A lamentation on useless reports federal judges are required to submit to Congress

Image credit: Washington Post.  According to the Post, "This is the master list of reports the House of Representatives is expecting during this two-year congressional session. The House counts 4,291 reports on the list. But many of them are probably not coming. On the list are six reports that reference the Soviet Union, which dissolved in 1991. And two reports are required from the United Spanish War Veterans, a group of veterans from the Spanish-American War. The last of them died in 1992."

Image credit: Washington Post. According to the Post, “This is the master list of reports the House of Representatives is expecting during this two-year congressional session. The House counts 4,291 reports on the list. But many of them are probably not coming. On the list are six reports that reference the Soviet Union, which dissolved in 1991. And two reports are required from the United Spanish War Veterans, a group of veterans from the Spanish-American War. The last of them died in 1992.”

 

One of the purposes of this blog is to make transparent what I spend my days doing. As I have said before, I have great gig. But there are times that I tire of dealing with the myriad requirements that I submit reports to Congress (through the Administrative Office) about my activities or my decisions. Let me give you two examples.

First, each year, I must submit a report that describes in detail my “non-case related travel.” This reporting requirement resulted from pressure exerted by Sen. Chuck Grassley of Iowa, a powerful member of the Judiciary Committee, regarding the Senator’s concern that judges were spending too much time away from the office and it was costing the government too much for the travel. Report of the Proceedings of the Judicial Conference of the United States, at p. 20 (March 16, 1999) (available on the Internet in PDF form, search “JCUS-MAR 99 – U.S. Courts” via Google). See generally Judith Resnick, The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations,  1-1-1998 Yale Law School Legal Scholarship Repository 2589, 2603 n. 76 (1998) (No. 778). As a result, throughout the year I must keep track of such things, and then remember to submit the report.

From the Guide to Judiciary Polices, Chapter 2 § 270.20(b), here is what “non-case related” travel means:

(1) travel to attend a meeting of the Judicial Conference and its committees;
(2) travel to attend a circuit judicial conference or to attend a meeting planning such a conference;
(3) travel to attend meetings of circuit judicial councils or their committees;
(4 )travel to attend meetings of the district courts and their committees;
(5) travel to attend meetings of bankruptcy judges or to attend bankruptcy court committee meetings;
(6) travel to attend educational seminars or programs sponsored by the FJC or any other sponsor;
(7) travel to meetings sponsored by bar associations or any other group, including judges’ organizations and professional societies (unless the judge pays for the expenses of the travel out of the judge’s personal funds and is not reimbursed in any way for the expenses);
(8) travel performed under the auspices of or at the request of any non-judicial branch agency of the federal government;
(9) travel undertaken to attend meetings held at, sponsored, or organized by the AO;
(10) travel to participate in moot courts or to lecture;
(11) travel to attend sentencing institutes or to visit prisons; and
(12) any other travel undertaken in the discharge of the duties and responsibilities of the judge’s office that cannot be identified with a particular case or cases assigned to the judge.

So, if get in my car and drive to Omaha to attend a judges’ meeting, I am required to report to Congress that I did so. Why? I have no idea.

Second, this year, I had my first brush with the reporting requirements of the Justice for All Act of 2004 that, among other things, deals with rights of crime victims to restitution. See 18 U.S.C. § 3771, note and Pub. L. 108–405, title I, § 104(a), Oct. 30, 2004, 118 Stat. 2265 (click on “note” tab). I must report: “the number of times that a right established in chapter 237 of title 18, United States Code, is asserted in a criminal case and the relief requested is denied and, with respect to each such denial, the reason for such denial, as well as the number of times a mandamus action is brought pursuant to chapter 237 of title 18, and the result reached.”

With the name and address of the person at the Administrative Office of the United States Courts to whom I submitted my report redacted, here is my report that I submitted this week:

Re: Report required by Justice for All Act of 2004
United States v. Fast, 4:11CR3018 (D. Neb.)

