Category: General Law

3

Blue Collar Blues

The working class man is a hot topic this month. The publication of Andrew Cherlin’s new book, Labor’s Love Lost, a series of  New York Times articles, and recent Washington Post articles on the middle class  have called more attention to the social and economic plight of the working class man. For thinking conservative men, such as the New York Time’s Ross Douthat and the University of Virginia’s Brad Wilcox, much of that inquiry is focused on the issue of gender: is the move toward “an egalitarian vision of gender roles in parenting and breadwinning” part of the reason for the reinvention of marriage for the elite and of its decline for the working class? And is greater tolerance of non-marital sexuality an essential part of this egalitarian vision? An op ed in the Wall Street Journal this week went even farther to declare that the “biggest culprit” in family breakdown “is feminism’s devaluing of males and the conceit that “strong women” can do it all.”

We are particularly interested in the relationship between economic inequality, gender, and family structure not just because we teach family law, but also because we are often attacked for our claims that family structure – and the legal developments that underlie it — are tied to the economy. But we are bemused by the claims that changes in gender roles are a cause rather than a consequence of the increasing instability of working class families. Instead, we are wondering if the focus on gender isn’t really a distraction – a distraction from the remarkable development taking place in discussions of the family. Now that marriage equality no longer occupies the disproportionate share of national attention, there is something close to consensus taking place. That consensus is that family stability for the working class is unlikely to return without better jobs.

Few serious academics dispute that the disappearance of stable, well-paying jobs for blue collar men has a lot to do with the decline in blue collar marriage and the increased rate of divorce. And few serious academic disputes that cultural changes reinforce the effect. The point of our book, Marriage Markets, was to explain how the law institutionalizes a new model of marriage (the subject of our next blog) and (the focus of this blog) how a changing economy does not just produce less marriage in some straight-line fashion that varies with the latest marginal change in unemployment rates, but rather how it changes the way men and women relate to each other producing reinforcing cycles of gender distrust.

Read More

4

Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

0

UC Davis Law Review, Issue 48:1 (November 2014)

Articles

Rights Speech
Timothy Zick

Vertical Power
Michael S. Green

Immigration Law and the Myth of Comprehensive Registration
Nancy Morawetz & Natasha Fernández-Silber

Toward a New Equilibrium in Personal Jurisdiction
Charles W. “Rocky” Rhodes & Cassandra Burke Robertson

The (Un)Enforcement of Corporate Officers’ Duties
Megan W. Shaner

Against Confidentiality
Dru Stevenson

Essay

California Dreamin’: Tax Scholarship in a Time of Fiscal Crisis
Joseph Bankman & Paul L. Caron

Note

Windsor, FAFSA, and Retroactivity: A Critique of the Department of Education’s Guidance on Same-Sex Spousal Reporting
John Ormonde

1

“We Hold These Truths”

For those of you who love constitutional law like I do, here is a Christmas present.  I’ve mentioned in some prior posts that Bill of Rights Day in December 1941 was celebrated with a radio drama narrated by Jimmy Stewart that included many Hollywood stars.  At the end of that program, FDR gave an address to the nation that expressly contrasted the Bill of Rights with Nazi Germany.  I thought that that were was no easily accessible audio version, but I was wrong.

Go to this link and scroll down until you reach the program.  The President’s address starts at the 49:00 minute.  Among the highlights:

1.  Jimmy Stewart’s melodramatic performance.

2.  Edward G. Robinson as the outraged political protestor in jail.

3.  The way they used louder background music to drown out the more technical parts of the Bill of Rights.

4.  The discussion of the Second Amendment.

5.  The discussion of how Christ inspired the First Amendment.

Plus a lot more.  Enjoy!

7

Child Safety, Part II

In my last post, I introduced a set of studies that suggest that parents and nonparents alike prefer to invest about twice as much in child safety as adult safety. For purposes of this post, I want to take that descriptive claim as true and ask: What justifies that differential treatment?

One answer is simply that we should respect preferences (almost) regardless of their content. But that seems too quick.

Below are a few thoughts on how we could justify greater protections for children.
I invite readers to add to this preliminary list.

