It is good to be Jim

Yesterday, Joan and I flew to Chicago. Today, our nephew Jim will marry Jenna.* As the family says, “It is good to be Jim.”

Jim is a pilot in the Air Force. He went into the Air Force in peculiar way. While attending college thinking he would follow his Dad and Mom into medicine (his father is head of Gastroenterology at UNMC and his mother is an oncology nurse at UNMC who works with patients in clinical trials for breast cancer), Jim decided to take up flying lessons. He got his license and was hooked. After graduating with stellar grades in tough courses (he was National Merit scholar), he applied through a special program to become an Air Force pilot. He was accepted, and his career literally went airborne.

After extraordinarily extensive training, he started off flying about the biggest plane the Air Force flew and he (probably) did that over Afghanistan–he could never say. Here is a photo of the KC-10 Extender he flew:

In addition to refueling other planes, this things carries up to 70 passengers and cargo.

In addition to refueling planes (including other tankers), this thing carries up to 70 passengers and cargo at the same time.

Jim quickly became a “first seater” and moved up the ranks. And then a hard but wonderful assignment followed when he was selected as the executive officer (or something like that) to a commander.

Jim had the opportunity to pick his next assignment (sorta).  He picked one of the smallest planes the Air Force flies. In the business world, that is called a Gulfstream III-IV. The Air Force uses that plane to ferry high-ranking officials all over the world. Here is a photo of a similar plane:

This plane is in official "livery" service.  Some carry no markings.

This photo shows a plane like Jim’s in official “livery” service. Some carry no markings.

After the couple takes their honeymoon, Jim and Jenna will head to the East coast. Jim will be schooled on a souped-up version of his present plane. It is “ultra-long range”–carrying up to 16 people in standard seating configurations, and able to fly up to 12,000 km.  According to Wikipedia, it

is capable of cruising at 51,000 feet (16,000 m). Features include enhanced weather radar, autopilot and head-up display for the pilot. Safety features include Enhanced Vision Systems that allows increased visibility in adverse environments. The aircraft is also equipped with commercial and military communications equipment to provide secure voice and data capability. The U.S. Air Force equips the C-37A with a basic crew of two pilots, one flight engineer, one communications systems operator, and one flight attendant.

After several weeks of training, the couple will head back to Jim’s duty station overseas. It is in a lovely part of the world. Truly, it is “good to be Jim.”

Not Jim's plane.  Biplane in Lincoln, NE airport.  The airport is old. Also, because the runways are very long since the airport trained bomber pilots in WWII, "Looking Glass," (the "doomsday" 747), flies from SAC in Omaha to Lincoln to practice touch and goes. That is awesome to watch from our building downtown.

Not Jim’s plane. Biplane in Lincoln, NE airport. The airport is old. Also, because the runways are very long as bomber pilots were trained there in WWII, “Looking Glass” (the “doomsday” 747) flies from SAC in Omaha to Lincoln to practice “touch and goes.” That is awesome to watch from our building downtown.


*Jenna is smart, independent and never salutes Jim. Among many other things, I like that about her.

Have you had any interesting cases recently?

Because I am a federal judge, people sometimes think my docket is full of “interesting” cases. Not so. My primary diet is a steady stream of meth and other drug cases. A good friend of mine in another district, but in this part of the country, has told me that when he has a drug case, he assigns himself a research project to take to the bench or he will die of terminal boredom.

My friend picks a topic. Let’s say “the history of concrete” and while the jury trial drones on about what some snitch said, the judge fires up Google and learns all there is to know about the history of concrete.  By the way, did you know that the “art of Concrete was lost after the fall of the Roman Empire” but in 1796 “James Parker from England patented a natural hydraulic cement by calcining nodules of impure limestone containing clay, called Parker’s Cement or Roman Cement. ” See Historical Timeline of Concrete, Auburn University (last accessed 4:58 AM, May 30, 2014).

