This means that Judge Davis’ earlier ruling, interpreting the statutory procedures for recalls under Section 9.10, is now vacated.  On January 5, 2012, Judge Davis ordered the Government Accountability Board (GAB) to take affirmative steps to identify and strike any recall signatures that are fictitious, duplicative or unrecognizable.  Because of this earlier ruling, the GAB went ahead and adopted new procedures, purchased new signature recognition software, and sought additional time in which to review the recall petitions.

The GAB had argued unsuccessfully before Judge Davis that the statute contains no explicit command for the agency to undertake such duties.  Instead, the GAB argued, the the statutory language of Section 9.10 clearly places the burden on the officeholder to bring challenges to suspicious recall signatures.  The agency contended that the duty of the GAB was limited to weeding out signatures that are insufficient to meet the technical requirements of Section 9.10(2)(e).  In an earlier post, I agreed with the GAB.  I argued that Judge Davis’ interpretation of Section 9.10, requiring the GAB to take “reasonable steps” in order to identify invalid signatures, is simply not supported by the statutory language.

In its opinion today, the Court of Appeals signaled that it shares my doubts concerning Judge Davis’ interpretation of the statute. To be clear, the decision of the appellate court today does not directly reverse Judge Davis’s ruling that the statute imposes an affirmative obligation on the GAB to identify and strike invalid signatures.  The holding of the Court of Appeals opinion is limited to reversing Judge Davis’ denial of the motion to intervene brought by the various recall committees, and vacating Judge Davis’ earlier ruling so that it can be reargued.

However, in the course of describing the interests of the proposed intervenors that are at stake in this litigation, the Court of Appeals uses language that seems skeptical of the idea that Section 9.10 can be read to place an affirmative burden on the GAB to seek out invalid signatures.  Here is how the Court of Appeals summarized the interests of the recall committees seeking to intervene in the case:

To summarize, the recall committees have an interest in the complaint’s proposed relief because such relief may include new procedures not required by law that may result in (1) striking valid signatures and placing an increased burden on the committees at a later stage of the review process and (2) causing delay to the recall process.

(Opinion at p. 16).

According to the Court of Appeals, the recall committees had an interest in the lawsuit filed by the Friends of Scott Walker, and ultimately a right to intervene in that case, because the lawsuit sought a form of relief that would increase the burden on the recall committees.  The Court of Appeals gave three examples of how the placing of an affirmative duty on the GAB to “look for and eliminate“ certain types of signatures could act to increase the burden that the statute would otherwise place on the recall committees.

First, if the GAB applies new, stricter criteria for the removal of addresses that the GAB concludes are illegible, then the recall committees must expend additional resources to verify that the addresses are correct or else risk losing those signatures.  Second, the GAB might adopt procedures for eliminating duplicate signatures that would eliminate a signature even in circumstances where the challenger would have been unable to provide any evidence that a duplicative signature existed (i.e., where both John Smith, Sr. and John Smith, Jr. in the same household sign as “John Smith”).  Third, the GAB procedures for removing fictitious names might remove names that actual voters share with celebrities (i.e., an actual “George Clooney”) on the assumption that the name is suspicious, thus placing the burden on the recall committees to expend resources in order to verify the signature.

As currently written, the statute places the burden on the officeholder to challenge any signatures that fall into the above situations.  Therefore, unless a challenge is filed the statute itself does not require the petition circulator to supply one iota of evidence proving the validity of such signatures.  However, the new procedures adopted by the GAB in the wake of Judge Davis’ ruling may force the recall committees to come forward with such evidence.

What these examples given by the Court of Appeals illustrate is that the new recall procedures sought and received by the Friends of Scott Walker impose an extra burden on the recall committees in a manner inconsistent with the overall statutory scheme of Section 9.10.  The Court of Appeals points out that, if the GAB attempts to play an affirmative role in identifying and eliminating suspicious signatures, it runs a very real risk of improperly shifting the burden from the shoulders of the officeholder challenging the signature onto the shoulders of the recall committees:

The relief sought potentially places an increased burden on the recall committees to prove that certain valid signatures are indeed valid.  If the board is required to “look for and eliminate” certain classes of signatures, that may cause the board to strike signatures that appear to be improper, but which in fact are not improper.  Because these signatures are indeed valid, the officeholder would not have been able to produce the affidavits or other evidence required to support a successful challenge to them under WIS. STAT. sec. 9.10(2)(h) and (3)(b).  Nonetheless, the court order [sought by Friends of Scott Walker] may require the board to strike such signatures in its initial review.

(Opinion at p. 10).

Such a result runs directly counter to the statute itself, which clearly states in Section 9.10(2)(g) that “[t]he burden of proof for any challenge rests with the individual bringing the challenge.”

In addition to the foregoing discussion, the Court of Appeals opinion also underscores the fact that “the recall committees have an interest in holding timely recall elections, as embodied in the recall statutes and our Constitution.” (Opinion at p. 16).  Unfortunately, it may already be too late to prevent the recall elections from being delayed substantially.

Therefore, while Judge Davis’ interpretation of the statute was not directly reversed, the overall tenor of the Court of Appeals opinion is not friendly to the strained interpretation of Section 9.10 that was advanced by the Friends of Scott Walker.  The language of the Court of Appeals decision might well give Judge Davis pause when he is asked to reconsider the statutory interpretation issue.

Will that happen?  It is unclear where the case goes from here.  The Friends of Scott Walker could appeal the decision of the Court of Appeals allowing the recall committees to intervene to the Wisconsin Supreme Court.  Alternatively, the Friends of Scott Walker could simply allow Judge Davis to vacate his earlier ruling as directed and then renew its argument concerning the meaning of Section 9.10 in the circuit court, this time with the recall committees as parties.  In either event, the Court of Appeals has invited a briefing on the question of whether to order relief or to order a stay of its decision, pending further proceedings.

As the debate over the correct recall procedures continues, it is possible that the Friends of the Scott Walker might downplay its statutory arguments and place more weight on its unprecedented argument that the Fourteenth Amendment of the United States Constitution requires the GAB to account for the so-called “rights” of non-voters.  Judge Davis was wise to resist such a sweeping expansion of Equal Protection doctrine when he issued his earlier ruling, and he would be wise to reject such a novel theory if it were advanced again.  The Equal Protection Clause is not an open invitation to the courts to remake election procedures to the liking of the judiciary, and the Supreme Court’s decision in Bush v. Gore does not suggest otherwise.

This procedural morass, occurring in the midst of a recall campaign where over one million Wisconsin voters have exercised their constitutional right to demand a recall, was entirely avoidable.  The Government Accountability Board was created as a non-partisan agency precisely because the legislature decided that election procedures should not become playthings for partisan appointees, nor changed willy-nilly in the middle of campaigns.  If anything, the ongoing saga of Friends of Scott Walker v. Brennan should remind us of the wisdom of that decision.

Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

Myron Gordon I did not know, but the Chief’s remarks certainly gave me a strong sense of the man and the times. Gordon attended college at the University of Wisconsin and graduated from Harvard Law School in 1942. In his academic successes, the Chief—with some perspective on the matter—stated, “Myron Gordon lived the dream of Eastern European Jewish immigrant parents.” He became a Milwaukee County Civil Court judge in 1950, holding a seat on the state trial bench for eleven years; was a justice of the Wisconsin Supreme Court from 1961 to 1967; and served as a judge of the United States District Court for the Eastern District of Wisconsin from 1967 until his retirement several decades later.

Gordon seems not to have forgotten his forbears. The Chief recalled one incident to make a large point: “When Myron Gordon was on the Supreme Court, several prominent Madisonians wanted to nominate him for membership in a private eating club that discriminated against Jews. They wanted to eliminate religious discrimination and selected Myron Gordon and Gordon Sinykin as their nominees because Myron and Gordon were above reproach. Myron understood the publicity that would ensue (which was not pleasant) and ill will that might follow (and it did). Neither he nor Gordon needed to be a member of the club—it added little if anything to their lives. But discrimination should be battled wherever it raises its head. And if Myron and Gordon were asked to lead the battle, they would do so. A small win, but every little win makes a difference.”

I asked Chief Justice Abrahamson for a copy of her 2010 remarks, and I have made them available here.

Terry Evans I knew, though scarcely so well as did Judge Sykes, who was both his law clerk and, for some seven years, his colleague on the Seventh Circuit. Judge Evans attended Marquette University for both college and law school and was of Milwaukee in just about every other respect as well. He, too, became a trial judge in Milwaukee County at a young age (34 years old), before also being appointed to the federal district court here in Milwaukee (in 1979). Judge Evans joined the Seventh Circuit in 1995 and passed away quite unexpectedly this past year.

It is perhaps natural that Judge Sykes would especially remember Judge Evans as a trial judge, where he spent the majority of his time on the bench and she served as his law clerk for a year: “He was steeped in everything that is Milwaukee—its people, its traditions, and its institutions. Add to that his legendary sense of humor and his considerable powers of perspective and intuition and you’ve got a truly masterful trial judge. He could read the courtroom, size up each case really quickly, cut through the clutter, pull the story line from mountains of evidence, identify the real clash of interests, and articulate a concise and well‐reasoned decision that everyone could grasp. He did all this with a clarity of expression and wit rarely found in the world that we lawyers and judges inhabit.”

Judge Sykes has been kind enough to share her remembrance of Judge Evans.

Judges are a mixed lot—as is the case for any large category of individuals. Some are good, others less so. Some work hard; others are unwilling to do all the work that is the premise of an efficient litigation system (e.g., superintending discovery disputes), and the practice (along with the society) suffers for it. But, in all events, the role of the judge is at the heart of the legal system, and so it is a contribution to our continuing education that Chief Justice Abrahamson and Judge Sykes would spend, no doubt, a considerable amount of time preparing their remembrances of Judges Gordon and Evans and permit us to share these in written form. These writings may, indeed, teach us some of “the lessons of the law (and life).”

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.  Stevens sat beside Antonin Scalia for much of his time on the Court and was the “beneficiary of [Scalia’s] wonderfully spontaneous sense of humor.”  The year Scalia was appointed, they heard two cases involving police questioning of rather unsophisticated suspects.  (Stevens does not identify the cases by name, another instance of his tact, but they are readily identifiable from his brief description of the facts as Colorado v. Spring and Connecticut v. Barrett, both decided in 1987).  Scalia apparently leaned over and whispered to Stevens that it must be “dumb defendant day.”  Now, anyone who has read a Scalia opinion knows that this cannot be the apogee of his wit and can be fairly certain that, in their twenty-four years on the bench together, he made sharper comments in the course of their duties.

One gets the sense that Stevens is reluctant to write anything that might reflect poorly on the Court or its Justices.  And it is perfectly understandable that he would be unwilling to besmirch the institution with idle gossip.  The Court is both a vital force and symbol of American democracy and, in the words of his dissent in Texas v. Johnson (1989), where the majority held that burning an American flag at a demonstration was protected by the First Amendment, it is “worthy of protection from unnecessary desecration.”

Nevertheless, Stevens does not shy away from criticizing his colleagues and even President Reagan when their decisions diverge from his closely held principles.  Though he found common ground with Chief Justice Rehnquist on issues involving separation of powers, Stevens was sharply critical of Rehnquist’s stance on state sovereign immunity, particularly in Seminole Tribe of Florida v. Florida (1996).  “Like the gold stripes on his robe, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.”  Invariably, however, Stevens’ criticisms are based on what he considers to be flawed reasoning and not personal animus.  His disapproval of Rehnquist’s decision to adorn his robe with gold stripes does not detract from his admiration for Rehnquist’s other fine qualities: his impartiality in both private conference and open court and his efficient administration of the Court’s business.

