More on “relatedness,” Judge Scheindlin and the Second Circuit

I received an e-mail from Katherine A. Macfarlane, Teaching Fellow and Assistant Professor of Professional Practice, LSU Paul M. Hebert Law Center. She has kindly allowed me to reprint it and I do so below. But first, Katherine’s work shows that academic research can materially assist the rest of us. I hope she continues her great work.

The e-mail reads as follow, and note, please, the text that I have highlighted in red:

Dear Judge Kopf,

In light of your recent blog post, I thought you might be interested in my attached article, posted on SSRN in August, and accepted for publication in the Michigan Journal of Race & Law in September. It’s about the SDNY’s related cases rule and its role in stop-and-frisk litigation. Curiously, three of the non-legal sources I cited to–an article by Jeffrey Toobin in the New Yorker, an article by Joe Goldstein in the New York Times, and an article by Mark Hamblett in the New York Law Journal–were also cited by the Second Circuit in its recent order kicking Judge Scheindlin off the stop-and-frisk cases. The “appearance of impartiality” idea also pops up in my article. This is either an incredible coincidence, or else, a clerk read my SSRN post. Either way, I hope you find my article of interest.

The Second Circuit’s decision to reassign the cases makes no sense to me, as Judge Scheindlin merely followed the local rules. As to whether the local rules invite manipulation of the case assignment process is an entirely different question that my article attempts to tackle.

Best regards,

Katherine A. Macfarlane
Teaching Fellow and Assistant Professor of Professional Practice
LSU Paul M. Hebert Law Center

RGK

11 responses

  1. This is interesting to read because it confirms what I say about decision-making by courts in certain instances. Judges and their staffs do read public works on matters pending before them and sometimes their decisions are in part a response to those published items. Usually the court does not overtly state it is so acting, but here there clearly seems to be some external source or motive for the recusal decision.

    It is extremely odd and somewhat out of the blue that the Circuit panel would stay further proceedings pending the appeal and also disqualify the judge who is stayed from acting by the order. It is more than unnecessary for them to have done so because any standard for judicial decision-making makes clear that courts should not decide matters not before them and that have no legal consequence if decided. Maybe they just wanted the judge to stop commenting to the media during the appeal, but her disqualification now allows her to comment without much restriction at all. To disqualify her without requesting briefing or argument on the issue is even more mystifying. It would be nice if you provided a link to the professor’s work somewhere in the post.

    I also think an interesting related topic is whether a trial judge subject to a recusal request should in some way have some right to be heard since their reputational interest is at stake in the decision and an order stating the judge is biased or acted unethically is detrimental to their public perception.

  2. Prof. Macfarlane’s article is well worth the read, but it definitely adopts a position, rather than presenting the pros and cons of the related case rule. Is there similar scholarship on the other side of things, discussing the benefits to judicial economy and fair administration of justice from the grouping of related cases under a single judge? (Judge Kopf gave us an a few paragraphs, but they don’t really compare to Macfarlane’s 47 pages.)

    In any case, Macfarlane’s recommendation for transparency seems like something everyone should be able to agree upon. Perhaps the 2nd Circuit’s Circuit Executive could be prevailed upon to collect some statistics on how often related case transfers indeed happen within the Circuit for her annual report.

    (Hrmm; the annual report of the Second Circuit seems to be somewhat more statistical and less narrative or analytical than I had expected, given what we see in my home circuit, the First Circuit. I wonder if maybe there is a section missing from what is posted on the Circuit’s web page? Also, the most recently available is the 2009 report, dated Feb. of 2011.)

  3. Rich, I haven’t read her article yet, but I feel her pain. I believe that it has been shown that courts (at least the U.S. Supreme) cite law review scholarship a lot less than it used to. Many draw from this the conclusion that a lot of law review scholarship is worthless to courts, and there is some truth to this. A lot of what appears in the flagship journals of fancy schools is either love letters from one academic to another, symposium articles where the faculties of other fancy schools invite each other, or badly over-written student notes.

    When I was coming up for tenure, I cared a lot about the “prestige” of the journal in which I was publishing. Probably the “highest ranked” law review in which I ever published was the Texas Law Review, but you could make a case for Northwestern, Wisconsin or a couple of others. Now, to be honest, I don’t care. I’m well enough known in my field that either people are going to read what I write or they won’t, because they know me. So either I write an article for a symposium and it gets published in the journal designated in the symposium, or I get annoyed (usually at a Supreme Court decision) and I write something and publish it in the Creighton Law Review. It doesn’t matter — it’s all searchable now.