Anyway, over the last several days I have had an “interesting case.” I thought it might be worthwhile to write briefly about it. Why? Well, ’cause is it was “interesting.” Here is kind of a blow-by-blow:

  • I am in the office, fully awake given the steroids I just got from the chemo treatments, when my judicial assistant Kris comes in and places a stack of papers on my desk.  She muttered something about Omaha telling her these needed my “immediate attention.”
  • Judge Gerrard and I take Omaha civil and criminal cases to even out the docket. We don’t take a large number, but we do run up and down I-80 fairly frequently.
  • The “immediate attention” case was filed in Omaha by an experienced, very capable and dedicated lawyer from Legal Aid of Nebraska, Ms. Heaney. Lots of paper including documents in Spanish.
  • Realize that I am not going to have the help of a law clerk because of the coming Memorial Day holiday.
  • The case was brought under the “Hague Convention.” What the . . . .? That is, CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, Oct. 25, 1980, 51 Fed.Reg. 10494, XXXXX-XXX (App.B) (1986), as implemented by the United States in the INTERNATIONAL CHILD ABDUCTION REMEDIES ACT, 42 U.S.C. §§ 11601-11610.
  • These cases are an enormous pain in the ass. They are (1) legally complex; (2) factually complex; and (3) require tired old judges like me to become both “party planner” and sometimes “travel agent.” See, for example, Morton v. Morton, No. 4:96CV3381 (D. Neb. October 30, 1997) (the “court will not probe the merits of the Utah court’s application of the Hague Convention, and therefore both the Utah and the German decisions will stand.” Therefore, “Maria is not entitled to an order returning Stephan to her [in Germany] because principles of ‘full faith and credit’ and ‘res judicata’ require me to honor the decisions of the Utah and German courts. Maria is free, however, to return to the United States and seek a change of custody before the appropriate domestic relations court.”).
  • So, I read the stuff or at least the English stuff.  Mom and Dad are from Mexico and they were once married. Junior was born and raised and lived in Mexico all his life. Mom and Junior travel to the United States and enter legally on valid passports and visas. Mom and Junior stay here. Dad and Mom have some sort of custody arrangement set out in Mexican legal papers.
  • Dad wants Junior to come back to Mexico. That doesn’t happen, so Dad contacts Nebraska Legal Aid and we are off and running.
  • The first thing I need to do is enter an ex parte temporary restraining order (TRO) telling Mom to say around with Junior and to deliver her and Junior’s passports to our Clerk’s office in Omaha. I do that, and then there is the practical problem of getting service.  Late in the afternoon, relay information to Omaha, huge pile of documents frantically copied by fantastically hard-working docket clerk, summons issued with the TRO papers, complaint and related documents. Docket clerk instructed to hand deliver all that crap to the United States Marshals. I search for Mom’s address in the papers and my order informs the Marshals where they might look.
  • Need to set a hearing on the injunction ’cause the TRO will run out in 10 days (or so). Set all day hearing for the Wednesday following Memorial Day,  and begin “planning the party.”
  • Sit down and write out a “who’s on what base” chart.  We have Dad. Dad has a lawyer. We have Junior and Junior doesn’t have counsel. We have Mom, and Mom doesn’t have counsel. Dad wants me to allow him to hire his own interpreter.  I bet Mom will want the same thing. The hearing is scheduled for all day, and I will need an interpreter for the court. That is, I will need an “official interpreter.” Actually, I will need two for the court because of the length of the hearing.
  • It is quite likely that all the parties are indigent.
  • Frantic call to our Chief Judge. May I tap the Federal Practice Fund? Lawyers who practice in federal court must pay dues. The Fund handles those dues pursuant to the direction of the Chief Judge and a Committee of federal practitioners as set out in a Plan. I need a guardian ad litem for Junior (see Federal Rule of Civil Procedure 17(c)(2)), standby counsel for Mom, interpreters for both sides, and two court interpreters. As always, Laurie reacts quickly and gives me the authority I need. Legal analysis required. Ultimately, the Federal Practice Fund is found to be an appropriate mechanism to retain everyone but our staff interpreter.  While we generally cannot use “appropriated funds” to provide interpreting assistance in typical civil cases for use by the court (the parties are supposed to pay), our excellent staff interpreter (holding an LLM from the London School of Economics) and I decide that appropriated funds may be used to allow her to make the required official record in this case because of our government’s treaty obligations and otherwise. That is, the staff interpreter can show up and interpret while being paid her normal salary. Not so sure about how to handle her substitute, but we will work that out later.
  • Now, I have to find a Guardian ad Litem, a standby lawyer and interpreters for the parties. Decide to allow Dad and Mom to hire their own interpreters, but enter order limiting how much the Federal Practice Fund will pay. Also, substitute interpreter for our official interpreter contacted and she agrees to assist even though the precise way in which she will be paid has not been worked out.
  • Call chair of Federal Practice Committee for a suggestion on a Guardian Ad Litem. That leads to the appointment of the very bright Kara J. Ronnau. She accepts the appointment when I call her. Enter order giving Ms. Ronnau instructions that I want her to be familiar with the file and the applicable law in anticipation of the hearing but to take no further action until instructed by me to do so.
  • Call a former INS officer, and excellent lawyer, Raul Guerra. He agrees to accept appointment as standby counsel for Mom under the Fund. Enter order like the one I entered for Kara. I instruct him to get prepared on the law and the file, but to do no more until further instructions provided.
  • Go home for Memorial Day. Hoping to veg. I really want to see that program on the logistics of D-Day.
  • E-mails arrive over the holiday.
  • Mom has hired a lawyer. A good one too. Her name is Ashley M. Trankle.
  • Instruct everyone that I will hold a telephone conference on Tuesday (the day before the hearing). E-mail instructions given for conference. Can’t do it in the morning, given my chemo infusion. Hope they don’t give me Ativan which might make me slightly goofier than normal.
  • Not goofier than normal. Tuesday afternoon conference held. Case settled but nothing yet in writing. Instruct lawyers to file written settlement papers, make arrangements for delivery of passports back to Omaha so Junior and Dad can fly back to Mexico tomorrow with proper documentation (and with the assistance of the helpful Mexican consulate).
  • Settlement papers filed and reviewed. It appears they have been translated. Great! Parties ordered to perform their settlement, case dismissed with prejudice with the court retaining jurisdiction to enforce settlement agreement (in the event the kid didn’t make it back to Mexico or something else happened).
  • Junior and Dad return to Mexico. I suppose Mom and Dad will work out more precise custody arrangements in Mexico while agreeing to keep each other informed about Junior.