Stevens’ evaluation of the current Chief Justice, John Roberts, is very favorable.  He describes him as “a better presiding officer than both of his immediate predecessors” as well as a more skilled representative of the Court in non-judicial settings.  He is particularly appreciative of Roberts’ concurrence in Graham v. Florida (2010) because it represents for him a rejection of the interpretive approach that looks at the “original intent” of the Framers in determining the constitutionality of a given case.  In Graham, Roberts agreed with the majority that imposing a life sentence on a juvenile defendant for a non-homicide offense violated the Eighth Amendment but rejected a categorical bar to such a sentence on the grounds that courts should weigh factors like the offender’s age and criminal conduct on a case-by-case basis.  Roberts recognized a proportionality requirement at variance with Scalia’s dissenting opinion in Harmelin v. Michigan (1991) that would prohibit certain, specific punishments under the Eight Amendment but would not require, in Stevens’ words, “that the punishment fit the crime.”

Stevens’ discussion of Roberts’ opinion in Graham highlights two themes of his own judicial philosophy.  According to Stevens, judges and justices should exercise restraint, and decide only what a case “actually presented” without trying “to craft an all-encompassing rule for the future.”  Kyllo v. United States (2001) (dissenting).  This, of course, stems in part from his understanding of the separation of powers in our system of government.  As he wrote in Kyllo, Congress is the branch that “grapple[s] with. . . emerging issues” and it is counterproductive to “shackle them with prematurely devised constitutional constraints.”

Secondly, Stevens disagrees with an uncompromising insistence on the specific intent of the Framers because it does a disservice to the emerging problems of a changing society.  Which is not to say the principles enshrined in the Constitution are readily susceptible to modification; if they were they would not be principles.  Rather, it is that the strength of the principles lies in their flexibility and not in a code-like rigidity.  Stevens quotes Justice McKenna in Weems v. United States (1910), “[A] principle, to be vital, must be capable of wider application than the mischief which gave it birth.”

These two aspects of Stevens’ jurisprudence help explain what comes across in his memoir: a reticence that displays itself in distaste for superfluous gossip on the one hand, and a generosity of spirit capable of disagreement without rancor on the other.  Towards the end of Five Chiefs, Stevens writes that he has “no memory of any member of the Court raising his or her voice.”  Whether this is strictly true, and as far as it is his memory there is no reason to doubt that it is, it sheds light on how Stevens envisioned the work of the Court as a civil pursuit for justice.

This was not Justice Eakin’s first foray into judicial versifying. While on the Superior Court of Pennsylvania he composed quatrains for a couple of opinions. In Busch v. Busch (1999) the entire opinion is in verse except for a recitation of the facts, and in Liddle v. Scholze (2001), several stanzas merely bookend more conventional text. Liddle is in many ways the more interesting case, as it deals with the sale of breeding emus. Appellant sued for breach of contract when they didn’t – breed, that is – but lost because she did not take advantage of the contractual remedy in a timely fashion and was thus presumed to have waived it. Perhaps she should have pursued a different cause of action and argued for rescission of the sale on the grounds Scholze was selling an unregistered security, under an investment contract theory. But this is all by the by. In Liddle, Eakin achieves a Coleridgean tone with his first line, “The emu’s a bird quite large and stately . . . .”

Elevated to the Pennsylvania Supreme Court in 2001, Eakin continues to occasionally express himself in verse from the bench. He is not unique in this regard. There are many examples of judicial prosody and even the tax court has tried its hand at the form. See Jenkins v. Comm’r, 47 T.C.M. (CCH) 238 (1983), “Ode to Conway Twitty.” The practice has not been immune from criticism, however. The main thrust of the criticism is that “rhymed verse trivializes the seriousness of the matter before the court and demeans the litigants.” Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions, 12 Widener L.J. 597, 606-607 (2003). It has also been impugned as a waste of taxpayer money and for its tendency to produce not only bad law, but execrable poetry.

These criticisms strike me as not wholly persuasive. The assertion that rhymed verse is more likely to demean than other forms of writing is equivocal at best – on the one hand you have the aubade, on the other gangsta rap. It is true that rhymed judicial opinions are often jocular in tone. Justice Eakin admits he tends to use the form when “the subject of the case call[s] for a little grin here or there.” But could it be that some matters, though legally significant, are trivial in a broader sense? And if this is so, does the appearance of judicial propriety require learned men to pretend otherwise? Benjamin Cardozo, in Murphy v. Steeplechase Amusement Company (1929), is clearly having verbal fun. “The antics of the clown are not the paces of the cloistered cleric.” Is he trivializing the subject matter of the suit? Sure, but in a principled way.

As to the respect litigants are due, jurists have not been restrained in the exercise of their derision by prose. Oliver Wendell Holmes’ opinion in Buck v. Bell (1927) comes to mind. His disdain for the “feeble-minded” is palpable throughout the opinion and culminates in the grotesque: “Three generations of imbeciles are enough.” On the other hand, there are some parties whose actions are so reprehensible, or whose arguments are so frivolous, that they deserve censure; the law, in fact, demands it. In such cases, do they not forfeit the court’s respect? In any event, an adversarial system of justice inevitably demeans the loser in the sense that their dignity is reduced, at least to the extent their loss decreases their status.

In short, I would contend that there is nothing inherently wrong about an opinion that takes liberties with form, as long as it seriously resolves the issue before the court. The idea that a well-reasoned resolution can only be expressed in certain sober tones is belied by the many instances where wit and humor can reveal the weakness of a position or provide a more fitting context for the dispute. Judge Posner, for example, is a master of the well-placed barb that explodes an untenable position. In 2008, Chief Justice Roberts’ recitation of facts in Pennsylvania v. Dunlap is written in the style of a detective novel of the 30’s or 40’s. He described the neighborhood in which the alleged offense occurred as “[t]ough as a three-dollar steak.”

What is problematic about Eakin’s poetic opinions, perhaps, is their slavish insistence on rhyme. He relegates the form to those cases that are after all not very important, those one merely “grins” at. But if one takes seriously the claim that law is essentially a literary activity, then poetry, as the sine qua non of all such activity, is capable of being put to more varied uses. Would an opinion in blank verse on the legal consequences that flow from attempted murder, such as can be found in the Merchant of Venice, necessarily be out of place? Free verse seems particularly apt for intellectual property cases.

Certainly, given the traditions of the law, there is no need to fear that writing opinions in verse in any of its forms is likely to become commonplace. And there are undoubtedly good reasons for this. If nothing else, some uniformity of approach is indispensable to an efficient process. I am reminded of the saying that behind every lawyer is a failed poet, however, and wonder if those that would seek to prohibit its use by judges in the performance of their official duties needlessly restrict the possibilities of legal analysis and stifle its animating spirit. Perhaps that is overstating the case, but I could not resist a plug for poetry.

The GAB responded to the lawsuit by arguing that the Wisconsin statutes provide a clearly defined procedure that allows elected officials subject to recall to instigate challenges to any signatures that appear to be duplicative, fictitious or unrecognizable. After the GAB accepts the recall petitions, there is a period of 10 days in which the signatures may be challenged by the official. It is at the challenge stage that suspect signatures should be identified and removed, according to the GAB, and not earlier when the recall petitions are accepted by the agency. The GAB also contended that there was no provision in the Wisconsin Statutes that granted the agency the authority to do what the Friends of Scott Walker asked it to do.

Judge Davis disagreed with the GAB, and earlier today he ruled that the GAB is required to take affirmative action that will have the effect of reducing the burden that the Friends of Scott Walker would otherwise face. This is because the GAB must now identify and remove suspect signatures on its own initiative.

Why is the GAB obligated to do this, when there is no statutory language that explicitly places such an obligation on the agency? According to the Milwaukee Journal Sentinel, Judge Davis stated that he based his ruling on his interpretation of the Wisconsin Statutes rather than on the constitutional arguments pressed by the plaintiffs.  In its brief, the plaintiff’s argued that the language in Section 9.10(3)(b) of the Wisconsin Statutes provides that the GAB must “determine by careful examination whether the petition on its face is sufficient.” According to the Friends of Scott Walker, the command to subject the petitions to “careful examination” necessarily requires the GAB to adopt procedures for striking duplicative, fictitious and unrecognizable signatures. This argument is made in summary form here at pp. 17-18.

Standing alone, the procedures implied by the words “careful examination” could be interpreted in any number of ways, including the requirement that the GAB implement the procedures that the plaintiffs request. However, the fact is that these words do not stand alone. There are other provisions of the recall statute (Chapter 9 Wisconsin Statutes Section 9.10) that, when read together with Section 9.10(3)(b), counsel strongly against imposing such a requirement on the GAB on the basis of one isolated phrase.

The statutory provisions that are inconsistent with Judge Davis’ interpretation of Section 9.10(3)(b) have been thoroughly discussed by the blogger Jay Bullock (Folkbum).    I will add a few details.

One merely has to read the statute as a whole. For example, Section 9.10(2)(g) states “[t]he burden of proof for any challenge rests with the individual bringing the challenge.” The grounds for a challenge are listed in Section 9.10(2). Under the statute, a challenge may be brought and the signature removed if the challenger establishes by affidavit or other evidence that the signature is duplicative (Section 9.10(2)(i)) or that the signature is of an ineligible individual (Section 9.10(2)(l)). Under Section 9.10(2)(q), challenges may be brought for grounds other than those specifically listed. That would include challenges based on the assertion that the name on the petition is fictitious or unrecognizable.

In other words, at the prompting of the Friends of Scott Walker, Judge Davis has interpreted the words “careful examination” in Section 9.10(3)(b) so that they require the GAB to affirmatively seek out duplicative, fictitious and unrecognizable signatures when the language of Section 9.10(2) clearly places the burden of removing signatures that fall into these categories on the challenging party and not on the GAB.

Read as a whole, what does the statute mean when it says that the GAB must “determine by careful examination whether the petition on its face is sufficient?” The staute means just what it says. The GAB must identify those defects that can be determined from the face of the recall petition itself and that render a signature ineligible to be counted even if it is not challenged. Section 9.10(2)(e) states:

(e) An individual signature on a petition sheet may not be counted if:

1. The signature is not dated.

2. The signature is dated outside the circulation period.

3. The signature is dated after the date of the certification contained on the petition sheet.

4. The residency of the signer of the petition sheet cannot be determined by the address given.

5. The signature is that of an individual who is not a resident of the jurisdiction or district from which the elective official being recalled is elected.

6. The signer has been adjudicated not to be a qualified elector on grounds of incompetency or limited incompetency as provided in s. 6.03 (3).

7. The signer is not a qualified elector by reason of age.

8. The circulator knew or should have known that the signer, for any other reason, was not a qualified elector.

(em) No signature on a petition sheet may be counted if:

1. The circulator fails to sign the certification of circulator.

2. The circulator is not a qualified circulator.

The statute refers to the failure to meet these requirements as “insufficiencies” and permits those circulating the recall petition to submit affidavits correcting the mistake (Section 9.10(2)( r)).

If the selective parsing of the statutory language argued by the plaintiffs in this case, and adopted by Judge Davis, sounds familiar, it should be. It is eerily reminiscent of the woeful misreading of the statutory provisions governing the publication of new laws that was argued before the Wisconsin Supreme Court in Ozanne v. Fitzgerald.  In this instance, the legislature has made a policy choice as to the appropriate procedures in a recall election. If that choice appears unwise or outdated, then the correct remedy is to seek new legislation. Instead, the Friends of Scott Walker encouraged Judge Davis to employ the words “careful examination” as a Trojan horse in order to substitute a different policy choice. That is not the role of the judiciary.

As a result of Judge Davis’ ruling, the GAB is now tasked with developing “reasonable procedures” sufficient to satisfy its new affirmative obligation to seek out and eliminate duplicates and obvious fakes. These procedures were never created by the legislature, so the GAB is in effect re-writing the rules as it goes along, without any legislative guidance. At the same time, the GAB must keep looking over its shoulder at Judge Davis, because it is likely that the Friends of Scott Walker will challenge the adequacy of the new procedures in court no matter what the GAB does.

It appears that the strategy of the Friends of Scott Walker is to use litigation in order to delay any actual recall election as long as possible, thereby allowing public emotions to cool and the anti-Walker sentiment to wane.

