The Washington Post on my friend Judge Mark Bennett and meth

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You must read Eli Saslow, Against his better judgment, In the meth corridor of Iowa, a federal judge comes face to face with the reality of congressionally mandated sentencing, Washington Post (June 6, 2015). It is a very long and fascinating look at the reality that Mark confronts every day. It is worth your time to read this article slowly, and contemplate the important contents.

RGK

Are federal trial judges who write bluntly in law reviews, blogs, etc., “flashers” who expose too much of themselves?

If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity?

Photo credit: sylvar. "The Flasher, with trenchcoat closed" per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

Photo credit: sylvar. “The Flasher, with trenchcoat closed” per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

 

I have reason to think that this blog may be part of a piece sometime in the future by a respected legal news outlet. I would guess that the article may be critical. If that occurs, I welcome both the attention and the scrutiny. And that brings me to my dear friend, Judge Mark Bennett, a truly wonderful person, a fantastic, but very opinionated, writer of law review articles and a great trial judge.

Mark was recently the subject of an article written by the estimable Alison Frankel, entitled When judges say too much, Reuters (November 18, 2014). The article deals with Mark’s decision not to recuse himself in a products liability case involving a smoker.

Judge Bennett

Judge Bennett

In part, Ms. Frankel wrote:

This homily was sparked by a recusal opinion issued Monday by U.S. District Judge Mark Bennett of Sioux City, Iowa. Bennett is overseeing a former smoker’s suit against R.J. Reynolds and Philip Morris as a visiting judge in Jacksonville, Florida. On Oct. 31, Philip Morris’ lawyers at Shook Hardy & Bacon and Arnold & Porter asked the judge to take himself off the case because of his 2013 article in Voir Dire, a magazine put out by the American Board of Trial Advocates.

Bennett’s article, “Obituary: The American Trial Lawyer, Born 1641-Died 20??,” lauded a lost breed of lawyers who are “perhaps more responsible for our enduring freedoms and the enforcement of our nation’s laws than any other,” he wrote. Through the good work of trial lawyers, he wrote, “American products, from airplanes to scalding coffee, pharmaceutical drugs and scores of others, are safer and kill and maim far fewer Americans.” One of the trial bar’s accomplishments, according to the judge, was that “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.”

She concluded her piece this way:

Considering the case law, I doubt Philip Morris can force Judge Bennett off the case. The company’s recusal brief focused on judges’ roles in jury selection in these tobacco liability cases in Florida, so maybe Philip Morris just wanted to prod Bennett into being careful about fairness during voir dire. (Stanley Davis of Shook Hardy and Sean Laane of Arnold & Porter didn’t respond to email requests for comment.)

Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.

I told the judge in an email that I believed Philip Morris was justified in questioning his impartiality. He said (very politely) that the opinion speaks for itself and that it would be inappropriate for him to comment further on a case before him.

I urge you to read the entirety of Ms. Frankel’s piece and the judge’s written decision explaining why he would not recuse himself. What do I think?

First, Judge Bennett was clearly correct as a legal matter. He had no reason to recuse himself. Experienced federal trial judges don’t worry about recusal motions, they are frequently filed but seldom granted. Those are simple legal questions, easily answered as Mark’s clear opinion demonstrates. Moreover, most of the time, we have plenty of judges who can take a case from a colleague if recusal is warranted.

Second, Ms. Frankel makes a more important point that is very much worth remembering. When federal trial judges speak candidly in their extrajudicial writings we take risks. Ms. Frankel explains:

I . . . believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.

This is matter of balance. It is not an easy balance to strike. But, I know this: Given the present state of affairs in the federal judiciary, transparency is more important than the fear that faith in the system may erode if we express ourselves too clearly, too forcefully, and, occasionally, too bluntly in law reviews, blogs and the like.

There will be times when we falter. Indeed, Ms. Frankel fairly links to my ill-advised attempt at humor (On being a dirty old man and how young women lawyers dress) while making points I thought were worth making about the appearance of women trial lawyers in the courtroom. That admitted, judges like Mark Bennett do the public (and the bench and bar) a great service “when they get real.” Like the “flasher” pictured above, we can do so without significant harm to the federal judiciary so long as we remember to keep our trench coats closed.