You want to know something? I’m too old for “interesting” cases. Give me back my meth cases!


News flash: Harvard and Rochester Professors Discover How to Make Republican Judges More Liberal!

Remember when our President said he wanted “empathy” on the bench? He said: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”  I muttered to myself that I would be happy if he avoided anyone with a fetish about the meaning of the Constitution, the meaning of life or the meaning of meat loaf. (I really hate meat loaf).

In any event, two very smart and thoughtful professors at Harvard and Rochester decided to test whether “empathy” makes a difference.  So, they did a lot of hard work, and good statistical analysis, regarding the voting patterns of federal appellate judge who had children. It turns out, that judges appointed by Republican Presidents are more likely to vote in a liberal direction on feminist issues if that judge had female children. You can access a PDF of the study here. daughters**

In short, here is what the abstract recounts:

In this paper, we ask whether personal relationships can affect the way that judges decide cases. To do so, we leverage the natural experiment of a child’s gender to identify the effect of having daughters on the votes of judges. Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and it is the first paper to show that empathy may indeed be a component in how judges decide cases.*

I am fascinated with this study.  In fact, it might one day be possible through psychological testing to predict voting patterns of judges and thereby use those predictions for judicial selection purposes. When I was Chief Judge, and with the help of a highly trained PhD in management supplied by the Federal Judicial Center, I held a two-day meeting with our judges where I insisted that each judge take the Meyers-Briggs.**  In brief, here is theory behind it:

The purpose of the Myers-Briggs Type Indicator® (MBTI®) personality inventory is to make the theory of psychological types described by C. G. Jung understandable and useful in people’s lives. The essence of the theory is that much seemingly random variation in the behavior is actually quite orderly and consistent, being due to basic differences in the ways individuals prefer to use their perception and judgment.

After serving five years as Chief Judge, I found that the results from the Meyers-Briggs testing were highly predictive of how our judges might vote on internal policy matters.  For example, if I wanted to move toward a more “consistent” policy, laid out in writing (“rules”), I could predict with near certainty who would be with me and who would go the other way–the fascinating thing is that the substance of the “rule” didn’t matter.

So, let’s return to the “daughters” paper.  Do you think it holds water?  I can tell you in advance that I do. If the study holds water, what does it say about how President’s should pick judges? Should we continue to pick judges by using rough proxies (empathy, race, ethnicity, socio-economic background, religion, and the like) for attributes we are seeking when, in the future, there may be far more accurate measures available like personality type?


PS. Special thanks to Matthew Bogin, a practicing lawyer on the East Coast, for tipping me off about the study. I really appreciate it!

