AEDPA smites Hercules (again)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) authorizes a federal habeas court to grant  relief to a prisoner whose state court conviction “involved an unreasonable application of . . . clearly established  Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). It is settled that  a federal habeas court may overturn a state court’s application of federal law only if it is so erroneous that “there  is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011).

At his rape trial, the defendant unsuccessfully sought to introduce evidence for the purpose of showing that the rape victim previously reported that he had assaulted her but that the police had been unable to substantiate those allegations.  The Nevada Supreme Court affirmed.  Applying the deferential standard of review under AEDPA, the federal district court denied habeas relief.   In a split decision, the Ninth Circuit, behaving more like Hercules than an umpire, decided that the Nevada Supreme Court and the district court got it wrong.   Finding no Supreme Court case clearly on point, the Ninth Circuit applied its own precedents to unearth clearly established law that was violated by the rulings below.  On June 3, 2013, the Supreme Court issued a per curiam opinion reversing the Ninth Circuit.  See Nevada v. Jackson, No. 12–694, 569 U. S. ____ (2013).

Image credit:  Abu-Simbel-Rameses-smite-Cherubini per

Image credit: Abu-Simbel-Rameses-smite-Cherubini per

When it comes to AEDPA, federal habeas corpus actions and federal trial judges, the Court has again made it plain (for the umpteenth time) that there is no place for Hercules, the all-knowing judge who seeks “justice” no matter the situation. For those of us who believe ourselves far better equipped to apply rules rather than divining abstract notions of injustice, that is a great comfort.


Called to Justice

Photo credit:  Lincoln Journal Star (Warren Urbom as a young judge).

Photo credit: Lincoln Journal Star (Warren Urbom as a young judge).

One of the purposes of this blog is to describe what federal trial judges really do.   Although I could never do it in his beautiful and gentle manner, I have a good role model just down the hall.

The man I was appointed to succeed as a federal district judge here in Lincoln, Senior Judge Warren K. Urbom, has written about what it is like to be a federal trial judge with great candor and uncommon wisdom.  And he has written about so much more.  See Warren K. Urbom, Called to Justice, The Life of a Federal Trial Judge, (University of Nebraska Press, Law in the American West Series, 2012) (forward by Chief Judge William Jay Riley of the United States Court of Appeals for the Eighth Circuit).

Numerous luminaries have expressed glowing praise for Warren’s book.  They include Deanell R. Tacha, Dean of Pepperdine Law School and former Chief Judge of the 10th Circuit; former Director of the FBI and CIA and former judge on the 8th Circuit, William Webster; Bob Kerry, former U.S. Senator and former President of the New School in New York; and Roxanne Dunbar-Ortiz, author of the Great Sioux Nation: Sitting in Judgment of America.

Here is a quick summary of Called to Justice, the Life of a Federal Trial Judge:

Early in his judicial career, U.S. District Judge Warren K. Urbom was assigned a yearlong string of criminal trials arising from a seventy-one-day armed standoff between the American Indian Movement and federal law enforcement at Wounded Knee, South Dakota. In Called to Justice Urbom provides the first behind-the-scenes look at what quickly became one of the most significant series of federal trials of the twentieth century. Yet Wounded Knee was only one set of monumental cases Urbom presided over during his years on the bench, a set that in turn forms but one chapter in a remarkable life story.

Urbom’s memoir begins on a small farm in Nebraska during the dustbowl 1930s. From making it through the Great Depression and drought to serving in World War II, working summers for his father’s dirt-moving business, and going to school on the G.I. Bill, Urbom’s experiences constitute a classic American story of making the most of opportunity, inspiration, and a little luck. Urbom gives a candid account of his time as a trial lawyer and his early plans to become a minister—and of the effect both had on his judicial career. His story offers a rare inside view of what it means to be a federal judge—the nuts and bolts of conducting trials, weighing evidence, and making decisions—but also considers the questions of law and morality, all within the framework of a life well lived and richly recounted.

