The Houston Bar Association has just published its judicial evaluation poll.
The poll, which is completed every two years, asked HBA members to rate judges “outstanding,” “acceptable” or “poor” in seven categories, including following the law, demonstrating impartiality, paying attention in court and using attorneys’ time efficiently. It also assigned them an overall rating. The poll included federal, state, county and municipal judges.
About 1,200 lawyers, 11 percent of the association’s membership, responded to the poll. Most judges were not rated by every attorney participating in the poll because lawyers were asked only to consider judges they have worked with directly.
You’ll never guess who was judged to be the worst Supreme Court Justice in Texas. Go on, try. (In her defense, the poll apparently asked nothing about Sunday School teaching.)
by Kieran Healy on May 7, 2005
PZ Myers has a “useful roundup”:http://pharyngula.org/index/weblog/comments/heres_where_to_find_out_whats_going_on_in_kansas/ of the current round of “hearings” on evolution “that are going on”:http://www.nytimes.com/2005/05/05/education/06cnd-evolution.html in Topkea, Kansas. He also points to “Red State Rabble”:http://redstaterabble.blogspot.com/, where you’ll find on-the-spot reports. The usual Creationist/ID guff is in full flower. The funniest sideshow is the appearance (at local taxpayer’s expense) of Mustafa Akyol, “an Islamic ID proponent from Turkey”:http://www.pitch.com/issues/2005-05-05/news/feature_1.html and all-round scheming pain in the neck. As a sociologist, these fights for footing in the public sphere and for control over things like the school curriculum are interesting for all kinds of reasons — knowledge, power, rationality, all that stuff. But personally I just find them depressing. The most annoying thing about the whole clown show is the legalistic format chosen for the “hearings,” with cross-examination of “witnesses” and other pseudo-courtroom theatrics. Such rubbish. It just feeds the he-said/she-said storytelling format that lazy reporters like best, never mind the legal profession’s tendency to believe that their adversarial methods are the best way to come to the right conclusions about any given question. Lawyers have a lot to answer for.
by Kieran Healy on May 5, 2005
Judge Janice Rogers Brown is back in the news, with “Mark Schmitt”:http://markschmitt.typepad.com/decembrist/2005/05/the_fortas_fili_2.html and various members of the “Volokhs”:http://www.volokh.com discussing her promotion prospects. Henry has already “noted her fondness”:https://crookedtimber.org/2005/05/04/happy-days/ for self-help guru Sam Beckett. Below the fold I reproduce a post of mine from 2003 about “Brown’s rant”:http://www.constitution.org/col/jrb/00420_jrb_fedsoc.htm — there’s really no other word for it — to the Federalist Society, delivered at the University of Chicago Law School in 2000. Mark Schmitt links to a “similar outing”:http://www.communityrights.org/PDFs/8-12-00IFJ.pdf from around the same time. She should have taken it on the comedy club circuit.
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by Kieran Healy on April 23, 2005
A “sad story”:http://www.nytimes.com/2005/04/24/fashion/sundaystyles/24plastic.html?ex=1271995200&en=51887825f7c0747a&ei=5090&partner=rssuserland&emc=rss in the Times today about a woman from Limerick who died following a facelift at the hands of a self-promoting “New York surgeon”:http://www.michaelevansachs.com/:
Mrs. Cregan had left her home in rural Ireland two days before, telling her husband, a farmer and part-time plumber, that she would be attending a business course in Dublin. In fact she had flown to the United States to have a face-lift performed by Dr. Michael E. Sachs in his offices on Central Park South. Hours after surgery she went into cardiac arrest and was rushed to the hospital. … Examining Mrs. Cregan’s knapsack after her death, her family found a folded copy of an article from The Sunday Independent of Ireland. It was a glowing account of a face-lift performed by Dr. Sachs, “a leading cosmetic and facial reconstruction surgeon” in the United States, the article said, with a “highly confidential client list.”