Dear ——-:

This letter constitutes my report regarding a criminal child pornography case. The matter is very complex so I shall do my best to clarify, condense and simply the case and this report. Please feel free to call me should you have questions.

There are published opinions regarding the most recent activity in this case. See United States v. Fast, 876 F.Supp2d 1087 (D. Neb. 2012), petition for writ of mandamus denied, In Re: Vicky Child Pornography Victim, 709 F.3d 712 (8th Cir. 2013), certiorari granted, judgment vacated by Vicky, Child Pornography Victim v. Fast, 134 S.Ct. 1934 (2014) (“case remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Paroline v. United States, 572 U.S. ––––, 134 S.Ct. 1710 (2014).”), on remand, United States v. Fast, —F.3d—, 2014 WL 4243184 (8th Cir., Aug 28, 2014).

A petition for a writ of mandamus was filed by a non-party (“Vicky”) against me in the Eighth Circuit Court of Appeals alleging essentially that my award of $3,333 in restitution to her was insufficient and that I erred in holding that (1) restitution can be awarded only for losses that Defendant Fast proximately caused and (2) restitution awards cannot reflect joint and several liability where there is only one defendant. Over a dissent, the Court of Appeals denied the petition.

“Vicky” sought relief in the Supreme Court. The Supreme Court vacated the decision of the Court of Appeals and remanded the case to the Court of Appeals for consideration in light of the Paroline case. The Court of Appeals in turn remanded the matter to me. However, “Vicky” has filed a petition for rehearing before the Court of Appeals. In turn, this matter is presently held in abeyance in this court awaiting resolution of the petition for rehearing in the Court of Appeals.

Copies of the docket sheet and relevant documents from the case file are also included. Please note that we have not recopied relevant “text only” orders that appear only on the enclosed docket sheet and nowhere else.

All the best.

Richard G. Kopf
Senior United States District Judge

Copies of this report via e-mail without attached documents to:

Chief Judge Laurie Smith Camp
Denise Lucks, Clerk of Court
Therese Bollerup, Deputy Clerk of Court
Kathy Griese, Operations Administrator

In 2008, the GAO was required to conduct a study and submit a report to Congress as part of the statutory requirements. Specifically, the GAO was required to examine “the effect and efficacy of the implementation of the amendments made by this title on the treatment of crime victims in the Federal system.” See note and Pub. L. 108–405, title I, § 104(b) scroll down to page 2265. The GAO did so, and, so far as I can tell, the GAO had no criticisms of the federal courts. See GAO, Crime Victims’ Rights Act (December, 2008).

I have no idea why Congress required reports from judges in the first place. But, if there was some reason for the requirement that reason evaporated when in 2008 the GAO found no problems with the federal courts and compliance with the law. Please also consider that the GAO was required to submit only one report in 2008. No further GAO studies were mandated. So, why I am reporting? Again, I have no idea.

In summary, I don’t like to wasting the Peoples time and money tracking and reporting to Congress useless stuff. Legal realism–ain’t it grand?

RGK

33 responses

  1. I would ask the obverse: What accountability mechanisms would YOU impose on our judiciary? Senator Grassley doesn’t know what it is like to be a judge, and you probably don’t know what it is like to be inundated by citizen complaints concerning a lazy, corrupt, and imperious judiciary. For every case that every Nancy Gertner put in the round file, there is a justifiably furious man or woman whose life has been destroyed by judicial indolence and sloth, and the only person who has to listen is a Congressman or Senator, especially if he is sitting on the Judiciary Committee. Senator Grassley has to beg for votes every six years and as such, is accountable to the people he serves–a concept judges aren’t all that familiar with–and has to show them that he is doing something about it.

