Author Archives: Michael Williams

Perceived Rule Constraints and the Public’s Distrust of Atheism

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A while back, a Gallup poll found that only 45 percent of Americans would be willing to elect an atheist as President. That spurred a further study at the University of Oregon and the University of British Columbia that found, perhaps unsurprisingly, that religious “believers” generally don’t trust atheists. Interestingly, though, atheists don’t even seem to trust themselves:

“What we find is that unlike typical in-group vs. out-group phenomena — like racism or nationalism — nonbelievers do not end up trusting their own kind more,” [Professor Azim] Shariff said. “While the degree to which someone’s belief in God — particularly the belief that being watched by this God makes people act better — did affect the strength of people’s distrust of atheists, those people who did not identify with a religion still tended to find believers to be more trustworthy. This makes sense both in terms of the mechanism we are suggesting underlies the effect — people trusting those who fear supernatural punishment — and in terms of atheists not being a strong and coherent in-group, in and of themselves.”

But perhaps punishment isn’t the whole story behind the distrust of atheists by believers and atheists. Perhaps religion provides something else important, especially in the political context: “rules” and predictability, even if artificial.

Most religions–at the least the biggies in America–offer a certain creed, a few particular mandates, or some simple (or not so simple) rules to live by. Of course, these “rules” are sometimes what attract people to religion in the first place. But from the outside looking in, those same rules offer a degree of predictability because we expect religious adherents to follow them. As a result, we might (at least think) we know what we’re getting.

Of course, the savvy religious follower can probably find a way to justify whatever he or she is doing within their own religious framework. And it’s a step of faith to believe that the rules will produce good results.

But nevertheless, the stabilizing force of religious-based rules or principles might explain why, for instance, politicians make reference to religion when offering a new initiative or advancing an argument. They want to assure us they’re playing by the rules, as Obama did in a 2006 AIDS Day speech:

We should never forget that God granted us the power to reason so that we would do His work here on Earth – so that we would use science to cure disease, and heal the sick, and save lives.

Atheists, on the other hand, play by the rules of “reason” and “independent thinking.” Those rules are not available at Barnes & Noble. Those rules are hard to define at any general level, requiring individual assessment (which calls for time and effort). In the minds of believers, those rules might not function as rules at all.

So perhaps it’s not as simple as wanting those we trust to be answerable to the Big Guy/Girl/People. Perhaps its really about wanting stability through constraints, even those constraints are imposed by a First Century radical Jewish sect.

-Michael

Posner Joke Costs Taxpayers $19

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Update:  Reuters is now reporting on Posner’s use of these pictures. Apparently he doesn’t ask for permission to use them and doesn’t pay for them.

Remember the Department of Justice’s much-criticized $16 muffin? How does that compare to a $19 joke (and not a very good one at that)? A recent opinion from Judge Posner gives us reason to ask.  The Wall Street Journal Law Blog explains:

Last week, the good folks at Above the Law and How Appealing put us on to an opinion by Judge Richard Posner of the 7th Circuit in which he compared a Houston lawyer to an ostrich.

The money quote: “The ostrich is a noble animal, but not a proper model for an appellate advocate.” To illustrate his point, Posner included an image of one of these noble animals with its head buried in the sand. Below it, he added another photo of a guy in a suit with his head buried in the sand[.]

The Law Blog shows a picture of “guy in a suit,” but I’m not going to show it here. Why? Because I don’t want to pay the royalty fees, as the suited man picture is apparently a stock photo. So that means one of two things: either Posner is a copyright pirate (unlikely) or he went out and bought the right to use the picture just to make the joke. Assuming he doesn’t have a Shutterstock membership, that means he plopped down $19 for the pic.  Interestingly, however, Posner may have thrust the picture into the public domain by using it in his opinion, as judicial opinions themselves are uncopyrightable and exist in the public domain.

Regardless, I continue to insist that Posner’s best use of a picture in an opinion is (and forever will be) this one [see footnote]. If he paid money for that one, I forgive him.

-Michael

First Thing We Do, Let’s Retrain All The Lawyers

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Newt Gingrich has an idea: implement an aggressive program of tort reform. Not exactly novel or particularly worthy of note. But Newt’s a nice guy and he’s not unreasonable. So he proposes additional step that does raise some eyebrows: he wants to retrain the lawyers that would be rendered obsolete by his reform. No word yet on what they would be retrained to do. Apparently Newt was too busy answering questions concerning whether the idea (and some of his others) were “serious proposals.”

But it’s an interesting thought experiment, isn’t it? If we were to find ourselves with a glut of unemployed lawyers (hypothetically, of course), what could we use them for? Perhaps:

  • Janitorial services: Lawyers are comfortable cleaning up the messes of others;
  • Librarians: Lawyers are at home amongst large collections of books;
  • Bloggers: Lawyers are skilled at writing rambly (often incoherent) pieces of writing read by few; or
  • Telemarketers: Lawyers love to talk.