Sachs appears to have drummed up interest in Ireland via a story in the “Sunday Indo”:http://www.unison.ie/irish_independent/ Magazine about a facelift he performed on an Irish woman for free, in exchange for the publicity. Sachs seems like a dodgy character:
Dr. Sachs is among the most sued doctors in New York State, having settled 33 malpractice suits since 1995 … last year the State Health Department took the extraordinary step of banning Dr. Sachs – an ear, nose and throat specialist – from performing complex nasal surgeries without the supervision of another surgeon; … the operating room in his office is not accredited … [and] while he states on his Web site that he has been affiliated with the New York Eye and Ear Infirmary “for the last 23 years,” he is not affiliated with that hospital or any other.
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by Henry Farrell on April 18, 2005
Howard Kurtz’s blog round-up points to this small gem of insight on the estate tax, from blogger and University of Nebraska law professor, Rick Duncan.
Of course, the Democrats played the Marxist class-warfare card and said this legislation would only help the dirty, stinking rich. Actually, it is a very egalitarian law that ensures that no one will pay death taxes. What is wrong with equal treatment?
Duncan finds himself in some interesting intellectual company. If I’m not mistaken in my recollection, Karl Marx himself was fond of quoting Anatole France’s not-dissimilar observation that “[t]he law in its infinite majesty, prohibits rich and poor alike from stealing bread and sleeping under bridges.” (I fear however that Duncan, unlike Marx and France, believes himself to be making a serious argument).
by Kieran Healy on April 1, 2005
Here in Tucson, people are watching with interest — and some trepidation — as volunteers for the “Minuteman Project”:http://www.minutemanproject.com/ roll in to “Tombstone”:http://www.cityoftombstone.com/ (yes, it really exists — and it’s even cheesier than you imagine), about seventy miles southeast of town. I’m not sure why they’re rallying there rather than in “Sierra Vista”:http://www.ci.sierra-vista.az.us/ or “Bisbee”:http://www.bisbeearizona.com/, which are a lot closer to the border. There’s a lot of very open land down there, and of course plenty of border-crossing going on — and a lot of other legitimate activity besides. If things go smoothly, then the Minuteman people will spend a few days hanging out and camping in the Sonoran desert, not cause anyone any hassle, and have their stunt create a bit of national news coverage. On the other hand, any one of a number of things could go wrong. If some of the Minutemen — who are showing up from all over — are clueless about managing in the desert, they might get lost or hurt. If some of them are excitable, they might provoke a confrontation with an immigrant, despite the project’s “stated intention”:http://www.minutemanproject.com/SOP.html not to do so. The potential for confusing and possibly dangerous encounters with the border patrol (or even local residents or hikers or what have you) shouldn’t be discounted, either. And of course there’s always the chance that some of them will run into some drug smugglers.
All in all, I think the chances are better than not that nothing too serious will happen — they’ll probably just get in the way of the Border Patrol. On the other hand, paramilitary or militia organizations always find it difficult to control the hotheads in their ranks. Chris Simcox, the project’s leader, is aware that a single unpleasant incident will tar the Minutemen for good, and so the official site oscillates uneasily between “cowboy rhetoric”:http://www.minutemanproject.com/pdf/poster3.pdf and quasi-military talk of “standard operating procedures”:http://www.minutemanproject.com/SOP.html. Of course the Minuteman Project doesn’t have much in the way of Standard Procedure because it’s not a stable institution. The best they can hope for is that the people who show up for this aren’t nutters who want nothing more than to dress up in camo gear and take pot-shots at people.
by Kieran Healy on March 24, 2005
Eugene Volokh “quotes extensively”:http://www.volokh.com/archives/archive_2005_03_20-2005_03_26.shtml#1111616457 from a new paper by Cass Sunstein and Adrian Vermeule that presents an “argument for the death penalty”:http://aei-brookings.org/publications/abstract.php?pid=922. It begins by reviewing recent studies that find the death penalty has a deterrent effect on potential murderers. In particular:
bq. Disaggregating the data on a state by state basis, Joanna Shepherd finds that the nation-wide deterrent effect of capital punishment is entirely driven by only six states … [The states] showing a deterrent effect are executing more people than states that do not. In fact the data show a “threshold effect”: deterrence is found in states that had at least nine executions between 1977 and 1996. In states below that threshold, no deterrence can be found. This finding is intuitively plausible. Unless executions reach a certain level, murderers may act as if the death is so improbable as not to be worthy of concern. Her main lesson is that once the level of executions reaches a certain level, the deterrent effect of capital punishment is substantial.