  • Children have more life years ahead of them to live with permanent injury, and lose more life years if they die. This is likely part of the story, but it is an incomplete defense of the data because focusing on life years would not justify providing children with extra protection for temporary injuries like spending one year in the hospital or catching the common cold.
  • Perhaps everyone deserves an opportunity to achieve certain milestones in life, like growing up and falling in love, that often occur during adolescence and young adulthood. To the extent that life years leading up to those milestones are more valuable, we might want to offer younger people more protection. We might also want to ensure that temporary injuries do not impede those opportunities. (Something like this view might be at work here, where one couple recently wrote up a bucket list for their terminally ill infant and went to great lengths to ensure that they checked off each entry.)
  • Children might deserve an open future.

Stay tuned for Part III, where I will discuss what these empirical patterns might mean for tort law …

 

Posner
1

On Judicial Reputation: More Questions for Judge Posner

Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. – Richard Posner (1994)

We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy.  Richard Posner (May 5, 2011)

I have never yearned for greatness!  Richard Posner (November 26, 2014)

This is the eighth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, and the seventh one here.

In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.

Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”  

According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.

So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).

All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.

Note: Some of the links used below will open in Firefox and Chrome but not in Safari.

____________________________________

Max Lerner

Max Lerner

Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?

Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.

Posner on the Criteria for Judicial Greatness

For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is .  . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]

Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?

Posner: A little, not a great deal.

UnknownQuestion: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?

Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.

Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?

Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.

Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?

Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.

None of the [current Justices] has any empirical, technical background. They’re just humanities majors. Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.

Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?

Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.

Justice Joseph Story

Justice Joseph Story

Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?

Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.

[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]

Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?

Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.

Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important. Read More

3

A further defense of human rights clinics

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last month, Chicago law professor Eric Posner launched an ill-conceived attack on law school human rights clinics; on my usual blog at EarthRights International (ERI), I wrote a response. (Prof. Posner is the son of Judge Posner, who’s been around these pages a lot recently.) More recently, over at Opinio Juris, Hofstra law professor Julian Ku echoes some of Posner’s argument: sure, he thinks that Posner’s argument “sweeps a bit too broadly,” but he accepts the critique that broad-based human rights clinics “risk becoming a platform for pure political advocacy,” which is “undesirable.”

In Ku’s mind, narrowly-focused clinics such as asylum clinics that may have some international human rights element in them are acceptable, while more broadly-focused clinics – those that employ the range of strategies used by actual human rights lawyers – might be appropriate, depending “on the particular situation of the law school and the goals of its students.”

Despite my earlier response to Posner, there’s more to say here, because Ku’s addition points up further methodological and substantive flaws in the argument. I’m pleased for the opportunity to dig in deeper in this forum.

Methodologically, this is an argument that is both levied by people who are in a poor position to evaluate its merits, and apparently lacking in evidence. Ku, like Posner, is an academic law professor, not primarily a practitioner. He notes that the counter-argument has been advanced by “those who are involved in these clinics” – who would naturally defend their occupation – but ignores my response, as someone who is not involved in a clinical program. (I don’t know if this is deliberate – ERI’s blog is admittedly not that high-profile, but Posner himself did respond to my post on his own blog.)

Since modesty is generally absent in the blogosphere, I’ll posit that I’m in a better position than Ku or Posner to evaluate the usefulness of human rights clinics. Why? Posner’s reply to my critique says that “a clinic experience could be valuable to students if it teaches them (distinctively) legal skills and generates benefits for a client (or is likely to).” The conclusion that human rights clinics perhaps don’t do this seems based entirely on supposition, but my contrary observation is not; it’s based on years of experience and evidence.

I’ve been practicing international human rights law for more than a decade, and I know that my own clinical experience (at the Yale clinic, which Ku singles out) has been quite useful to my career. I learned numerous practical legal skills – from the details of researching international law (which is seldom taught elsewhere in law school, even in international law courses), to techniques for interviewing victims of human rights abuses, to approaches to writing human rights reports founded on international law, to briefs in US courts incorporating international law.

And I also know that at least some of my projects led to benefits for clients. One of the cases I worked on was Doe v. Karadzic, which later led to a $4.5 billion jury verdict in favor of survivors of war crimes in Bosnia. Another major project was a Human Rights Watch report on corporal punishment in Kenyan schools, which was then rampant and highly abusive; two years later the Kenyan government banned the practice, and the ban was enshrined in the constitution in 2010. (Actually eliminating it remains a work in progress.)

