Category Archives: legal ethics

Alexander Hamilton and the Supreme Court nomination crisis

By now there is (probably) not a single person in the country who remains unaware of the impending, but also already incredibly intense, showdown over President Obama’s nomination of a new Supreme Court Justice to replace Antonin Scalia, who died last month. (Facts: here. Conspiracy theories: here.)

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In justifying their refusal to consider any nominee, many Republicans cited the authority of both precedent and even some vague Senate “rule,” arguments which have since been unmasked as straight up not true. The number and intensity of opinions seems to be growing wilder and fiercer by the day, so I thought I’d one-up Republicans by appealing to an authority even higher than mere precedent or tradition: Founding Father Alexander Hamilton.

The Brennan Center for Justice at NYU does a great job explaining in this article (which can be read alternatively as a cross-posting at The Huffington Post if, for some reason, you prefer Arial to Helvetica) how the framers of the Constitution, particularly Hamilton (and Madison), expected situations like this would be handled by future generations.

As its authors note: “Our constitutional system only works if the institutional players adhere in good faith to the Constitution’s basic rules.”

Politics is an appropriately adversarial system; however, it is inappropriate, and even dangerous, to play political games with the basic, constitutive rules of a government. Politicizing the mere maintenance of the fundamental institutions of a system of government risks gutting the framework and crippling the stability of that system.

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Things fall apart: Williams v. Pennsylvania and judicial conflicts of interest

It seems self-evident that no person should be permitted to judge a case in which they have an interest, but our laws do not yet reflect this principle clearly, if at all. The Brennan Center for Justice at NYU recently published this article about a capital case—Williams v. Pennsylvania—in which conflict of interest has had a leading role.

This is a particularly timely article because the U.S. Supreme Court—narrowly divided on this issue several times in the past, though now more evenly so with the recent passing of Justice Scalia—heard oral arguments in this case yesterday, February 29th. (Transcripts and recordings of the oral arguments will be available here by March 5th.)

What is important for us to note is that, at issue are not disputes over guilt or innocence, but rather whether the fundamental concept of procedural justice has been tainted by a judge’s conflict of interest; and what kind of threat that would pose to both the perception and reality of justice and fairness in our legal system.

As the article notes, we all have the right to a fair trail before an impartial judge; yet

Mr. Williams was denied that right, by any reasonable reckoning, when Pennsylvania’s Chief Justice, Ronald Castille, who is now retired, declined to recuse himself in a 2014 ruling by his court upholding Mr. Williams’ death sentence, notwithstanding an astonishing conflict: He personally approved and oversaw Mr. Williams’ prosecution and post-trial defense of the death verdict in his earlier role as Philadelphia’s district attorney.

 

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“You look familiar. Have I prosecuted you somewhere before?”

Our legal system is necessarily, and fortunately, adversarial; and removing that adversarial component from this case puts the integrity of the entire system at risk.

Lawyers are to argue their client’s case competently, perhaps even very aggressively, and an impartial magistrate is to judge the proper course of action after listening to and considering both sides. But what might we expect to happen if one of those lawyers were to become the “impartial” judge of the case at a later stage of the trial and then refuse to recuse himself? (Spoiler alert: objectively bad things, many of which are certainly immediately apparent to the reader even as pure hypotheticals.)

Gaming the nomination of a new Supreme Court justice

This blog is about to wake up big-time: there’s a new seminar on Adversarial Ethics at Duke full of eager bloggers — and it’s election season in the US. The neverending Presidential-election season provides us not only with a hyperactive example of one of the classic “deliberately adversarial institutions,” namely electoral politics. But it has a tendency to suck almost every other institution, including many that are not supposed to be adversarial or partisan, into its flames.

Exhibit A: the selection of a new justice to sit on the putative non-partisan Supreme Court.

There is not a single political commentator or politician who has not already weighed in on what the President and the members of the Senate ought to do now that Antonin Scalia’s sudden death has opened up a new seat on the bench. Richard Lempert‘s post over at The Brooking Institution’s Fixgov blog does a nice job of mapping out the likely scenarios in the language of game theory.

Assuming — kind of big assumption, no doubt — that the President (who is constitutionally required to nominate a new justice when there is a vacancy) and all of the Senators (who must confirm the nomination) are all rational, well informed, and intelligent, game theory should help us to predict what they are likely to do, given their divergent interests and options. I won’t rehearse them here. Lempert’s post is here.