*The authors are:

(1) Adam Glynn, Associate Professor, Department of Government and Institute for Quantitative Social Science, Harvard
University, 1737 Cambridge Street, Cambridge, MA 02138 (

(2) Maya Sen, Assistant Professor, Department of Political Science, University of Rochester, Harkness Hall 322,
Rochester, NY 14627 (

**Please don’t tell me that the MBTI is crap. I know all about the academic and professional criticism, and this post is not about that test. (Jung was creepy to begin with.) To be clear, I am sure as hell not suggesting that it be used to pick judges. 


Sleep comes late when it is fall down under

Second infusion of the third cycle today. Given steroids by mouth for 14 days and oral infusion of more steroids today. Supposed to serve as an antidote for allergic reactions to one of the chemo drugs.  Cancer also doesn’t like these steroids. Moreover, they are also prescribed to keep your weight up.  Downside:  it is hard to sleep, and tonight at a little past 3:00 AM I am blogging.  And that reminded me . . .

It is fall in Australia. We received photos of our Australian crew today. I don’t know why but I worry incessantly about our kids and their kids. I guess that is what parents and grandparents are supposed do. Anyway, and, right now, late at night, I feel so far away from them. I ought to go to bed, but I won’t sleep.

A "selfie" of Fletcher, Stacey and Keller

A “selfie” of Fletcher, Stacey and Keller


A boy and his dad

A boy and his dad


Beechworth in

Park in the Australian Alps near Beechworth





Kopf to Judge Rader: Go easy on yourself

By and large, I like lawyers. This may seem strange coming from a judge who was once a lawyer. What else do you expect? Well, the answer to that question is not as obvious as it may seem. Over time, judges can begin to detest lawyers. That is because we see a lot of really bad lawyers who are really bad people.  But most of the lawyers we see are proficient and descent men and women.

Keeping the foregoing mind, I turn to the travails of Federal Circuit Judge Randall Rader. Here is the background of the judge taken from Wikipedia (with notes, marginal notations and headers omitted) and while you are reading look for his Nebraska connections:

Randall Ray Rader (born April 21, 1949) is the Chief Judge of the United States Court of Appeals for the Federal Circuit.

Born in Hastings, Nebraska, Rader received a Bachelor of Arts in English from Brigham Young University in 1974 and a Juris Doctorate from The George Washington University Law School in 1978. Rader served in staff positions on the House of Representatives from 1975 to 1980, first as a legislative assistant to U.S. Rep. Virginia Smith from 1975 to 1978,* then as counsel to U.S. Rep. Philip Crane, and legislative director of the United States House Committee on Ways and Means from 1978 to 1981. He then served as counsel to the United States Senate Committee on the Judiciary from 1980 to 1988. While counsel to the Judiciary Committee, he was Chief Counsel or Minority Chief Counsel for the Subcommittee on the Constitution and the Subcommittee on Patents, Trademarks, and Copyrights.

President Ronald Reagan appointed Rader to the United States Court of Federal Claims in 1988, to succeed Robert M. M. Seto. The United States Senate confirmed the nomination by unanimous consent on August 11, 1988. On June 12, 1990, Rader was nominated by President George H. W. Bush to a seat on the United States Court of Appeals for the Federal Circuit vacated by Jean Galloway Bissell Rader was confirmed by the Senate on August 3, 1990, and received his commission on August 9, 1990.

While on the Federal Circuit, Rader has served as a law professor, having taught patent law and advanced intellectual property courses at the University of Virginia School of Law, Georgetown University Law Center, Washington, DC, the Munich Intellectual Property Law Center, and The George Washington University Law School, Washington, DC. Rader is co-author of a casebook on patent law used at over sixty-five law schools. He has received many awards, including the J. William Fulbright Award for Distinguished Public Service, 2000. As an appellate judge, Rader has also led or participated in over sixty delegations to foreign nations, usually to teach rule of law or intellectual property concepts in developing nations.

Rader became Chief Judge of the Federal Circuit after former Chief Judge Paul Michel retired in 2010. Despite his new administrative duties, he continued to speak at law schools and at international conferences.

Rader announced his resignation as Chief Judge on May 23, 2014, to be effective May 30, 2014. Rader will remain on the court. Sharon Prost will succeed Rader as Chief Judge. His announcement came in the wake of his violation of ethical canons by sending a laudatory e-mail to a Member of the Bar of the Federal Circuit and asking that Member to show that e-mail to other Members of the Bar, creating the perception of an improper relationship between himself and Members of the Bar. Rader recused himself from a couple of cases he had presided over, due to the participation of the attorney in question.

