"Six" Nominated to the 10th Circuit

President Obama nominates Former Kansas Attorney General Steve Six to a seat on the 10th Circuit vacated by new Pepperdine Law Dean, Deanell Tacha.

"No Jokes, Judge"

From the ABA Journal:

A lawyer for West Publishing didn’t see the humor when a federal judge hearing a motion to set aside a nearly $5.2 million defamation verdict tried to lighten the proceedings.

New York lawyer James Rittinger is asking the judge to overturn or reduce the award to two law professors who said they were defamed when West identified them as the authors of a pocket part that was written by a first-year lawyer. The Legal Intelligencer covered the arguments.

The senior federal judge, John Fullam, “is known for an especially dry wit and a deadpan delivery,” the Intelligencer says.

When Rittinger said the professors didn’t have “a single case” to back up one of their arguments, Fullam asked, “What about married cases?” When Rittinger objected to the size of a punitive award, Fullam asked, “You think it should be increased?"

Rittinger explained that he got the joke when the judge tried to explain the first question, according to the Intelligencer account. The lawyer gave a straightforward answer to the second question, saying, no, the award should not be increased. Later, he told the judge what he thought of his humor.

"Judge, you know, I guess it's funny, but it's not funny to me. It was a shock, and it should not have happened. So it is not a joking matter to the West Corporation," Rittinger said.

The plaintiffs in the suit are University of Pennsylvania law professor David Rudovsky and Widener law professor Leonard Sosnov.

Check out the article.

Judge Tacha is New Dean at Pepperdine

. . . and the 10th Circuit now has two vacancies.

Judicial Vacancies

Carl Tobias on filling the vacancies on the 10th Circuit.

Stay on the Court, Justice Stevens

Senator Specter urges Justice Stevens to stay on the Court for the remainder of this term because he feels that the Senate will not be able to confirm a replacement this year. Washington Post

Obama Will Nominate Berkeley Law Professor to 9th Circuit

From the L.A. Times:

President Obama will nominate UC Berkeley law professor Goodwin Liu to the U.S. 9th Circuit Court of Appeals on Wednesday. . . .

Liu carries credentials that some conservatives love to hate -- including a leadership position in a progressive legal group and a record of opposing the confirmation of Supreme Court Justice Samuel A. Alito Jr.

But he has conservative admirers too. Liu has supported school choice as a solution to problems in urban education, and has served as faculty advisor to the California College Preparatory Academy, a public charter school. He came to the White House's attention with the recommendation of some conservatives.

If confirmed, he could be the only full-time Asian American judge on a federal appellate court. A senior administration official revealed his nomination on condition of anonymity.

I'm sure Fed Courts professors everywhere are ecstatic.

Explaining the Lag in Filling Federal Judgeships

The Obama administration's pace in filling the many federal court vacancies has been quite slow. As we observed back in early October, President Obama has appointed considerably fewer judges than President Bush did during his first year and--more significantly--has had much less success in the confirmation process than his predecessor. While President Bush got fifty-three nominees confirmed in his first year, only four of the twenty-four lower federal judges appointed by President Obama have been confirmed with the new year just around the corner.

What, exactly, explains this perplexing phenomenon to which mainstream media outlets are only recently starting to pay attention?

Clerkship Series: Day 2 -- Landing a Federal Clerkship in October

In our Day 1 posting of the clerkship series, Nima conveyed NYU Law Assistant Dean Deborah Ellis' encouraging words that all is not lost for securing a clerkship this hiring season. As Dean Ellis noted, "[t]here are many judges who have not hired, especially at the trial . . . and state level[s]." While it is difficult to gauge how much hiring activity will really transpire over the course of the next few weeks, at least some hiring is on the horizon—many of President Obama's pending judicial nominees will be getting confirmed, and additional nominations are likely imminent. Indeed, as Jeffrey Toobin pointed out in The New Yorker:

Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench—more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. . . . On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total . . . .

That's a lot of new judges who will need law clerks. And although the pace of confirmations has been anything but speedy (only three judges so far, cf. President Bush's fifty-three confirmations during the first year of his Presidency), the Senate sent four nominees to the full Senate for a vote just this past week: Joseph Greenaway (nominated for 3d Cir.), Roberto Lange (nominated for D.S.D.), Irene Cornelia Berger (nominated for S.D. W. Va.) and Charlene Edwards Honeywell (nominated for M.D. Fla.).

So polish off your applications, and get ready to land a federal clerkship in October...or beyond.

Is Justice Sotomayor Really Diverse?

I'll be honest--I was happy to see Justice Sotomayor get the nod, and confirmation, to SCOTUS as she obviously brings many levels of diversity to the Court. This, in my opinion, is wonderful. It is essential that the Justices of this nation’s highest court have the experiences necessary to adequately address a wide range of legal issues.

My emphasis on diversity is largely attributed to my belief that all judges, to varying extents, practice judicial activism. Everyone, even the strictest textualist, has his/her legal analysis shaped by his/her policy views in some, however remote, manner. Like it or not, the policy views of the Justices drastically affect their constitutional interpretation. Therefore, due to the pervasiveness of judicial activism, it’s imperative that the Court be comprised of legal scholars with varying backgrounds so as to ensure that one set of policy views does not guide the Court’s legal analysis. A homogeneous Court is not ideal for this country.

In addition to being a brilliant legal mind, Jusice Sotomayor brings a truly unique background to the Court. From her gender and ethnicity to her impoverished childhood, Justice Sotomayor’s appointment has helped ensure that the Court be anything but homogeneous, and this should be applauded.