The Supreme Court is a striking example of a kind of paradox or contradiction we see in many quintessentially non-adversarial institutions. The Court itself, and the role the justices have, is supposed to be strictly non-partisan. When they vote on a decision or opinion, the justices are supposed to interpret the law. They are not supposed to be supporting a cause or political movement they sympathize with, nor are they to base their votes and arguments on their own principles. And yet swirling around the Court are tornadoes of partisanship:

  • we know — because psychology — that each justice’s attempts to provide “strictly legal” interpretations of law and the Constitution are influenced in conscious and unconscious ways by values that are hotly contested in the political sphere;
  • for this reason, the nomination process we are seeing now involves high political stakes for the elected politicians who get a say;
  • many of the Court’s decisions have huge implications for the actors in other deliberately adversarial institutions — from those involved in electoral politics to corporations and their stakeholders in the marketplace, and even for sports leagues and athletes;
  • and last but not least, as a Court atop the adversarial legal system, the justices preside over a contest played out between lawyers who are committed to making any argument that will help their client’s interests in the cases at hand.

new yorker scotus ping pong

 

But the Court and the justices themselves are supposed to have the role of a neutral umpire, with no personal interests in any given case, calling strikes and balls as she sees them.

In principle.

Lempert finishes his post with the following reflections of this intriguing “game” we are now watching:

It is interesting to treat the contest between Obama and the Republicans as a game, and to think about the best strategies for each, and how the moves of one might affect the choices of the other. Yet we are not talking about a game. We are talking about consequential political choices that could change the direction of the law in this country for a generation. Voting rights, money in politics, access to abortion providers, environmental regulation, and much more could turn in the short run on the choice of Scalia’s replacement, although in the longer run there are enough aging Justices that the next presidential election is likely to be more consequential. Now it appears the long and short term outcomes may turn out to be intertwined, for the fate of Obama’s nominee may influence what happens in the election. The “game” being played by Obama and the Republican Senate is, however, one that we, the people, can only watch, though we are permitted to root for our favorite team.

It doesn’t hurt that Justice Scalia’s death set the contest in motion during that lull in the American sporting calendar between the Super Bowl and March Madness….

Is the Supreme Court an arena?

(Posted by Wayne.)

… and if so, is what goes on there like hockey or figure skating?

We standardly think of the adversarial legal system as one of the “classic” deliberately adversarial institutions. (This blog is about whether there are special rules for the design of, and behavior within, such institutions.) The most visible — and tele-visual — parts of the system involve lawyers representing two or more sides of a case battling it out, within the rules, to advance the interests of their clients (or of The People, in the case of prosecutors).

But not all parts of the justice or legal system are adversarial. It’s an open question how we should think about both the theory and the practice of what goes on at the “top” of the system — the Supreme Court (to give a US example; but all constitutional democracies have something similar). It certainly looks adversarial in important ways. Its role is to settle contentious issues in the law, and it does this by dealing with actual cases where one side doggedly disagrees with the other. Like lower courts, it will also listen to lawyers representing the opposing sides. And of course, we can’t ignore the fact that the justices on the Court are nominated by the President and approved (or rejected) by a very adversarial legislature.

And yet, the work of the justices themselves is expected to be entirely professional. They are meant to figure out, individually and collectively, the best interpretation of laws and the Constitution. They are not supposed to be representing any particular interest, and are even expected to set aside their own biases and interests — and if they cannot, on a particular case, to step aside. No individual member of the Court is supposed to be trying to “win” anything. Cases are supposed to be decided on their merits alone — may the best arguments be the winners.

Next week the Court will begin its deliberations on the Affordable Care Act. In advance of the three sessions where the justices will hear arguments, the New York Times has recently highlighted two interesting aspects of the nature of the Court within the deliberately adversarial justice system.

First, it noted that

The White House has begun an aggressive campaign to use approaching Supreme Court arguments on the new health care law as a moment to build support for the measure seen as President Obama’s signature legislative achievement, hoping to shape public opinion on an issue at the center of the battle for the White House and Congress.

Now this would not be unusual as a matter of politics: the President and his party are part of another nakedly adversarial system called democratic politics, and elections are looming. But what is unusual about these current plans is that they suggest that such politics may also be trying to influence the justices themselves.

The advocates and officials mapped out a strategy to call attention to tangible benefits of the law, like increased insurance coverage for young adults. Sensitive to the idea that they were encouraging demonstrations, White House officials denied that they were trying to gin up support by encouraging rallies outside the Supreme Court, just a stone’s throw from Congress on Capitol Hill…

Supporters of the law plan to hold events outside the court on each day of oral argument. The events include speeches by people with medical problems who have benefited or could benefit from the law. In addition, supporters will arrange for radio hosts to interview health care advocates at a “radio row,” at the United Methodist Building on Capitol Hill.