RGK

 

 

Judge Mark Bennett’s* modest proposal

If you care about employment litigation in the federal courts, or even litigation in general in the federal courts, you must read Judge Mark Bennett’s  Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment”Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective, 57 N.Y.L. Sch. L. Rev. 685 (2012–2013).

Here is the abstract:

Nearly seventy-five years after its birth, the time has come to bury summary
judgment. The funeral should be swift, dignified, and joyous. The autopsy
would reveal that the cause of death was abuse and overuse by my federal
judge colleagues. Summary judgment abuse and overuse occurs in all types of
cases, but is especially magnified in employment discrimination cases. This
problem is exacerbated by the daily ritual of appellate courts affirming
summary judgment grants to employers, often without comment, at a rate
that far exceeds any other substantive area of federal law. These beliefs are
based on my four-decade career in employment discrimination as a trial and
appellate lawyer (for both employees and employers), adjunct law professor,
author, speaker, federal magistrate judge, and district court judge.
Unfortunately, my colleagues have become increasingly unfriendly to plaintiffs’
employment discrimination claims. I believe there are six primary reasons for
this “unfriendliness” or what many scholars have observed as “hostility”: 1)
too many frivolous employment discrimination lawsuits; 2) an overworked
federal judiciary; 3) increased sophistication of employers; 4) increasingly
subtle discrimination; 5) implicit bias in judicial decisions; and 6) a shift
among judges from trial judging to case managing. If I were anointed Grand
Poobah3 of federal civil procedure for a day, my first act would be to eliminate
summary judgment—at least for a five- to ten-year experimental period.
The time has come to recognize that summary judgment has become too
expensive, too time-consuming for the parties and the judiciary, and too likely
to unfairly deprive parties—usually plaintiffs—of their constitutional and
statutory rights to trial by jury. I am willing to throw out the baby with the
bathwater because the culture of unjustly granting summary judgment is far
too ingrained in the federal judiciary to reverse course. There is simply no
empirical evidence that summary judgment is efficient or fair. Failing
elimination of summary judgment, dramatic modifications to Rule 56 of the
Federal Rules of Civil Procedure should be made to help eliminate its disparate
and unfair impact.

There are three specific things I need to say about Judge Bennett’s piece.  Here they are:

First, it is truly an essay.  I happen to know that Judge Bennett wrote the article in his own voice and without the help of a law clerk.  As I told him privately, his offering is a beautiful bit of writing and he should write essays more often.  So, if you like fine writing, legal or otherwise, read this article.

Second, Judge Bennett knows that Rule 56 is not going to be abolished, but his case for getting rid of the Rule is in reality a deftly reasoned argument for more judicious use of it by judges and practitioners.  He makes a strong case.

Third, for civil cases, Judge Bennett believes there are two types of judges.  We might call type 1 the “trial” judge who venerates the jury trial.  And then, we might call type 2 the “administrative” judge who manages cases. Judge Bennett’s taxonomy is probably correct.  Unlike Judge Bennett, and for civil cases, I am not at all certain that we should venerate the jury trial and lament its passing.  Some things simply outlive their utility.  Perhaps that is what the outside world is telling trial judges and trial practitioners when it comes to civil jury trials in the federal courts.

In summary, if you care about civil trial practice in the federal courts, read the judge’s thoughtful essay.   It is both provocative and practical.  If nothing else, the next time you file, defend or decide a summary judgment motion in federal court, you will be much better prepared.

RGK

*Mark W. Bennett is a U.S. District Judge in the Northern District of Iowa.  One might think that this Iowa district is a sleepy little one. In fact, the Northern District of Iowa has led the ninety-four districts in trials per judge per year more often than any other district over the past decade.

A must read

Judge Mark Bennett, my dear friend, and Professor Mark Osler have written a powerful op-ed entitled America’s Mass Incarceration:  The hidden costs. It appears in yesterday’s Minneapolis StarTribune.

Mark W. Bennett has been a federal judge in the Northern District of Iowa since 1994. Mark Osler is a former federal prosecutor and a law professor at the University of St. Thomas in Minneapolis.  They really know what they are talking about.  While I don’t necessarily agree with everything they wrote, I agree with the thrust of the piece.  In any event, the op-ed is a must read for anyone who is serious about federal criminal law.

RGK

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