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!

Thinking about federal civil practice while preparing for Vince

Vince is a local plaintiff’s trial lawyer.  He is a very good one.  In fact, he gave one of the best closing arguments to a jury that I have ever heard.  But, Vince is my nemesis.   He has completely drunk the cool aid when it comes to jury trials.  Moreover, when I posted about the death of civil jury trials in the federal courts, Vince chewed my ass in his comment, asking “why would a plaintiff want to be in federal court? The decline in civil trials in federal court has much more do to with the interpretation of the law by the Circuit Courts and Supreme Court and the resulting increase in summary judgments granted by the district courts.” When I posted about how I preferred the “English” method of jury selection, which cuts out lawyers for the most part, Vince reminded me that America had won the damn revolution.

So it was that when Vince’s partner, Kathleen, called to invite me to be a luncheon speaker at the Nebraska Association of Trial Attorneys (NATA) annual gathering, I agreed but with one firm caveat.  “Keep Vince the hell out,” I said.  Kathleen replied “absolutely not.”   She muttered something about having cojones (one translation is “manly courage”) and taking what I had coming from Vince.  He would, of course, pepper me with a bunch of questions that I couldn’t possibly answer.  (Vince is whip smart.)   Despite my low T level, Kathleen’s taunting challenge to be a man (I think Vince put her up to that) was too much and I relented.  I would go to the damn NATA luncheon, speak, and then try to fight Vince off during the question and answer period.

Even though the luncheon is months in the future, I began to prepare.  I had to–I absolutely will not let Vince get the better of me.  But, a funny thing happened during my preparation.

I read something Professor Arthur R. Miller recently wrote.  Now, if you aren’t a complete idiot, you are well aware that Miller knows more about federal civil trial practice than any other living human.  He has devoted his entire life, and his considerable talent, to studying and writing about how the federal courts work, and particularly how the federal courts handle civil cases.

Photo credit:  j3net's photostream per Creative Commons license.

Photo credit: j3net’s photostream per Creative Commons license.

What I read was entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. Law Review 286 (April, 2013)  (free download here).  Professor Miller’s article is very persuasive.

He makes the following points:

  1. When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems.The federal courts applied that philosophy of procedure for many years.
  2. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today in the federal courts.
  3. Miller examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986 (the Celotex trilogy of cases). Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (a) expert testimony, (b) the constriction of  class action certification, (c) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (d) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (e) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (f) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.
  4. According to Miller, all of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.
  5. Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. Still further, Miller argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary.
  6. Miller cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.

After I got done reading Professor Miller’s piece, a cold, a very cold, chill ran down my spine.  My God, could it be that Vince was right?  Oh, hell no!


Resistance is futile–more about hyperlinks

Photo credit:  Freelancer1's photostream per Creative Commons License.

Photo credit: Freelancer1’s photostream per Creative Commons License.

Yesterday, I said that fairly soon lawyers who practice in at least some of the federal district courts will be required to hyperlink to both cases and documents.  I hope that happens, and very soon.

Today, I want to hyperlink to two good resources so the lawyers who read this blog can prepare to be “assimilated.”  As the Borg said, “resistance is futile.”

First, read the “Attorney Guide to Hyperlinking in the Federal Courts” (under “Written Procedures for Filing”).

Second, use the interactive tutorial for hyperlinking to documents that have previously been filed (like an affidavit).  The tutorial is entitled “Creating Hyperlinks to Other Filings in CM/ECF”  (under “Training”).

We are Borg.  Have a nice day.


Note:  The foregoing hyperlinks are to the external web site of the United States District Court for the District of Nebraska, under the “Attorney” and “Electronic Case Filing (ECF)” buttons.

Crack-addicted hookers and the ethereal


Photo Credit:  ziazia by permission.

As I said in an earlier post, the trial courtroom is not mystical.  It is a real place where, all too frequently, the judge hears horrid accounts of awful things.

As I write about the role of federal trial judges, I cannot stress too much the importance of confronting and embracing this realism.  Understanding theory and doctrine are critical to the trial judge’s work, but seeing things for what they truly are and saying so is equally important.

The aging, crack-addicted black prostitute–convicted of being a minor player in a drug ring who hung herself in the cell adjacent to my courtroom shortly after I sentenced her–provides an example.  We federal trial judges must be concerned with the disparate impact that the crack laws have on young black men.  However, the deadly carnage that those young black men inflict upon the least among us is not ethereal.  It is a reality that cries out for expression in the starkest of terms.

To borrow a phrase from the elites (that I otherwise abhor), we should not fear to judge.  This idea–nothing more sophisticated than telling the uncomfortable truth–will be a recurrent theme in posts to come.


First Principles: The trial courtroom is not an abstraction

As I think about trying to discover the proper judicial role for the federal trial judge, it is helpful to remind myself that the courtroom is not an abstraction. It is a real place inhabited by flesh, blood and bones–including, all too frequently,  abject sorrow, seething anger, palpable hatred and unimaginable depravity.  Too often, when viewed from the appellate bench–and most particularly the Supreme Court–the trial courtroom is imagined in much the same way as Monet imagined his gauzy garden.

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