March 14, 2005

Citations to Foreign Cases; Supreme Court Rationalizations

The use of citations to foreign cases, experience, and public opinion in Supreme Court opinions such as Kennedy's 2005 one on executing 17-year-olds is the same as the use of ethical pluralism that Richard Posner somewhere discusses. Posner is skeptical that a liberal education makes people more moral, because knowing more ethical systems gives a person more rationalizations for the evil things he wants to do. Knowing both Christian and Kantian ethics, he can make a Christian argument so he can do things the Kantians wouldn't allow, and a Kantian argument so he can do things the Christians wouldn't allow.

Similarly, if Judge Kennedy wants to do something like forbid states to execute 17-year-olds, and wants a legal peg to hang his personal opinions on, it helps a lot to be able to pick and choose among 100 countries' legal systems.

I think the main principle in writing a Supreme Court brief these days must be to (a) convince the judge that your side is right as a matter of policy, regardless of the law, and (b) give him a legal rationale, the persuasiveness of which is unimportant, on which to hang his opinion. It is very much like trying for jury nullification in a murder trial. You need to (a) convince the jury that the murdered man deserved to die anyway, and (b) make a legal argument such as temporary insanity or come up with some silly theory of a mysterious unknown murderer to provide a legal rationale.

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November 30, 2004

Judicial Supremacy: Review of Kramer 2004 Book

American Spectator review of The People Themselves: Popular Constitutionalism and Judicial Review ,"a comprehensive attack on the doctrine of judicial supremacy," by Larry D. Kramer, Dean of Stanford Law:
KRAMER ENDS THE BOOK with a call for ordinary citizens to "lay claim to the Constitution ourselves." He suggests that we must censure judges rather than submissively yielding to whatever the Supreme Court decides. As for more concrete actions, Kramer does note that judges can be impeached, the Court's budget cut, and the Court's jurisdiction curtailed. But, unfortunately, he spends little time developing these themes. For example, a more thorough discussion is warranted of Congress's power to impeach and why this power has become but a scarecrow. Also, Kramer never addresses whether "mobbing" -- or other such elements of 18th century political behavior -- should be revived as part of popular constitutionalism.

Despite these foibles, The People Themselves is a valuable addition to constitutional scholarship.

Nice to hear that someone else is thinking about solutions.

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September 04, 2004

Judicial Independence in Italy

I went to an interesting lecture by Giovanni Kessler on "Judicial Independence
in Contemporary Italy". Kessler was a prosecutor in Trent from 1986 to 1994 and
in the anti-Mafia department in Sicily in 1994-95,and is now an M.P. Here are my
observations from his talk (not necessarily all accurate-- these are from my


1. The postwar Italian Constitution put judges and prosecutors in the same
category, separate from the executive branch.

2. Since 1959, a Judicial Council, 1/3 appointed by Parliament, 2/3 elected by
judges and prosecutors, has administered careers. Since 1963, the part elected
by judges and prosecutors has been by proportional representation, not first-by-

3. There is a "principle of irremovability of position and function"--
apparently, you can't transfer a judge against his will without special
circumstances. But a judge can be promoted to a rank with a higher salary
without moving courts.

4. Only the Judicial Council can replace a prosecutor on a case-- even a junior
prosecutor. Berlusconi has proposed changing this to allow senior prosecutors to
overrule junior ones, as in the US.

5. Around 1992, prosecutors started putting lots of politicians in jail, and
public opinion favored them. By now, public opinion is hostile to prosecutors,
they having gone after Berlusconi very hard.

6. Berlusconi has been fighting the judiciary in various ways. He's tried to
change laws to make cases moot and to make structural changes.

7. Elections for the judicial council are a big deal, with groups (not the
normal political parties, though) putting up formal slates of candidates they

Now that I think about it, I'm still not clear about how the system works.
Here are questions I'd like to know the answers to (for both prosecutors and

A. Suppose a prosecutor maliciously brings a false case against a politician he
dislikes. If the judicial council also dislikes the politician, does the
politician have any recourse?

B. What if the judicial council likes the politician in scenario A?

C. Suppose a prosecutor is lazy and does a bad job. Will the judicial council
punish him in any way? Transfers seem not to be allowed. How about not giving
him salary increases?

My impression is that the judiciary is self-governing, by majority rule, so
that if judges as a group want to be unfair, they are free to be unfair, adn to
punish any judge who goes against the desires of the majority. It isn't clear
whether this will lead to incentives to be hard-working or not-- in labor
unions, this kind of system favors the lazy, in the Japanese judiciary, it
favors the hard-working; in universities, it seems it can go either way.

One thing the talk confirmed: that people tend to look at the wrong things
when they think about judicial independence. What you ought to do is keep your
eye not on the formal rules, which always say independence is good and judges
ought to follow the law and do justice, but on what happens to judges who (a)
are lazy, (b) are corrupt, or (c) interpret laws in ways that other people--
the citizens, other judges, politicians, anybody else-- think are unjust. One
way to tell if someone's normative analysis is likely to be useful is to ask
whether it addresses the tradeoff between the good incentives for hard work,
that you get with less independence and the good incentives to apply unpopular
laws as they are written that you get with more independence. That is not all
there is, but that's a particularly simple test.