This is an elegant idea, but trouble with it is that only few states execute anyone in a given year. Most execute no-one. A tiny few — notably Texas — kill a lot of people in some years. As a result, evidence for a threshold deterrent effect depends on a very small number of observations. In a “nice analysis”:http://preprints.stat.ucla.edu/396/JELS.pap.pdf of state-level data from 1977 to 1997, “Richard Berk”:http://www.stat.ucla.edu/~berk/ shows that just eleven state-year observations out of a thousand drive the deterrent effect. It’s possible to mess around with the specification a bit to get a less strongly skewed measure (by standardizing the number of executions by the number of death sentences, say) or making the data more fine-grained so that you have more observations (using county-quarters as a unit, for instance), but in the end its hard to escape the worry that about 1 percent of the observations are behind the results.
We’re probably witnessing the birth of a dubious stylized fact about deterrence and the death penalty. I don’t doubt that the Sunstein and Vermeule paper raises a bunch of interesting questions, but the empirical results they rely on just don’t seem that robust. This is a bit ironic given their argument that “The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat ‘statistical lives’ with the seriousness that they deserve.” One of these processes is the tendency to latch on to a cool finding a bit too quickly. Negative results (like the ones reported in Berk’s paper) are just not as interesting, unfortunately.
by Henry Farrell on March 17, 2005
I was writing a post about Eugene Volokh’s “defence”:http://www.volokh.com/archives/archive_2005_03_13-2005_03_19.shtml#1111021309 of the “deliberate infliction of pain, “slow throttling,” and “cruel vengeance” when I saw that Chris had “beaten me to the punch”:https://crookedtimber.org/2005/03/17/volokh-on-capital-punishment-and-cruel-and-unusual-punishment/. I find the argument that the justice system should be used as a means to inflict cruelty in order to satisfy victims’ – and society’s – desire for vengeance rather appalling. It’s a return to the idea that the animating ideal of justice should be vengeance and public display rather than the correction and dissuasion of wrongdoing. Which is not to say that the modern idea of justice doesn’t have its own, more abstract cruelties, as Michel Foucault and Michael Ignatieff have pointed out – but the claim that the justice system sometimes needs to inflict pain for the purpose of inflicting pain is something which we should have gotten rid of a couple of centuries ago. At least Eugene is being honest here. I don’t think it’s unreasonable to suspect that most of the “nonsensical defences of torture”:https://crookedtimber.org/2005/03/15/needles-under-the-nails/ that we see, invoking “ticking bombs”:https://crookedtimber.org/2004/06/18/by-the-power-of-stipulation-i-have-the-power and the like, are so many insincere public justifications of an underlying desire to torture the terrorists not to get information, but because they’re terrorists (and if a few innocents get caught up in the system, you can’t make an omelette &c &c). But that Eugene’s defence is sincere doesn’t mean that it’s not repugnant to a set of minimal liberal commitments that are shared by many leftists, classical liberals, Burkean conservatives and others.
by Chris Bertram on March 17, 2005
“Eugene Volokh writes”:http://www.volokh.com/archives/archive_2005_03_13-2005_03_19.shtml#1111021309 :
bq. “Something the Iranian government and I agree on”:http://news.bbc.co.uk/1/hi/world/middle_east/4353449.stm : I particularly like the involvement of the victims’ relatives in the killing of the monster; I think that if he’d killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there’s a good explanation.
And there’s more …..
bq. I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I’m not an expert on the history of the clause, but my point is that the punishment is proper because it’s cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.
Those, like me, who are startled and upset to read Volokh writing like this, might want to visit the website of the “National Coalition to Abolish the Death Penalty”:http://www.ncadp.org/ or visit David Elliot’s “Abolish the Death Penalty blog”:http://www.deathpenaltyusa.blogspot.com/ .
by Ted on February 25, 2005
Scott Lemieux at Lawyers, Guns and Money has an interesting (and to me, convincing) case against Justices Thomas and Scalia, regarding California’s unofficial policy of bunking new inmates by race for the first 60 days. The court found, in a 5-3 decision, that the practice must stop unless it can meet the “strict scrutiny” standard. “As a result, the 9th U.S. Circuit Court of Appeals must now scrutinize the 25-year-old policy for hard evidence that it is necessary and works — a burden that will be hard to meet.” Thomas and Scalia dissented.
