Seeing the Error of Their Ways

Chad Oldfather has a new article on SSRN entitled “Error Correction.”  Having analyzed various other aspects of the appellate process in earlier articles, Chad here turns to the most mundane function of the appellate court.  Where most scholarship on appellate process focuses on the lawmaking authority of appellate courts, few cases actually result in appellate courts breaking important new legal ground; more commonly, appellate review is simply a search for error based on established precedents.  But what exactly is “error”?  The question has received little scholarly attention to date, but Chad now remedies that neglect in his characteristically thoughtful fashion.  Here is the abstract of his article, which is forthcoming in the Indiana Law Journal: 

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Beach Reading?

Apparently the news editors at the Los Angeles Times read the Marquette Law Review. That’s at least one possible conclusion one could draw from the juxtaposition of two recently published items.

Dean Kearney is in a unique place to analyze the relationship between the Ninth Circuit and the U.S. Supreme Court, having clerked for judges on both courts. Introducing Ninth Circuit Judge Diarmuid O’Scannlain’s Hallows Lecture one year ago, Dean Kearney noted,

Over the past couple of decades, Judge O’Scannlain has emerged as a leader on the Ninth Circuit. This includes the court’s most important work, its cases, where Judge O’Scannlain plays an unusually important role not only in his own docket but also in the court’s en-banc process. An O’Scannlain dissent from denial of en-banc rehearing frequently gets some attention across the country — in Washington, D.C.

Lo and behold, this past Sunday the Los Angeles Times carried a story highlighting how conservatives on the Ninth Circuit use dissents from denial of en-banc rehearing to send “a signal flare to the U.S. Supreme Court.” Carol Williams’ report gives particular attention to Judge O’Scannlain:

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Judge Barker on “Imaginative Judging”

Judge Sarah Evans Barker delivered a terrific Hallows Lecture at the Law School yesterday on “imaginative judging.”  She was engaging obliquely with, and putting a fresh spin on, the otherwise increasingly tiresome debates over “judicial activism.”  While the activism debate generally focuses on the law-declaring role of appellate judges, Judge Barker focused on the case management role of trial-court judges.  Although case management may seem far-removed from law-declaring, Judge Barker observed that judges operating in either mode may sometimes face situations in which following the conventional rules of formal legal analysis produces absurd results.  Where such situations are encountered in the trial court, Judge Barker endorsed the use of imaginative problem-solving.  As an example, she cited her own work in bringing together public officials in Indianapolis to address chronic constitutional violations in the local jail.  Had she played a more conventional, passive role as the judge in pending constitutional litigation, the result (in her view) would have been a largely ineffectual remedy.  By imagining a different sort of role for herself, and engaging the key players outside of the formal legal process, a much better result was achieved. 

Continue ReadingJudge Barker on “Imaginative Judging”
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