If there is a silver lining in the ruling of Judge Davis, it is that he resisted the call of the plaintiffs to extend the holding of Bush v. Gore and find that Wisconsin’s recall procedures violate the Equal Protection Clause of the United States Constitution. For the moment, I will resist the temptation to explain why the Equal Protection argument advanced by the plaintiffs in this case is unprecedented and dangerous. However, the plaintiff’s reliance on Bush v. Gore in its briefs does provide us with a dose of irony.

The holding of the U.S. Supreme Court in Bush v. Gore may have few defenders in legal academia, but one of that small band who defend the decision is Professor Edward Foley at Ohio State University, Moritz College of Law. Professor Foley authored an interesting article entitled “The Future of Bush v. Gore.” At page 997 he argues that the decision in Bush v. Gore was correct because the Florida Supreme Court had gone too far in its rulings. The fundamental mistake that the Florida Supreme Court made, according to Professor Foley, was that it allowed state judges to re-write election rules in the midst of an election.

Isn’t that exactly what today’s decision in Friends of Scott Walker v. GAB does?

I think it’s helpful to appreciate, however, that the basic problem of partisanship trumping merit as a determinant of judicial appointments is anything but new. Recently, I was reading Gerald Gunther’s biography of Learned Hand and came across a reminder of how the appointments process has long been an overwhelmingly political affair, even for lower-court judgeships. Gunther explains that when Jerome Frank’s death in the late 1950s left vacant a seat on the Second Circuit, advocates from opposing political orientations lobbied heavily for their favored candidates to receive the next appointment. Many Republicans pushed for the selection of Leonard Moore, the U.S. Attorney for E.D.N.Y., while Democrats favored Irving Kaufman, the federal judge who had presided over the espionage trial of Julius and Ethel Rosenberg. Moreover, many on both sides appear to have viewed the choice between Moore and Kaufman as essentially political rather than merit-based. One of the significant arguments made in favor of Kaufman, for example, was that elevating him to the Second Circuit could function as a way for the President and Senate to signal their approval of his handling of the Rosenberg trial, of which leftist organizations had been fiercely critical.

The debate left Judge Hand extremely dissatisfied with the way in which it downplayed or left out considerations of merit. To Felix Frankfurter, a longtime friend, Hand wrote:

Did you see today’s Times and the reasons said to be put forward in Washington for moving up Kaufmann [sic]? “To show the President approved his decision to execute the Rosenbergs.”

Oh, oh, oh! How low people can get! I don’t mean [Kaufman]; he didn’t start that, I believe; but the Swine, the Swine, the Swine!!

Hand later repeated to Frankfurter that he was “‘thoroughly sick of [his] government, especially [with respect to] the appointment of judges,’” even adding, “‘What a mistake it was to let the Senate in on any appointments anyway! Democracy! How many crimes are committed in thy name!!!’”

Hand’s statements were obviously hyperbolic, but now seem to reflect a sentiment held by many observers of the appointment process today. That Judge Hand critiqued the same problem fifty years ago shows that it is not a new one, and suggests that its source must lie deeper than the contemporary divisiveness of American politics.

Cross-posted at PrawfsBlawg.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

It requires some effort to appreciate a difference between the standards, but the formulations do indeed suggest two distinct ways of performing the analysis.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.  That is because the appellate court will rarely have any reliable basis for determining what really mattered to a particular jury.  Juries normally render bare-bones general verdicts — a simple declaration of guilty or not guilty — and formal examination of jurors about what happened during deliberations is almost always forbidden.  In light of these limitations, an appellate panel really has no alternative in most cases but to try to imagine what it would have done if it had been the jury.  This no doubt helps to explain why the courts have not felt it necessary to resolve the longstanding ambiguity.

It is possible, though, that there are some cases in which the formulation really does matter, and Vasquez just may be such a case.  Here’s what happened.  Vasquez drove to a Denny’s parking lot to meet Perez, who was attempting to complete a purchase of a kilogram of cocaine.  It turned out, however, that the seller was working with the police, and Vasquez soon found the car surrounded by cops.  Rather than surrendering, Vasquez attempted a getaway, crashing into a couple of police cars in the process.  After a chase by car and on foot, Perez and Vasquez were apprehended and prosecuted on drug charges in federal court.  Perez pled guilty, but Vasquez went to trial.

At trial, Vasquez’s defense was that he was simply in the wrong place at the wrong time.  Perez’s wife was his key witness. She testified that she had asked Vasquez to pick up Perez at the parking lot, apparently indicating that he did it as a favor for her, not as a knowing participant in a drug deal.

In order to undermine the testimony of Perez’s wife, the government played for the jury recordings of phone conversations between Perez and his wife while Perez was in jail following his arrest.  Through those recordings, the jury learned that Vasquez’s lawyer had advised his client that he would likely lose at trial and should plead guilty.  When Vasquez’s lawyer then stood up to deliver his closing argument a little while later, one imagines that he had very little credibility left with the jury.

On appeal to the Seventh Circuit, all three members of the panel agreed that the trial judge had committed an error in admitting the sensitive portions of the recordings, at least without an appropriate limiting instruction for the jury.  However, the majority concluded that the error was harmless, reasoning that the evidence of Vasquez’s guilt was “overwhelming.”  The majority particularly emphasized the importance of Vasquez’s getaway attempt as evidence of guilt.  The majority also cited some other items of evidence, including testimony indicating that Vasquez knew the car contained $23,000 in cash.

For the majority, the harmless error determination was quick and easy, requiring only a brief recounting of the evidence against Vasquez, with no attention to the question of what the jury actually thought about the evidence.  The dissenting judge provided much more extensive analysis, carefully parsing the trial record to determine what impact the evidence actually had on the jury.  Here’s a taste:

The [Chapman] standard is not easy to satisfy, and four factors here lead me to conclude this error was not harmless: the modest strength of the rest of the government’s case against Vasquez, the prejudicial character of the evidence that was admitted erroneously, the fact that the jury acquitted Vasquez of one of two charges, and the importance that the government itself attributed to its flawed rebuttal evidence.

. . .

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government had evidence that was legally sufficient to convict Vasquez, but the case was far from a slam-dunk. The dramatic evidence of the dangerous flight strengthened the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless. But the flight evidence cannot carry that much weight, in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight as evidence of guilt for the crime charged because there are so many links in the chain of inferences . . . .

We must also consider the prejudicial effect of the improper evidence. The evidence from the MCC tapes, admitted here erroneously for their truth and with no true probative value, was just about as prejudicial as one could expect to encounter in a trial. The jury heard that Vasquez’s lawyer — the man who would soon make a closing argument asking them to find reasonable doubt in the government’s case — had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.” A juror who heard and believed that evidence would surely discount anything she heard from that lawyer. In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn guilty plea. Such a plea is virtually never admissible because of its powerful force.

We also have strong indications from both the jury and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the prejudicial and erroneous evidence, the jury still found Vasquez not guilty on the charge of attempted possession with intent to distribute. That verdict is hard to reconcile with the jury’s conviction on the conspiracy charge, and the split verdict certainly has the whiff of a compromise verdict in a close case. Such verdicts are permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded error was harmless, we should not ignore that strong signal that the jury viewed the case as a close one, even with the evidence of flight and the improper rebuttal evidence.

The government also showed how important it believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed nearly over when the government filed its emergency Sunday motion for a continuance to enable it to prepare this rebuttal case. The events of the next several days, including especially the government’s emphasis on the improper evidence in its closing argument, showed that the government believed that Mrs. Perez had seriously weakened its case and that the improper rebuttal evidence strengthened its case considerably.

In light of the considerations highlighted by the dissenting judge, I think Vasquez does have a plausible argument that the choice of which harmless error test to use was critical in his case.

On the other hand, it’s not clear to me that Vasquez must necessarily lose under the “overwhelming evidence” test.  It really comes down to how much weight you want to give the flight evidence: does this really demonstrate in an “overwhelming” way that Vasquez was conspiring to deal drugs?  I’m skeptical, although I’d really like to know more about the circumstances of the flight.  Minority men (based on his surname, I’m assuming that Vasquez is Hispanic) have plenty of reason to fear encounters with the police even if they are not doing anything illegal.  Although trying to bull his way through a cordon of police cars was stupid and dangerous on many levels, Vasquez seems to have made a snap decision in a high-stress setting that may not really say much at all about what he was thinking when he drove to the parking lot.

So, the Court may be able to dodge sorting out the harmless error standard yet again.

If it does resolve the ambiguity, which way will it go?  Given the restrictions on finding out what a jury was actually thinking, I’m dubious that the sort of approach exemplified by the dissenting judge in Vasquez can really work on its own terms.  Applying the test will almost always seem a highly speculative exercise.  And it may be one that actually works against defendants in some cases.  For instance, if a jury convicts on all counts with only a very short period of deliberation, that would seem rather compelling evidence that the jury did not find the case at all close and would help to support a finding of harmlessness.  (This would be the flipside of the compromise verdict in Vasquez.)

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.

Cross posted at Life Sentences.

Why has the A.B.A. been less enthusiastic about the Obama judicial nominees? One simple theory is that the organization is more conservative than many think. It used to be assumed the A.B.A. had a liberal bias, but the rejected nominees are Obama-style liberals.

Another theory involves the experiences and career paths of the nominees. Most were government lawyers and academics, but the A.B.A. apparently wants significant trial experience. The A.B.A., like the general public, may think that “true” lawyers are litigators.

The most troubling theory for the high rejection rate is that the A.B.A. continues to imagine a white, male federal judiciary. Eight of the fourteen rejections are African American or Hispanic, and nine are women.

President Obama could still seek Senate confirmation for his nominees, but regardless of what he decides on that score, the rejections provide new perspectives on the A.B.A. The emerging image is hardly attractive.

Is this a good thing?  In the law review literature, there are plenty of calls for the creation of this or that new specialized court.  Certainly, specialization leads to quicker and more efficient decisionmaking.  But should we expect the specialized judge also to render decisions that are substantively better?

This is the question that lies at the heart of Chad Oldfather’s new article, “Judging, Expertise, and the Rule of Law.” 

Chad’s analysis rests on the burgeoning psychological literature on expertise.  His conclusion is that the claims about the ability of specialist judges to develop and successfully use a higher level of substantive expertise are probably much overstated.  Chad’s analysis has many nuances.  To highlight just one dimension that I found especially intriguing, he considers the likelihood that specialist judges are better able to make accurate predictions regarding the consequences of ruling one way or another.  He suggests that the answer depends on the certain personal qualities of the judge:

A final body of research that bears consideration is Philip Tetlock’s work on expert political judgment.  Tetlock’s project was, in effect, to attempt to isolate the components of “good political judgment,” and he did so primarily by getting experts to make predictions about future states of the world and then, over time, assessing whether those predictions came true. This is, as he readily acknowledges, a slippery task, in large part because disagreements turn on more than ascertainable factual claims. Instead, they involve “hard-to-refute counterfactual claims about what would have happened if we had taken different policy paths and on impossible-to-refute moral claims about the types of people we should aspire to be—all claims that partisans can use to fortify their positions against falsification.” While Tetlock acknowledges the impossibility of eradicating all the subjectivity from the inquiry, he maintains that it is possible to assess them by reference both to the correspondence between experts’ predictions and reality and the coherence of the processes by which they approach the task.

Tetlock concluded that, overall, experts’ judgment was not good. As he puts it, “Humanity barely bests the chimp.”  “[V]ariation in forecasting skill is roughly normally distributed, with means hovering not much above chance and slightly below case-specific extrapolation algorithms.”  Tetlock found that demographic and life-history factors bore very little relationship to forecasting success. “It made virtually no difference whether participants had doctorates, whether they were economists, political scientists, journalists, or historians, whether they had policy experience or access to classified information, or whether they had logged many or few years of experience in their chosen line of work.”  Nor did ideology or other factors relating to worldview or disposition correlate with forecasting success.

What did matter, Tetlock found, was the process by which experts approached the predictive task. Drawing on Isaiah Berlin’s famous fox-hedgehog distinction, he found a “dimension [that] did what none of the measures of professional background could do: distinguish observers of the contemporary scene with superior forecasting records, across regions, topics, and time.”