As the foregoing suggests, Judge Rader sent an e-mail to a lawyer after a case had been submitted to the Federal Circuit. According to the Wall Street Journal, the substance of the e-mail and how it was subsequently used went something like this:

The judge sent the email in March to Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP in Silicon Valley. The email, which was reviewed by The Wall Street Journal, described a recent conversation in which another judge purportedly told Judge Rader that Mr. Reines was “IMPRESSIVE in every way.”

In the email, Judge Rader said: “I was really proud to be your friend,” and encouraged Mr. Reines “to let others see this message.” He signed the note “Your friend for life, rrr.”

ASHBY JONES and BRENT KENDALL, Judge Who Recused Himself From Patent Cases Resigns as Chief Judge [,] Randall R. Rader Leaves Post as Chief Judge of Court of Appeals, Stays on the Bench, Wall Street Journal (Updated May 23, 2014 7:13 p.m. ET) (subscription may be required for some versions).

When the e-mail was shown to a client apparently as a marketing ploy, it became public. Rader in turn resigned as Chief Judge writing a full, frank and candid admission that he had violated the Code of Professional Responsibility** by lending the prestige of his office to the private interests of the lawyer. You can read the letter here. The judge described himself as “inexcusably careless . . . .” He was right.

A lot of ink has been and will be spilled on this matter. For example, many are in high dungeon, and will endeavor to use this screw up as a reason to bash the entire Federal Circuit and perhaps to do away with that specialized body altogether with the idea of sending patent cases back to the regional circuits as in days gone past.  I have no interest in that stuff.***

What I am interested in is the human aspect of Judge Rader’s error.  I think I have only had one occasion to meet the judge when he came to Lincoln to give the Cline Williams Jurist-in-Residence lecture in February of this year. I don’t recall knowing Judge Radar when he worked for Congresswoman Smith.

Dean Susan Poser (left), Judge Radar (center) and Christal Sheppard Ph.D, J.D., Assistant Professor of Law, University of Nebraska College of Law, who interned with Judge Radar.  The Judge gave the Cline Williams Jurist-In-Residence Lecture at noon Feb. 14, 2014.

Dean Susan Poser (left), Judge Rader (center) and Christal Sheppard (right) Ph.D, J.D., Assistant Professor of Law, University of Nebraska College of Law. Sheppard interned with Judge Rader. The Judge gave the Cline Williams Jurist-In-Residence Lecture at noon on Feb. 14, 2014.

Here is my impression based on a one night of interaction: Judge Rader is a very bright judge and almost the perfect Chief Judge insofar as bench and bar relations are concerned. He is easy to talk to, he goes out of his way to be approachable, he is humble, he is self-effacing, I suspect he is an excellent teacher as his legal analysis is clear and easily understood, he seems truly sincere, and he is, without question, fun to be around without overdoing the “hail fellow well met” routine. I came away quite impressed.

What’s the point of all this? Well, there are two.

First, I venture to say that if you serve any length of time as a federal judge you will engage in an ethical lapse. God knows I have done that. Here’s one of mine: On being a dummkopf.  Like my mistake, these ethical lapses are most often the product of inattention rather than bad faith. No, that is too easy a description. More honestly put, the great bulk of the ethical errors are just plain stupid. But, federal judges, just like everyone else, are plainly stupid some of the time. If you think otherwise, you have not practiced law in the federal courts.

Second, for judges like me who like and respect lawyers, the urge to convey our appreciation to the best of the profession is a good professional and human quality. Federal practitioners and federal judges are at the most abstract level bound together in a common endeavor. In order to achieve that lofty goal, the bond between federal practitioners and federal judges at the street level needs to be strengthened and nurtured rather than weakened. We federal judges should let our practicing brothers and sisters know that we appreciate the good work we see turned in every day.

This is my sense of what motivated Judge Radar to write his overly effusive, but plainly improper, e-mail. His head was empty but I trust his heart was pure. That is not an excuse, but the judge’s effort to reach out to a member of the bar who apparently did excellent work does put a finer point on the judge’s conduct. A judge being appreciative of fine legal work and expressing that appreciation appropriately, and in the proper forum, is laudable.