However, Justice Sotomayor lacks diversity in one key area: her legal education. She graduated from Yale Law School in 1979. Justice Sotomayor’s Yale Law pedigree means that eight of the nine current Justices attended Harvard or Yale Law School (granted, Justice Ginsburg transferred to Columbia after her first year at Harvard). It may seem trivial to dwell on such an issue. After all, Yale and Harvard are the nation’s preeminent law schools and it only makes sense that the Justices possess the most accomplished educational backgrounds. However, when one understands that policy views play a vital role in the Justices’ legal analysis, it has to seem a bit odd that so many Justices received their legal training (or legal indoctrination, if you will) at the same institutions. Seven of the eight current Justices who attended Harvard or Yale Law School graduated in the ‘60s or ‘70s, meaning that they were likely taught by many of the same professors. These professors undoubtedly played a role in molding their legal minds.

I’m not arguing that the appointment of the next Justice come from a tier three law school for the sake of diversity. I merely think that too much emphasis is put on a Harvard or Yale Law pedigree, particularly by the media. Although Justice Sotomayor is extremely deserving of her appointment, it’s important to remember that there were several other equally impressive potential nominees that did not possess the Harvard/Yale Law pedigree. See, e.g., David Tatel (Chicago ’66); Diane Wood (Texas ’75); Leah Ward Sears (Emory ’80); Kim McLane Wardlaw (UCLA ’79); and Margaret McKeown (Georgetown ’75).

Supreme Court calls on former clerks . . . Oh, and by the way, we're back

After a fairly long--and for us, taxing--hiatus, the team at Blackbook Legal is back in business and ready to dive into the interesting legal issues of the day. We want to really thank all of our avid readers who have stuck it out with us during our brief hibernation. While our site traffic declined slightly in the past few months, many still perused our old threads, and kept the discussions alive. Moreover, we have a substantial number of e-mail requests for articles which we will publish in the due course.

As a cool kick-off article, I thought I would direct readers to a story I saw over at law.com. The article discusses the custom practice of Supreme Court Justices requesting that former clerks argue cases that others have simply abandoned. Justice Stevens provides the most recent example of this practice by his offer to Amanda Cohen Leiter, former clerk and current professor at Catholic University's Columbus School of law, to make her first oral argument before the Supreme Court. So this is one cool long-term perk of landing a Supreme Court clerkship that

[m]ost often . . . happens because the government no longer embraces the position it would be expected to espouse at argument. Rather than dismiss the case, the Court will name a lawyer -- almost always a former clerk -- to advance the orphaned argument, guaranteeing a full airing of both sides.

Indeed, esteemed appellate practitioners like John Roberts and Maureen Mahoney got their first case assignments this same way. Check out the article.

Is it "Wrong" for Judges to Follow Precedent? (Revisited)

About a month ago, I shared Goutam Jois' interesting article, Stare Decisis is Cognitive Error, with our readers. Some of our commenters took issue with the practical significance of Goutam's piece, and--given the interesting nature of the discussion--I wanted to share his response with our readers:

Sorry for the delay in responding. The article -- which is still in draft and will be published this fall -- could perhaps be clearer about what judges should do "instead" of following precedent. But the answer is not as elusive as it seems. Circuit courts, for example, routinely see cases of first impression, over 100 a year by my quick estimate (Westlaw: ("first impression" /s "this court" "this circuit" & da(2008)) yields 127 results) The standard tools of judicial decision-making that come up there would apply.

More broadly, as I write in the article, the point is not that judges should never follow prior decisions. It is, however, that we should be critical when they do. I outline three ways this might be done in Part IV.C. Whichever option one finds most persuasive, the point is that (if you buy my basic point about cognitive bias) there should be some degree of shift in the presumption that prior decisions must in all cases control subsequent cases.

Generally, we test whether a case is sound by examining its legal reasoning. But if, as I argue, the process of reasoning is itself skewed, then we need to be sure that we are following those prior cases for the right reasons, and not just because doing so saves "the intolerable labor of thought."

I have to say, Goutam's defense of his piece is quite persuasive. First, academic articles are not--nor need they be--purely pragmatic. And the skeptical "solution" he prescribes makes a lot of sense in light of his findings. I'm curious to hear what others think.

Is it "Wrong" for Judges to Follow Precedent?

Psychologically speaking, it may well be--at least according to Goutam Jois. While perusing SSRN the other day, I came across his provocative article titled "Stare Decisis is Cognitive Error." It's an excellent piece forthcoming in the Brooklyn Law Review, and I encourage everyone to check out. Drawing on the social sciences (psychology, in particular), the article convincingly urges that "psychological phenomena . . . undercut arguments for stare decisis." As the Abstract notes:

For hundreds of years, the practice of stare decisis - a court's adherence to prior decisions in similar cases - has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society's true preferences with regard to law and policy, may reflect - and exacerbate - our cognitive biases.

The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others' decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up with simple explanations for observed phenomena; and to construct coherent narratives for the world around us. Taken together, these and other characteristics suggest that we value precedent not because it is desirable but merely because it exists. Three case studies - analyzing federal district court cases, U.S. Supreme Court cases, and development of American policy on torture - suggest that the theory of stare decisis as a heuristic has substantial explanatory power. In its strongest form, this hypothesis challenges the foundation of common law systems.

Check out the article here.

Yer Outta Here! Baseball & The Law

George Will wrote an interesting column Thursday, describing the umpire crew's position as the judiciary branch of the diamond. Reading the article (which has prompted me to add the partially reviewed book to my Amazon list) reminded me of the world-famous student article "The Common Law Origins of the Infield Fly Rule." [UPenn RAISE UP!]

Here's my question for you, BBL Illuminati: if law was a sport, what sport would it be, and why?