My own experience with a single clinic is, naturally, highly anecdotal (though no less so than the critiques). But that’s only the beginning of the evidence I’ve seen of the value of human rights clinics. I’ve employed at least six young lawyers who have come through different human rights clinics, and without exception I can say that they have gained valuable skills. In fact, some of the exercises they have done in their clinics parallel workshops that we conduct for our own staff at ERI. Human rights clinics are a major part of the reason that US-trained lawyers are generally better prepared for the work that we do than their counterparts in other countries, who are rarely taught the practical legal advocacy skills that are essential in this field.

I can also vouch for the practical benefits of the work done by these clinics, because as a practitioner I’ve had the opportunity to partner with clinics at over a dozen different law schools. Obviously many international human rights projects are long-term efforts, so tangible benefits are not always quickly identifiable, but these clinical projects do achieve results in most cases. And it would be a mistake to give students the impression that only legal work that shows immediate benefits to specific clients is worth doing; one of the skills that they learn is the value of contributing to one piece of a long-term strategy.

So I would submit that neither Posner nor Ku is in a particularly good position to evaluate the effectiveness of human rights clinics, and neither of them points to any evidence that human rights clinics don’t serve purposes they recognize as valid. My evidence may be anecdotal, but it’s not insignificant, and I’d rather base my judgments on the evidence available.

Substantively, the part of Posner’s critique that Ku echoes – and that deserves further examination – is the suggestion that human rights clinics engage in activities that are “pretty close to pure political advocacy,” modeled after NGOs “whose lawyers also engage in broad range of non-lawyering political advocacy,” and that it is “undesirable” for law schools to “train[] students in pure political advocacy.” Thus, Ku reasons, law schools should “perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training.”

There’s a bit of sleight-of-hand going on here, because the argument starts from the assumption that the kind of advocacy that human rights lawyers do is not lawyering – and of course it’s easy to agree that law schools should be focused on teaching lawyering skills. But Ku makes a definitional error in describing this kind of work as “pure political advocacy”; it could more appropriately be described as “using legal arguments in favor of a policy position.” Framed that way, I’d be surprised if anyone would dispute that this is a proper role for a lawyer, and a valuable skill to teach law students interested in making this work part of their career.

As far as I’m concerned, this should be part of “traditional legal skills training.” Lawyers are hired by clients every day to develop legal arguments in furtherance of policy positions, in every area of the law. Indeed, that’s largely what Ku’s frequent writing partner, John Yoo, famously did as a lawyer for the Bush administration. (And did badly – perhaps if Yoo had a grounding in an international human rights clinic, he would not have so grievously misinterpreted international law to legitimize torture.)

I’m not aware of any human rights clinic that has engaged in “political advocacy” unmoored from legal principles, especially principles of international human rights law. As far as I can tell, that notion – like the suggestion that maybe clinics don’t teach valuable lawyering skills – is entirely lacking in evidence. So Ku’s critique, while softer than Posner’s, rests on the same lack of evidence and the same flawed understanding of human rights practice as somehow not lawyerly in nature.

The real test of a clinic should be whether its graduates are valued for the skills they have learned. Regarding human rights clinics, I can personally testify to this, and I have seen no evidence to the contrary.

2

Child Safety, Part I

Parents: Do you invest more in your child’s safety than your own? Less? Roughly the same amount?

I’ve been pondering these questions lately. I have numerous friends who have purchased safer cars once they became parents, or suddenly took an interest in the finest of fine print on warning labels. These anecdotes suggest that we invest more time and money in child safety compared to adult safety.  Interestingly, more rigorous empirical examinations support these anecdotes. Those data suggest that parents invest about twice as much in protecting children as they do in protecting themselves, even when both are facing the same probability of experiencing the same harm. Parents are not alone in this preference. Both parents and nonparents appear to want governments to invest about twice as many resources in protecting children as adults. Here’s some of the data:

Untitled

Readers: Does this ring true?