    But here’s my point. Most legal academics in their heart of hearts, in that tiny little place they won’t let anybody go, would trade in 20 citations by other academics for one citation by a court. So if courts want to encourage scholarship that they find useful, they should cite it — even if they disagree with it. I got cited by both the majority and the dissent in a New Jersey Supreme Court case a couple of years ago and it was nice to know that someone actually read what I had to say and took it seriously.

    If — as seems obvious — the court lifted her research without attribution, then shame on that court. First, that court did nothing to encourage future research. Second, it could have given a career boost to an academic doing work that helped the court.

    One of my moments of greatest professional annoyance was when the Supreme Court granted cert in M.V. Sky Reefer a few years back. It dealt with a funny issue about whether a provision in the Carriage of Goods at Sea Act voided choice-of-court clauses for certain maritime contracts (just the sort of stuff that keeps people up at night, I know). Anyway, as it turned out, I had written a few pages on this issue in an article in the Washington Law Review in the 1990′s. There was a circuit split. The First Circuit found my article, agreed with my analysis and came down on the “no it doesn’t” side of the split. They generously cited me a couple of times, including in the first paragraph of the opinion.

    Then the Supreme Court granted cert. Finally I’m going to get cited by the Supreme Court! Then my old boss AMK writes the opinion and affirms the First Circuit! So now I’m SURE to get cited! Nope. It’s better for both of us that I wasn’t where I could get my hands around his neck. Best, Pat.

    • Pat,

      I am very glad you wrote this comment.

      *Too often federal judges like me sneer at academics because in our heart-of-hearts we know we aren’t up to the task taken on by scholars.

      *Secondly, the failure to attribute an idea to a work of scholarship is just plain dishonest. I am pretty sure I have done such a thing and shame on me for doing so.

      *Third, young scholars like orchids need to be nurtured particularly if we in the business want their help. I think of my own son struggling to get published and the horror show that is “peer review” in the world of science.

      *Fourth, the Second Circuit’s failure to cite Katherine’s work, when it now appears plainly that the intellectual foundation for their removal decision came directly from her article, is especially galling given the Ivy league pedigrees that abound in New York and the smug and nasty snobbishness that sometimes flows therefrom. Apparently, it violates no ethical code to steal from a young woman who teaches law in the swamps–its LSU, after all. Shit! The more I think about that, the angrier I get.

      Again, thanks for writing. Your perspective is really important. All the best.

      RGK

  4. From the MacFarlane article: “The article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency.”

    The same seems to go for federal appellate courts. I mean, what do you think the odds were that Alex Kozinski got Hart v. Massanari by random selection? About the same as you rolling an eleven on a craps table in one roll. The more probable scenario was that Kozinski GOT it assigned to him, because he wanted to refute Judge Arnold. Given that he had already expressed his opinion in the matter via articles, he basically made the case his own.

    Some Districts have rules assigning pro se cases to the same judge. That has always raised my eyebrows, too.

    I only know the system isn’t honest. I don’t know how corrupt it is, but from the war stories I hear, I fear that it is more corrupt than even I imagine.

    • Ken, having clerked on the Ninth Circuit, I can say that if there was non-randomness to the assignment of cases it was hidden from the clerks. Kozinski didn’t need to get Hart assigned to him. Lawyers cited unpublished opinions all the time. Most judges just yawned and let it go. He just waited for one (and I bet he didn’t have to wait long) and with this opinion already drafted. I personally find the rules about not citing “unpublished” decisions frustrating. When we drafted opinions that we didn’t intend to appear in the Federal Reports, they were written more like a letter to the parties. They didn’t contain any statement of the facts in any detail. They just explained to the losing party (usually the appellant) that you lost, and it’s because your argument was foreclosed by some binding precedent. Now the “unpublished” opinions appear in Fed App’x and many of them read just like published opinions, but it’s just that their authors didn’t want them to be subject to en banc review. I personally think that Kozinski’s opinion is over-wrought. It’s OK to cite a random law review article, a trial court opinion from a New York State court, a dissenting opinion from the European Court of Justice — but God forbid that anyone call to our attention a decision of our own court, because we’ve told you already we don’t care. If you don’t care, then don’t look at it. Anyway, I think we basically agree, except that I don’t think Kozinski needed to manipulate the assignment to get the case. Best, Pat.