In summary, I am no doubt giving Judge Rader the benefit of the doubt. I can’t know his heart. Hell, I don’t even really know him. However, given his past distinguished service (not to mention that he is a native Nebraskan), my presumption of good faith on the part of the judge strikes me as entirely justified. But, dear reader, that is up to you to decide.****

What I can say, and now say to Judge Rader, on a very personal level, is this: Go easy on yourself. Yes, you screwed up but you fessed up and there is nothing more than you can do. Don’t let the bastards get you down.


*As perhaps the leading member of the farm caucus in the House, Mrs Smith was a very, very, very powerful Member of Congress from the Third District of Nebraska. (The Third District is a huge expanse of cattle and corn and few people that covered Lexington, where I practiced law for 13 years.) I have it from multiple authorities (including the “shot caller” at DOJ) that President Reagan did not nominate me as federal district judge several months after I became a 40-year old Magistrate Judge because Mrs. Smith vigorously opposed my nomination. Keep in my mind that I stumped for her in the Third District and even substituted for her in a debate. But, when I prosecuted the impeachment of Nebraska’s Attorney General, a good man and stalwart Republican, Mrs. Smith made it known that I was “dead to her.” She was one tough cookie.


***I spent six years sitting with a judge from the Federal Circuit when we both served on the Codes of Conduct Committee writing confidential ethics opinion to judges and redrafting the Code of Conduct. In addition to being a brilliant scientist and first-rate lawyer, this man was deeply committed to the very hard work of the Committee. He was an absolute straight shooter. It would be grossly unfair to speak of Judge Rader’s lapse as a reason to smear the Federal Circuit on ethics issues without also acknowledging the work of my friend.

****Many thanks to Eric Hines, one of the most discerning lay persons I know, for stimulating my thinking on this subject. Of course, he shares no burden for the weakness of my views.

An example showing law is not politics by another name in the federal district courts

If there is anything I desperately want to believe it is this:  The great majority of federal district judges do not act like politicians in black robes. In the trial courtrooms, where the great bulk of the real work of the federal courts are done, federal judges try their fragile best to apply “the law” as they understand it.

Today, I am overjoyed at a headline in a major newspaper and the accompanying front page article. Please read: Robert Barnes, From a diverse group of judges, a unanimous opinion on same-sex marriage, Washington Post (May 26, 2014).* Powerfully, Barnes writes:

The headlines are so consistent, they could be written by a computer: “Judge strikes down state ban on gay marriage.”

But the federal judges who have supplied an unbroken wave of victories across the country to supporters of same-sex marriage are more diverse than their rulings would suggest: white and black, gay and straight, nominated by Democrats (most of them) and chosen by Republicans (a few of them).

Long ago, after I wrote both partial birth abortion opinions that made it to the Supreme Court (where I went 1 for 2), I came to the conclusion that federal district judges were perhaps the last group of federal judges who applied the law (mostly through the precedent based common law reasoning) rather than their own policy or political views. See, for example,  Richard G. Kopf, AN ESSAY ON PRECEDENT, STANDINGBEAR, PARTIAL-BIRTH ABORTION AND WORD GAMES-A RESPONSE TO STEVE GRASZ AND OTHER CONSERVATIVES, 35 Creighton Law Review 11 (2001-2002).

I was tickled pink (to use a phrase my lovely grandmother loved) when the legal academics confirmed my views after doing the hard empirical work.  See, for example, the following post entitled It’s a fact: Federal district judges are carpenters not politicians

Please forgive me for appearing to beat the hell out of dead horse, but I return to The Behavior of Federal Judges. In this post, I want to concentrate on the full title of the book–that is, The Behavior of Federal Judges, A Theoretical & Empirical Study of Rational Choice.  In particular, I want to focus on “rational choice” and district judges.

Epstein, Landes and Posner found that federal district judges as a group tend to apply legalistic reasoning to resolve cases rather than relying upon their own ideological preferences. While this is good news for folks like me who view the proper judicial role as weak, one wonders why federal district judges, unlike say Supreme Court Justices, tend not to be ideological in their decision-making.

. . .

Federal district judges do so because the alternative–going outside the norm of conventional legal reasoning–is wasteful. That is, the federal district judge will have to work hard to make an ideological point not supported by conventional legal reasoning, and that work will ultimately be unsuccessful–a wasted effort. The data collected and analyzed by the authors strongly supports their ultimate conclusion that federal district judges are not politicians in black robes.

. . .

Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views. This group of judges act more like carpenters than politicians. This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.