“Low scorers look like hedgehogs: thinkers who ‘know one big thing,’ aggressively extend the explanatory reach of that one big thing into new domains, display bristly impatience with those who ‘do not get it,’ and express considerable confidence that they are already pretty proficient forecasters, at least in the long term. High scorers look like foxes: thinkers who know many small things (tricks of their trade), are skeptical of grand schemes, see explanation and prediction not as deductive exercises but rather as exercises in flexible ‘ad hocery’ that require stitching together diverse sources of information, and are rather diffident about their own forecasting prowess, and … rather dubious that the cloudlike subject of politics can be the object of clocklike science.”

Looking beyond the simple fox-hedgehog divide, Tetlock found that “hedgehog extremists making long-term predictions in their domains of expertise” were the worst performers.  The best were “foxes making short-term predictions within their domains of expertise.”  In all, he concludes, “the performance gap between foxes and hedgehogs … is statistically reliable, but the size of the gap is moderated by at least three other variables: extremism, expertise, and forecasting horizon.”

Tetlock reasons that these results are consistent with other research on cognition. Hedgehogs, he suggests, “bear a strong family resemblance to high scorers on personality scales designed to measure needs for closure and structure—the type of people who have been shown in experimental research to be more likely to trivialize evidence that undercuts their preconceptions and to embrace evidence that reinforces their preconceptions.”  Hedgehog experts perform especially poorly because their expertise better equips them to discount contrary evidence as well as to characterize evidence as bolstering their beliefs. Extremism magnifies the effect.  Meanwhile, foxes are more self-critical and more inclined to anticipate criticism from others, and consequently more likely to give due consideration to all information that bears on their position.  For foxes, expertise pays dividends, since it enhances their ability to assess all information.  (41-43)

In addition to questioning the advantages claimed for a specialized judiciary, Chad also discusses the case for generalists.  He identifies rule-of-law values as the most important justification for our generalist traditions:

The strongest arguments for a generalist judiciary seem to require the acceptance of a certain conception of law, and in turn of the judicial role. Stated simply, the conception of law that seems to underlie the generalist judiciary is one in which law strives to be something of a common language. There are at least two ideas at work here. One is that the expertise relevant to judging exists at a similarly broad level. On that view, the key is not expertise in or familiarity with the particulars of, say, tax law that matters, but rather an advanced ability to deploy the tools of legal analysis. The second idea extends beyond the act of judging to the impact of that act on the relationship between the law and those who are governed by it. It goes beyond the notion that we have a government of laws and not of men to the suggestion that we must have a government of laws that can be understood and adhered to by more-or-less ordinary people. The generalist judiciary can further these goals not only by preventing the sort of balkanization that is likely to occur if separate judiciaries have responsibility for their own areas of law, but also by serving as a more general barrier to needless technicality and complexity in the law. The presence of the generalist effectively requires specialist lawyers to translate their arguments into the common language of the generalist, which in turn facilitates the generality of law. This barrier provided by the generalist is hardly impermeable. It is not difficult to find examples of needless technicality and complexity in the law created by generalists. Nonetheless, one can easily imagine generalism serving as an antidote to some of the more severe pathologies that might afflict the law under a regime based more on specialization.  (48-49)

Chad’s very fox-like article is forthcoming in the Washington University Law Review.

The present is a particularly important time for filling judicial vacancies because the 2012 presidential election is only about a year away, and the appointment process slows down considerably during election season. So, how are the President and the Senate doing?

Not well. A September 19 report from the American Constitution Society shows that 93 of 875 federal judgeships are vacant—nearly 11%. Over a third of those vacancies are considered “emergencies” because of the extent of the case backlog in the relevant district or circuit, or because of the combination of the extent of the backlog and the length of the vacancy.

Another noteworthy aspect of the ACS report compares the confirmation success rates of Presidents Obama, Bush, and Clinton. In terms of the total number of confirmations, President Obama has not fared as well as either of his predecessors. To date, he has filled 94 vacancies. In contrast, by the same points in their presidencies, President Bush had filled 145 vacancies and President Clinton 161. President Obama has also fared poorly in terms of confirmation percentage, with only 62% of his nominations receiving confirmation. In contrast, the Senate confirmed 74% of President Bush’s nominations and 84% of President Clinton’s.

The ACS report suggests that judicial vacancies present a growing problem. Much of the media coverage focuses on apportioning blame, but perhaps a more fruitful discussion would focus on process design. Are there alternative appointment models that could alleviate political gridlock while retaining the current system’s responsiveness to popular political forces? Undoubtedly a tough question, but certainly worth asking.

As you might imagine, approval of Rosie and dogs like her is not universal.  Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem.  Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified.  One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog’s fur, “it sent an unconscious message to the jury that she was under stress because she was telling the truth,” adding “There is no way for me to cross-examine the dog.”  Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O’Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said “Sometimes the dog means the difference between a conviction and an acquittal.”

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments – some effective and some not. 

The problem came to the fore in the 1980s when a slew of highly publicized child sexual abuse trials occurred.  The public jumped on the bandwagon of child protection and rallied around the cause: it was not unusual to see cars with bumper stickers reading “Listen to the children” and “Children don’t lie.”

Except sometimes, children do lie, and even more often, they tell what they think is the truth after adults (often well-meaning but sometimes malevolent) have questioned and probed and planted suggestions.  Gradually, the pendulum swung towards defendants’ rights, and beginning with Coy v. Iowa [finding an unconstitutional  denial of the right of confrontation when a statute presumed trauma to the witness in a child sexual assault trial, and the witnesses were allowed to testify from behind a screen that blocked their view of the defendant] and Maryland v. Craig [finding that child testimony via closed circuit television might be constitutionally allowed if there is a case-specific finding of necessity to prevent trauma and if there is adequate opportunity to cross-examine the witness], the U.S. Supreme Court required courts to make individualized findings about what might be necessary to help a traumatized witness while still allowing the defendant to exercise his constitutional right to confront witnesses against him.

Although many cases, including the aforementioned two, have addressed the issue of balancing rights of confrontation with the interests of child witnesses, it should be noted that a defendant’s right to a fair trial may be at stake here as well.   It is well-settled that a defendant’s right to a fair trial precludes the prosecution from unnecessarily manipulating the courtroom and its occupants so as to subtly convey that the defendant is guilty.  For example, a defendant cannot be compelled to undergo trial dressed in prison orange garb, and he must be offered acceptable street clothing for his appearances in court.  Failure to comply with these requirements can result in a mistrial or a new trial.  Moreover, witnesses against the defendant cannot just say nor do whatever they want in court – they must answer questions that comply with the rules of evidence about what is relevant and what is merely prejudicial.

From the defendant’s perspective, the concern with Rosie the dog and others like her is that the jury will conclude that the poor child witness must be telling the truth, otherwise she would not need Rosie’s encouragement so much.  Dog lovers – and there are many – tend to attribute human characteristics to dogs.  Surely a dog would not encourage a child witness to lie!  But the defense lawyers are right to point out that Rosie, by instinct or training or both, has learned to respond to stress or discomfort.  A child witness may well be feeling stress or discomfort, but it could come from truthful confrontation, from stage fright over speaking in front of a group, from fear of someone (but not necessarily the defendant), or even from lying, which is also very stressful for most people.  If the goodwill induced by the adorable Rosie leads jury members to believe only the best about the child witness and her motives, then the defendant might find it impossible to convince them otherwise.  True, the defense lawyers can cross-examine the child, but this must be done with kid gloves to avoid looking like a bully and actually hurting the defendant’s case.  The badgering, aggressive demolition of a teary child-witness exists only in certain TV scripts – any real lawyer would have to be insane to try anything of the sort.  Denigrating the dog in front of the jury probably wouldn’t be a good idea, either.

From the prosecution’s perspective, there are some human-shaped monsters out there that do very, very bad things to children – and those children are often terrified to testify.  If a golden retriever can comfort the child enough to get her story before the jury, then this seems like a practical solution.  It’s not like the dog is being presented as a witness to the crime, after all.  Of course, it’s clear that a cute dog reflects well on the witness, but really, how is this any different from having the child dress in a sweet, innocent-looking outfit, even if her normal attire is somewhat racier?  Everyone knows that eschewing orange prison attire isn’t the only sartorial decision being made in the courtroom.

Ultimately, this will have to be another balancing act overseen by judges.  Perhaps judges should be required to gently remind the jury that the dog is there to help the witness deal with stress, which could be the result of truth-telling, fabrication, stage-fright, or other factors.  Juries are useful precisely because they often revert to common sense –everyone knows that you are not necessarily a nice or honest person just because a dog likes you.  (Even Hitler and Stalin are reputed to have had dogs.)  If the dog becomes too active in the courtroom, the judge might need to intervene.   But overall, I think service dogs in the courtroom might be a very good thing indeed.

My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.

For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.

A basic premise of constitutional interpretation is that constitutions are not statutes.  Instead, a constitution should espouse general principles and guidelines.  This foundational interpretive approach applies to the procedural rules that the legislature is expected to follow when passing a law or when otherwise fulfilling its constitutional duties as the lawmaking branch of the state government.  The text of a constitution is not the place to locate detailed procedural requirements, especially if the particular procedures might be subject to later change or revision which would necessitate the burdensome process of a constitutional amendment.

The delegates at Wisconsin’s state constitutional convention understood this principle.  Consider this explanation by Jack Stark, in his 1997 book THE WISCONSIN STATE CONSTITUTION: A REFERENCE GUIDE (pp. 7-8):

The other salient quality of the ratified constitution is its generality.  On this point, the delegates did speak fairly often, stating that constitutions should enunciate general principles and leave details to legislation.   . . .   This generality has reduced the need to undergo the cumbersome process of amending the constitution when one of its provisions becomes dated or obviously bad public policy.  . . . This generality also makes the legislature accountable to the electorate; whereas a very specific constitution would have allowed legislators to argue credibly that the constitution had tied their hands.  In short, on this matter the delegates chose wisely.

Accordingly, while the Wisconsin Constitution has a specific command that the doors of the legislature are to remain open while it is in session, it follows that the precise policy decisions of exactly how that command should be accomplished have been left to the legislature to decide through legislation.  This is exactly what the legislature did when it enacted the Open Meetings Law.  The legislature also made the choice to include in that statute an express grant of jurisdiction to the circuit courts to hear cases seeking to enforce the procedures of the Open Meetings Law and the express grant of enforcement powers to the courts (including the power to enjoin legislative acts that failed to comply with the law).  It also retained the flexibility to amend or repeal these procedures in the future.

Note that by following the exact provisions of the Open Meetings Law, Judge Sumi was faithful to the policy choices of the legislature, while the decision of the majority in Ozanne replaces the legislative choices reflected in the Open Meetings Law with the majority’s own conception of how best to comply with the State Constitution’s command of “open doors.”

The majority argues that the legislature cannot choose to give jurisdiction and enforcement powers to the circuit courts because of precedent holding that the legislature has the sole power under the Constitution to determine its own procedures, relying principally upon the case of Goodland v. Zimmerman, 243 Wis. 459 (1943).  However, the Goodland case did not deal with the situation where the court was acting under a statutory grant of power to enforce particular procedural rules.  In addition, the Goodland case, which was decided decades before the passage of the Open Meetings Law, never considered the situation where the statute granting enforcement power to the courts was the particular subset of statute that reflects the legislature’s choice of how best to implement a specific constitutional requirement.

In other words, the Goodland case may have decided that the courts lack the power to interfere with the legislative process in the absence of a statute granting the courts such authority, but it never considered or discussed how that analysis might change in the presence of a statute.  To be clear, I am not arguing that it is settled law to disregard the Goodland rule in such circumstances.  However, I do contend that this was clearly an open question under the precedent, and that there are in fact strong arguments that counsel in favor of a different result from Goodland under such circumstances.

