not clear that this year's disclosure is much better than the last." Last December 17 an editorialist in the New York Daily News stated, "Sunshine and transparency are the rule in the city and state's executive and legislative branches. But the third branch remains secretive and unaccountable. Insulated from public scrutiny, unanswerable in the face of misconduct, the judiciary is a black hole behind black robes. Brandeis' cleansing light has never penetrated the dim reaches of state Supreme Court...." (More) The editorial, while focusing on the New York state courts, made some of the same recommendations I've advocated other courts, including ours in Minnesota, adopt. The editors note that the NYC Mayor for decades has produced "the semiannual, encyclopedic Mayor's Management Report." The key word about the semi-annual report is that it is "encyclopedic," allowing taxpayers to examine detailed data and independently evaluate how the government is doing. The editors propose, as I have done, that this detailed data should be easily accessible to the public "in print and via a court Web site." And they propose the report include hard-to-find data, including detailed information about individual judges. My proposals and suggestions may be found here, here, and here, as well as elsewhere on this site. (03.18.2002)

Justice, Italian style. "While the U.S. Supreme Court enjoys a reputation of world class jurisprudence -- not always merited -- Italy's labours under a weight of mockery....Most notorious [of its decisions] was a February 1999 decision to clear a 45-year-old driving instructor convicted of raping an 18-year-old pupil after taking her into the countryside. The reason? She had been wearing tight jeans and her consent would have been needed to remove them. Jeans 'cannot be even partly removed without the help of the person wearing them, which is impossible if the alleged victim is struggling with all her might,' said the court." It's, as Charlie Boone might say, "a point of law." More (Guardian 03.13.2002).

7-day cruise with the chief -- as low as $1,468! In Minnesota the chief justice, in addition to taking the entire court "on the road" to state high school twice a year, conducts what the court's web site refers to as "the Chief Justice’s [annual] 'Court Innovations Tour.'" More. I love the use of the word "tour," with all it connotes, in this context. :-) Be that as it may, it now appears that Roy Moore, the imaginative chief justice in Alabama, who managed to ride the "10 Commandments movement" to electoral victory, will be taking a different sort of tour: he is the featured attraction of a seven-day cruise of "Alaska's spectacular inland passage" late this summer, not on Noah's Ark but aboard Holland America's "luxurious" Volendam. The cruise will be a religious-oriented one, sponsored by televangelist D. James Kennedy's Coral Ridge Ministries. Kennedy, who has raised money for the chief before, is currently seeking to raise $200,000 to help pay the chief's legal bills in connection with lawsuits filed against him in federal court following his unilateral placement in Alabama's judicial center of a self-commissioned 5,280-pound granite monument to the 10 Commandments. More & more. The chief will lecture on "America's Christian heritage." The cruise also will feature music and other entertainment, including a comedian who has prepared a video on "moral lessons from 'The Andy Griffith Show.'" Perhaps copies of Coral Ridge Ministries' $19 video documenting the making and installation of the monument will be on sale. More. Whereas our chief justice's annual tour is not deemed "personal" and presumably is therefore appropriately funded by the state, and whereas our chief justice and any judge accompanying her therefore need not use personal vacation days while on tour, Alabama's chief, also appropriately, will not bill the state for his cruise and will use personal vacation days. I suppose I'm cynical but I can't help being curious whether he will pay anything to Coral Ridge Ministries for his fare on the cruise (and that of his spouse, if any, if she accompanies him). If not, must he report the market value of the fare(s) (which range from $1,468 to $4,098) to the IRS? I don't know the answer. In this article in the Gadsden Times, Executive Director Barry Lynn of Americans United for Separation of Church and State, is quoted as saying, "I can't believe the people of Alabama want their chief justice to be first mate on a TV preacher's love boat. This ship is sinking in an ethical swamp, and Judge Moore and Rev. Kennedy ought to hit the lifeboats." If you are interested in booking passage or in listening to Kennedy's latest sermon in support of Moore, visit Coral Ridge Ministries' web site. (If you want to read the details of Kennedy's ongoing public support of Moore, do a search of "Moore" using the site's internal search tool.) (02.13.2002). Update: Moore's concurring opinion in 9-0 custody case reads like political stump speech (Legal Times/ Law.com 02.23.2002); Moore's opinion applauded, condemned (Times-Daily 02.23.2002); Latest on suit against Moore (Times-Daily 03.01.2002).

