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Wednesday, August 29, 2007

Second Circuit Chief Judge Jacobs speaks out against the judicial bias toward seeing law as the solution to every problem

In July, I wrote a pair of posts (here and here) defending a remarkable dissenting opinion by Second Circuit Chief Judge Dennis Jacobs in a case called Hussain v. Springer that included these two sentences:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.

Many folks, of varying persuasions, thought this was an outrageous thing for him to do and say. I disagreed.

Now, though, via the good offices of my friends at Overlawyered, I've found my way to a reprint of Chief Judge Jacobs' equally remarkable lecture at Fordham Law School in November 2006 entitled The Secret Life of Judges. He explains:

This lecture is about bias, the judge’s inbred preference for outcomes controlled by proceduralism, the adversary system, hearings and experts, representation by lawyers, ramified complexity of doctrines and rules, multiple prongs, and all things that need and use lawyers, enrich them, and empower them vis-à-vis other sources of power and wisdom.

He spends the next eight pages poking rapier-sized holes in the judiciary and the legal profession from which it is drawn. For example:

I am not — I repeat, I am not — speaking about a bias based upon politics or agenda, economic class, ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained — by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.

The result is the incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation — and the confidence and faith that these things produce the best results....

He sees grave societal consequences from this hidden bias (emphasis mine):

I sometimes think that the problem at bottom is really a lack of respect by lawyers for other people. Judges live chiefly in a circle of lawyers. Our colleagues are lawyers; happily, our friends are lawyers (and I am hoping to keep some after this lecture); the only outside income a federal judge can earn (aside from royalties) is from teaching in law schools (with the idea, I suppose, that they furnish a nonpartisan environment); and the only political and trade organizations we can join are bar associations.

But outside that circle there are people who are just as fully absorbed by other pursuits that deserve consideration and respect. Judges need a heightened respect for how nonlawyers solve problems, reach compromises, broker risks, and govern themselves and their institutions. There are lawyers on the one hand; and just about everybody else is the competition in the framing of values and standards of behavior.

In that competition, judicial bias has eroded the independence and influence of doctors, medical administrators, insurance underwriters, engineers, manufacturers, the military, the police, wardens and corrections officers, the clergy, employers, and teachers and principals

He offers a prescription (emphasis in original) that if I had to reduce to a phrase, I'd describe as "Don't just get over yourselves, judges — try some healthy self-doubt!"

What can be done to correct this bias and to place the legal profession again on a footing of parity and fair competition with other professionals and activities that have a right to influence in our communities and our culture? In a nutshell, judges should lead the bar in exercising the self-restraint and self-discipline that is incumbent on a profession that has a virtual monopoly on legislative power and a monopoly by patent on the power of the judiciary, and that is largely self-regulating.

....

As a matter of self-awareness and conscience, judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust, even if our friends and colleagues in the legal profession lead us that way. For the judiciary, this would mean a reduced role, but not a diminished one if the judiciary is elevated by considerations of honor, self-restraint, and respect for other influences.

I agree wholeheartedly with Chief Judge Jacobs' observations. About the only thing I would add is that the intrinsic and hidden biases he describes are every bit as common among practitioners as among the judiciary, and that we, too, ought to undertake the responsibility of curbing them.

If you are among the many who are concerned about over-reach by lawyers, judges, and the legal system, you will enjoy reading his speech — perhaps not least for such reassurance as it may provide that at least not every lawyer or judge is blind to these problems. This is an articulate and profound manifesto for judicial conservatism, which is not the same thing as, or necessarily related to, political conservatism at all. But political conservatives certainly ought to want to see judges appointed or elected who harbor this precise sort of self-skepticism.

Posted by Beldar at 08:08 PM in Law (2007) | Permalink

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Comments

(1) Jinnmabe made the following comment | Aug 29, 2007 11:04:40 PM | Permalink

I don't know. Are non-adjudicated "solutions" binding on the parties?

Am I totally misunderstanding what he's saying?

(2) anduril made the following comment | Aug 30, 2007 8:15:00 AM | Permalink

I just read (quite belatedly) Bob Bork's "The Tempting of America." While there was much that I agreed with in the book I was bemused by his portrayal of judges as immersed in the real world. It's refreshing to see a judge (Jacobs) who recognizes the extent to which judges are shielded from the real world by the sycophantic behavior of one and all who surround them--from clerks to lawyers to, well, everyone. They rarely receive wake up calls from the world outside their courtroom, and are quickly assured that such rude awakenings are best ignored.

I well recall the outrage of one judge in an investment fraud case when a group of victimized seniors showed up at his chambers demanding action! O-M-G! One might have thought that he had grown accustomed to being addressed as Your Highness and not just Your Honor.

(3) Supremacy Claus made the following comment | Aug 30, 2007 8:58:47 PM | Permalink

You and Ted are on the right track. There two steps for you to take.

One is to learn about the Rent Seeking Theory as the best explainer and predictor of the criminal cult enterprise decisions.

The second is to understand that the lawyer rent seeking bias is a form of theft from the public to enrich the criminal cult that is the lawyer profession. That makes it a "criminal" cult enterprise.

Lastly, you have to peer deep inside yourselves. How did two intelligent law students come to believe in supernatural, Medieval garbage, core doctrines of your profession?

You underwent cult indoctrination, and you paid tuition to do so. And, it was so good? You refuse to believe you were indoctrinated. You do not even realize every page of every law and statute book is filled with magical thinking. Medieval garbage, not even believed by a very slow moving church.

I think it is asking too much to expect you to understand how mind reading, future forecasting, truth detection by the gut feelings of twelve strangers off the street, and "reasonableness" meaning "in accordance with the New Testament," how all those core doctrines violate the Establishment Clause of this secular nation. I am not going to ask so much.

(4) Jack Payne made the following comment | Sep 1, 2007 11:32:59 PM | Permalink

Judges do seem to have inbred preferences alright. The gray area searches can be left to the psychiatrists and social engineers. With the judge it must be a matter of a pencil-sharp desire for the black and white of any problem to come forth, clearly outlined, forthrightly explained, some oversimplified vision of "good vs. evil," to be revealed, I suppose.

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