Any other professions that could use the services of reformed attorneys?

-Michael

Unrelated note: Newt has an interest in international law! As part of his “Day One” plan, Newt emphasizes that “[e]ach sovereign nation, under international law and custom, may designate its own Capital.”  Ummm … interesting.

Should Federal Courts Do More to Protect Good People From Bad Lawyers?

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“We have no idea whether [Plaintiff] had a good claim against [Defendant]–but we do know that, if she had, [her lawyer] massacred it.”

So says Judge Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, in a decision issued last month. That decision details an unfortunate pattern of conduct by a lawyer representing a woman in an employment discrimination suit against the Navy. Among other things, the lawyer (a) treated the initial lawsuit in district court as an “appeal” when it quite obviously wasn’t; (b) argued that judgment should be granted in his client’s favor because she was too sick to participate in discovery; (c) didn’t do anything in the case for over a year, leading to its dismissal for non-prosecution; (d) filed an “ex parte” motion to vacate the dismissal of his case, arguing that a clearly constitutional rule was unconstitutional (without explaining why); (e) filed a nonsensical appellate brief; and (f) declined to file a reply on appeal or seek oral argument. The Seventh Circuit, shocked by performance that it called (among other things) “wretched,” ordered the attorney to show cause why he should not be suspended from practice or disbarred. Easterbrook reasoned that the attorney’s conduct “implies that [he] is not competent to protect the interests of litigants in federal courts.”

One would expect this kind of performance to be unusual in federal courts. Unfortunately, it isn’t. Most everyone who has worked in chambers can tell you a story about an incoherent brief or nonsensical argument made by a represented party. But despite the shoddy work federal judges often see, you don’t often hear of this kind of discipline being considered for bad lawyers, save perhaps in the Seventh Circuit (which seems to take a more aggressive approach to policing attorney misconduct).  So should there be more of these kinds of opinions? More sanctions? More disbarments?

In my opinion, the answer is a resounding yes. Notions of professional courtesy seem to lead judges away from imposing sanctions. And when judges do snap, they sometimes use colorful rhetoric and childish punishments to make their point. Maybe it’s reasonable for judges to resist imposing discipline too often, as clients are free to sue for malpractice and impose a little discipline themselves. But clients are in a weaker position and lack the money or the time to pursue such a suit (and they’re probably skittish about hiring even more lawyers). Sometimes, they don’t even realize they have grounds to sue. Judges, on the other hand, have the means to punish readily available and should have a special ability to spot incompetence. Why not let them bring the smackdown?

Lawyers, of course, would complain that judges sit in a privileged position far from the daily realities of busy litigation practice. Things fall through the cracks, mistakes get made, and cases that should be winners sometimes lose. But I’m not calling for punishment each time an attorney turns in a sub-par performance. All I’m asking is that lawyers who provide consistently inadequate legal representation be prevented from doing further harm. As servants of the public, judges should step in (as Judge Easterbrook did here) and stop amateur-hour attorneys before they have a chance to massacre another case.

-Michael

The Risk-Averse Law Clerk

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In his new book Five Chiefs, Justice John Paul Stevens offers an interesting explanation for the decline in petitions for certiorari that the Supreme Court grants (as compared to prior years).  Justice Stevens speculates that the “cert pool” pool is to blame, because “[a] recommendation to deny is less likely to produce an unfavorable reaction from any of the justices than a recommendation to grant and is therefore attractive to a risk-averse clerk.” Although I’ve never even met a Supreme Court (ok, maybe one), the explanation makes a certain amount of intuitive sense.

And that got me to thinkin’.  Judges at all levels place more reliance on their law clerks than they did in the past. At the circuit level, judges might now have three or four clerks. At the district court, judges usually have two clerks (with an extra clerk for the chief judge). Although every judge is certainly different, some judges give their clerks an extraordinary amount of latitude–sometimes even allowing a young clerk to the write his/her opinions (with appropriate supervision, of course).

If Stevens is right that some degree of risk-aversion drives the decisions of Supreme Court clerks, the same might be true of these increasingly important lower level clerks, as well. The risk-averse clerk would probably always take the path of least resistance, choosing the outcome that falls well-within the existing case law. Thus, clerks might drive the case law (at least over time) in a more conservative (“little c” conservative, that is) direction. Moreover, much like Supreme Court justices might prefer to deny a cert petition, district court judges might prefer outcomes on motions that shrink their docket faster. Thus, a clerk might lean towards granting a motion to dismiss early on in a case for fear of earning the judge’s wrath when the cases start piling up.