Tough guy as judge. "Last week, [Judge Elvin] Martinez's treatment of a 13-year-old girl in his courtroom raised new questions about his manner. The girl's mother told the judge she had skipped school and stolen her car. Martinez told the girl he didn't like her and that she belonged on the Jerry Springer Show. Displeased with her facial expressions, he had her put in handcuffs and held her in contempt of court...." More (St. Petersburg Times). Apparently, if e-mail response to this latest episode is any guide, more people approve of the judge's ways than disapprove. Personally, I've never admired this "style of judging," if you can call it that. I like what Prof. Steve Lubet of Northwestern University Law School said about a federal judge down in Galveston, Texas named Samuel Kent who has received favorable publicity for obnoxious behavior toward attorneys appearing in his courtroom: "There is a name for that sort of behavior, and it isn't adjudication. It's bullying. It smacks of nothing so much as the biggest kid on the playground picking on the smaller kids who are too browbeaten to fight back." More (Jewish World Review). I don't think "bully behavior" by anyone, including the judge, has any place in or out of court. But when practiced by a judge in court, I believe it constitutes an abuse of power. (02.13.2002)

Does ADR need reining in? Last fall the San Francisco Chronicle published a series of articles on so-called "private justice," which I noted then. The articles still merit attention, particularly the one published on 10.09.2001: Judges' action cast shadow on court's integrity -- Lure of high-paying jobs as arbitrators may compromise impartiality. That article addresses a number of concerns. For example, it asks whether there is a serious risk that sitting judges, thinking about what to do after leaving the bench (perhaps because of mandatory retirement), are conducting themselves on the bench in such a way as to make themselves more attractive to arbitration firms on leaving the bench. A consultant who works with sitting judges planning on becoming arbitrators admits she gives them a list of "10 ways to impress a potential employer." She "tell[s] them to settle cases, develop an expertise, get on panels, do a lot of speaking, develop synopses of their cases, that sort of thing." A judge who wants to become an arbitrator may "beg off the criminal bench, where the number of cases is rising, and request assignments in civil court, where caseloads are down, so [he] can hone [his] settlement skills." Now it appears that both the State Judicial Council and the California Assembly's judiciary committee are getting into the act, with the one proposing strict new ethical rules for arbitrators and the other considering legislation to remedy the abuses. Click here and here (San Francisco Chronicle). (02.14.2002) Update: State adopts tough ethical standards for arbitrators - Conflict-of-interest disclosure rules called 'important turning point' (San Francisco Chronicle 04.20.2002).