    Someone mentioned Iran in a previous post, so I did some quick research. In theory, Iran has effective mechanisms for holding judges accountable; in practice, not so much. As PBS reports:

    The accountability of courts and judges, especially in political cases, is hotly debated among the ruling elite. Iran has a court in charge of prosecuting offending judges, but it has not been used as a way to impose accountability. Parliament has undertaken several investigations into judicial practices, but the judiciary has rebuffed their intervention and stonewalled any meaningful investigations. The supreme leader appoints the judiciary chief, and judicial officials contend they are only accountable to the supreme leader.

    The impunity of intelligence and judicial officials has been demonstrated in many high profile cases since the revolution. In 1998, intelligence agents allegedly murdered several dissident intellectuals. President Mohammad Khatami acknowledged the role of state agents in these murders, but the judicial process was stifled by the intelligence apparatus derailing a credible and independent investigation. In the end, no information was ever publicly disclosed about how these murders were planned or on whose orders.

    http://www.pbs.org/wgbh/pages/frontline/tehranbureau/2010/10/iran-primer-the-islamic-judiciary.html

    If that sounds familiar to Americans, it should. As many of our own judges are telling us, our own judges have interpreted constitutional safeguards against abuses of the judicial power (see e.g., the McCree case) out of existence.

    The World Justice Project defines the rule of law as

    “… a system of rules and rights that enables fair and functioning societies. The World Justice Project defines this system as one in which the following four universal principles are upheld:

    1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
    2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
    3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
    4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.”

    How would you devise a system that achieves these aims? America’s judiciary used to be the gold standard; today, it is Denmark, Norway, and Sweden. You have even stated yourself that the system has a lot of problems, which is part of why this blog exists. The WJP describes our system as a failure by Western standards, and Judge Gertner told us why in a single sentence.

    If you were to have lunch with Senator Grassley, what would you recommend and why?

  2. Dear Absinthe-Minded Perfesser,

    If I were to have lunch with the Senator, I would insist the he pay for the lunch. I don’t know if he drinks, but I would order a gin and tonic and I would put it on his tab.

    I would then start with five points. None of them relate to the Supreme Court. I would tell the Senator that next time I will buy lunch (and drinks), and I would stress that there should be a “next time.”

    Here are my five starting points:

    1. Never trust the federal judiciary to be transparent, but stop requiring reports that are silly.

    2. Mandate that the sentencing statistics from the USSC for every trial judge be made public on an annual basis. Require each district to post those numbers with the names of the judges on their local web sites.

    3. Require, but gradually over the next five years, that civil and criminal trials and all sentencing hearings be recorded by video and uploaded to CM/ECF on a daily basis. Give the trial judge the ability to “seal” where necessary as in cooperation cases. Fund the judiciary so that it may accomplish this goal. Over the next five years, require that all appellate arguments be recorded by video and uploaded to CM/ECF on a daily basis. Give the presiding judge the ability to “seal” where necessary. Fund the judiciary so that it may accomplish this goal.

    4. Every two years, have the GAO randomly sample and photograph the chambers of district and appellate judges and post the photographs with the names of the judges on a GAO website. In doing so, be sensitive to security issues.

    5. Annually have the Senate Judiciary Committee meet in private with a random sample of district judges for a frank and off the record discussion about concerns that the Judiciary Committee has about the federal trial courts. Listen to the federal trial judges about their concerns as well. Do the same thing with judges from the Courts of Appeal.

    All the best.

    RGK

  3. …this list of reports to which it is the duty of any officer…. So, the Clerk’s duty is to a list of reports and not to her Speaker or to the House as a whole? Or to the requirements of her job? [/snark]

    More seriously (maybe only somewhat), why are you submitting the report regarding “Vicky?” Nothing has been denied; the case is still pending–an appeal by a representative of “Vicky” is holding it open. If, in the end of the whole thing, you’re ordered to grant the relief originally requested, do you get to take back this report?

    ‘Course, that’d likely require another report explaining, in detail, your rational for rescinding a submitted and finalized report….

    Seriously, if a judge has written a decent opinion (a matter discussed already on your blog), all the data these two reports require already are in the public record. The Congress is just looking to transfer the work of answering their questions, and the associated expenses, to someone else.

