Theory on framework issues

Tuesday, March 24, 2009

4.1. Gratuitously paying judges biases them: Caperton, Sturgeon, Fine

Three recent cases,Caperton v. A.T. Massey Coal Co. (U.S. Supreme Court) , Sturgeon v. County of Los Angeles (California Court of Appeal), and Judge Yaffe's ideologically related finding Richard Fine in contempt (Los Angeles County Superior Court) (see—highlight biases caused by financial contribution to judges. Caperton brought indignation about a judge's refusal to recuse himself despite receiving a $3 million contribution from a litigant, but the response to Sturgeon/Fine has mostly ranged from ambivalent to indifferent, although the Sturgeon/Fine issues also involve huge contributions to judges. Compared to the $3 million in Caperton, Sturgeon involves much less or much more, depending on how you count $40,000 per year per judge for an expenditure of $21 million each year.
How to explain the different popular reactions to Caperton and Sturgeon/Fine? Sturgeon/Fine isn't lacking in drama, as Fine today (as far as I know) remains locked in jail for contempt in defying a jurisdictionless county-money taker. One difference in Sturgeon/Fine compared to Caperton is the limited freedom contributor County enjoys to adjust incentives to outcome. County is limited in all the ways State is—no decreases in pay during a judge's term and measures must apply to the entire judiciary—suggesting the bias is neither a new kind nor a potent variant. But judicial disinterest in County's contributions only follows from calculating the judges' biasing interest based on County's strategic power over individual judges, a calculation assuming away the universal human tendency to pursue collective interests defined by salient shared outcomes. Amount of influence depends on the influencer's freedom to vary the incentive but isn't limited to individual calibration. If State pays judges a market-equilibrium salary, State has little freedom to vary judges' pay because change means State loses too. If County pays judges above equilibrium price, then County can—beneficially—economize.
On this model, whether County biases judges by paying them depends on whether it pays them more than they're worth. Such matters of fact must be decided to resolve issues of bias; this decisional necessity argues for treating biased civil-judicial performance as actionable tort rather than due-process violation.

Saturday, March 7, 2009

4. Biased judges — For elections & personal lawsuits

Uncontroversially, judicial bias violates due process. What is the measure: actual bias, the probability of bias, or the appearance of bias? The debate on the U.S. Supreme Court case Caperton v. A.T. Massey Coal Co. (see focuses on appearance by default, not cogency. Justice Stevens seems convinced the appearance of bias denies a party due process, but surely it deprives a party only of the appearance of due process. Appearance of bias concerns actual due process only as evidence of actual bias. Caperton's attorney Ted Olson argues bias is present according to the perception of the informed reasonable man. But if the evidence for bias rationally convinces, then the preponderance of evidence supports actual bias. 

Why does Attorney Olson convolute his argument by introducing the reasonable man's opinions? Olson's circumlocution allows him to show the mandatory respect for judges by not accusing any of them of bias without conclusive evidence.

Olson probably didn't intend to recommend finding probability of bias in the individual case, and, when referring to the reasonable person acquainted with all the facts, he didn't mean literally all of them. The facts that the reasonable person is to judge from are probably a small subset of all facts: just those facts bearing on the biasing event. In Caperton v. Massey, "all the facts" means the campaign contribution, who gave it, the circumstances of its gift and receipt. Very different from "all" facts, the difference showing that the rational man is envisioned approving a standard instead of a specific case outcome. There lies the problem: the question of the standard for bias remains unanswered because of the question's incoherence. Whether a biasing event actually changed a judge's vote admits no general answer. The "rational man" would be some other kind of man if he consented to determine whether a biasing event is (in general) "large enough" to change a decision. Even the 3-million dollar contributor in Caperton v. Massey didn't necessarily envision that the judge would show personal loyalty during his twelve-year term of office. More likely, the contribution elected a candidate who votes the contributor's way because the candidate's judicial and political views conform the law to the contributor's interests. The contributor's ability to control outcome ideologically isn't termed "judicial bias."

The reversible-error rule's workings contrast with the proposed mandatory-recusal rule, highlighting the latter's infirmity. To decide whether error is reversible, the appellate court puts itself in the place of the finder of fact and asks whether the error would cause a different outcome. The appellate court cannot, analogously, evaluate the effect of a bias because in the one they are assessing from the standpoint of a rational judge, in the other a biased judge. Rationality commands a unique judgment, but bias knows no generic magnitude.

Reactions to the bias question reflect ideology. Conservative justices see the impossibility of line drawing as an absolute barrier to intervention and cling to the unbiased-judge myth. Justice Scalia thinks even 3-million dollars lacks biasing power. Liberals, on the other hand, often propose eliminating elective judgeships. But direct election of judges onlybeneficiallymakes bias transparent. Appointment substitutes the appointing official—whose wishes are subject to the usual sources of political influence—for the campaign contributor. As framed by the liberals, the goal is avoiding impropriety's appearance, and appointment serves. Another liberal proposal, compulsory recusal based on large contributions—$1,500 proposed in California—may create more due-process problems than it solves. The proposal would perversely foster manipulation by contribution to adverse judges.

Assessing whether a judge is biased depends on, literally, all the various facts bearing on the judge's decision, including personal facts of the judge's correlated predispositions. Fact finding is outside the ordinary competence of the appellate courts. The trial courts are uniquely competent to deal with judicial bias for another reason: the outcome of a biased decision should be subject to recovery of damages, rather than reversal of the underlying case. 

Where the underlying prevailing party was only the passive beneficiary of bias, reversing the decision penalizes the wrong person; whether the judge was subject to extrinsic influence isn't the prevailing litigant's concern. Coping with judicial bias requires partly abrogating judicial immunity to allow personal suits against judges for biased decisions.

17.1. Societal implications of ego-depletion theory and construal-level theory repudiates elections for judges.

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SUPPLIER OF LEGAL THEORIES. Attorneys' ghostwriter of legal briefs and motion papers, serving all U.S. jurisdictions. Former Appellate/Law & Motion Attorney at large Los Angeles law firm; J.D. (University of Denver); American Jurisprudence Award in Contract Law; Ph.D. (Psychology); B.A. (The Johns Hopkins University). E-MAIL: Phone: 760.974.9279 Some other legal-brief writers research thoroughly and analyze penetratingly, but I bring another two merits. The first is succinctness. I spurn the unreadable verbosity and stupefying impertinence of ordinary briefs to perform feats of concision and uphold strict relevance to the issues. The second is high polish, achieved by allotting more time to each project than competitors afford. Succinct style and polished language — manifested in my legal-writing blog, Disputed Issues — reverse the common limitations besetting brief writers: lack of skill for concision and lack of time for perfection.