So, today, as I proceed out the door for my “infusion” of chemotherapy, I am also infused with pride for the many men and women who sit as federal trial judges. When reading the opinions of federal district judges, the public, Federalist Society members, American Constitution Society members, Circuit judges, and Supreme Court Justices may not like what they see. But what they see is not politics.


*As always, thanks to How Appealing. What a wonderful resource!

Justice Jackson and Memorial (Decoration) Day 1909

I have a tendency to take cheap shots at legal academics. I know that is unfair, but it is so easy and so much fun. Obviously, there are a lot of fine legal academics who enrich the lives of the practicing bar and the judiciary.  With the The Jackson List, Justice Jackson, the Supreme Court, Nuremberg and related topics, John Q. Barrett, a Professor of Law at St. John’s University in New York City, certainly enriches my life.  (I encourage others to sign up to receive the list. “To join the Jackson List, which keeps recipient identities and email addresses confidential, send a ‘subscribe’ note to”) Noting that he encourages sharing, Professor Barrett’s latest contribution is reprinted below.

Reading about Justice Jackson as a student, listening to a man speak that Memorial Day in 1909 about the civil war, peace and justice, when the speaker would later become the Justice’s law partner, brought to mind the bonds lawyers develop with each other as time passes. That the Justice is buried at the same cemetery where he heard his partner-to-be’s speech solidified my perception (hope?) that there is a timeless connection between brothers and sisters at the bar.

With thanks to Professor Barrett, I encourage the reader to take a moment and read the following:

In the United States in 1909, the Memorial Day national holiday, also known as Decoration Day, fell on Monday, May 31st.

The President of the United States, William Howard Taft, delivered an address on the battlefield at Gettysburg, Pennsylvania.

In New York City, over 100,000 people lined Riverside Drive, cheered 15,000 parading veterans of the Civil War and the Spanish War, and attended exercises at the Soldiers’ and Sailors’ Monument. The Governor of New York, Charles Evans Hughes, delivered an address at Grant’s Tomb. Governor Hughes earlier had reviewed a large parade in Brooklyn. The Bronx also hosted comparable exercises—its largest parade ever.

Memorial Day commemorations involving smaller crowds and less prominent speakers also occurred in cities and towns across the United States.

In the village of Frewsburg in southwestern New York State, Memorial Day exercises began with a parade. A column of people marched from Main Street to a wooden structure, Frewsburg’s Union Free School. With seven classrooms and a library, the Union School offered an elementary course. It also offered, as it had since 1896, a high school course. The high school met in a large room on the top floor. The School’s total enrollment was about 200 students. The high school senior class numbered less than 20.

On that Memorial Day in Frewsburg, Union School pupils and teachers joined the parade. It wound from the village to its cemetery, where a program was held. Lincoln’s Gettysburg Address and an honor roll of soldiers were read to the crowd.

A leading attorney, Walter Henry Edson of nearby Falconer, New York, delivered the principal speech. Edson spoke about the Civil War, and about peace movements. He emphasized that universal peace cannot occur until there is universal justice.

Robert Houghwout Jackson, then age 17, was one of the student marchers and listeners. A few weeks later, he graduated as Frewsburg High School’s valedictorian. Four years later, he became Edson’s colleague at the bar. They later became law practice partners.

In time, including on the Memorial Day in 1946 that Justice Robert H. Jackson spent in Europe as chief U.S. prosecutor of Nazi war criminals, he made his contributions to universal justice and, he hoped, to peace.

Today, Justice Jackson’s remains rest in that same Frewsburg cemetery, the Maple Grove Cemetery.

It currently is adorned with many United States flags honoring men and women who died while serving in U.S. armed forces, and also honoring U.S. military veterans.

Thank you for your interest, and please share with others who might be interested too.

* * *

As always, thank you for your interest and please share this with others.



Professor John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY



Memorial Day 2014 and the saving grace of Zeus

It must be Memorial Day in Joan's garden, the peonies have exploded. According to Greek mythology, the peony is named after Paeon (also spelled Paean), a student of Asclepius, the Greek god of medicine and healing. Asclepius became jealous of his pupil; Zeus saved Paeon from the wrath of Asclepius by turning him into the peony flower

It must be Memorial Day. In Joan’s garden, the peonies have exploded. According to Greek mythology (and Wikipedia), the peony is named after Paeon (also spelled Paean), a student of Asclepius, the Greek god of medicine and healing. Asclepius became jealous of his pupil; Zeus saved Paeon from the wrath of Asclepius by turning him into the peony flower.