    Besides, everyone knows that when judges travel, they spend their time swilling cheap wine in bad bathtubs (because even cheap wine is better than bathtub gin), just like Executive branch employees. The latter just get caught at it.

    Eric Hines

  4. Eric,

    I had to file the report because of the filing of a mandamus petition. As I read the statute, the filing of such a petition triggers a report. All the best.

    RGK

    PS You are right about bathtubs and cheap wine. Truly, it is common knowledge.

  5. I don’t see how this enhances accountability at the appellate level, since almost all of what happens in the courts of appeal happens “behind the scenes,” and oral argument is rare. For instance, I read somewhere that the late Judge Arnold once decided fifty appeals in a two-hour period. If that proceeding were videotaped and posted on the Internet, the judges would have been lynched, and rightfully so.

    Judges have become ingenious in their devious attempts to avoid doing their jobs. The latest slimy maneuver is the “summary affirmance,” where judges refuse to even allow litigants to present their cases to a court of appeals! So much for the right to a meaningful appeal. And you know who always gets the short end of THAT stick: pro se civil rights litigants. Judge Gertner doesn’t even begin to tell the true tale.

    These are derelictions of duty so gross that they make a mockery of the rule of law. If we need 5,000 more judges, we do … but you judges have no authority to ration justice sua sponte. As that same Judge Arnold said, there is no excuse:

    “It is often said among judges that the volume of appeals is so high that it is simply unrealistic to ascribe precedential value to every decision. We do not have time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent. If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one place and time only. The remedy, instead, is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case.”

    I would agree with you that the reports are overbroad. However, those of us who are forced to deal with the courts (you are the only game in town) have a legitimate interest in learning who is attempting to influence you.

    By way of example, Justices Scalia and Thomas frequently attend fetes held by Koch interests, and I have little doubt that they are treated like visiting royalty. I would forbid any judge from attending any conference which is not open to the general public (except, obviously, for internal conferences). Zero tolerance, with criminal penalties.

    If someone else is paying the freight for a junket, every expense needs to be accounted for (I would impose this reporting requirement on Congress as well).

    If a judge moonlights as a law professor or lecturer, s/he needs to keep a time card. Judge Michael McConnell was notorious for spending so much time on his teaching and lecturing career that he couldn’t do his day job, and given some of what I see in court decisions, he is not the only guilty party.

  6. I would like to see a report on how many times members of the judiciary committee visit prisons as well as a report on how many people members of the judiciary committee call to ask them for money for their reelection expenses.

  7. Judge, you don’t mention Civil Justice Reform Act reports on outstanding or overdue cases, motions, etc. Do you consider those to be useless as well?

    I have encountered lawyers and clients who swear by the effectiveness of these reports as a sort of “judge-shaming” tool to prod some of our more, uh, “deliberate” judges into moving civil cases along, but that’s never been my experience. Interested in your thoughts on these.

  8. Pat,

    Great question. If you are a law clerk for me, the only two things that will get you fired is if you lie to me or my name appears on the CJRA report. Kidding, but only sorta.

    I know in our district that we make a big deal about the CJRA report. We receive warnings starting in August, and we are constantly running computer checks to insure we are current.

    So, no, I don’t think the CJRA report is useless. HOWEVER, I have my own internal controls that are more stringent. I implemented those when I became a district judge in 1992 without thinking about the CJRA. Why? So everyone in chambers understood my time limits and complied with those limits.

    All the best.

    RGK

  9. I am confused, don’t summary affirmations take place on the briefs. If so what right is the appellant deprived of, SCOTUS has long held there is no constitutional right to oral argument. Given how short the argument times are in a lot of appellate courts, how much real value does oral argument have? Do we need more opinions in our race for F 4th? More judges would create more jobs and help with sagging law school admissions,. For most people the inferior courts in the technical sense are their final courts and they often handle a volume of cases at a speed that would awe Judge Arnold.. Which one?