The New Hampshire Supreme Court recognized that the separation of powers argument reflected in the Goodland decision and in other cases might not be applicable where the statute in question is tied to the implementation of a constitutional command.  In the case of Hughes v. Speaker, New Hampshire House of Representatives, 152 NH 276 (2005), the New Hampshire Supreme Court distinguished such a situation from the case before it, noting that the text of the New Hampshire “Right to Know” law does not express any intention to tie the statute to a provision of the New Hampshire Constitution and also that the language of the New Hampshire Constitution relating to open government was more aspirational than specific, in contrast to those state constitutions that specifically command public access to legislative sessions.  It takes but a moment’s reflection to realize that the Wisconsin Open Meetings Law and the Wisconsin Constitution present the exact situation that the New Hampshire Supreme Court recognized as presenting an open legal question.    

In its unseemly rush to decide the case, the majority in Ozanne considers none of this.  Instead, the most notable and (at the same time) pernicious aspect of the legal holding of the majority is the manner in which it applies a strict conception of the separation of powers doctrine in order to hamstring the exercise of judicial review.  The separation of powers doctrine is not an absolute command, and, indeed, any doctrine that can countenance both the Independent Counsel Law and the qui tam provisions of the False Claim Act can only be described as a flexible doctrine.  After all, an absolutist view of separation of powers would never have allowed the United States Supreme Court to decide whether an executive branch official was properly appointed by the President (Marbury v. Madison) or whether the President’s claim of Executive Privilege was correct (United States v. Nixon).

If the majority were concerned about the risks of excessive judicial encroachment into the legislative process, it might have considered whether those risks could be obviated by limiting the exercise of circuit court jurisdiction over legislative procedures to those few instances where a statute declares itself to be implementing a constitutional command.  After all, the one point of unanimity among all seven members of the Court in the Ozanne decision was that a bill could not become a law unless the statutory provisions requiring the Secretary of State to designate a date of publication have been met.  This is exactly the legal argument that I have made all along, and I fail to see how holding the Legislative Reference Bureau and the Senate Majority Leader to the terms of the statutes concerning publication is less of an encroachment upon the legislative branch than holding legislative officials to the terms of the Open Meetings Law.

In addition, as I have suggested previously, there are additional ways that the Court could have limited the risk of an undue encroachment on the legislative branch while still providing for judicial enforcement of the Open Meetings Law.  Merely by adopting an evidentiary rule that the official journal of legislative proceedings will provide the conclusive evidence as to what procedures were or were not followed, the majority could have avoided any risk that future courts would engage in contentious fact-finding efforts when questions of compliance with the statute arose.

What are the implications of the majority’s holding in Ozanne for future cases?  For one thing, we have seen that litigants in other states have raised the same absolutist separation of powers arguments adopted by the majority to challenge the power of the judiciary to enforce public records laws against the legislature.  It is likely that these same arguments also would support a challenge to the judicial enforcement of state ethics laws.  I can find no limiting principles in the majority decision that would prevent its use as precedent in these circumstances.

I’m a little surprised the Court took Smith, both because it has not been through federal habeas (it’s coming directly up from the state court system) and because it’s basically an “error-correction” case — at least as framed by the cert. petition, the case does not really present any questions of law, but will instead require the justices to roll up their sleeves and sort through a rather complex evidentiary record to produce a case-specific, fact-intensive ruling.  On the other hand, for reasons that are not clear to me, this seems to be precisely the way that the Court has engaged with Brady ever since United States v. Bagley in 1985.  See, e.g., Kyles; Cone v. Bell, 129 S. Ct. 1769 (2009).

In some ways, I’m more interested to hear what the Court has to say about a collateral procedural issue  in Smith that received relatively brief treatment in the petition, but that is also expressly encompassed by the cert. grant.  Smith claims that the Louisiana courts violated his due process rights by rejecting all of his Brady-type claims without finding any facts or providing any explanation.

At the conclusion of a four-day evidentiary hearing on Smith’s claims of discovery abuse, here is what the trial judge said:

I’m ready to rule in the case.  I don’t have to take any time for this.  I have been listening to this for quite a while.  I am denying post-conviction relief.

Wow.  That’s all you get for a ruling in a serious criminal case after presenting testimony by six witnesses in support of allegations of multiple constitutional violations — violations that go to core questions of guilt or innocence?

This aspect of Smith reminds me of my work on sentence explanation.  I’ve argued (e.g., here) that appellate courts ought to demand more analytical rigor than they do from sentencing judges.  Although it is not a sentencing case, I’d be happy to see the Court use Smith as an opportunity to begin to articulate some minimal due process requirements for judicial explanation, at least when it comes to potentially decisive, credibly supported claims by criminal defendants.

Cross posted at Life Sentences Blog.

For my posts on other cert. grants this week, see here and here.

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

Liptak notes various objections to the practice.  For instance, dictionaries were not written for the purpose of supplying precise legal definitions, and the variety of different meanings suggested by the many available dictionaries creates opportunities for “cherry picking.”  He adds,

The authors of the Marquette study, Jeffrey L. Kirchmeier and Samuel A. Thumma, said the justices had never really said precisely what dictionary definitions were doing in legal opinions. They urged the justices to explain “when and how dictionaries should be used, how a specific dictionary should be chosen and how to use a dictionary for interpretation.”

Criticism of the notion that a court may invalidate an act of the legislature (as opposed to acts of local units of government subordinate to the legislature) is not based on “sixty year old” precedents. The Zimmerman and Goodland cases go to whether a court can enjoin publication of an enacted bill. That’s a different issue.

The idea that a court may not invalidate an act of the legislature for failure to comply with a statutory (as opposed to constitutional) restriction on legislative procedure is based on a long and unbroken string of cases beginning with McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891) and most recently restated in the very case that Judge Sumi now relies on, Milwaukee Journal Sentinel v. Department of Administration, 2009 WI 79. The rationale for the rule was stated in State ex rel. La Follette v. Stitt, 114 Wis.2d 358, 338 N.W.2d 684 (1983):

Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute.  This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute, Baker v. Carr, 369 U.S. 186, 215, 82 S.Ct. 691, 709, 7 L.Ed.2d 663 (1962).  Although since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) courts have had the authority to review acts of the legislature for any conflict with the constitution, courts generally consider that the legislature’s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by  the constitution.  73 Am.Jur.2d Statutes, sec. 49, p. 296.  If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.  The rationale is that the failure to follow such procedural rules amounts to an implied ad hoc repeal of such rules.

Id. at 364-365.

Thus, even if – as everyone agrees – the Open Meetings law applies to the legislature – failure to comply with it may not result in invalidation of a legislative action (as opposed to, say, sanctions against individual legislatures). Indeed, the very case relied on by Judge Sumi for the proposition that the Open Meetings Law applies to the legislature -State ex rel. Lynch v. Conta, 71 Wis.2d 662, 239 N.W.2d 313 (1976) – recognizes that very distinction. It could issue declaratory relief as to the actions of individual legislatures and impose forfeitures upon them because it was not interfering with “the functions or separate power of the legislative branch,” id. at 698, and expressly stated that “[t]he case is accepted, as not contrary to separation of powers, in that it concerns application of the forfeiture penalty to members of a body, not to the branch of government.”  Id. at 700.

Ed – and Judge Sumi – want to suggest that this line of cases was somehow broken by Milwaukee Journal Sentinel. As I explained on my personal blog, Judge Sumi flatly misstates what happened in Milwaukee Journal Sentinel. Ed agrees, but argues that what he calls a “regrettable error” has no impact on the validity of the analysis. I respectfully disagree. Here’s why.

Judge Sumi wants to use Milwaukee Journal Sentinel for the proposition that a court can invalidate a law for violation of what she calls a “constitutionally-based procedural statute.” That is, she says, precisely what happened in Milwaukee Journal Sentinel.

That is, in fact, precisely what did not happen. Nor does the Court suggest that an act of the legislature could be invalidated for failure to comply with a statutory requirement.The Court invalidated nothing.

It rejected an argument that an act adopting a collective bargaining agreement amended – sub silentio – the Public Records Law. The majority (over the dissent of the Chief Justice) held that it did not because, were it construed to have done so, the strictures of the state constitution – in particular, Art. IV, sec. 17 – would be violated. It went on to discuss sec. 111.92(1)(a) (which required a bill expressly setting forth whatever statutory amendments are required to conform with the provisions of a collective bargaining agreement), but that discussion is given over to noting that the statute is consistent with the constitution and did not – indeed could not – support an enactment that did not follow constitutional requirements. It expressly disavowed any suggestion that it was acting on the basis of an extra-constitutional statutory rule of procedure, noting the very cases that critics of this aspect of Judge Sumi’s decision rely upon.

Milwaukee Journal Sentinel would be on point if we could conclude that the specific requirements of the Open Meetings law alleged to have been violated here were – like those in Milwaukee Journal Sentinel– constitutionally mandated. But Judge Sumi made no such finding nor could she. The complaint filed by District Attorney Ozanne made no constitutional claims. Moreover, it seems unlikely that he (seeJudge Sumi’s own ruling in the Falk case) would have standing to raise constitutional claims.

Even were this not the case, it would take some heavy lifting to find particular notice requirements in Article IV, sec. 10’s requirement that both houses of the legislature be “open.” But most fundamentally, Judge Sumi made no such finding, stating that the legislature has “chosen” to be governed by the open meetings law. (Decision, p. 10) (Indeed, the Open Meetings Law itself says that either house of the legislature can exempt itself from its strictures by the simple expedient of an internal rule.)

Once we acknowledge, that the Open Meeting Law is a rule of process chosen by the legislature, we are in that line of cases represented by Stitt. A legislative action in violation of a self imposed procedural rule cannot result in invalidation of an otherwise legislative enactment because the legislature is free to abandon that self imposed limitation anytime it wants.  To hold otherwise would violate the principle of separation of powers and the particular command of Art. IV, sec. 8 of the state constitution. One does have to look “further” than Marbury v. Madison to address this issue.

I get the argument that is being feinted at but never fully developed. It’s that a statute can have some sort of quasi-constitutional status such that the normal rules don’t apply. For those “super statutes,” I guess, the argument would be that only express repeal can relieve the legislature of their binding nature. Milwaukee Journal Sentinelmight have stood for that if the Court hadn’t made clear that it thought the requirement of a separate or a companion bill was constitutionally required. Writing separately in Milwaukee Journal Sentinel, Justice Ann Walsh Bradley suggests that a statute can be something more than a rule of procedure but less than codification of a constitutional command and that this might matter, but that she was the only justice who advanced the idea weakens rather than strengthens its currency here

Perhaps Judge Sumi is making new law – creating a new kind of statutory animal. I don’t thing that works. All sorts of legislative rules of procedure can be said to have a constitutional “connection.” But once we agree that a particular statutory requirement is a matter of choice, two overriding principles end the conversation. One is that a legislature cannot bind future legislatures. The other is that courts cannot interfere with the legislature’s determinations as to how it will proceed other than to enforce a constitutional requirement.

There are other problems with the decision. The court (based on that “old” precedent – one that was cited with approval in 1977 and never called into question) lacked the authority to enjoin publication. That question (and the matter of whether the bill was published) is not moot given the adoption of collective bargaining agreements subsequent to the date that the law was ostensibly published. The court has yet to explain why a violation that affected only the actions of the Joint Committee on Conference justifies invalidation of the acts of the Assembly and the Senate which no one claims tp have been taken in violation of the Open Meetings law. The court has yet to expressly address the state’s claims that there were legislative rules that, by the statute’s own terms, supercede the notice provisions of the Open Meetings law – merely asserting that there are “no such rules.” The justification for invalidating the rule is also extraordinarily weak, failing to address why the principles of the Open Meetings Law are served by invalidating a law that was perhaps the most publicly debated piece of legislation in state history and that was passed before thousands of screaming people.

One final word is in order –one that allows us to end in at least partial agreement. Ed castigates the Department of Justice for suggesting that it may seek Judge Sumi’s recusal. DOJ’s point was that, in filing a brief in the Supreme Court defending her actions below, Judge Sumi took a position on a matter that was still at issue in the matter before her and with respect to which (at the time) further proceedings were contemplated. (Indeed, Judge Sumi’s issuance of a final order was rather unusual in that no dispositive motion was before her.)