Are “paralegals” feeding on federal prisoners?

We live in a time of unprecedented changes for American lawyers,
probably the greatest changes since the Great Depression. That period saw
the creation of the lawyer’s monopoly through a series of regulatory
modifications. Will we see the same following the Great Recession?
Formally, no. This Article predicts that formal lawyer regulation in 2023
will look remarkably similar to lawyer regulation in 2013. This is because
lawyer regulators will not want to rock the boat in the profession or in law
schools during a time of roil.
Informally, yes! We are already seeing a combination of
computerization, outsourcing, and nonlawyer practice radically reshape the
market for law from one that centers on individualized, hourly work done
for clients to a market of much cheaper, commoditized legal products. This
trend will accelerate over time. The upshot? Formal lawyer regulation
will continue on with little change, but will cover an ever-shrinking
proportion of the market for legal services.

Benjamin H. Barton, The Lawyer’s Monopoly—What Goes and What Stays, 82 Fordham L. Rev. 3067 (May 2014).

Professor Barton might be correct, but this post is not intended to spark a discussion about the shrinking legal market for lawyers–at least not directly. Rather, I want to talk about one of the consequences of that shrinkage. That is, an essentially unregulated market of “paralegals” who may be offering legal services to federal prisoners and harming those prisoners in the process.

28 U.S. Code § 2255 provides a method for a prisoner in federal custody to attack his or her criminal conviction or sentence in federal court.  It is the federal equivalent of the Great Writ. While seldom successful, a section 2255 action stands as the last chance for a federal prisoner to upend a wrongful conviction or sentence. I attach such significance to those motions (they are called “motions” rather than petitions for habeas corpus) that I do them myself and without hardly any assistance from a law clerk. I do this because I was the one who presided over the case, and imposed the sentence, because it is efficient for me to do the original research and writing because I have intimate knowledge of the matter, and because I truly see these motions as very important, even though, as I have said, they are seldom successful. Note that unless the federal prisoner is entitled to an evidentiary hearing, or other special circumstances exist, he or she not entitled to the appointment of counsel. However, there is a form that is available from the Administrative Office of the United States Courts, and the various clerks of court, that serves as clear and concise guide to the prisoner.

This week, I received information from a good friend of this blog, Elaine Mittleman. She also knows a thing or two about section 2255. See, for example, Elaine Mittleman, Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post, Hercules and the umpire (June 1, 2013). See my response entitled: An order of Frye. In any event, last week, Elaine sent me a copy of a document that she received. It is that document that concerns me and it is that document that prompted this post.

The document represents that the author is a “paralegal.” It pertains to a Supreme Court case and § 2255 motions.* Quoting another source (a “law clerk” at a Federal Correctional Institution no less), the document discusses the time for filing a section 2255 motion under the Supreme Court case and whether the decision is “retroactive.” Quoting the law clerk, the document ends with this advice: “The courts are crafty and find all sort of ways to deny proper claims. [F]or this reason, please get yourself experienced help to file your [case name] argument.” (Emphasis added by Kopf.) The document footer then adds the “paralegal’s” name, address, telephone number, fax number, e-mail address and web site. Additionally, it lists the hours when “inmate calls [are] accepted” and when “Spanish speaking calls” will be accepted.

As to the substance of the advice contained in this apparent solicitation, I am dubious. It suggests a deadline for filing, and that deadline may be just flat wrong. It also goes into a discussion of “retroactivity” and that discussion seems to me to miss a very important point.

If, as I suspect, that communications like this one are intended to induce inmates to hire “paralegals” to prosecute section 2255 motions, I am concerned that federal prisoners are being fleeced. For those lawyers who have a federal criminal practice or who do federal post-conviction work I pass along this information for whatever value you care to give to it. Whether you believe legal services should be expanded or not through deregulation, surely we can all agree that federal prisoners deserve protection from incompetents who seek to profit from their misfortune.**


*I have the communication but I will not reproduce it, describe the Supreme Court case which apparently prompted the communication, or elaborate upon the specific legal issues involved. I don’t want to assist the “paralegal” in ginning up work, particularly when the document is based upon advice that may be inaccurate or misleading or incomplete.

**To be specific, Federal Public Defenders, CJA counsel, retained counsel, and post-conviction practitioners would do well to warn prisoners about paying money to “paralegals” regarding the preparation of a section 2255 motions.

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