University of Nebraska Press

What’s my take on the book?  If you like exquisite prose, you will love this book. If you like history, you will love this book. If you like the law, you will love this book. If you like an autobiography that reads like a novel that keeps you up at night, you will love this book. Most of all, if you want to rekindle your belief in the basic goodness of this country, you will love this book.


It’s a fact: Federal district judges are carpenters not politicians

Photo credit:  Phil and Pam's photostream per Creative Commons License.

Photo credit: Phil and Pam’s photostream per Creative Commons License.

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.

As the full title of their book specifies, the authors assert that federal district judges are rational actors.  Employing an economic model, the authors’ premise is that federal district judges avoid effort that is wasteful or unproductive (effort aversion) and federal district judges avoid effort that results in reversal (reversal aversion).  Since most cases in the federal district courts are “easy”–meaning that they can be resolved by application of rules and precedents–federal district judges resort to conventional legal reasoning even when that reasoning produces results inconsistent with the judge’s personal ideological preferences.   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.


*One can accept the data discussed by the authors and the statistical analysis conducted by them without accepting or fully accepting their labor model as an explanation.

Sketchy trial judges (and what they do)

Before it happened, you could not have convinced me that I would one day order a state (or anyone else) to pay $150 million or so based in significant part on one my sketches.  But that is truly what happened.  See Entergy Arkansas, Inc. v. Nebraska, 226 F.Supp.2d 1047 (D.Neb.,2002) (Nebraska breached its good faith obligation under the  Central Interstate Low-Level Radioactive Waste Compact and must pay $151,408,240.37 for its violation of federal law), aff’d 358 F.3d 528 (8th Cir.), petition for cert. dismissed, 542 U.S. 960 (2004).

Plaintiffs claimed that Nebraska had breached its good faith obligation under an interstate compact when it refused to license a nuclear waste disposal site.  The issues were complex. Over the span of a month or so as the trial proceeded, tons of scientific evidence was presented derived from computer models, hydrographs, well borings, core samples and physical observations.  At issue were questions pertaining to ground and surface water flows, wetlands, the topography and geology of the site, radioactive release scenarios, and on and on and on.  The evidence made my head spin.

Near the end of the nonjury trial, the lawyers and I flew to the site so I could see what it actually looked like.  The site was in a remote part of Nebraska.  (Is that sentence redundant?)

The day we arrived it was so hot and windy that we had to walk each of the 320 acres rather than taking a vehicle.  A pickup’s exhaust might start a prairie fire.   Since the license had been denied, no construction had taken place.  It was difficult to envision how the completed project would look in relation to the topographical features of the half section of ground where the project was to be  constructed.  Thus, we really had to tramp all over the damnable place.

During the walk-about, I tumbled down a slight ridge and into a culvert.  The lawyers helped me up and tried hard not to laugh.  I wasn’t hurt.  However, I was covered with stickers and all manner of dust and dirt.

After I picked the straw out of my hair and our tour ended, we returned to the plane.  While we were in the air, I tried to compose some notes of what I had seen and how that site visit could be placed in context with the other evidence that I had heard.  The inside of the plane was stifling and I was stumped.  None of my notes made sense.

We eventually reached an altitude where the temperature in the little twin-engine began to fall to something slightly under 80 degrees.  As the temperature moderated,  and almost without thinking, I began to sketch.  By the time we landed, I was beginning to understand the true picture.

Once the trial ended, and I began to draft my opinion, I sat down to carefully review my notes.  What drew my attention again and again was the sketch I had started on the plane.  I began to refine the sketch.  The more I refined the sketch, the more the scientific issues and the case more generally came into focus.

The opinion I wrote was very long, some 200 pages or so.  But, it was the sketch that encapsulated my basic understanding of the case and much of what I thought was important.  That sketch is reproduced below:

Entergy, 226 F.Supp.2d at 1092.

So, what lesson is there to be learned from the foregoing about being a federal trial judge?  It is pretty simple.  Facts are the dominion of the trial judge whereas law belongs to appellate judges.  It is up to the trial judge to understand the facts better than anyone and then portray them honestly. That effort sometimes requires getting a bouquet of burrs on your backside.


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