I would not have written the letter. I can’t see what purpose it served and it is not clear to me that any “bias” exhibited by Judge Sumi stemmed from extrajudicial sources. I have had the pleasure – and discomfort – of being before judges who either loved or hated my case from the get go. But as long as such views are based on the law and the record, they do not reflect impermissible bias. But just as I will not question Judge Sumi’s competence or character behind a decision that I think is quite clearly wrong, I will not join Ed in suggesting that the letter constituted overly aggressive litigation tactics that are somehow at odds with the constitutional responsibility of the Attorney General.

Judge Sumi’s opinion is straight forward.  The logic of her reasoning is spelled out in the topic headings contained in the opinion’s table of contents.  I paraphrase:

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.  The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.  Legislative proceedings are not exempted from the requirements of the Open Meetings Law.  Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.  The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law.  The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that the public interest does not counsel in favor of sustaining the action.  There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).

Reading through this summary, one might wonder what all the fuss is about.  Each step in Judge Sumi’s reasoning is supported by citations to statutory language, precedent, and/or evidence adduced at trial. None of the legal principles underlying Judge Sumi’s opinion are novel or controversial.  In fact, for evidence that her opinion is nothing more than mainstream legal analysis, one need look no further than to the multiple citations to Marbury v. Madison, that most “bedrock” of all bedrock cases. 

A great deal of sloppy lawyering has been put forth over the past several weeks in an attempt to create the impression that Judge Sumi is an out of control jurist.  Some of the bill’s advocates are guilty of cherry picking statutory provisions that they deem helpful, while conveniently ignoring contrary provisions.  Others have purported to rely upon sixty year old Wisconsin Supreme Court precedent, without first considering whether later statutory changes and constitutional amendments have rendered that precedent obsolete.  Dicta from the more recent Milwaukee Journal-Sentinel case was relied upon by others in order to support the idea that the Legislative Reference Bureau had the authority to “publish” laws, however these same partisans ignored the holding of that same case when it proved inconvenient on the question of the jurisdiction of the court.  Some advocates appeared willing to sacrifice basic principles of Administrative Law, if so doing would advance their argument that the law had been “published.”

In today’s newspaper we read that the State Attorney General’s Office has even gone so far as to allege that Judge Sumi has exhibited a “bias” in this matter on the grounds that she submitted a brief to the Wisconsin Supreme Court in defense of her exercise of jurisdiction in this case.  It is exceedingly odd to argue that a judge’s defense of her decision to excercise jurisdiction is somehow a reflection of bias towards the merits of a case.  I was a corporate litigator in a previous life, and I certainly understand the hard-nosed litigator’s attitude of “Just Win, Baby.”  However, the Attorney General’s Office is not a private litigator who is entitled to employ whatever aggressive tactics might advance the interests of his client.  To the contrary, the duty of the Attorney General’s Office is to “do justice,” not to do whatever it takes.

For doing her job, Judge Maryann Sumi has been subjected to specious attacks on her character and competence.  Every sitting judge in Wisconsin must be watching this case with great interest.  Every judge in the state has to be wondering, ”Will I be subjected to the same attacks, simply if I get assigned a case that requires the two political branches to comply with the rule of law ?”

As a member of the State Bar of Wisconsin, I am an officer of the court.  I commend Judge Sumi for doing her job, for staying focused on the issues before her, and for ignoring the personal attacks and distractions that have been directed her way.  She has done her job, and done it well.  Now the focus turns to the Wisconsin Supreme Court.  I hope that they stay focused on their job as well.

[I]n reviewing the motion the Court was more than somewhat surprised to read that “Plaintiffs have refused to agree to continue the trial setting and have indicated that they intend to oppose this Motion.”

Well, every party is entitled to file an opposition to a motion, and hoping that perhaps Defendants’ had mis-characterized the vigor of Plaintiffs’ opposition, we have eagerly awaited Plaintiffs defense of its opposition.  The Memorandum in Opposition arrived yesterday, and it was, sadly, as advertised.

The order goes on to shoot down the plaintiff’s attorneys’ arguments opposing the continuance, and ends with the suggestion that the opposing lawyer’s life priorities are out of whack:

Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role.  Counsel are encouraged to order their priorities similarly.

It’s an interesting opinion (and charmingly written), and I forwarded it to my first-year legal writing students, because it is consistent with the approach to professionalism that I was trying to get across to them when we discussed ethics and advocacy. It is of course pleasant, and especially dramatic, that the order was written in the context of the joy of expecting a new child into the world. But most impressive to me is Judge Melgren’s weariness and disdain for the commitment to conflict that the opposition to the continuance seemed to illustrate:

“He who is his own lawyer has a fool for a client” is one of every lawyer’s favorite proverbs. Among the several reasons why this is undoubtedly true, is that lawyers are trained to handle disputes skillfully but without the emotional rancor that will mask the actual parties’ reason and good sense. [footnote omitted]  Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat.  This is unfortunate, and unprofessional, but sadly not uncommon.

First: As a news reporter, I’ve never covered a race for a Supreme Court seat. I was struck by how awkward the debate is, compared to the plain old partisan races I’ve covered fairly often. It’s similar to confirmation hearings for U.S. Supreme Court justices: Basically, if you have something substantial to say, you can’t and shouldn’t say it. You can’t say what you would do with any potential upcoming issues. Frequently, you can’t (or won’t) comment on past actions, although Prosser did talk about some past cases and said he was glad to run on his record. So you end up standing there, saying repeatedly that you are independent and nonpartisan and will judge each case fairly and with an open mind. Which both Kloppenburg and Prosser did. But it is very clear that Prosser is being backed by conservatives and Republican-oriented groups and Kloppenburg is being backed by liberals and Democratic-leaning groups. Do all these people and groups know something the candidates don’t know? Are they wrong? Or is this a curious exercise in avoiding talking about the issues, even though everyone seems to know what you’d say if you did?

Two: I’ve been at some testy and tense debates and joint appearances by candidates in various races, but this one was way up the list, if it wasn’t the champion on my personal list.

The acrimonious atmosphere that has categorized the recent work (and public relations) of the Wisconsin Supreme Court has certainly carried over into this race. While both candidates said they were the right choice for people who wanted to see the court move forward with more collegiality, there was not much goodwill flowing between the two. Kloppenburg said Prosser had denigrated some justices and his conduct had made relations worse on the court (she did not mention the Milwaukee Journal Sentinel story that reported he had insulted Chief Justice Shirley Abrahamson, but she almost certainly didn’t need to). Prosser said Kloppenburg had let partisanship into her campaign and wanted to turn the election into a referendum on Gov. Scott Walker. He also said that Kloppenburg is “incredibly envious” of his record helping people as a prosecutor, while slighting her record in environmental work with the attorney general’s office as involving “the length of (boat) docks.” Kloppenburg responded, “I have improved the quality of life for communities around the state.”

Three: Prosser made what I would say is the most amazing statement by a candidate I have ever heard in person. He said Kloppenburg had left statements from supporters on her campaign’s Facebook page that were inappropriate, including this one: “Stop the turd, vote Kloppenburg.” He said, “Am I turd?”  He was in front of a bank of cameras. Moments like that can – and I suspect will – live forever on Youtube.  

Four: My bet is that if you entered the event with doubts in your mind about whether statewide election is a good way to pick Supreme Court justices, you didn’t leave there with your doubts allayed. On the other hand, you did get some significant glimpses of both candidates for use in guiding your vote on April 5. And if you weren’t there, you can watch the Wisconsin Eye tape of the session here.

The upside of this is that rules can get transmitted from case to case much more efficiently. The downside is that errors can spread just as easily. Take the idea from copyright law that contributory infringement liability is derived from the tort law concept of enterprise liability. This explanation is widespread in the case law. See, e.g., Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 794-95 (9th Cir. 2007); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293 (D. Utah 1999); Polygram Int’l Pub., Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1320 (D. Mass. 1994). It’s also featured in the influential Nimmer treatise: “A separate avenue for third-party liability in the copyright sphere is contributory infringement, which forms an outgrowth of the tort concept of enterprise liability,” Nimmer § 12.04[A][3]. And, it’s taught in law schools. The textbook I used to teach copyrights from 2007 through last year used to have only a one-paragraph introduction to secondary liability, followed by cases such as Fonovisa, which included the “enterprise liability” explanation. So, I dutifully repeated it to my students in both copyright and Internet Law, even though I was not really sure what “enterprise liability” was.

It turns out that it is flat wrong. Contributory infringement liability has nothing whatsoever to do with enterprise liability.

The earliest citation for the enterprise liability suggestion, and its apparent origin, is Demetriades v. Kaufmann, 690 F. Supp. 289 (S.D.N.Y. 1988). Demetriades was a case involving copyrighted architectural plans; the plaintiff claimed that the real estate agent and realty firm that had sold an empty lot were contributorily liable for the house built using infringing plans on that lot. The court had to determine whether those two defendants were indirectly liable for the infringement.

The Demetriades court began by correctly noting that “[i]n delineating the contours of this third-party liability, and because copyright is analogous to a species of tort, ‘common law concepts of tort liability are relevant in fixing the scope of the statutory copyright remedy . . . .’” But then the court moved from that premise to a surprising conclusion: “Guided, therefore, by well-established precepts of tort liability, it appears that two avenues of third-party liability in copyright have grown up in the law—’vicarious liability’ (grounded in the tort concept of respondeat superior) and ‘contributory infringement’ (founded on the tort concept of enterprise liability).”

Contributory infringement as defined in copyright law is liability for knowingly providing encouragement or assistance to an infringer; it’s thus the analog of contributory tortfeasor liability for knowingly aiding a tortfeasor. See Rest. 2d Torts §§ 876, 877. It’s not a form of strict liability. Enterprise liability is something completely different. Enterprise liability is a theory of tort liability that emerged in order to hold an entire industry responsible for harm caused by an industry-wide standard when identifying the particular tortfeasor in a given case is impossible. See Black’s Law Dictionary, 9th ed. The classic case involves injuries caused by blasting caps to children. It can be impossible to determine after the fact who made a blasting cap that exploded. If the entire industry manufactures blasting caps that are unreasonably dangerous, enterprise liability permits a suit against everyone for their share in the harm. See Hall v. E. I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353, 376 (E.D.N.Y. 1972).

Bill Patry, in his recent copyright treatise, spends an entire section refuting the “enterprise liability” connection. See 6 Patry on Copyright § 21:44. He goes out of his way to point out that the Demetriades decision was issued by a court that, although within the confines of the Southern District of New York, was in fact located in White Plains. I take it the suggestion is that once you leave the sophistication of Manhattan, knowledge of copyright law decreases proportionately. But in fact the Demetriades court seems to have made its mistake out of an excess of caution. Not simply satisfied to repeat earlier claims about contributory liability’s origins in tort law, it attempted to ground that claim. The problem is that it did just enough research to be dangerous.

The court didn’t provide any direct support for the problematic sentence, but a sentence later it dropped a footnote that indicates what may have happened. First, the court complained that the relevant authorities were unhelpful in distinguishing between contributory and vicarious infringement. As to the canonical decision in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971), this criticism seems unfair, but it is certainly accurate as to the Supreme Court’s then-recent decision in Sony v. Universal, the “Betamax” case, and may have been accurate as to the Nimmer treatise as it existed at the time. The Demetriades court next noted “the plain distinctions between vicarious and enterprise liability in tort” and cited the 4th edition of William Prosser’s Handbook on the Law of Torts §§ 69 & 72, published in 1971, even though an updated 5th edition was released in 1984. It was probably what the judge had available.

Prosser’s 4th edition does not mention enterprise liability at all. For theories of imputed liability, it covers, in § 69, vicarious liability, and in § 72, liability among members of a “joint enterprise.” That is, if two people or two businesses engage in a joint enterprise, one member might be held liable for the tortious acts of the other. This is just close enough to the rules of liability for contributory tortfeasors to be confusing. Somehow the word “joint” dropped out, and the Demetriades court referred only to “enterprise liability.”

For whatever reason—probably because most federal judges, like me, didn’t know what enterprise liability was either—the Demetriades court’s suggestion was picked up and repeated. Indeed, the popularity of the Demetriades court’s suggestion shows that subsequent courts not only didn’t know what enterprise liability was, but they also didn’t know where contributory infringement liability originated. First, the enterprise liability suggestion was picked up by the influential district court decision in Polygram International v. Nevada/TIG. At some point, it also made its way into the Nimmer treatise, which cited Demetriades. Both Demetriades and Nimmer were cited by the Ninth Circuit in its even more influential decision in Fonovisa v. Cherry Auction in 1997. From there the enterprise liability suggestion has continued to spread, including in the Ninth Circuit’s recent Perfect 10 v. Amazon decision.

Fortunately, in none of these cases did the reference to “enterprise liability” actually matter. In Demetriades itself, the court later went on to cite Section 876 of the Second Restatement of Torts—which provides for contributory tortfeasor liability. No court has held that contributory liability in copyright law is a form of strict liability that requires apportioning damages among defendants according to market share. But the repeated citation of contributory liability as originating in enterprise liability poses the danger of such a result, and in the meantime obscures contributory infringement’s actual origins. Despite its wrongness, and despite the efforts of people such as Bill Patry to remove it, it’s got a lot of case law inertia behind it now. I expect “contributory liability as enterprise liability” to have a long life to come.

[Cross-posted on Prawfsblawg.]

The key to solid legal writing, per Judge Easterbrook, is to be brief and articulate: write in short, simple, straight-forward prose. Outline your problem as you would for an intelligent lay person, mindful of the fact that judges are generalists, not specialists. (Judge Easterbrook also noted that judges—unlike those drafting the statutes and regulations judges interpret—are supposed to be out of touch.) To sharpen your writing skills off the clock, read good novels. Read persuasive literature. Challenge your ideological predispositions: conservatives, read the New Republic; liberals, read the Weekly Standard. Don’t read the New Yorker, though: too many attorneys read this publication, according to the judge.

Specifically regarding legal writing, Judge Easterbrook opines that the following books should be present on every attorney’s bookshelf:

1. “Making Your Case: The Art of Persuading Judges,” by Antonin Scalia & Bryan Garner.

2. “The Elements of Style,” by William Strunk & E. B. White.

3. “The Elements of Legal Style,” by Bryan Garner.

4. “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman.

Contrary to the judge’s advice, my legal writing can be overcomplicated and long-winded. The culprit is the way I think; to more fully understand an issue, I write. By allowing myself to formulate the best theories fully on paper, I can identify what works. Perhaps my self-diagnosis is simply a reflection of so often hearing advice like Judge Easterbrook’s. Or perhaps I am in good company? Judge Easterbrook joked about the style guides that Strunk & White could do in only 105 pages (Strunk’s original version? Just 56!) what took Garner 236—noting a lawyer’s tendency to overdo it. So I asked Judge Easterbrook about this problem, questioning whether he, too, has to draft several opinions before getting his mind around an issue. Do you, like me, judge, have to write up an issue to fully understand your own take? No, he answered flatly. Oh.

The thought of populating a blank screen with gold the first go-round daunts. For now, a mere year and a half into courting the jealous mistress, I take comfort in the fact that legal issues I explore will require less of a mental work-up with more practice and exposure. Or perhaps with a bookshelf lined by works of Judge Easterbrook’s writing gurus? Marquette community: what are your recommended legal writing guides?

*Judge Easterbrook reads materials in the following order to prepare an opinion: (1) the district court opinion (for sense); (2) the appellant’s brief—beginning with the summary of the argument section; (3) the facts and holding from the district court’s opinion, specifically checking whether the lower court addressed a different issue than that framed within the appellant’s brief; (4) cited opinions; (5) the appellee’s brief, which may, per Judge Easterbrook, provide answers absent in the district court’s opinion. On what the judge calls an “extended process of getting more information and doing more thinking,” a week before oral arguments—with his tentative views formed—Judge Easterbrook consults his clerks. The case is then argued, the panel meets and discusses the appeal, and then the writing judge goes to work on his or her portion of the legal writing conversation: the judicial opinion.

Part of the problem is that researchers would have to read a large volume of briefs and opinions, and then painstakingly sort out exactly which arguments were addressed and how thoroughly.  Not only would the work be tedious and time-consuming, but it would also be subject to reliability concerns in light of the subjectivity in deciding whether and how satisfactorily a court has responded to an argument.

Chad Oldfather, Joseph Bockhorst, and Brian Dimmer ’09 think they have a solution to these difficulties: automated research that uses computers to compare a large number of briefs and opinions quickly and objectively.  They describe their project in a new paper on SSRN entitled ”Judicial Inaction in Action? Toward a Measure of Judicial Responsiveness.”  

In the paper, they describe two different ways of measuring judicial responsiveness in an automated fashion.  The first involves comparing the overall language in an opinion with the language in the briefs, while the second determines the extent to which the opinion cites the same cases as the briefs.  Oldfather, Bockhorst, and Dimmer apply these methodologies to a set of 30 First Circuit cases, and then compare the results with a manual analysis of the same cases.  They find a statistically significant correlation between the manual and automated approaches, which provides hope that the automated methods may prove useful when analyzing much larger sets of cases that could not be coded manually without an enormous investment of time and resources.

Here is the paper’s abstract:

This article attempts to develop a measure of what we call “judicial responsiveness,” which, roughly stated, concerns the extent to which judicial opinions reflect the arguments made by the parties in their briefs. We applied two methods of automated content analysis to the briefs and opinion in each of a set of 30 cases decided by the First Circuit, measuring for similarity based on computations of word counts and citation percentages. We then compared the results of those methods to the results of manual coding of the same documents. The existence of statistically significant correlations among the measures supports the conclusion that our automated methodologies serve as a valid means of assessing responsiveness. We argue that these investigations can inform a range of scholarly debates, including efforts to assess judicial quality and the influence of ideology on judging, as well as debates over specific components of the judicial process, such as the use of unpublished opinions.

One of my subject areas is refugee law. There are only a handful of Supreme Court decisions in the area, but instead of making the selection easier, the paucity of case law only made it harder to choose one case as the “most” important.  Because the Court has interpreted the Refugee Act relatively rarely, each of its decisions in the area has taken on even more significance than it might otherwise have had.  For instance, it is difficult to overstate the impact of the decision in Sale v. Haitian Centers Council, Inc., the repercussions of which still plague the international refugee law system, because the Court said that the United States could stop and return Haitians at sea, without verifying whether they were refugees, seemingly in direct conflict with the highest principle of international refugee law, “non-refoulement,” or, “non-returning,” of refugees. And what about the pair of cases, INS v. Stevic and INS v. Cardoza-Fonseca, which, prior to Sale, held that the Refugee Act  created two distinct categories of refugees, those whom the U.S. had promised not to return to their persecutors and those whom the U.S. could, in its discretion, allow to stay in the U.S. (a distinction generally not recognized by any of the other nations who signed the refugee treaties)?

In the end, of course, it’s impossible to identify a single case as most important. But I decided to write about INS v. Elias-Zacarias, 502 U.S. 478 (1992), because its holding, that an asylum applicant must provide direct or circumstantial evidence establishing the alleged persecutor’s motivations, has had such dramatic, and (I hope) unintentional impacts on refugee law and practice in the United States.  One could even argue that the extreme disparities in judges’ decisions in similar asylum cases stem, at least in part, from the near-impossibility of reliably applying Elias-Zacarias‘s demand for evidence of the persecutor’s motive, in the context of the record that can reasonably be developed in the vast majority of asylum cases.

I am starting with a short, oversimplified discussion of refugee law, for context; if you already know the basics of refugee law, skip this paragraph.  In the wake of World War II, most of the nations of the world signed on to a pair of treaties that defined a refugee as (essentially–remember, I’m oversimplifying) someone who “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”  The United States eventually agreed to the treaty, and in 1980 Congress passed legislation that adopted a virtually-identical definition of “refugee”: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .”   8 U.S.C. § 1101(a)(42)(A).  The U.S. law further provided that an alien who met the “refugee” definition could (subject to a number of limitations not relevant here) be granted permission to stay in the United States, as an “asylee.” See 8 U.S.C. § 1158.

The majority opinion in INS v. Elias-Zacarias, written by Justice Scalia, in interpreting of the words “on account of . . . political opinion,” upheld the denial of an asylum application filed by a young Guatemalan, Jairo Jonathan Elias-Zacarias.  Jairo sought asylum in the United States after a group of armed, masked guerrillas visited his home in late January 1987, asking him to join their cause.  When he refused to join them, the guerrillas said that Jairo should “think it over” and that they would return.  Jairo fled his country in late March 1987.

The Immigration Judge found Jairo to be a credible witness, and (notwithstanding a side dispute as to whether the State Department had conceded that guerrillas in Guatemala were engaging in forced recruitment) there was no real question as to the plausibility of Jairo’s fear, given the conditions in Guatemala at that time.  In its holding, the Court assumed that Jairo might, indeed, be killed by the guerrillas if he returned to Guatemala but refused to join them.

Instead of questioning the plausibility of Jairo’s fear of being killed, the Court reasoned that, in any event, even if Jairo was right to fear that the guerrillas would kill him if he refused to join, he was not a “refugee,” because he couldn’t establish that the guerrillas’ threats were “on account of” any political motive.  This holding is set forth in two paragraphs near the end of the majority opinion:

Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a “narrow, grudging construction of the concept of ‘political opinion,’” . . . would distinguish it from such quite different concepts as indifference, indecisiveness, and risk averseness. But we need not decide whether the evidence compels the conclusion that Elias-Zacarias held a political opinion. Even if it does, Elias-Zacarias still has to establish that the record also compels the conclusion that he has a “well-founded fear” that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. He has not done so with the degree of clarity necessary to permit reversal of a BIA finding to the contrary; indeed, he has not done so at all.

Elias-Zacarias objects that he cannot be expected to provide direct proof of his persecutors’ motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal of the BIA’s determination, he must show that the evidence he presented was [footnote omitted] so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done.

Elias-Zacarias, 502 U.S. at 483-84.  Many commentators found that reasoning unpersuasive, and if a student had written those paragraphs in a memo in one of my legal writing classes, I think I would have commented something to the effect of, “conclusory, unpersuasive–avoids the other side’s argument, justify your reasoning with more thorough explanation.” The three dissenting Justices (Stevens, Blackmun, and O’Connor) were particularly incredulous of the majority’s assertion that Jairo had failed to provide any evidence of that the guerrillas  had a political motive:

It follows as night follows day that the guerrillas’ implied threat to “take” him or to “kill” [Jairo]if he did not change his position constituted threatened persecution “on account of” that political opinion. As the Court of Appeals explained in Bolanos- Hernandez:

“It does not matter to the persecutors what the individual’s motivation is. The guerrillas in EI Salvador do not inquire into the reasoning process of those who insist on remaining neutral and refuse to join their cause. They are concerned only with an act that constitutes an overt manifestation of a political opinion. Persecution because of that overt manifestation is persecution because of a political opinion.” 767 F. 2d, at 1287.

It is important to emphasize that the statute does not require that an applicant for asylum prove exactly why his persecutors would act against him; it only requires him to show that he has a “well-founded fear of persecution on account of . . . political opinion.” . . . Because respondent expressed a political opinion by refusing to join the guerrillas, and they responded by threatening to “take” or to “kill” him if he did not change his mind, his fear that the guerrillas will persecute him on account of his political opinion is well founded. [footnotes omitted]

Given the context in which the refugee treaties were negotiated and drafted, I find the dissent’s statutory interpretation argument more convincing.  It seems most likely to me that the drafters would have considered a human being who fled from forcible recruitment by a rebel army that his government couldn’t control to be a “refugee,” given the reasonable likelihood that the guerrillas would actually carry out the implied threat of execution.

While the majority opinion’s disdain for the importance of addressing the other side’s best arguments is disappointing, the opinion’s rhetorical failings are relatively unimportant. Instead what’s most troubling about the majority opinion in Elias-Zacarias is its very concrete, practical impact upon an alien attempting to establish his or her status as a “refugee.”  I ask my students to imagine themselves as lawyers representing an alien like Jairo after the Court’s decision in Elias-Zacarias.  What can you do?  Is there any reliable way to succeed with a case like Jairo’s after this decision?

It is true that in a few types of cases, the persecutor’s motivation will be obvious and easy to prove.  For instance, anti-Semitic statements made during persecution would (seemingly) unequivocally establish a persecutor’s anti-religious motivation.  Likewise, the government’s imprisoning of the leader of a peaceful, opposing political party on grounds of  danger to the State would probably establish an express political motive.

The trouble is that nowadays, most of the human beings who are forced to flee their homelands due to fear of imprisonment, torture, or death escape from confusing situations of civil strife and state failure.  Like Jairo in 1987, many of them are caught between two or more extremist groups, the government on the one hand and one or more rebel groups on the other.  Unless they are “lucky” enough to fall into an ethnic or social group that news reports establish has been specifically targeted, they will be deemed mere victims of “generalized civil strife” rather than “refugees.”

The practical reason for denying refugee status to those fleeing civil war is obvious; it’s the fear of “opening the floodgates” to the thousands of human beings who typically flee from situations of civil strife or state failure.  But while the particular legal justification that the Court used to “bar” the gates (heightening the refugee’s burden to establish the persecutor’s motives) has indeed barred thousands of refugees’ claims, this result was achieved by sanctioning an arbitrary, unpredictable decision-making process in the immigration courts.

Because of the procedural posture in Elias-Zacarias, the majority had the luxury to side-step the really difficult question presented by the case:  how in the world is a judge in an immigration court in some office building in the United States supposed to assess, based on an asylum seeker’s testimony and documentary evidence, a far-away persecutor’s particular motives for targeting the applicant? As the Court noted, the decision in Jairo’s case could not be overturned unless the evidence was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”  The majority’s ultimate holding was, essentially, “well, even if the guerrillas did target Jairo because of his politics, he didn’t prove that conclusively here.” In other words, the majority didn’t even hold that Jairo’s evidence was insufficient to establish that the guerrillas had a political motive; instead, the Court assumed, without deciding, that in Jairo’s case, the court below could have decided either way.

Nowhere in the majority opinion does the Court express any concern for the prospect that a human being’s physical safety, even his or her life, would in the majority of cases depend on a fact-finder’s determination of whether he or she had sufficiently proved via “direct or circumstantial evidence,” the persecutor’s specific intent.  It should surprise no one that, under this standard (and, obviously, in the context of numerous other factors including the crushing caseload faced by our immigration judges) the result has been what a 2007 law review article labeled “refugee roulette.” The majority opinion in Elias-Zacarias affirmatively sanctioned such a state of affairs.

There is plenty of room for debate about the goals of refugee law, and the proper means for achieving them.  Indeed, the need for strong, serious debate about these issues is pressing, given the failings of the current legal regime governing protection for forced migrants.  But no matter how narrow one thinks the definition of “refugee” should be, surely, it should be narrowed on some fairer and more consistent basis than the holding in Elias-Zacarias.

Because a majority of Iowa voters disapproved of their performances on the bench, the terms of all three justices will expire on December 31.

I have been studying the 2010 Iowa election, which did indeed produce some interesting results.   The vote reflected, I would argue, not just hostility to gay marriage (which it certainly did) but also a growing hostility to the judiciary generally. 

Judicial retention votes have been a regular feature of Iowa’s judicial system since 1962.  All judges are appointed by the governor, but every judge has to stand for an up-or-down approval  vote in the year after he or she is appointed and then every eighth year after that.  Anti-retention majorities have been extremely rare.  Before 2010, no Supreme Court justice had ever been removed through this process, and most lower-court judges where retained by very large majorities.

In 2010, Iowans were not inclined to throw out members of the judiciary as a whole, but the percentage of voters who expressed dissatisfactions with their own judges increased significantly.  Seventy-four state judges were subject to a retention vote this month, and 71 (all, save the three Supreme Court justices) were retained.  However, in these 71 “races” there was evidence of growing hostility to the judiciary generally.  Of the 71 retained judges, 13 received votes of approval from less than 60 percent of the electorate, with the lowest scoring judge retained by a margin of 55.09 percent to 44.91 percent.  At the other end of the spectrum, only 10 judges received over 70 percent of the votes for retention with the highest percentage being 74.17 percent.

In other words, in the judicial retention elections involving judges not on the Supreme Court, somewhere between 25.83 percent and 44.91 percent of voters expressed a preference that the judge not be retained.  On average, it appears that the anti-retention percentage for non-Supreme Court judges was approximately 35 percent of the electorate.   This figure represents a significant increase in hostility to the judiciary from 2006, when the anti-retention vote was 25.7 percent.  In fact, this represents an acceleration of an already existing trend toward increasing numbers of Iowa voters opposing the retention of existing judges.  In 1972, for example, only 15.6 percent of Iowa voters cast anti-retention ballots.

Whether this increase in anti-retention voting was primarily a consequence of dissatisfaction with the Supreme Court is difficult to say at this point.

In the Supreme Court retention voting, anti-retention voters counted for 54.2, 54.44, and 55.04 percent of those expressing an opinion on Justices Baker and Streit, and Chief Justice Ternus, respectively.  These totals exceeded the average anti-retention percentages by approximately 20 percent.  In terms of raw vote totals, the anti-retention votes exceeded the pro-retention votes by approximately 99,000 out of a total vote of 979,000.

The removal of Justices Baker, Streit, and Ternus leaves in place four justices on the Iowa Supreme Court who supported a constitutional right of gay marriage in Varnum v. Brien.  The three replacement justices, who will take office on January 1, will be appointed by Iowa’s newly elected Republican Governor Terry Branstad.  Branstad criticized the Varnum decision during his campaign, and he endorsed the idea that Iowa needs to adopt a new method of choosing state supreme court justices.  (Ironically, Chief Justice Marsha Ternus, one of the justices voted out on November 2, was appointed by Branstad during his earlier stint as Iowa’s governor.)

Although it has not been extensively noted outside of Iowa, the results of the 2010 gubernatorial and legislative elections may well pose an even greater threat to the continuation of the right of gay marriage in the Hawkeye state.

In the aftermath of the Iowa Supreme Court’s Varnum decision, Republican lawmakers in the state legislature attempted a number of maneuvers designed to undermine the decision or to change the way in which members of the state’s highest court were selected.   With Democrats controlling the governorship and both houses of the legislature by substantial margins, such efforts seemed doomed to failure.

However, that situation changed dramatically on November 2.  Not only did the Republicans gain control of both the governor and lieutenant governor positions, they also took control of the state House of Representatives, turning a 44-56 deficit into a 58-42 majority.   Democrats retained control of the state Senate, but their margin of control shrank from 32-18 to 27-23, as Republicans won 15 of 25 races, including 12 of 15 contested seats.  With the Lieutenant Governor Kim Reynolds capable of casting a tie-breaking vote, the support of just two Democrats in the Senate will be enough to secure the passage of Republican backed legislation.  

Moreover, in 2012, a fourth member of the Varnum majority — Justice David Wiggins — will face a retention vote.  If he is removed, and Gov. Branstad appoints an anti-gay marriage replacement, a new majority will be in place by January 1, 2013, to overturn Varnum v. Brien and in doing so bring the marriage law of Iowa into line with that of other Midwestern states.

A detailed breakdown of the 2010 Iowa vote can be found on the website of the Iowa Secretary of State, www.iowaelectionresults.gov.   For totals in previous Iowa judicial retention elections, see Larry Aspin, “Judicial Retention Election Results, 1964-2006,” 90 Judicature 208, 209 (2007).

One key to the election results was the money that was spent in Iowa by national groups opposed to same-sex marriage, and Iowa opponents of same-sex marriage welcomed the spending and surely delighted in the Iowa returns.  Bob Vander Plaats, a leader of pro-removal campaign said, “It’s the people rising up, and having a voice for freedom, and holding an out-of-control court in check.”  

The claim that courts had become politicized and that this development had led to rulings in favor of same-sex marriage has been heard before.  When President George Bush called for an amendment to the United States Constitution banning same-sex marriage, he, too, claimed politicized judges were threatening to undermine the sacred institution of marriage.

But there’s an irony in these claims, at least as far as the Iowa retention election is concerned.  Those lobbying and spending in order to knock Justices Baker, Streit, and Ternus out of office admitted they were politically motivated.  They did not want gay men and lesbians to be married.  Those who stood for the rule of law, meanwhile, were the Justices.  In a joint statement issued the day after their defeat the three Justices said:  “Throughout our judicial service we endeavored to serve the people of Iowa by always adhering to the rule of law, making decisions fairly and impartially according to the law of Iowa, and faithfully upholding the Iowa Constitution.  We wish to thank all Iowans who voted to retain us.  Your support shows than many Iowans value fair and impartial courts.”

But beyond the Hallows lecture on judicial philosophy Monday and beyond what Barak said to several classes and at meetings with faculty members and beyond his remarks Sunday night at a dinner attended by leaders of Milwaukee’s Jewish community, there lies a personal side to what it motivates Barak as a judge. It came out in spontaneous remarks  at a private dinner Monday night after the Hallows lecture. 

Barak, 74, recounted how he was born in Lithuania. He was five when Nazi forces occupied his homeland. Tens of thousands of Lithuanian Jews, including Barak and his parents, were put in the Kovno ghetto. Many were killed or sent to their deaths in concentration camps, while others were confined to the ghetto. As the Germans began to kill the children of the ghetto, Barak and his mother were smuggled out.

He recalled how they were given a hiding place by first one and then another Catholic family. Those families would have themselves been killed if they were found to be harboring Jews. Their kindness and willingness to risk their own lives made a great impression on him.

Barak and his mother were able to evade the Germans until the Russians gained control of the area. After the war, he and those who remained in his family moved from place to place in eastern Europe before ending up in Rome and, in 1947, making it to what is now Israel.  Barak went on to become attorney general of Israel and a member of the supreme court for 28 years, 11 of them as the president of the court.  Retired now, he teaches and writes; he is currently a visiting professor of law and Oscar M. Ruebhausen Distinguished Senior Fellow at Yale Law School.

Barak said the experiences he had in the Holocaust years showed him the goodness that exists in some people, regardless of their religion, as well as the evil that exists in the world. He said motivated him to do what he can to protect freedom and human dignity. He said he carried what he learned into his decisions as a judge on issues such as how to balance the security needs of Israel with the rights of individuals. His childhood experiences taught him that the individual must sometimes be protected from the state, even as the state needs to be protected from its enemies, he said.

Although he was instrumental in upholding such steps as the building of a security wall that separates much of Israel from West Bank lands that are home to several million Palestinians, he said he has tried to preserve individual rights to freedom.

In his Hallows lecture, Barak said judges should use their legal discretion to help advance constitutional democracy and society in general.  Judges build bridges between the law and life, he said. They need to balance the need for stability in a society with the need for change. Judges need to be sure that democracy does not mean just majority rule, but that a framework of individual rights shapes a society.

“If we do not protect democracy, democracy will not protect us,” he said. Security is not the ultimate value and the ends may not justify the means when it comes to security.  He said he was opposed, in particular, to the use of torture.

Challenged by an audience member at the lecture over some of his decisions which upheld measures in the name of security, but which the audience member said harmed Palestinians, Barak said, “I’ve clearly made mistakes.” But, overall, he’s been right more often than he was wrong, he said, and the Supreme Court kept the situation from being worse in occupied areas. “We have done what we thought was the true interpretation, the interpretation of international law,” Barak said.   

“We demand that others act according to law,” Barak said in his lecture. “This is the demand we also make of ourselves. When we sit on trial, we judges are on trial, too.”

A judge, he said, is someone who upholds not only the law but the proper balance between individuals and the state. For Barak, an important part of that is keeping in mind the extremes of kindness and cruelty that shaped his own life.

Video of the Hallows lecture is available here.