Romancin' wit de judge. The 01.15.2002 episode of Philly Law, titled "Ripley, Believe It or Not," ended with the lead character, Kathleen Maguire (Kim Delaney), a divorced mom and criminal defense attorney whose "ex" is the D.A., doing what TV tells us most criminal defense attorneys do at the end o' the day, having a romantic dinner date with a judge, in this case Judge Ripley (Jamie Denton). In the next episode, aired 02.05.2002, first part of a two-parter titled "Meet Me in Philly," Judge Ripley denies a motion by a man convicted of rape for a new trial based on newly-discovered evidence, a motion argued by the judge's new lover, Ms. Maguire. Afterward, Judge Ripley and Ms. Maguire discuss the case ex parte in chambers and the judge tells her what sort of evidence it'll take for him to change his mind and grant her client a new trial. Is this the way the system works? Yes and no. Recently the MI Supreme Court reviewed a proposed one-year suspension without pay of a trial judge, Susan Chrzanowski, who had an affair with a lawyer, Michael Fletcher, who subsequently was convicted of murdering his pregnant wife. The Judicial Tenure Commission based its findings and recommendation on evidence that Judge Chrzanowski improperly assigned cases to her lover-boy, didn't disclose the relationship to opposing counsel, and lied to police when they questioned her in their investigation of the murder. The Supreme Court ruled that the judge's conduct was "unbecoming" but reduced the suspension without pay from a year to six months, reasoning that the judge's 17-month suspension with pay ($134,366 a year) while the disciplinary proceeding was ongoing had had a "chastening effect" on her. (I wouldn't mind being "chastened" to the tune of $134,366 a year.) According to a report in the Detroit Free Press, the Chief Judge of the district in which Judge Chrzanowski serves has said that when she returns to the bench after her suspension, he "plans to advise her not to repeat the behavior that got her suspended." That is always good advice to give to a judge returning to the bench after a suspension. One other matter: at the conclusion of its opinion, the Supreme Court stated, "We emphasize, moreover, that [Judge Chrzanowski] is being disciplined only for her improper appointments of counsel, her failure to disclose those appointments, and for her false statements to the interviewing officers." In other words, she is not being disciplined for having had a romantic relationship with Mr. Fletcher. In this Valentine season, when we celebrate "luv," that bit of emphatic reassurance by the Court ought to restore hope to all judges and lawyers -- nay, to all of us -- that "luv" still is not only possible, it's permissible. (02.06.2002)

Pope Antonin I? As I've noted elsewhere, last week in a speech at the Vatican His Holiness, Pope John Paul II, warned Catholic judges and lawyers against participating in divorce cases because to do so "enables evil." This week, at an appearance at Georgetown University, His Holiness -- er, I mean His Honor, Associate Justice Antonin Scalia, who professes that our Constitution is a "dead Constitution," not a "living Constitution" (more), issued his latest edict, to wit, that any Catholic jurist with concerns about the morality of the death penalty must resign. More (CBSNews). If you're interested in the position on the death penalty that Pope Antonin decries as erroneous Church teaching, a position that I, a Norwegian Lutheran, support, click here. If you want to read my views on the death penalty, click here. If you want my views on Justice Scalia, well, I'll give you a few: a) it's my opinion that he has an overly rigid, one might almost say "dead," mind; b) as he said in A. Scalia, "The Rule of Law as the Law of Rules," 56 U. Chi. L. Rev. 1175 (1989), and as he has made transparent in his opinions, he is a believer that the "Rule of Law" basically ought to be a "Law of Rules," rigid, often harsh, ones, clear to him but not so clear to the rest of us; c) the way he dominates oral argument reminds me of the guy who thinks the way to win the attention of the women is to spew out witticisms a la Oscar Wilde; d) unlike most of his colleagues, he appears to write his own opinions and, indeed, he occasionally turns a good phrase; e) unlike Pope Paul II, he has sired a large number of kids. More generally, let me say simply that when I think of Justice Scalia, as when I think generally of the law and lawyers and judges, even of myself, I sometimes -- only "sometimes," folks -- find myself thinking of what Mr. Bumble said in Charles Dickens' Oliver Twist -- that sometimes "the law is a ass - a idiot." (02.05.2002)

A prayer -- for hard-hearted judges & lawyers & people -- for "the Scalia" in each of us. A common prayer I remember from my youth, based upon Ezekial: "Lord, take away my heart of stone and make it a heart like yours, a heart of flesh. Amen."