      • Many of them are also flat-out stunners. The courts use the graveyard of unpublished opinions to bury toxic decisions, at indisputable variance with the “official” law of the Circuit. This is why I have such a problem with the regime of discretionary cert: I cannot walk into a library, find a case in the US Reports, and then saunter down to a local courthouse and get a judge to issue an order consistent with it, because I could be (and, have been) a victim of one of those toxic decisions. “Liberty,” intoned Sandra Dee, finds no refuge in a jurisprudence of doubt.” PPvCasey.

        I’ve actually cited Meat Loaf: “Two out of three ain’t bad.” And Kansas: “What we permit, we allow.” I’ve channeled Shylock and Winston Smith, and read an Aesop’s fable. My fave, as it relates to this discussion, is a cartoon involving Lucy and Charlie Brown. [Judge] Lucy gives Charlie Brown [a litigant] a contract [the Constitution]. Charlie says, “I guess if you have a signed contract….” And you know the rest.

        Our judicial overlords pull that football away from us every damn time, to the point where the Bill of Rights is more accurately described as the Bill of Polite Suggestions. Without the discipline of mandatory cert, we have no rights. That was Justice Wilson’s sentiment, which I find incorrigible.

  5. Judge, I’m not sure why you (and Ms. Macfarlane) have assumed that the panel or their clerks read the working paper and chose not to cite it. Her support for that claim is 1) the panel’s concern about Judge Scheindlin’s partiality and 2) their citation to three extremely high-profile interviews Judge Scheindlin conducted. Respectfully, that’s pretty thin gruel. In New York legal circles (especially around Foley Square), Ms. Macfarlane hardly has a monopoly on the idea that Judge Scheindlin’s abuse of the related-case protocol and her interviews raised serious partiality concerns. The press pieces she cites were widely read and discussed at the time of their publication, especially the NYT piece about how Judge Scheindlin leveraged Daniels to get not only Floyd but also Davis and Ligon.

    To be clear, I have no inside knowledge, and it is possible she is correct that a clerk read her paper and later decided to appropriate its thesis without attribution. If so, that is unfortunate and dishonest. But it’s worth pointing out that the thesis in question is, to paraphrase the old proverb, a child of many fathers.

  6. Your Honor, I’m not sure why you (and Ms. Macfarlane) have assumed that the panel or their clerks read the working paper and chose not to cite it. Her support for that claim is 1) the panel’s concern about Judge Scheindlin’s partiality and 2) their citation to three extremely high-profile interviews Judge Scheindlin conducted. Respectfully, that’s pretty thin gruel. In New York legal circles (especially around Foley Square), Ms. Macfarlane hardly has a monopoly on the idea that Judge Scheindlin’s abuse of the related-case protocol and her interviews raised serious partiality concerns. The press pieces she cites were widely read and discussed at the time of their publication, especially the NYT piece about how Judge Scheindlin leveraged Daniels to get not only Floyd but also Davis and Ligon.

    To be clear, I have no inside knowledge, and it is possible she is correct that a clerk read her paper and later decided to appropriate its thesis without attribution. If so, that is unfortunate and dishonest. But it’s worth pointing out that the thesis in question is, to paraphrase the old proverb, a child of many fathers.

    • Anonymous,

      Although coincidences make me nervous, you have a fair point. I can’t know what the judges (or their clerks) had in their minds when they wrote their very few lines ousting Judge S.

      We do know something else, however. The only public and intellectually coherent analysis of (1) the “relatedness” question in this precise matter and (2) an arguable lack of impartiality in this precise matter is found in Katherine McFarlane’s 45-page article that appeared shortly (2 months) before the Second Circuit issued the surprise ruling on Judge S.

      I know something else, although it is purely a normative matter. At the very least, the Second Circuit owed Judge S. and all the parties to the litigation the same attention to detail and thoughtful analysis that Professor McFarlane devoted to these questions.

      Finally, I am fascinated by your statement that I repeat now:

      In New York legal circles (especially around Foley Square), Ms. Macfarlane hardly has a monopoly on the idea that Judge Scheindlin’s abuse of the related-case protocol and her interviews raised serious partiality concerns.

      Tomorrow, I will have a post replying to “The Elephant in the Second Circuit” and Scott Greenfield’s criticism of me for being credulous and too soft on the Second Circuit. I think your assertion about “common knowledge” may provide an interesting real-world explanation for an otherwise inexplicable ruling.

      Thanks for taking to the time to write. I truly appreciate it. All the best.

      RGK

      • And thank you for taking the time for reply — and for maintaining this excellent blog, which I found only this week and will certainly return to in the days and years ahead.

Follow

Get every new post delivered to your Inbox.

Join 680 other followers

%d bloggers like this: