Judges & Judicial Process – Page 53 – Marquette University Law School Faculty Blog

Epistemological Privilege and the Law

Post author:Richard M. Esenberg
Post published:July 14, 2009
Post category:Judges & Judicial Process

As the Sotomayor hearings proceed, I thought I would turn again to the issues raised by the judge’s oft-cited “wise Latina” speech and similar remarks suggesting that there may be a connection between judicial decision-making and a judge’s ethnicity and background.

One common approach is to wonder whether this is “racist.” Shortly after the nomination was announced, I did a segment with Joy Cardin on Wisconsin Republican Radio. She seemed perplexed that I refused to assume the “racism” position, playing a clip of Tom Tancredo making that charge as if it to tell me that I wasn’t a team player.

But I think it is unfair to say that she was making a claim for some form of racial superiority.

Another common approach is to say that she was simply suggesting that judges need to be aware of the biases that arise from their backgrounds so that they can check them, and that a panel consisting of persons with different backgrounds will be more likely to, collectively, identify and deal with these biases.

I think that Judge Sotomayor almost certainly believes this, and I agree that there is a great deal of truth in it, although I may be less likely to believe that gender or ethnicity implies common histories and assumptions.

The reason that the debate has not — and should not — end with the second approach is that it is — literally — not what she said, both in the La Raza article and on other occasions.

Thoughts on Yeager: Role of Appellate Judges, Special Verdict Forms, and the Significance of a Hung Jury

Post author:Michael M. O'Hear
Post published:June 20, 2009
Post category:Criminal Law & Process Judges & Judicial Process U.S. Supreme Court

enron Last week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel doctrine, which precludes relitigation of issues previously found in the defendant’s favor, and the hung jury rule, which permits relitigation of charges as to which a jury cannot reach agreement.

Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading. The counts were factually linked: Yeager’s alleged fraud was that he knowingly participated in making false statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well. At trial, the jury acquitted Yeager of fraud, but hung on insider trading. A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson. In Yeager’s view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors. If he did not know about the gap between what investors were told and the actual state of affairs, then the government’s insider trading theory would collapse. In the government’s view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe. The district court agreed with the government’s view, but the Fifth Circuit reversed. The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury’s treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note.

More on Caperton

Post author:Richard M. Esenberg
Post published:June 17, 2009
Post category:Constitutional Interpretation Judges & Judicial Process

In a comment following Ed Fallone’s post on Chief Justice Robert’s little list (actually it as a rather long list), he argues that there is little in the text, structure and history of the Bill of Rights that might inform the question of when the due process clause requires a judge to recuse herself because of the potential for bias associated with campaign contributions:

It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

He’s right about state judicial elections. If I recall correctly, they began with Mississippi in 1832. I agree that Mike McChrystal does capture something important about why the majority acted in the way it did, but I think that it might be not simply a judicial gag reflex. I think there may be some instruction to be found in the structure of the constitution. I’m still thinking on it, but it might go something like this.

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