Judicial discipline, Sharia-style. Awhile ago I wrote about the northern Nigerian state of Sokoto, which adopted "Islamic Sharia law," pursuant to which a divorced woman has been sentenced to death by stoning for adultery, while "the man" has been allowed to walk free despite having confessed. More. Comes news that not all men, not even judges, get off easy for violations of Sharia law. The Honorable Alhaji Mohammed Na'ila, the Sharia court judge of Birnin Magaji, was convicted last week of "taking beer" in a beer parlour, which is contrary to Sharia law, and was sentenced to "80 strokes of the cane at the market premises." More (AllAfrica, 01.21.2002). The judge, who was "drunk" when arrested by "Sharia enforcers" and turned over to the police, has been suspended from his position as judge and is expected to be dismissed. Here in "the States" if a judge or lawyer gets in trouble, he sometimes get a second chance by "admitting" he has a drinking problem and checking into a chemical dependency treatment program. More. Apparently if the "Sharia law" movement ever spreads to our shores, that little gambit won't work. :-) (01.21.2002)

Court is in session, at a stadium near you? Courts are as much influenced by fads and fashions as people. In recent years, state supreme courts, including our own in Minnesota, increasingly have been "taking the show on the road" or, as some judges have put it, engaging in "community outreach." (Or, as a Norwegian farmer might put it, engaging in "ed-you-cay-shun.") For more of my views on this fad, click here. In Philadelphia, a former cop named Seamus McCaffery, who is now a publicity-seeking, Harley-riding, gun-toting highly-popular judge, adapted this idea to the trial bench in 1998, taking his show on the road to Veterans Stadium in Philadelphia, where, during Eagles' football games, he provides summary, on-the-spot justice, Philadelphia-style, to hooligan fans arrested for "public urination, intoxication, throwing beer on people, that sort of thing." More (UK Guardian Observer, 01.20.2002). Veterans' Stadium, you may remember, has also been in the news of late in connection with an invasion-of-privacy lawsuit filed by Eagles' cheerleaders alleging that players from visiting NFL teams had used a peephole in the visiting team's locker room to spy on the cheerleaders as they undressed and showered in the cheerleaders' locker room. See, "Our voyeuristic society," infra. I'm thinking, what better venue for the trial of that lawsuit -- presuming it is not settled -- than Veterans Stadium, with "the People's Judge" presiding? The court system could charge admission and use the profits to fund a salary increase for underpaid judges. Perhaps the court system could also sell broadcast rights to ESPN and Court-TV. Moreover, I see no reason why the oral arguments in any appeal in the case to the appellate courts couldn't also be held in the stadium and broadcast over cable TV. Don't like the idea? What's wrong, are you against change? Get with the program. (01.20.2002)

Our voyeuristic society. Late last summer some cheerleaders for the Philadelphia Eagles filed a lawsuit alleging that players from visiting NFL teams had used a peephole in the visiting team's locker room to spy on the cheerleaders as they undressed and showered in the cheerleaders' locker room. More (Philly Inquirer). Now we learn a) that more cheerleaders have joined the suit and that more defendant teams (all but the Eagles and the Jacksonville Jaguars) have been added as defendants, and b) that one cheerleader has come forward and sworn that the peephole was known to cheerleaders and that the peeping went both ways. More (Phillyburbs). For an earlier "secular sermon" in which I put this lawsuit in perspective, click here. (01.10.2002).

Dear Diary. "I worked until almost 11 p.m. last night writing my two opinions from the morning and finishing up three others, and then I spent some time on my speech on civil liberties and national security for tomorrow (but I'll ad-lib some of it), and only then did I complete this 'Diary' entry, racing against the clock and breaking for the treadmill at 11:30 p.m...." From an entry in Judge Richard Posner's Diary for 01.15.2002 in Slate. Judge Posner sometimes reminds me of the kid in the school 3rd grade reading competition who comes to school on Monday and claims to have logged in 75 hours of reading over the weekend. But who can quarrel with the volume (if not the quality) of his output? In case you missed the recent less-than-flattering profile of him in The New Yorker, titled "Bench Burner," here's a link to the text ("'I don't know if this is true of everybody,' Posner says, 'but I loved my parents when I was growing up and they were really the sort of parents you should be grateful to-my mother gave me great cultural enrichment, and my father helped me buy our first house, so they were ideal parents. But my thoughts about them are dominated by their old age. I don't make allowances: when I think about them, there's no affection.'"). BTW, Posner likes cats but doesn't like dogs; Mathilda doesn't like Posner. Click here for his list of publications, presentations and works in progress. (01.15.2002)