The law’s supporters may have to get there early if they want the best patch of sidewalk:

Opponents of the law will be active as well and are planning to show their sentiments at a rally on the Capitol grounds on March 27, the second day of Supreme Court arguments. Republican lawmakers, including Senator Patrick J. Toomey of Pennsylvania and Representative Michele Bachmann of Minnesota, are expected to address the rally, being organized by Americans for Prosperity, with support from conservative and free-market groups like the Tea Party Express.

Your guess is as good as mine about what influence all of this will have on the nine individuals charged with the final decision. It is nonetheless a curious “grey area” partisan political activity swirling around a part of the justice system that is supposed to be non-partisan and non-political — or at the very least, not susceptible to the emotional volume of support for one side or the other. The White House’s own cautious framing of their strategy seems to acknowledge that they are toeing close to a line they don’t want to cross.

Meanwhile, we hear whispers that the Chief Justice himself, John Roberts, may be approaching his pending vote among his colleagues with concerns that go beyond the correct interpretation of the law. The guess is that he will not necessarily vote for the side with the best arguments.

The consensus among scholars and Supreme Court practitioners is that Chief Justice Roberts is unlikely to add the fifth vote to those of the four justices in the court’s liberal wing to uphold the law. But he is said to be quite likely to provide a sixth vote should one of the other more conservative justices decide to join the court’s four more liberal members.

Why might he be willing to vote either way?

The case will require the chief justice to choose between two competing instincts.

On the one hand, he views himself as a steward of the court’s prestige and authority, and he has called for incremental decisions from large majorities rather than broad but sharply divided rulings. “As chief justice, Roberts has been extremely careful with the institutional reputation of the court,” said Barry Friedman, a law professor at New York University who has filed a brief urging the court to uphold the law.

The court has not rejected legislation as ambitious as the health care law since the 1930s. There is, moreover, only one plausible way for the justices to strike down the law, scholars who study the court say: by a 5-to-4 vote divided along ideological lines.

All of that might augur a cautious approach.

Now this is not unusual practice for judges in constitutional courts: to decide politically charged cases in ways that will serve to uphold the legitimacy of the Court — where legitimacy requires its being perceived as a fair, neutral party.

So what might this tell us about principles for design and professional behavior in other deliberately adversarial institutions? Sometimes “players” have to act in ways that uphold the “integrity of the game” even if this requires refraining from a winning tactic, or from carrying out a routine professional duty.

Interestingly enough, in the controversial Citizens United ruling, the Roberts Court struck down legislation that the politicians had put in place to preserve (some of) the integrity of their adversarial institution. The politicians had agreed to limit the influence of corporate money, along with perceptions of bias and corruption. Not all members of the majority denied that a flood of corporate money would have these consequences for democratic processes, but they felt nevertheless that rights to free speech couldn’t be infringed for the sake of the legitimacy of that process. If the rumors are true now, however, it seems that the Chief Justice may be willing to overlook a fundamental right being infringed by the new health care law for the sake of the Court’s “prestige and authority.”

When judges compete

All open hiring processes are competitive, even when the future employees are expected to work as professionals in a relatively non-adversarial setting. So this article from the New York Times describes an intriguing attempt to regulate an adversarial processes, “Judges compete for law clerks on a lawless terrain“:

Federal judges are entrusted with interpreting and applying rules fairly and consistently. Except, it seems, when it comes to hiring their own staff.

The judges compete aggressively each year to recruit the best law students to work for them as clerks, prestigious positions that involve research, counsel and ghostwriting. But the process has become a frenzied free-for-all, with the arbiters of justice undermining each other at every turn to snatch up the best talent.

Based on rules that were intended to curtail shenanigans, judges hiring for the 2012 season were supposed to begin interviewing third-year law students no earlier than Thursday, Sept. 15 at 10 a.m. But somehow, at the federal courthouse in downtown Manhattan, most of the interviews — and job offers— had already concluded by 9:45 a.m.

Indeed, hoping to leapfrog their peers, most judges actually began interviewing hours (if not days or months) earlier.

While everyone in the process seems to agree that the competition for recruiting clerks is somewhere between “frenzied” and “insane,” there is not even consensus on whether it can be improved through “NCAA-like” recruiting regulations.