  10. Summary affirmances are done via motion, where the briefs are limited to 20 double-spaced pages in 14-point type and the movant gets the last word. This obscene limitation makes it essentially impossible for an appellant to develop the complex or novel arguments s/he may be relying on. In short, 20,000 words of briefing is reduced to roughly 3,000 words.

    (Not that most federal judges can even read briefs without their Adderall.)

    Due process involves the right to be heard and the right to hear why. When even Judge Kopf confesses that he doesn’t read the briefs, most civil rights cases are deliberately shit-canned by the trial courts (Judge Gertner), and appellate judges don’t normally bother to even read the decisions they deliver, how can you say that your grievance was even heard by an Article III judge? Too often, Gertner’s disfavored civil rights cases are handed to magistrates, and an Article III judge literally never even reviews the complaint. Trial court rulings are often shocking in their sloppiness, and we’ve already seen how slothful our appellate courts are.

    Whereas rich parties get the limousine treatment, hobos drown (Gertner), and “there can be no equal justice where the kind of an appeal a man enjoys ‘depends on the amount of money he has.'” Douglas v. CA.

    If the vast majority of cases are going to be decided summarily and with no regard for precedent, why not abolish lower courts altogether? Empanel juries to decide disputes, hiring attorneys ad hoc as administrators. Farm out appellate jurisprudence to India, where they would do a more conscientious job for a tithe of the cost. Kick Article III judges out to the golf course, where they belong.

    Why even have a F.3d? Given how rarely judges rely on it when it gets in the way, we could literally create a bonfire fueled by the United States Reports. Shepardizing cases has become a waste of time, as precedent is literally useless. Judges are going to do whatever they damn well feel like doing … and if they can bend, fold, spindle, and mutilate facts and precedent to make it appear that they are following the law, they will. Judge Posner called it “fig-leafing.” I call it outright fraud.

    When I can walk into a court with confidence that I will be able to rely on the promise of Marbury v. Madison that the very essence of civil liberty “certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection,” 5 U.S. at 163, and government actually discharges that duty in a reasonably diligent manner, I will be a happy man. But I will die long before that day, I fear.

  11. I was wondering what the enforcement mechanism of this is. You cannot be fired. Perhaps the only things they have hanging over your head are funding and appointing more judges… I am not even sure that Congress has a legitimate oversight function with respect to the judiciary (I could be wrong, I have not really explored the issue).

    If a fight breaks out between the executive and legislative branches, the judicial branch sometimes steps in. Who arbitrates a fight between the judicial branch and the legislative branch (or the executive branch, for that matter)?

  12. Ah, the >6 month motions report. I can see how many of those reports can be tedious and lack a clear societal benefit. But the report on motions outstanding longer than 6 months is a good one, at least potentially. Now if we could only get judges who have a large number on that report to care that they do…

  13. Perfesser I must have spent the last 50 years out to lunch, some concrete examples would help in understanding your blanket attacks on Federal Judiciary. Some judges are lazy and sloppy, some opinions do not make sense, facts and precedents can be distorted, unfortunately true, but you treat as normal, not my experience, but I gave up drinking long ago.

  14. Anonymous,

    Great questions. The practical answer is that the federal judiciary cannot win a serious fight with Congress given the power of the purse held by the legislature. Moreover, remember that Congress has the discretionary power to determine whether there should any “inferior” federal courts and, if so, how many. Article III Section 1 of the Constitution states in the first sentence: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

    All the best.

    RGK

  15. So, if the judicial branch wants more money or courts, it must have Congressional consent. However, if you as an individual judge don’t care, there is nothing anyone can do (outside of impeachment). Given the sorry state of the funding of the judical branch along with the other branch’s failure (refusal?) to appoint and consent to new judges, I just don’t see how the judicial branch could be much worse off than it is now.

