You can't make this stuff up.

As you may have noticed, I have been blogging at a much reduced rate of late. This is mostly due to a sudden increase in work. I have been reading many more briefs and transcripts than usual and I took a bunch of these home to review over the weekend and buried in one of the transcripts I found this little gem:

ATTORNEY: Please describe how the defendant was driving.

WITNESS: The guy was all over the road. I had to swerve a number of times before I hit him.

Do written constitutions undermine the rule of law?

Over at LawCulture, Yale UVA Law Professor Rosa Brooks poses here the question of whether a written constitution such as ours, doesn't actually inhibit "rule of law values."

In pertinent part, Prof. Brooks writes:

Inevitably, as time goes by after the initial drafting and adoption of a constitution, it becomes increasingly likely that changing circumstances will make some/many of the constitution's provisions less salient and helpful. If the Constitution is difficult to amend, as is the U.S. Constitution, this problem may worsen with time. There are ways around the problem-- one can develop interpretations and doctrines that allow us to "bring the Constitution up to date" without actually amending it-- and this is of course what we have done in the U.S. I think this is as it should be. But the problem is that the more one is forced to depart from a "straight" reading of the Constitution to justify "modern" solutions to problems-- the more one is forced to rely on legal fictions and creative interpretive extensions of the text-- the more one risks undermining other values associated with the rule of law, like transparency.

Here's the paradox: if a society "strictly" adheres to a constitution as the decades and even centuries go by, it's doing itself a disservice, since the constitution will become more and more "out of date," but if a society relies on ever fancier interpretive footwork to shoehorn modern understandings into constitutional categories, perhaps the society risks undermining public commitment to the rule of law itself, since the "ordinary" person (and even many lawyers) will have less and less faith in the process of constitutional interpretation (or in judges, presumably).

I must be missing something but I thought by definition laws are written to provide both notice and consistency in a code of conduct. Neither of these is found in evolving individual concepts of how others should conduct themselves. I suppose I am oversimplifying things but if a written constitution is a contract or compact between the people and their government (or in the case of the United States, a three-party compact between the federal government, the states and the people), it seems to me that the "rule of law" requires that the contract be adhered to and if it is so "out of date" that it does not provide a "modern solution," it should be renegotiated by the parties through amendment, no matter how "unwieldy" that process may be.

The alternative to that approach is the "philosopher king" (and queen) approach recently advocated by Canada's Chief Justice and apparently by Prof. Brooks. To call this approach "following the rule of law" seems to me to be absurd on its face and in any event, I submit that this "rule by the whim of unelected elitists" approach has proven at least as "unwieldy" as Prof. Brooks suggests those pesky written constitutions are.

*** As "Anonymous" points out in the comments, Professor Brooks teachs at UVA, not Yale (although Yale is where she got her law degree) - sorry about that.

"Hard-assed" judge? What about the dishonest prosecutor?

When I see a link at a great blog like Arbitrary and Capricious with a title like "Field Guide to the Hard-assed Judge," you just know that I'm going to check it out.

The link led to this post that seems to suggest that "hard-assed" appellate judges look like the one in the picture to the right. The post notes that the "physiognomy of a hard-assed judge" is basically a robe above which is perched a face with a high forehead and beard.

What I found most telling was that the proximate cause of the "hard-assed" characterization for the appellate judges in question, was a prosecutor who was apparently playing fast and loose with the record and was caught at it by the judges. I guess I am more than a little surprised that the author of the post seems to think that judges getting upset about a lawyer lying to them was much ado about nothing.

I don't know about other judges, but in similar circumstances, I would also be more than a little upset. It is bad enough when any lawyer is caught lying to a court. Aside from the fact that it is unethical to deliberately mislead a tribunal, your credibility as an advocate, both in that case and any future case before any of those judges, is toast.

I suppose that some lawyers think that appellate judges aren't likely to be very familiar with the trial record and perhaps in some courts that may even be the case. On the other hand, the culture on my court and, I suspect on most other appellate courts, is to be very familiar with all portions of the record that relate to the issue(s) on appeal. In my court, you are very likely to get caught if you pull a stunt like this.

