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July|August 2005
A Platinum Parachute By Nicholas Thompson
When Pigs Float By Krista Carothers
Elsewhere
Land of the Rising Lawyer? By Annie Murphy Paul

Elsewhere

Judges with short tempers, judges with long memories, and the untouchable criminals of Yellowstone National Park. These and other characters from the nation's law reviews.


BAD JUDGE, BAD

When Judge James Whittemore of the Federal District Court in Florida refused to order Terri Schiavo's feeding tube reinserted last March, Congressional leaders called for his head. Tom DeLay, the embattled House majority leader, demanded a Judiciary Committee inquiry and widespread impeachments. "The time will come for the men responsible for this to answer for their behavior," he said menacingly.

DeLay's demagoguery attracted a lot of attention to Judge Whittemore but ignored a larger, if less politically charged, problem: the strain of bad judging that plagues the American legal system. Throughout the country's courthouses, there are judges who are biased, unethical, autocratic, lazy, corrupt, and just plain incompetent. Ask a local lawyer, and he'll tell you about a judge whose name strikes fear if not loathing in his heart.

The federal and state court systems have initiated dozens of policies intended to weed out unworthy judges: They've tried selection committees, retention elections, judicial conduct commissions, and complex recusal procedures, all in an effort to see to it that unqualified judges don't get hired and that poor judges don't stay on the bench.

Geoffrey P. Miller applauds these efforts but thinks he has a better idea. In "Bad Judges"—good title!—he suggests that judicial reformers take a cue from the jury selection process. In his system, each case would be assigned by a court administrator to a panel of judges, and each party would have the option of excluding judges they don't want to hear their case. Incompetent, partial, or belligerent jurists would be eliminated, and one judge from the list would be left standing. Miller would also mandate that statistics be compiled and that judges who are frequently excluded be examined by judicial conduct committees or the electorate. Judicial baseball cards, an idea Legal Affairs has long championed (see p. 32 of our September|October 2004 issue), surely wouldn't be far behind. Texas Law Review, Volume 83, Number 2

UNFORGOTTEN AND UNFORGIVEN

Not too long ago, a study found that when people were asked not to think about a white bear, they thought about one frequently, more than once a minute. It turns out that people are not very good at forgetting on command.

"Can Judges Ignore Inadmissible Information?" draws upon this psychological research to ask how judges perform when they are asked to forget inadmissible evidence at bench trials in which they serve as both judge and jury. Research has shown that juries are likely to be swayed by information that they are told to disregard, which is why judges usually prescreen evidence before it is ever presented to the jury. The assumption has been that judges are better able to insulate themselves from the effects of potentially corrupting evidence.

Andrew Wistrich, Chris Guthrie, and Jeffrey J. Rachlinski challenged that assumption by traveling to judicial conferences around the country and gathering an impressive set of data on how judges performed in a series of settings where inadmissible evidence might color their views. In each case, they presented judges with a description of the facts in a case, gave the inadmissible evidence to half of the judges and asked them to rule on its admissibility, and then asked both groups to render a judgment in the case.

While the authors never suggest that the judges in question were bad, their work does find judges to be fallible when it comes to ignoring inadmissible evidence. In most of the scenarios they designed—one where a woman's sexual history is barred due to a rape shield law, one where a pretrial settlement offer is discussed, and several more—the judge's knowledge of the inadmissible evidence markedly affected the outcome of her ultimate ruling in the case. In the rape case, for example, judges who ruled that information on the victim's sexual history should be excluded voted to acquit the defendant almost 30 percent more frequently than judges who never learned about the history.

