Professor Collins’ series on Judge Posner give us many insights into the thinking of a great judge. The irony is that Posner doesn’t care about being great. He is bored by the idea.
It is not that Posner lacks for ego. Oh, God(s), no! He has ego aplenty. In fact, his ego is so strong that he “nicht eine Scheiße” about the opinions of others. His thinking, his research, and his writing is what he cares about. If others find it wrong, or even immoral, Posner is perfectly indifferent to their opinions. What he does care about–what drives him–is the quality of his intellectual effort and the joy that he derives from that endeavor.
Yesterday, I did something out of character–I don’t think I have ever done anything quit like it before. I sentenced a guy in his early fifties to time served plus a life of supervised release even though his criminal history was IV, he sold drugs and probably kept a gun under his sofa. He cooperated with the government, but the cooperation, while helpful, was not of the “hero” variety. The government moved for a departure under the Guidelines and the statute. The really good and very fair AUSA recommended a thirty percent reduction from the low-end of 150 or so months under the Guidelines. By doing so, the government essentially freed me from the ten-year statutory minimum sentence.
As a part of, and in conjunction with, granting the departure motion, I varied downward even more than I might otherwise have done ’cause the guy was really sick. In fact, over the last 23 years as a district judge, he is the sickest person I have seen at the time of sentencing. And I have seen a bunch of sick folk.
Sentencing had long been delayed for significant surgeries and other important medical procedures. The defendant suffered from serious heart problems and serious problems with cancer. The fellow had a list of medications as long as your arm. He could barely walk with his cane. Yet the Bureau of Prisons said “no problem,” they could care for him in a humane fashion. Incidentally, I don’t doubt the BOP.
In the end, I just couldn’t see that it made sense to put the guy in prison. I uttered a bunch of mumbo-jumbo at sentencing that I truly meant and I hope makes sense, but it was, nonetheless, a rationalization for my instinct. My gut told me that no one–the public, the defendant, the BOP, or other drug dealers–would be served well or deterred by a prison sentence for this fellow.
Now, here’s the kicker. I have had cancer (Hodgkin’s lymphoma), and I may still have it. In January, I will undergo chest surgery (via VAT) to take out a nodule in my lung. The surgeon will also strip out some lymph nodes adjacent to the lung. The humor, I mean tumor, board thinks we should definitively determine what is going on in order to deal effectively with cancer if there is some still lurking in or around my lung. Because of the anatomy of the human body, thoracic surgery is the only option.
So why do I write about this? I do not write to discuss the merits of my sentencing decision. Rather, I write about this case in pursuit of my “jihad” for transparency. Did my health status impact my sentence? I don’t think so, but the truth is that one can never know for certain about such things.
In the real world, judges have personal issues that they balance all the time against an abstract standard of impartiality. These types of issues are not susceptible to black letter ethics rules or law. Such decisions are made by the judge himself or herself after serious reflection. We do our best and consider these matters with utmost seriousness, but in the end the public and the bar must of necessity rely upon our sense of honor and our knowledge of ourselves. That sounds wishy-washy. It is. But, that’s life and that’s the truth.
The world pretends to ponder the motivation for the Sony hack. In our racist and capitalistic viciousness, we consciously overlook the harm our isolation of North Carolina, I mean Korea, has caused their diminutive leaders.
The hack was a cry for help, a helpful trigger warning if you like. Kim Jong Un, just like his father Kim Jong-il, is “so ronery” it hurts. We must show empathy for survivors of roneryness. I am cancelling court today in solidarity.
Although it may be almost more than you can handle, view the following, and then weep with me in empathy for all those who are so ronery.
Judge Harry Edwards is a distinguished jurist, and he was a distinguished practitioner and then a highly regarded law professor at Michigan. He has long been known for his criticism of law teaching as focusing too much on the obscure and the theoretical to the exclusion of doctrine and practice. See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (October, 1992).
The judge has now written an essay entitled Another Look at Professor Rodell’s Goodbye to Law Reviews, 100 Va. L. Rev. 1483 (2014). He concludes this way:
I am not advocating a return to the narrow-minded, provincial doctrinal scholarship that Professor Rodell singled out for criticism. My hope is that law schools will lead the way in valuing the work of all good scholars, those who write articles focused on professional practice, procedure, doctrine, legislation, and regulation, as well those who focus on theory, philosophy, and empirical studies. The law schools and law reviews should consider seriously Professor Rodell’s view that “law is supposed to be a device to serve society, a civilized way of helping the wheels go round without too much friction.” If the status quo remains, our profession may find itself criticized for merely “diddling while Rome burned.” Professor Rodell’s memorable phrase is as apt today as it was when he wrote it in 1936.
Id. at 1511.*
My focus in this post is on law reviews as opposed to law teaching more broadly. With that said, I am in general agreement with Judge Edwards. Most of the time, most law reviews are not helpful to most judges and most practitioners.
Almost 20 years ago, after a lot hard work and in celebration of the 75th anniversary of the Nebraska Law Review, I studied the impact of the Nebraska Law Review on the Nebraska Supreme Court over a span of 25 years. I found that over that period, the Nebraska Law Review had little apparent impact upon published opinions of the Nebraska Supreme Court whether measured quantitatively or qualitatively. In response to that finding, I made a detailed suggestion about how that law review might become more valuable to judges and practitioners. See Richard G. Kopf, Do Judges Read the Review? A Citation-Counting Study of the Nebraska Law Review and the Nebraska Supreme Court, 1972–1996, 76 Neb. L. Rev. 710, 734-736 (1997). Stripped of the details (which can be found in the article), I suggested the creation of an editorial partnership between student law review editors and judges whereby judges might play a much more significant role in the selection of some fixed percentage of the articles published each year. I continue to think that is a good way to bridge the practicality gap.
*Professor Michael Dorf has written a particularly pointed critique of Judge Edward’s essay. See Michael Dorf, Judge Harry Edwards Is Still Unimpressed With Legal Scholarship, Dorf on Law (December 15, 2014). You should read it.
I am very serious. Some law students who call themselves feminists have gone batshit crazy.
If you care about the ethics and customs of American lawyers who actually practice law or you care about American legal education and intellectual honesty, please read Debra Cassens Weiss, Is teaching rape law too risky? Sensitive law students don’t want to discuss it, law prof says, ABA Journal (December 16, 2014).* After you have finished screaming, crying or vomiting, tell me what you think.**
*Kudos to Ms. Weiss and the ABA Journal.
**For the female trial lawyer, who also happens to be one of the best around these parts, thanks for sending me the link to this article and your wry comments related thereto.
For this and related matters in the context of the state of legal education, see Scott Greenfield’s excellent piece entitled, The Environmental Cleanup of Toxic Academia published today at Simple Justice.