Alex Kozinski's rhetorical question. "Let's say the government decides to use your house as a warehouse for three years. You are locked out and the government has the run of the property for that period. Is there any doubt that you have suffered a taking for which you should be compensated? Of course not. Why should the case be any different if the government simply prohibits you from using your house for three years, but never gets around to using it as a warehouse?" That's the rhetorical question Judge Kozinski, of the 9th Circuit U.S. Court of Appeals, posed in dissent in a "takings case" that has finally reached the U.S. Supreme Court. Tahoe Sierra Preservation Council vs. Tahoe Regional Planning Agency. Interestingly, the case shows it's not always the "liberals" who stand up for the proverbial "little guy." The "liberal view" in this case is that it's just too bad for them that some poor folks bought land around Lake Tahoe but instead of being able to use it for retirement have been stuck with twenty years' worth of "litigation, frustration and taxes." The "conservative view" is that these retirees bought the land and the right to use it and that subsequent passage and enforcement of laws depriving them of the right to use it constituted a "taking" requiring compensation from Big Brother. More (LA Times). (01.07.2002)

Judges behaving badly. Three items: a) First, here's a link to the latest on that judge who was caught behaving badly at a taxpayer-paid judicial conference at an exclusive Florida resort and falsely claimed she'd been sexually assaulted. Link to earlier, more-detailed item. Compare, college student who wants to become an attorney (and maybe a judge?) has been sentenced to probation for filing false claim of rape. More (Des Moines Register via Overlawyered). b) Meanwhile, a New York town judge who is not a lawyer has been censured for statements he made in open court on the same day in two different cases. In one, the judge was presiding at the arraignment of a father charged with misconduct relating to his daughter. The judge, in denying an order for protection, said if he were the girl's father he'd have "slapped her around" too. In another arraignment, of a truck driver accused of DWI, the judge had discretion to suspend the driver's license pending trial. Refusing, he said, "I can't do that to a fellow truck driver." More (PostStar). c) In Orange County (the county, not the film), a judge who is on paid leave confined to his home on pre-trial release pending trial on federal child pornography charges, was charged yesterday in state court with molesting a 12-year-old boy nearly 25 years ago. The judge is an unopposed candidate for re-election in an election scheduled for March. Eight people have announced they are write-in ("sticker") candidates. More (LATimes). (01.12.2002)

Court clerks behaving badly. This one could be called getting one's hands dirty while getting one's clothes cleaned. The chief clerk of court for the district court in New Haven, CT, home of Yale University, allowed a dry cleaning company to use the clerk's office as a pick-up and drop-off station. In return, he received $2,000 in personal dry cleaning service, gratis. The clerk, who has reimbursed the dry cleaning company, also has agreed with the State Ethics Commission to pay a $2,000 fine and he faces other discipline from his judicial bosses ranging from a reprimand (slap on the hand) to termination (kick in the butt). More (New Haven Register). (01.11.2002)