    Of course, if individual federal judges are civic-minded (our have pride in their team, i.e., the judicial branch) and think that completing this busywork will get Congress to increase funding and/or numbers of courts, that might be incentive enough. In other words, you are going on the theory that brownnosers might get what they want.

    It appears to me that you are a civic-minded judge willing to take one for your team. It just strikes the wrong chord with me for you to stand on first base complaining about the sting. It gives the pitcher some sense of satisfaction. (sorry about mixing the metaphors).

  16. It seems to me that the value in these reports tends to be longitudinal, and you never know exactly how useful they are until you find yourself being really thankful you can look at a 10 year stretch and understand something significant.

    But also, I would have thought, most of these reports could be autogenerated by CM/ECF. Or at lest via easy-to-fill-out-and-tabulate forms. I know very little about the judicial side of CM/ECF, but it sure sounds like that should be the case. I somehow doubt the Hon. Sen. Grassley and colleagues intended narrative-form letters like the one Your Honor posted above.

    So to me, the failing lies with the Administrative Office of the US Courts.
    But of course, I haven’t talked to them either, so…

    In re video on CM/ECF, well, in my view CM/ECF has a way of making things a lot less accessible than they should be. If they could be on CM/ECF for free that would be a lot more palatable. Just the charges for PDFs are already a problem (and for searches!), I think the video they will be worse. But I have not had to deal with large media files in CM/ECF yet, so I am speaking out of school — somewhat.

  17. Judge:
    In a perfect world such a thing, out of respect for the independence of the federal judiciary, would remain voluntary and without the possibility of retribution. While Congress has the power of the purse and the rarely-used power of removal, the independence of the federal judiciary is too important to be incrementally lessened by requiring federal judges to regularly supply paperwork to Congressional masters.
    Robert

  18. Judge, might this not be just more interbranch competition b/t congress and the judiciary similar to the requirement that the judiciary lease space from GAO while prosecutor offices can own or lease anywhere as they see fit?

  19. Apologies for not realizing this idea was developed in the comments. Let me try to contribute by asking this: how much further behind are your 2255’s than the motions tracked by cjra? If none, congrats on your internal controls.

  20. John,

    Take the non-case related travel reports. They are generated by computer but the initial record keeping and data entry falls upon my judicial assistant and me. The AO developed the computer system for this type of report, so I can’t be critical of the AO.

    All the best.

    RGK

  21. floridapcr,

    I research and wrte my own 2255 opinions without the help of law clerks. A 2255 motion in my chambers is typically resolved in 90 days or less unless counsel must be appointed and an evidentiary hearing held. Few 2255 motions make it past initial review.

    All the best.

    RGK

  22. Robert,

    I don’t mind reporting to Congress in paper or otherwise. My gripe is that too often the reports are useless.

    All the best.

    RGK

  23. RGK,
    True. But doesn’t that logic mean that we should eliminate PCR and habeas corpus claims because they’re too often useless?

    -SLS

  24. SLS,

    Claims asserted in court are often unsuccessful. That doesn’t mean that there is no utility to the claimant and the public in hearing the claims. I don’t see the same benefit for useless report.

    All the best.

    RGK

  25. A lot depends on the province of the law in which you practice. If you are an ambulance-chaser, practice tax law, or handle routine criminal matters, you will almost never see it. The law is clear, but the facts are fuzzy. If there are errors in those bailiwicks, they are almost always honest mistakes. I would even trust a judge in Beijing or Moscow to get the routine ones right.

    Election law and politically charged cases are the worst, as judges will always rule for the Party they want to win. A few judges are truly apolitical, but they are a dying breed. One that comes immediately to mind is the one that permitted Frank Lautenberg to run for the Senate in NJ. Sorry, but I don’t have a cite handy.