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July 12, 2004

The So-Called "International Court of Justice"

The American Spectator has a prime example of the contemptibility of the International Court of Justice, commenting on its recent decision saying that Israel should take down the wall that defends it from the PLO- occupied territory:

Of its fifteen "judges," seven come from nations which have no rule of law and allow their citizens no rights of self-determination or due process of law. These stalwarts -- all of whom joined in the condemnation of Israel -- come from Communist China, Madagascar, Sierra Leone, Russia, Egypt, Jordan, and Venezuela. Two more come from France and Belgium, two of the worst Israel-haters and Arafat-lovers of the European Union. Another comes from the Netherlands, ever- willing to join the EUnuchs in making U.N. mischief. That makes ten of fifteen, more than enough to predetermine the outcome of any issue, be it one of Israel or the United States.

Another measure is set by the "court's" own procedures. One of the judges, Elaraby of Egypt, used to be an Egyptian diplomat, assigned to the U.N. to join in any Israel-bashing nonsense in the General Assembly.


As a matter of international law, such as it is, the court lacked jurisdiction to hear the case. One of the basic principles that the court is supposed to follow is that it can't decide "contentious" issues when one of the parties to it -- in this case Israel -- has declined to submit the matter to the court to decide. The "court" blew past this restriction by saying that it had jurisdiction -- despite Israel's objection -- because the U.N. General Assembly is dealing with the overall issue of the Israeli-Palestinian conflict.


All you really need to know about the ICJ decision is that nowhere does it even recognize the fact of Palestinian terrorism against Israel. The whole decision talks about the "occupied" territories as if they were pacific realms, of no danger or even inconvenience to the Israelis. It concludes -- without factual predicate -- that the wall is not necessary for Israel to defend itself. The entire 65-page decision talks in terms of the Palestinian territories as if they were an ancient British forest or a modern Canadian city.

Remember all this next time you hear someone treat any ICJ decision as something to respect.

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July 10, 2004


Eugene Volokh comments on the recent Booker decision of the 7th Circuit, which provides one one of the always worthwhile exchanges between Posner (this time in the majority) and Easterbrook (in dissent). There are two big issues. One is whether a lower court should overrule Supreme Court precedent if it thinks the Supreme Court will, even if the Supreme Court has not yet done it. Posner says yes; Easterbrook says no. I think Posner is probably right on that one-- remembering the caveat of "if it thinks the Supreme Court will". The other issue, the substantive one in this case, is whether the recent Supreme Court Blakely decision means that a jury, not a judge, must make any factual determinations for criminal sentencing. That is harder. The idea is a foolish one, unless judges are to have no discretion at all. Traditionally, judges have looked to all aspects of the severity of the offense and the past history of the defendant-- and, indeed, the jury has not been allowed even to hear any evidence about the past history of the defendant. If the Supreme Court acts consistently with Blakely, it says that somehow nobody noticed over the past 200 years that this practice is unconstitutional and that juries, not judges, must decide facts at sentencing hearings. There would remain a limited role for the judge, but only to apply the law to the fact-finding of the jury.

Note that this will require a big increase in expenditure on criminal courts. Currently, many (most?) criminal cases do not require trial by jury, because a plea bargain is reached. The criminal pleads guilty, so no jury is needed, and the judge imposes a sentence. Now, it seems, the Supreme Court says that a guilty plea is not enough. The defendant must also plead agreement to all the facts that might affect his sentencing. Before, the jury was dismissed after it reaches its verdict, which is usually "guilty". Now, it must be continued for a separate sentencing hearing, or a new jury must be chosen with the entire voi dire process of challenges.

The Supreme Court seems to have been confused on this-- as usual, ruling things unconstitutional without thinking about logical consistency or policy implications. Posner wants to impose the logical consequences of Blakely on them; Easterbrook wants to save them from themselves, and perhaps make them retract Blakely.

Easterbrook notes that the parole system is also overthrown by Blakely if the sentencing guidelines require juries:

Think of the indeterminate sentence: zero-to-life with release in the discretion of parole officials. The federal Parole Commission eventually developed a set of release guidelines designed to ensure consistent treatment of offenders. See United States v. Addonizio, 442 U.S. 178 (1979). Parole- release guidelines might say something like: "Hold bank robbers in prison for 10 years; hold armed bank robbers for 20; hold armed bank robbers who discharge their weapons or take hostages for 30; add (or subtract) time from these presumptive numbers to reflect the size of the heist." If my colleagues are right, then such a system violates the sixth amendment.

Here is what I think is the heart of the substance part (as opposed to the procedure part) of Easterbrook's dissent:
...the only finding that is indispensable to Booker’s sentence is the one specified by statute: did he distribute more than 50 grams of cocaine base? The jury found beyond a reasonable doubt that he had. Where in the resulting statutory range of 10 years to life the actual sentence falls depends on complex interactions among drug quantity, gun use, violence, role in the offense (was defendant the mastermind or just a courier?), cooperation, obstruction of justice, criminal history, and other factors, none of which is a sine qua non in the same sense as the statutory thresholds.
Judges dislike the Sentencing Guidelines intensely-- which is natural enough, since the Guidelines constrain them. Now they'll see part of their power shift to juries, which will no doubt make them even more unhappy. It does seem, though, that judges will still get to grant clemency, and the juries will only be stuck with the task of enhancing sentences for unusually evil offenders.

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