Of course, a good clerk will learn over time what the actual preferences of the judge really are. (For instance, a clerk for Judge Stephen Reinhardt would probably be less afraid of taking some risks because he knows his boss likes to take them, too.)  And a good judge will resist any kind of risk-aversion-based bias when supervising the clerk. But at least over time, and at the margins, it certainly is conceivable that risk aversion would have an impact.

Consequently, judges should probably be careful in responding to the recommendations of their clerks. It would likely also be helpful to make clear at the beginning of the clerkship that there are no “wrong answers.” If the clerk understands that a particular type of outcome actually bears no “risk,” he might be less likely to color his recommendations in the way that Justice Stevens suggests.

-Michael

The Stupidity of Nominal Damages

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Imagine you’re the victim of a constitutional violation; perhaps the the cops walked into your house without a warrant (or any other legal justification) and took a look around. You’d probably be pretty perturbed and perhaps you’d sue. If it’s anything like the ordinary case (at least one that doesn’t settle), you’d go through months of motions and discovery to finally get to a jury trial, invest thousands in attorneys fees and costs, and then go through a trial of a few days (or more).  And after all this, imagine the jury agreed that your rights had been violated. Huzzah! But let’s also imagine that the jury decides they can’t place a value on your violation. So what do you get? Nominal damages, usually amounting to somewhere around $1.

That outcome doesn’t seem satisfying to anyone. The defendant has just been smeared as someone who violates constitutional rights. The plaintiff has just been rebuffed–almost mockingly–by a jury who feels that the violation is unworthy of remedy. And taxpayers who want their court system to promote efficient choices won’t be happy, as months of litigation have just resulted in a fundamentally meaningless verdict.  (The Supreme Court would disagree, but the Court’s take on nominal damages seems pretty clueless.  See, e.g., Farrar v. Hobby, 506 U.S. 103, 113 (1992) (“A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would not pay.”)).

But perhaps there’s room for punitive damages? Maybe, but the fact you only received nominal damages is going to complicate things. Many places don’t allow punitive damages in a case involving only nominal damages.  Even if the law of a particular place allows such an award, courts often use a rough ratio of compensatory-to-punitive damages to determine when punitives go too high. If you only got a single buck, your punitive award can’t go very high. And what about attorney’s fees? There is an attorney fee provision applicable to certain civil rights cases, for instance.  But if you happen to be a prisoner, your attorney is going to have a whopping pay day of $1.50 because of a fee cap. Other fee caps may be lurking in other laws.

Nominal damages serve no real purpose and should be abandoned. Yes, they make one party (at least nominally) the “prevailing party,” which is important in some ways. But why can’t we recognize that the same thing could be done if the jury just issued a declaratory judgment that the plaintiff was harmed? Why can’t we adopt presumptive sums for constitutional violations, akin to statutory damages? Either of these approaches would avoid the nasty side effects of screwed up punitives and crazy attorney fee awards that come with our current practice. And we could finally retire the facially silly practice of awarding a single greenback once and for all.

-Michael

The Future of Law Firms: The Electronic Whip

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Former Big Law partner Stephen Harper loves to complain about law firms’ increasing tendency to focus on “metrics.”  Having enjoyed the good life by jacking up “billable hours” and “collectibles,” many big firm partners are trying to find new ways to squeeze more productivity–and thus more money–from their leveraged model.

I fear they may find their answer at Disneyland.  A recent piece in the Los Angeles Times details how Disney has begun cracking the “electronic whip” on its employees:

In the basements of the Disneyland and Paradise Pier hotels in Anaheim, big flat-screen monitors hang from the walls in rooms where uniformed crews do laundry. The monitors are like scoreboards, with employees’ work speeds compared to one another. Workers are listed by name, so their colleagues can see who is quickest at loading pillow cases, sheets and other items into a laundry machine.

…

Isabel Barrera, a Disneyland Hotel laundry worker for eight years, began calling the new system the “electronic whip” when it was installed last year. The name has stuck.

…

Employees in the Anaheim hotels are required to key in their ID when they arrive, and from then on, their production speed is displayed for all to see. For instance, the monitor might show that S. Lopez is working at an efficiency rate of 37% of expected production. The screen displays the names of several coworkers at once, with “efficiency” numbers in green for those near or above 100% of the expected pace, and red numbers for those who aren’t as fast.

…

According to Barrera, the whip has led to a sort of competition among workers, some of whom have tried to race to the head of the pack. But that has led to dissension and made other employees worry that a reasonable pace won’t be enough to keep the boss happy. Barrera and Beatriz Topete, an official with Unite Here Local 11, said employees have been known to skip bathroom breaks out of fear that their production will fall and managers will demand an explanation. They say they felt bad for a pregnant employee who had trouble keeping up.