For the authors, the limitations of the judges they studied affirm for them the importance of juries. They suggest that more cases be decided by juries, so that judges can devote themselves to the task of deciding what evidence is admissible, and so that no defendant's fate hangs on the ability of a judge to forget. University of Pennsylvania Law Review, Volume 153, Number 4

THE SHADOW OF A FLOUT

In 1928, the United States Supreme Court upheld a conviction that was based on information obtained through the secret wiretapping of a bootlegging suspect. Justice Louis Brandeis's dissent expressed his dissatisfaction with the court's legal reasoning, which he thought violated the Fourth Amendment's guarantee against warrantless government searches, but also criticized the court on more practical grounds. "If the Government becomes a lawbreaker," he wrote, "it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

In the Texas Law Review (which outdid itself in its Volume 83), Janice Nadler looks for evidence to support Brandeis's claim. Like Brandeis, many theorists have argued that when individuals experience injustice, they become generally more distrustful of the law. Politicians who argued to overturn Prohibition in the United States used this argument. President Herbert Hoover's National Commission on Law Observance and Enforcement concluded that Prohibition resistance was so widespread that the law might be impossible to enforce, and opponents of Prohibition worried that by keeping the law on the books the government risked "spreading disrespect for the law." More recently, British policy makers used this line of reasoning when they recommended reducing stiff penalties for marijuana possession in 2000. In both cases, legal authorities were motivated by the concern that a law widely viewed as unjust might invite lawlessness. "Flouting the Law" uses a series of psychological experiments to determine whether the theory floats.

For the most part, Nadler's data confirm the theory. In one experiment, she found that college students who had been exposed to newspaper articles about unjust laws were more likely than students in a control group to say that they would park in an illegal spot, illegally copy software, or eat a small item in a grocery store without paying for it. In another experiment, she found that adults who read a story about an injustice and then were asked to serve on a mock jury were slightly more likely to reach a verdict that nullified the result dictated by the law.

Nadler acknowledges that her experimentation hardly establishes that disgruntlement leads to actual criminality. But that doesn't stop her from telling legislators to take the flouting hypothesis seriously. She believes that the reason people don't run red lights at 3 a.m. is that we think that respecting the rule of law is, on balance, in our best interest. But that respect can falter. Nadler looks back to the 1992 Los Angeles riots, which followed the acquittal of four police officers in the Rodney King police brutality case. Feeling betrayed by a system that in their view no longer looked out for them, the rioters disregarded that system's laws, creating a path of shocking destruction. Texas Law Review, Volume 83, Number 5

YOUR OWN PRIVATE IDAHO

Committing the perfect crime just keeps getting harder, what with all the advances in forensic technology. But aspiring criminals (at least ones with subscriptions to the Georgetown Law Journal) will be encouraged by Brian C. Kalt's new article. While he doesn't provide a blueprint for the perfect crime, he does locate on the map the perfect place to commit a crime. That would be Yellowstone National Park.

More specifically, it's the uninhabited 50-square-mile corner of Yellowstone that sits in Idaho, where Kalt contends criminals can make mischief with impunity. "Say that you are in the Idaho portion of Yellowstone, and you decide to spice up your vacation by going on a crime spree," he writes. "You make some moonshine, you poach some wildlife, you strangle some people and steal their picnic baskets." You could do all that, Kalt suggests, and still get off scot-free.

The Idaho loophole comes from the "vicinage" provision of the Sixth Amendment, which requires that jurors reside in both the state and the judicial district where the alleged crimes that they're asked to judge occurred. The rule is designed to ensure that juries understand the standards of the community in which a crime was allegedly committed, but it poses a problem when applied to Yellowstone: The park is a federal enclave, and though parts of the park are located in Idaho and Montana, the federal government opted to place the entire park in Wyoming's judicial district. To fulfill the vicinage provision, jurors would have to be from the portion of the park in Idaho, since naturally no other parts of the state are in Wyoming's judicial district. But because the area is uninhabited, Kalt concludes that the courts cannot prosecute criminals who commit crimes within the park's Idaho region—or, as Kalt calls it wryly, the "zone of death."

Alas, Kalt's paper fails to back up his theorizing with any empirical study. Rather than brazenly nabbing some picnic baskets and putting his idea to the test, he instead wrote an article that reveals him to be more Ranger Smith than Yogi Bear. The article's first page has a public service announcement—"crime is bad"—and a footnote that explains that after discovering the zone of death, Kalt immediately notified the authorities. Georgetown Law Journal, Volume 93, Number 2

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