Stay tuned for what these preferences might mean for tort law…

Posner
8

On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others

I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others. Richard Posner

Privacy is overratedRichard Posner (2013)

 Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.Richard Posner (2014)

This is the seventh installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, and the sixth one here.

Privacy has been on Richard Posner’s mind for more than three-and-a-half decades. His views, as evidenced by the epigraph quotes above, have sparked debate in a variety of quarters, both academic and policy. In some ways those views seem oddly consistent with his persona – on the one hand, he is a very public man as revealed by his many writings, while on the other hand, he is a very private man about whom we know little of his life outside of the law save for a New Yorker piece on him thirteen years ago.

On the scholarly side of the privacy divide, his writings include:

  1. The Right of Privacy,” 12 Georgia Law Review 393 (1978)
  2. Privacy, Secrecy, and Reputation,” 28 Buffalo Law Review 1 (1979)
  3. The Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173
  4. The Economics of Privacy,” 71 The American Economic Review 405 (1981)
  5. Privacy,” Big Think (video clip, nd)
  6. Privacy is Overrated,” New York Daily News, April 28, 2014

For a sampling of Judge Posner’s opinion on privacy, go here (and search Privacy)

(Note: Some links will only open in Firefox or Chrome.)

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Privacy – “What’s the big deal?”

Privacy interests should really have very little weight when you’re talking about national security. The world is in an extremely turbulent state – very dangerous. — Richard Posner (2014)

Recently, Georgetown Law Center held a conference entitled “Cybercrime 2020: The Future of Online Crime and Investigations” (full C-SPAN video here). In the course of that event, Judge Posner joined with others in government, private industry, and in the legal academy to discuss privacy, the Fourth Amendment, and free speech, among other things. A portion of the exchange between Judge Posner and Georgetown law professor David Cole was captured on video.

Judge Richard Posner

Judge Richard Posner

Scene: The Judge sitting in his office, speaking into a video conference camera — As he rubbed his fingers across the page and looked down, Posner began: “I was thinking, listening to Professor Cole, what exactly is the information that he’s worried about?” Posner paused, as if to setup his next point: “I have a cell phone – iPhone 6 – so if someone drained my cell phone, they would find a picture of my cat [laughter], some phone numbers, some e-mail addresses, some e-mail texts – so what’s the big deal?”

He then glanced up from the text he appeared to be reading and spoke with a grin: “Other people must have really exciting stuff. [laughter] Could they narrate their adulteries or something like that?” [laughter] He then waved his hands in the air before posing a question to the Georgetown Professor.

“What is it that you’re worrying about?” Posner asked as if truly puzzled.

At that point, Cole leaned into his microphone and looked up at the video screen bearing the Judge’s image next to case reports on his left and the American flag on his right.

Cole: “That’s a great question, Judge Posner.”

Professor Cole continued, adding his own humor to the mix: “And I, like you, have only pictures of cats on my phone. [laughter] And I’m not worried about anything from myself, but I’m worried for others.”

On a more substantive note, Cole added: “Your question, which goes back to your original statement, . . . value[s] . . . privacy unless you have something to hide. That is a very, very shortsighted way of thinking about the value [of privacy]. I agree with Michael Dreeben: Privacy is critical to a democracy; it is critical to political freedom; [and] it is critical to intimacy.”

The sex video hypothetical

And then with a sparkle in his spectacled eye, Cole stated: “Your question brings to mind a cartoon that was in the New Yorker, just in the last couple of issues, where a couple is sitting in bed and they have video surveillance cameras over each one of them trained down on the bed [Cole holds his hands above his head to illustrate the peering cameras]. And the wife says to the husband: ‘What are you worried about if you’ve got nothing to hide, you’ve got nothing to fear.’”

Using the cartoon as his conceptual springboard, Cole moved on to his main point: “It seems to me that all of us, whether we are engaged in entirely cat-loving behavior, or whether we are going to psychiatrists, or abortion providers, or rape crises centers, or Alcoholics Anonymous, or have an affair – all of us have something to hide. Even if you don’t have anything to hide, if you live a life that could be entirely transparent to the rest of the world, I still think the value of that life would be significantly diminished if it had to be transparent.”