Don't be fooled by judge's rhymes. In November of 2001 Pennsylvania voters elected a new judge to the state supreme court, J. Michael Eakin, a Republican superior court judge who became known as "the rhyming judge" for several decisions that he wrote in rhyming verse form. Eakin was sworn in yesterday, 01.04.2002, giving Republicans "a 4-3 majority" on the court. At least, that is how it was reported in today's Pittsburgh Post-Gazette. More. It's always amused me that the occasional judge who puts his decision in rhyming verse form typically gets favorable publicity. I guess it goes to show a) how hard up newspapers are for amusing material and b) how easy it is to pass off crap as "poetry" simply by putting words in rhyming verse form. In The difference between poetry and verse, Carl Estabrook writes that verse is made up of "word schemes." These word schemes "can be used for literal, non-poetic material -- you can rhyme your shopping list or...read Burma-Shave signs written in patterns along the roadside." Poetry can be in verse form but need not be; on the other hand, "most verse is not poetry." Robert Frost wrote famously that poetry creates, among other things, "a momentary stay against confusion." Justice Holmes, who was a real poet but who never stooped to putting his decisions in verse form, saw that a judge's role was poetic when he said, in his great Path of the Law address, that what a judge should hope his work does is "set some corner of his world in the order of reason." At his swearing-in on Friday, Justice Eakin said, I think correctly, "The purpose of the judicial system is not to serve the judicial system." He added, "The purpose of the judicial system is to serve the people of Pennsylvania." That, I think Holmes would say, is not quite right. The renowned Judge Learned Hand reputedly once said to Justice Holmes one day as he was taking leave of him, "Well. sir, do justice." There are scores of different versions of Holmes' response. Typically he is quoted as responding by saying, "That's not my job. My job is to play the game according to the rules" or "My job is to apply the law." Sometimes, Justice Eakin, your job will involve deciding cases in ways that, superficially at least, do not necessarily serve the people of Pennsylvania or their interests. (01.05.2002)

"Growing number of judges in trouble." That's the headline of a story in today's Clarion-Ledger about the "growing number" of MS judges who are "finding themselves on the wrong side of the bench -- either charged with crimes or being reprimanded for improper conduct." According to the story, last year alone, "one judge was charged with aggravated assault, one was removed from the bench, three were investigated for embezzlement...at least four judges were reprimanded...[t]wo more...face the possibility of reprimands and one faces a possible 30-day suspension from the bench." The year ended not with a whimper but with a bang as a 49-year-old male trial judge was charged on Friday, 12.28.2001, with beating his former court reporter, a 47-year-old woman. Another judge was indicted in December for multiple counts of embezzlement following an investigation into his expense account reimbursement requests. Two others repaid money received as a result of false expense reimbursement requests and agreed to resign to avoid prosecution for embezzlement. Another was removed for "misconduct." The question I have after reading the story is this: are more MS judges "behaving badly" or is the MS Commission on Judicial Performance, despite being underfunded, just doing a better job investigating and uncovering judicial crimes and peccadillos? I merely ask the question. :-) (01.03.2002) More, more and more.... Update: MS judges are engaged in war of words with the Chief Justice over proposed changes in Code of Judicial Conduct (Clarion-Ledger, 01.11.2002); Lower-court judge alleges chief justice broke ethics code in going public with a pending matter (Greenwood Commonwealth, 01.13.2002).

Bench burner. "'I don't know if this is true of everybody,' Posner says, 'but I loved my parents when I was growing up and they were really the sort of parents you should be grateful to-my mother gave me great cultural enrichment, and my father helped me buy our first house, so they were ideal parents. But my thoughts about them are dominated by their old age. I don't make allowances: when I think about them, there's no affection.'" Judge Richard Posner. As the quote suggests, he's not exactly a warm and cuddly guy. In fact, he admits he likes cats but dislikes dogs. ("That oughtta tell you something about him!" says Mathilda.) In case you missed the recent profile of him in The New Yorker, titled "Bench Burner," here's a link to the text. Click here for his list of publications, presentations and works in progress. (12.21.2001)

"Compulsory chapel for Minnesota lawyers?" That's the headline Walter Olson of Overlawyered.Com gives to his summary of an opinion piece by Katherine Kersten in the Star-Tribune on 12.12.2001 that is getting national play. Click here. The opinion piece is a much-needed critique of the Minnesota Supreme Court's order requiring state attorneys, yours truly included, to attend approved seminars on "elimination of bias" in the legal system as partial fulfillment of the requirement of obtaining 45 "credits" from mandatory continuing legal education courses every three years in order to remain licensed as lawyers. When I get around to it, I am going to post a broader critique of mandatory continuing legal education requirements and courses in Minnesota and around the country. (12.19.2001)

More "Court Gazing"? Click here, here, here, and here.

See, also, LawAndJudicialEconomics.

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Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.