It is even worse if, as here, the prevaricating lawyer is a prosecutor. The law holds prosecutors to a higher standard than other lawyers (even on appeal). During a long former career as a prosecutor I prided myself on that fact and I have no problem insisting that prosecutors meet that higher standard when they are in my court.

If in the collective judgment of the three-judge panel a prosecutor was deliberately misrepresenting the record, we would not "have him clapped in irons" but the majority of my colleagues and I would likely have admonished him in open court for violating the ethical rules, terminated his oral argument immediately and written a letter to the disciplinary arm of the bar signed by all three judges, complaining about the ethical breech and enclosing a transcript of the argument or brief and the appropriate pages of the record.

By the way, just to set the record straight, I look nothing like the picture above. We "hard-assed judges" look more like this:

Scrutiny v. Secrecy, Part II

During the furor over the nomination of John Roberts to the Supreme Court of the United States, I noted here that the perception elsewhere (in that case, Australia) is that, with all the warts and blemishes, the public vetting of our judicial appointees may be preferable to the secrecy that accompanies the judicial appointments in other former English colonies.

As the dust of the Alito nomination brouhaha begins to settle, it is worthy of note that our neighbor to the north is also in the process of filling vacancies on its highest court and as Professor Allan Hutchinson of Toronto's Osgood Hall Law School at York University observes here:

[T]he difference in approach to these judicial appointments is quite striking. The American system begins with an absolute executive recommendation which is only constrained by political considerations. But it ends, occasionally and famously, in a public rejection of that proposed candidate after a very public debate and vote by elected representatives. It may not be a pretty or edifying sight, but it at least possesses a certain transparency and openness.

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge. Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it. It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

Professor Hutchinson also opines that "As recent decisions on health care demonstrate, it is no longer credible or acceptable to pretend that adjudication is or can be about making formal and impersonal decisions in accordance with existing rules, especially in constitutional matters. Judging is about social values." Sadly, Professor Hutchinson's view of the Canadian approach to judging, seems to be corroborated by his nation's Chief Justice as noted here.

While I find much to disagree with in Professor Hutchinson's piece, his conclusion that "More, not less information about our rulers is the best route to an improved democratic polity" is spot on.

He ends by observing "Better the devil you know than the one you don'’t. In this, at least, the United States has the democratic better of us."

Talk about being damned with with faint praise!

Anonymous bloggers and posters beware - Create e-noyance and go to jail!

From C|NET News comes this little tidbit:

It seems that buried in the so-called Violence Against Women and Department of Justice Reauthorization Act, recently signed into law by President Bush, is language that prohibits the posting of annoying Web messages or sending annoying e-mail messages without disclosing your true identity. Sec. 113 of the law, an innocuously titled bit called "Preventing Cyberstalking." It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."

The penalty is up to two years in a federal prison in addition to hefty fines.

I won't offer an advisory opinion on the constitutionality of this provision but for the time being at least, I hope you don't find any of my posts annoying.

***UPDATE***

Over at The Volokh Conspiracy, Orin Kerr posts here that this is much ado about nothing. Eugene Volokh rebuts that position here.

The trend toward "shaming" sentences.

This article and this one are among several I have read over the last few months noting a trend toward sentences designed to shame the defendant into going straight.

With scarce and expensive prison and jail space being inceasingly reserved for violent criminals and most rehabilitation programs returning so little bang for the buck, trial judges are being forced to be more imaginative.

I suppose that there will be inevitable appeals suggesting that such sentences violate the Eighth Amendment prohibition against cruel and unusual punishment. Of course, as Fordham Law School Professor James Cohen notes in this article, "There is a long, long history of shaming people," Cohen said, noting the colonial practice of putting people in stocks on village greens.

I recall when I was a young prosecutor back in the 70's, I was handling the sentencing of a mid-level executive of a Fortune 500 corporation who had been convicted of embezzling a couple of hundred thousand dollars. The judge expressed the thought that it might be more effective if, instead of sending him to prison, he be required to walk up and down in front of corporate headquarters during the lunch hour every workday for a year while wearing a sign saying "I am a thief." The defendant piped up that he would rather go to prison than be humiliated like that. The judge gave him his wish and sent him to prison for five years but ever since I have wondered if such sentences might not be a more effective deterent than prison.