“I’m not into cartels or collective action or things like that,” says Alex Kozinski, chief judge of the Court of Appeals for the Ninth Circuit in San Francisco, who has vocally criticized efforts to regulate the recruiting process. So when does he start recruiting? “At birth,” he says.

There have been several attempts to levy self-enforced rules, similar to those used by the N.C.A.A. for recruiting young athletes, with the most recent system created in 2003. While none of the students interviewing at the federal courthouse in downtown Manhattan that Thursday wanted their names published for fear of jeopardizing their careers, many expressed frustration with the process.

“It’s insane and has been driving everybody nuts for years,” said one student from a top 20 law school who had three interviews in New York that day, and three others across the Midwest this week. “But I don’t really see any way to fix it.”

If largely self-enforced rules can’t hold because the professionals themselves aren’t willing to be self-regulating, the options seem limited. When is the last time you saw judges involved in a prisoner’s dilemma?

The Primaries: what doesn’t kill them makes them stronger?

That special time of the election cycle is approaching us—the primaries. A time when members from the same party begin a four to six month cycle of in-fighting that makes even the nastiest of family arguments look like a walk in the park. I have always found the American Presidential Primary system to be fascinating because of the quick shift that the Democratic and Republican (and…Tea??) Parties must undergo between competition and unification. They compete heavily and often ruthlessly for the nomination amongst their own party, but then everyone in the party is expected to turn around after the convention and promote a unified stance behind whoever the nominee may be.

Essentially, what we see in American politics is that our entire political system was established to be a very deliberately adversarial institution. Americans believe that a one-party system, without debate and negotiation, can lead to corruption, or—our Founding Fathers’ biggest fear—a non-representative monarchy. But, within this system we have developed political parties, which are not deliberately adversarial institutions. Yet, every four years the parties break their norm of cooperation and, essentially, become adversarial institutions in order to attempt to elect the candidate who will win the White House.

This seems pretty unusual, right? Well, I would argue that this is actually a commonplace practice amongst many institutions that are not necessarily adversarial in and of themselves, but must compete in a larger adversarial context. Law firms are perhaps the greatest example. The American legal system is very adversarial, but law firms themselves are supposed to be cooperative bodies that are working towards the same goal. However, in order to motivate employees and attempt to rise to the top of their field, law firms often create inter-office competitions that pit employees against one another.

After: It's a different story after the primary, when party unity trumps all.

 

The American Presidential election system is often criticized, and as we begin yet another election cycle the pundits and criticism will rise anew, but maybe we should all think more about why it is designed this way and how effective competition can be first.

Should responsible regulators follow the letter or the spirit of the law?

We typically expect ethical companies to follow not only the letter of the law, but also the spirit of the law. And in some cases, we would say that they should follow the spirit of the law rather than the letter. For example, if your washing machine breaks the day after the 3-year warrantee expires, you might think that an ethical – or even just reasonable – appliance manufacturer would nevertheless fix it for free.

By the same token, shouldn’t we expect responsible regulators and other government officials to respect the spirit of the law as much as the letter – and perhaps even to let the spirit override the letter some times?

Test your intuitions on the following case.

The Medicines Company engaged in a 9-year legal battle with the FDA and the United States Patent and Trademark Office, on whether it will be allowed to extend the patent on its blood thinner drug Angiomax until September 2014. The legal battle stemmed from the failure of the company to file its application for renewal within the 60 days allotted.

“The Medicines Company, based in Parsippany, N.J., learned of Angiomax’s approval by fax from the F.D.A. at 6:17 p.m. on Dec. 15, 2000, a Friday. It applied for the patent extension on Feb. 14, 2001. That is either 61 or 62 days after the approval, depending on whether the approval date itself is counted.”

Medicines Company contended that since the original fax was sent after 5pm the clock should not have started until the next business day allowing them to fit the law. The company pointed to the fact that the FDA marks anything received by their office after 5pm as received on the next business day. This administrative mistake could have cost the company over a billion dollars, and given its small size (with only one other drug on the market) marked the end of the company.

Big picture here isn’t just about one company’s struggle against the patent office and FDA, it is about the role of regulators in the pharmaceutical industry and the spirit of the law. Do we want our regulators to be inflexible in enforcing written laws or would we prefer some discretion allowed by administrators? Should they look to the spirit of the law, and not merely to its letter?

Sometimes the courts say, Yes. After 9 years of fighting and over $4 million spent on lawyers and lobbyists, Medicines Company won their legal battle.