Says Lemieux:
The big problem is that it is egregiously inconsistent with (Thomas’s) previous reasoning in affirmative action cases, in which both he and Scalia (who joined Thomas’s dissent here) have argued that the “Constitution” is color-blind, with no exceptions.
Here’s Thomas in Grutter v. Bollinger. If segregation can, in extreme cases, be defensible, then surely the Court should defer to university officials (as well as the United State military and many Fortune 500 corporations) who deem that simply considering race as one factor among many accomplishes crucial goals, right? The answer, of course, is “no”…
Not only do Thomas and Scalia find that the “color-blind” Constitution permits state-mandated racial segregation, they don’t even believe the policy should be subject to strict scrutiny. “The Constitution is color-blind….unless you’re a prisoner, in which case racial classifications don’t even require heightened scrutiny” is a risibly untenable position.
Personally, I’m more than a little uncomfortable with racial segregation of prisoners, and it’s not obvious to me how the policy would reduce violence. However, I’m willing to accept that California’s prison officials know more than I do, and would have been willing to give them leeway; I’m making the assumption that the prison system showed evidence of the policy’s effectiveness to the circuit court. Luckily, I’m not philosophically wedded to colorblindness as an absolute good.
by Micah on February 17, 2005
Last week, a dozen of the top American law journals announced their commitment to reducing the length of law review articles. The Joint Statement concerning this policy is available “here”:http://www.harvardlawreview.org/articles_length_policy.pdf. A number of journals have already adopted policies to implement the goals behind this statement. The so-called “Virginia Experiment”:http://www.virginialawreview.org/page.php?s=membership&p=announcements#length (see the link on Short-Article Policy), which began a year ago, sets a presumptive word limit at 20,000 words and effectively caps articles at 30,000 words. “Harvard Law Review”:http://www.harvardlawreview.org/manuscript.shtml#length has recently adopted similar language, with a 25,000 word preference and a 35,000 word limit. These policies will have serious implications for what is published at Virginia and Harvard. Far less constraining, but nevertheless significant, are policies adopted by “Columbia Law Review”:http://www.columbialawreview.org/information/submissions.cfm and the “University of Pennsylvania Law Review”:http://www.pennlawreview.com/submission.php, both of which have set presumptive word caps at approx. 35,000 words. Other journals will probably adopt similar policies in the near future.
From the perspective of academics in non-legal disciplines, these words caps may seem absurdly generous. Most peer-review journals won’t accept articles over 10,000 words. And, to be clear, these limits are ceilings. Most law reviews regularly publish “essays”—really just normal length articles—that are far below these numbers.
One would think that this is all relatively uncontroversial and rather long overdue. And there has been some positive feedback from legal bloggers. “Orin Kerr”:http://volokh.com/archives/archive_2005_02_07.shtml#1108060955 quotes the Joint Statement rather approvingly, and Larry Solum gives it a characteristic “very interesting!”:http://lsolum.blogspot.com/archives/2005_02_01_lsolum_archive.html#110788056452294809
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by Micah on January 10, 2005
Dan Hunter recently posted a paper called “Walled Gardens”:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=635141 on SSRN. Although the paper has received some attention from legal bloggers (“here”:http://lsolum.blogspot.com/archives/2005_01_01_lsolum_archive.html#110494748452395983 and “here”:http://volokh.com/archives/archive_2005_01_00.shtml#1105044769), it’s been all praise so far. Hunter argues that law reviews should allow open access to the papers they publish. And what legal academic could disagree with that? As Hunter says, academics are interested in the widest possible dissemination of their ideas.[1] And free or open access certainly promotes the value of spreading information and ideas.