Without missing a beat, Cole circled back to his video theme: “Again you could say, ‘if you’ve got nothing to hide, and you’re not engaged in criminal activity, let’s put video cameras in every person’s bedroom. And let’s just record the video, 24/7, in their bedroom. And we won’t look at it until we have reason to look at it. You shouldn’t be concerned because . . .’”

At this point, Posner interrupted: “Look, that’s a silly argument.”

Cole: “But it’s based on a New Yorker cartoon.”

The Judge was a tad miffed; he waved his right hand up and down in a dismissive way: “The sex video, that’s silly!Waving his index finger to emphasize his point, he added: “What you should be saying, [what] you should be worried about [are] the types of revelation[s] of private conduct [that] discourage people from doing constructive things. You mentioned Alcoholics Anonymous . . .”

Cole: “I find sex to be a constructive thing.”

Obviously frustrated, Posner raised his palms up high in protest: “Let me finish, will you please?”

Cole: “Sure.”

Posner: “Look, that was a good example, right? Because you can have a person who has an alcohol problem, and so he goes to Alcoholics Anonymous, but he doesn’t want this to be known. If he can’t protect that secret,” Posner continued while pointing, “then he’s not going to go to Alcoholics Anonymous. That’s gonna be bad. That’s the sort of thing you should be concerned about rather than with sex videos. . . . [The Alcoholics Anonymous example] is a good example of the kind of privacy that should be protected.”

David Cole

Professor David Cole

Privacy & Politics 

Meanwhile, the audience listened and watched on with its attention now fixed on the Georgetown professor.

Cole: “Well, let me give you an example of sex privacy. I think we all have an interest in keeping our sex lives private. That’s why we close doors into our bedroom, etc. I think that’s a legitimate interest, and it’s a legitimate concern. And it’s not because you have something wrong you want to hide, but because intimacy requires privacy, number one. And number two: think about the government’s use of sex information with respect to Dr. Martin Luther King. They investigated him, intruded on his privacy by bugging his hotel rooms to learn [about his] affair, and then sought to use that – and the threat of disclosing that affair – to change his behavior. Why? Because he was an active, political, dissident fighting for justice.”

“We have a history of that,” he added. “Our country has a history of that; most countries have a history of that; and that’s another reason the government will use information – that doesn’t necessarily concern [it] – to target people who [it is] concerned about . . . – not just because of their alcohol problem [or] not just because of their sexual proclivities – but because they have political views and political ideas that the government doesn’t approve of.”

At this point the moderator invited the Judge to respond.

Posner: “What happened to cell phones? Do you have sex photos on your cell phones?”

Cole: “I imagine if Dr. Martin Luther King was having an affair in 2014, as opposed to the 1960s, his cell phone, his smart phone, would have quite a bit of evidence that would lead the government to that affair. He’d have call logs; he might have texts; he might have e-mails – all of that would be on the phone.”

The discussion then moved onto the other panelists.

Afterwards, and writing on the Volokh Conspiracy blog, Professor Orin Kerr, who was one of the participants in the conference, summed up his views of the exchange this way:

“I score this Cole 1, Posner 0.”

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Prosecutors vs. Divorce Court Judges

What do prosecutors and divorce court judges have in common?

Although this sounds like the start to a lawyer joke, I think examining the two groups together can yield interesting insights. One commonality is their wide and essentially unreviewable discretion.   Prosecutors can decline to charge altogether or can choose which charges to bring.   Divorce court judges often decide based on broad notions of fairness how to split a couple’s entire life savings, and also have power to prohibit parents from having overnight guests when they have physical custody of their children.

The literature on prosecutors is full of potential solutions to the perceived problems of unchecked discretion. One solution is to provide more judicial review. This has been a popular proposal in family law as well, where commentators seek more appellate review of trial court discretion. In my previous post, I explored ways of incorporating community input into family law decisions. This could be framed as roughly analogous to calls for various forms community policing or notice and comment sentencing.

Other reforms call on prosecutors to voluntarily develop guidelines. I want to explore what that might look like if translated to the family law context. Could judges band together and create local guidelines? The answer appears to be no. Below the fold I argue that, contrary to what most appellate courts have held, there are reasons to think that individual judges should be allowed to publically announce their personal rules of thumb and groups of judges should be allowed to publically create group rules of thumb.

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