    Civil rights cases are almost as bad, as Judge Gertner complained about here. A pro se litigant quite literally has no chance of even glimpsing the inside of a federal courthouse in his or her case, irrespective of the merits — even if he graduated from a top tier law school and had 40 years at bar. An especially intriguing case is at http://law.justia.com/cases/federal/appellate-courts/ca10/09-1134/09-1134-2011-03-14.html (I happen to know the attorney). A magistrate once told me that he had never seen a pro se civil rights case go to trial in a federal court, and the only time I have ever seen one in any court is when a fellow judge proceeded pro se. Call it professional courtesy.

    Lawsuits attempting to limit the power and perquisites of the judiciary will invariably be decided in favor of the judiciary, the Constitution be damned. Pierson v. Ray, Stump v. Sparkman. Read the dissent in Pierson and get back to me.

    Boutique cases, especially those involving religious hot-buttons, will always be decided in accordance with the judge’s personal preferences, unless the merits are so clear that the loser deserves to lose (e.g., the SSM cases). Obamacare cases, at the appellate level, have been decided along strict party lines, without apparent exception. Hobby Lobby is a painful example of Scalia v. Scalia (cf. Employment Div. v. Smith). A seriatim list of obvious examples would be painfully long.

    Whenever the media pays attention to a case, judges are more circumspect. There is something about the sight of a Washington Post reporter in the courtroom that gives a judge religion, if for only that day. Think O.J., and Judge Ito. If the media cares about a case, you will get a fair trial.

    I’m not saying this; JUDGES ARE. In an article that the Judge recommended, Posner admitted that he probably had a high error rate, and that other appellate judges did as well. And that is unsurprising when they decide fifty appeals in two hours, as Judge Arnold admitted. Another law review article from an Ninth Circuit judge talks about their trying hard to catch errors, but how hard can you really try when you only spend five or ten minutes on a case?

    We take the judge’s recitation of facts in a case to the bank, but in many of these cases, they take indecent liberties with the facts and law. Bush v. Gore is one of the paradigmatic examples: If the judge was appointed by Republicans, s/he ruled for Bush; if the obverse was true, s/he ruled for Gore, and SCOTUS specifically said they were not creating a precedent. It is painfully easy to understand why: the “states’ rights” judges were not adhering to their own judicial philosophy, and intended to go back to it once they got their boy into office and changed the direction of the Court. Dershowitz walks you through it in his book.

    You have to be looking, but if you cite-check the cases, you almost always find that at least one case does not hold what the judge says it does. Off-hand dictum in a plurality decision is magically transformed into binding precedent. One weak step on the stepladder, and you fall. A well-reasoned decision demands that every step be sound.

    If you want to find the worst judicial sins, start looking at unpublished opinions. The situation has deteriorated to the point where one law school even held a symposium on the question of whether we are no longer a common law country; the consensus was in the affirmative. See William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723 & fn. 2 (2005) (also collecting the Professor’s lifetime of work on the subject). Judge Arnold’s criticism is as trenchant as it was when he issued it.

    You and I are old enough to remember when an appeal was done right. When you started out, 30% of appeals resulted in reversals; today, it is ~10%. Do you honestly believe that it is because our trial judges are that much better?

    If I were to cite specific cases, you could dismiss them as mere aberrations. But quantitative analysis reveals otherwise. One prof (I want to say Penelope Pether, but I may be mistaken) showed that the main determinant of the outcome of employment discrimination appeals was the presumed party affiliation of the judge — with Republicans favoring management, and Democrats favoring labor. Based upon the above statistics, and in light of the Professor’s analysis, I would estimate that anywhere from 50-80% of meritorious appeals are denied, and most fail because appellate judges never bothered to read the briefs.

  26. Actually, it is the exception that proves the rule. It is an extremely rare example of SCOTUS using its supervisory power to police the lower courts, but it does show just how sloppy the lower courts are in this species of case.

  27. The real-world answer is that there is no enforcement mechanism, and judges can be as arbitrary and capricious as they want to be. Helluva way to run a railroad.

  28. When they are heard, which is virtually never (Gertner).

    How can you have a right that cannot be enforced?

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