Hunter’s basic position is that law reviews should permit and indeed encourage authors to self-publish. Journals should also make articles available on-line for free consumption. I’m generally sympathetic to this position. I’ve only published one “paper”:http://ppe.sagepub.com/cgi/content/short/3/2/191 (forgive the shameless plug), but it’s not easy to get access to it. It’d certainly be nice if everyone could read it for free. But I’ve also spent most of the last year working for a law review, and, from the perspective of a student editor, I think Hunter’s criticisms are somewhat harsh. I also think he underestimates the long-term costs of doing business—even on-line. What follows is a first pass at Hunter’s argument. I put these thoughts forward tentatively, and I hope they’ll be received that way. I think Hunter’s paper is important and provocative. It raises lots of interesting questions about what (legal) academic publishing should be like, especially in a paper-free world. But those questions appear to me far more open than Hunter sometimes suggests.
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by Chris Bertram on December 17, 2004
From Lord Hoffmann’s remarks in “the judgement by the House of Lords”:http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/16_12_04_detainees.pdf (PDF, 102 pages) that the British government “is wrong to detain foreign terrorist suspects indefinitely without trial”:http://news.bbc.co.uk/1/hi/uk/4100481.stm :
bq. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community….
bq. [S]uch a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.
by Chris Bertram on November 25, 2004
Via “Butterflies & Wheels”:http://www.butterfliesandwheels.com/notesarchive.php?id=630 I came across the following ludicrous and offensive argument against gay marriage from “Keith Burgess-Jackson, the self-styled AnalPhilosopher”:http://analphilosopher.blogspot.com/2004_11_01_analphilosopher_archive.html#109984596293987913 :
bq. I have said in this blog many times that the very idea of homosexual marriage is incoherent, which is why I put the word “marriage” in quotation marks. I do the same for dog “voting.” If we took our dogs to the polls and got them to push levers with their paws, they would not be voting. They would be going through the motions of voting. It would be a charade. Voting is not made for dogs. They lack the capacity to participate in the institution. The same is true of homosexuals and marriage.
“Richard Chappell at Philosophy etc”:http://pixnaps.blogspot.com/2004/11/gay-marriage-analogies.html says nearly all that needs to be said about Burgess-Jackson’s “argument”, so I wouldn’t even have bothered mentioning it if I hadn’t been in conversation on Tuesday with the LSE’s Christian List whose article “Democracy in Animal Groups: A Political Science Perspective” is forthcoming in _Trends in Ecology and Evolution_ . List draws on Condorcet’s jury theorem (previously discussed on CT “here”:https://www.crookedtimber.org/archives/002706.html ) to shed more light on research by Conradt and Roper in their paper “Group decision-making in animals”:http://www.nature.com/cgi-taf/DynaPage.taf?file=/nature/journal/v421/n6919/full/nature01294_fs.html , from Nature 421 (155–8) in 2003. Conradt and Roper have this to say about animal voting:
bq. Many authors have assumed despotism without testing, because the feasibility of democracy, which requires the ability to vote and to count votes, is not immediately obvious in non-humans. However, empirical examples of ‘voting’ behaviours include the use of specific body postures, ritualized movements, and specific vocalizations, whereas ‘counting of votes’ includes adding-up to a majority of cast votes, integration of voting signals until an intensity threshold is reached, and averaging over all votes. Thus, democracy may exist in a range of taxa and does not require advanced cognitive capacity.
[Tiresome, humourless and literal-minded quasi-Wittgensteinian comments, putting inverted commas around “voting” etc. are hereby pre-emptively banned from the comments thread.]
by John Q on November 19, 2004
There’s a story I read somewhere of a judge interrupting an unsatisfactory witness and asking
Are you trying to flaunt your contempt for this court ?
to which the witness replies
Oh, no Your Honour! I’m trying to conceal it.
I was reminded of the story by this
NYT editorial, which accuses a Rhode Island judge of abusing the contempt power to pursue a vindictive campaign against a reporter, Jim Taricani, but then fails to name the judge in question. A one-minute Google search reveals that the judge in question is
Chief U.S. District Judge Ernest Torres Given that it was defending the right of reporters to publish the truth without fear or favor, what exactly did the NYT have in mind here?