It’s easy to see how this kind of policy could be implemented at a law firm. Associates could have an application running on their desktop that tracks their billable hours in real time. Or perhaps the program could show how much “collectible” work the associate has done over some period of time. The program could then compare all associates’ performance in a ranking system, showing associates exactly where they stand and whether they need to pick up the pace. For a group of people already prone to competition and angst, that could provide quite the motivation to work harder. Maybe they could even have their status delivered straight to their Blackberries, where the numbers are there to “encourage” them at all hours of the day.

Nevermind that such a program could generate a spirit of competition amongst associates. Or that it might drive some people to work too much, just as the board at Disneyland encourages workers to skip bathroom breaks. I still have a feeling that we’ll be seeing this kind of tool put in place at some law firm somewhere at some point down the line.

-Michael

Aside

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A radical professor has proposed a troubling new law school curriculum, one which includes a required international law course but has no apparent constitutional law requirement.

No, I’m not talking about Elena Kagan. I’m talking about Gustavus Schmidt, founder of the Louisiana Law School, now the Tulane University Law School. In 1844, this rogue proposed making international law a required centerpiece of his new institution.

Shocking. I suppose this is yet another example of crazy liberals trying to force their new-fangled “foreign law” into our U.S. courts.

Is This Blog a Legal Liability? (Part Two)

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Just after Susan and I started this blog, I asked whether we were unintentionally opening ourselves up to liability. Today the Virginia State Bar issued a decision that might again suggest, at least at first glance, that we are.

A Richmond criminal attorney, Horace Hunter, ran (and continues to run) a blog. He wrote about things he knew: the law, the news, and, perhaps misguidedly, his own cases. The Virginia State Bar evidently didn’t care for Hunter’s writing, smacking him with a formal misconduct charge premised on his website. Among other things, they faulted Hunter for failing to include a disclaimer when he talked about prior cases. (Virginia felt he should include the ordinary stuff along the lines of, “Prior results do not guarantee future success.”) Today, the misconduct charge was upheld, evidently finding that the blog was indeed meant to market the firm and therefore amounted to advertising.

Some people are going to take this case and extrapolate big things from it. The bar is going to come after lawyers who blog! It’s the end of social media for lawyers! Delete all the blogs! But I think we needn’t panic yet. The ruling only covers blogs wherein an attorney talks about his own cases, which realistically can raise a number of issues even absent the VSB’s ruling. (Client confidences, anyone?) And Virginia’s disclaimer rule only seems to reach those “prior case” posts, so everyone else should be ok.

Still, I think this case provides another reminder that lawyers should think carefully before jumping into the social media frenzy. It seems a lot of lawyers–especially lawyers my age–think social media is the gravy train to success. Mr. Hunter’s unfortunate case reminds us that some caution might be in order before hopping on.

-Michael

“The Emergency Court”: Another Example of the Overcomplication of Government

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The AEI-Brookings Continuity of Government Commission (what an exciting title!) released a report yesterday that imagines an attack on the Supreme Court. It’s not that the Commission was trying to bring back 24; no, the report instead considers the consequences of a terrorist attack on the Court in the hopes of finding some possible solutions to the problems that would result. From the ABA Journal:

While the president of the United States would have the power to appoint temporary justices on an emergency basis without congressional approval, this could create political problems and legal uncertainty, especially if a large number of justices had to be replaced, the report explains.

It would thus be better, the report proposes, to create an emergency court ahead of time with an agreed panel of judges. Members of the emergency panel would fill in empty seats and decide cases, along with the surviving supreme court justices, until the nation’s top court could resume its usual operations.

The Commission’s report explains that any “emergency” court could be composed of either (a) the remaining Supreme Court justices and the chief judges of the Courts of Appeal; or (b) judges drawn from a pool of active judges (previously selected by the President), retired Supreme Court justices, and chief judges of the Courts of Appeal. The first option would produce a huge court of 18 or 19 people, many of whom might have been appointed by the same President. The second option would require a rather complicated process of appointments, lottery selections, and the like.

Perhaps I’m crazy, but I think simpler would be better in a time of crisis. If we’re really going to have an “emergency court,” why not make it the U.S. Court of Appeals for the D.C. Circuit? The court has eleven seats (with eight presently filled), making it a reasonable size. It represents a diversity of political perspectives. And from a practical standpoint, the judges are already in Washington and therefore well-positioned to hear cases there. It’s also a reality that the D.C. Circuit is perhaps the most well-respected of all the Circuit Courts (with apologies to my beloved Fourth Circuit), so these judges get a thorough vetting when they go through the nomination process in the first place. Given that the D.C. Circuit is often called a stepping stone to the Supreme Court, why can’t it be a stand-in as well?

But here’s hoping all this turns out to be a moot point.

-Michael