Does Congress understand its own laws? - Apparently, not. And the proof is that they didn't even understand the full implications of McCain-Feingold finance reform bill. At least, that's what this N.Y. Times article suggests. Heh.
11:12:57 PM
Deep thoughts on Court Websites - Howard Bashman has a great article at Law.com on what makes for a good court website. He prefers that the opinions be available in PDF format, but applauds the US 1st Circuit and the US 10th Circuit for making opinions available in both PDF and HTML format.
He chastises the US 3rd Circuit for breaking links to its opinions, which are initially released with one URL, but then (when they are moved to the opinion archive) they are given a new URL. Of course, he praises Rory Perry for providing new opinion alerts through RSS/XML feeds, which I think is the wave of the future. It's nice to see Howard, whose readership includes many judges and law clerks, pointing out the flaws in Court web-services.
I'm not naive enough to think that his article will cause judicial administrators to scurry around and revamp their websites, but maybe it will have some nevertheless significant and beneficial effect. Courts are purveyors of important information, and the Internet is a powerful communications medium. But the needs of the citizens are not always understood by court officials. We want an easy to use cross-platform system that gives us free access to the law, and which makes it easy to hyperlink to the law without fear that the link will later be broken. Anyway...Enough griping.
Congratulations to the winning courts, and especially to Rory Perry. Of course, Rory isn't resting on his laurels. He's already got some ideas on how to make things better. Man, why can't we have more court officials like Rory?
7:36:20 PM
RSS News Feeds in an outline? - Oh, man, I can't wait. Marc Barrot has got some amazing things up his sleeves.
6:59:37 PM
Judging Justice Douglass - Justice Douglass is taking a beating after a review of his life. It seems he was a womanizer and had some other loathsome personality traits. The Volokh Conspiracy liked parts of Judge Posner's essay on Justice Douglas, namely the quotes. "The quotations are effective in demonstrating that Douglas was an able judicial polemicist and had the good sense to write his own opinions rather than rely on law clerks, even if they are not really the lowest form of human life."
Meanwhile, Glenn Reynolds points to the Posner essay with this comment: "I was always a fan of William O. Douglass. Perhaps I was wrong to be."
I didn't know William Douglass, but I was sort of a fan too. But that's based on reading his judicial opinions, which I'm relieved to know that he wrote himself. But what to make of his recent deconstruction?
Well, of course, you can't know everything about a person just based on what they write. I will say this: I agree with whichever Volokh said that Douglass is to be admired for writing his own opinions.
I was a big fan of Justice Scalia too and, as far as his writing goes, I still am. But I had the chance to ask him a question once at a faculty colloquia thing at Loyola Law School when he came for a speech. I asked him if he didn't think that judges were coming to rely too much on their law clerks, and if that was perhaps an unfortunate trend (this was back in the early 90's). I asked that question because I had heard that he wrote most of his own opinions, which I am pretty sure was true then and still is.
He was totally perplexed by that question, and said he didn't think that law clerks held too much sway and that the system pretty much needed them. Maybe it's just me, but I think that judicial law clerks (especially at the district court level) have too much power, and are given too much responsibility by judges. I'm not saying that Scalia is to be reviled for his mundane response; what I'm saying is it made me think a little less of him. As someone who writes their own opinions I figured he would be tuned in to the over-reliance by judges upon their freshly-minted law clerks (remember when I asked him this question there were not that many judges who had permanent clerks). My concern about the over-use of clerks is not without some history, by the way.
I was a federal district court clerk in New Orleans for two years. When I went to work as a GS-11 I didn't know much about anything other than procedural rules and how to look up cases, and perhaps how to analyze them in the rudimentary way that I learned in law school. I learned slowly and painfully that there was way more to law than the robotic application of legal rules. The judge I worked for was not always a joy to be around, but he was smart and dedicated, and he didn't rely much on his law clerks to figure out how to decide his cases. Which I can tell you was a good thing for the litigants.
He wrote his own opinions, not that he wrote a lot of them (his view was that district judges shouldn't write opinions unless they can help address an issue that isn't being addressed in the appellate courts). But, when he did write, he'd let me watch him as he laboriously crafted his words. And as he just as carefully went about editing them. He never wrote quickly, even though he was generally an impatient man. He gave each word that he used care and thought. His opinions and orders were infused with wisdom, because he wanted to reach the right result. His opinions were concise.
His goal was simply to reach a just result and then explain why that result was reached. If there was no caselaw to support his opinion he was undeterred. He would simply explain his decision in a simple, logical way. I don't know many law clerks who have the ability to write simple opinions that don't depend on legal citations, no matter how smart and well-educated they are.
Yeah, some judges can be reprehensible people in their personal lives and somehow still be great judges. And some can be warm, charming people and manage to be lousy judges. It's hard to accept this fact. But people are complicated, and no matter how many Disney movies we see (where the evil people are all evil and the good people are all good) that complexity is always there. So you have to find the good in people and honor that and, of course, condemn the bad too. But, let's not kid ourselves: few of us are "whole-grain goodness" through and through.
5:18:00 PM
Lawyers: Beware of Outsourcing - Lawyers who outsource work have confidentiality issues, as this post from kfsource reveals: Jones Day Suffers Outsourcing Nightmare. Jones Day is a very large and respected law firm, and I don't impugn their integrity by referencing this. It's just something that we lawyers all need to be aware of.
11:39:34 AM
