"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, May 30, 2014

How federal appellate courts unilaterally and without authority transformed themselves into arbitration panels

When a person files a lawsuit, it usually means that the alternative means of dispute resolution did not work.

Litigation is not a fun activity.   It is stressful,  costly and time-consuming.

Yet,  when a person files a lawsuit,  a person expects from the judiciary diligent review of his or her case on equal grounds with other litigants.

That is called "equal justice for all" and is guaranteed by the Equal protection Clause of the 14th Amendment of the US Constitution which every judge in the United States takes an oath to uphold as a condition of taking that judicial office.

Yet, an interesting metamorphosis happens to the judges' readiness to uphold the concept of equal justice for all when a judge is faced with increasing caseloads.

Now,  let's agree on some common premises.

Population of the United States increases.

The number of court cases increases.

The number of federal judges did not increase in proportion with the increase of cases filed and litigated.

There is a physiological limit as to human attention span and ability of any human for intense intellectual work per day.Federal judges are usually advanced in years, which makes their ability for strenuous intellectual work and speedy, efficient and diligent resolution of court cases suspect, no matter how many clerks they employ.
Reports constantly appear that the rule that federal judges serve while on good behavior simply does not work, because it does not cover aging and aging-specific health problems.  Senility among federal judges is a growing concern.  Some federal judges serve into their 80s and even 90s.  Senior judges handle 15% of the caseload of federal courts.

Does all of the above justify unilateral classification of cases by judges into the "worthy" track where full review and analysis is conducted and full opinions are issued and punished and the "unworthy" track where a less-than-diligent review of cases is warranted, according to judges' absolute discretion?

Not if the constitutional concept of access to courts,  due process of law,  equal prison of law and for fair, competent and impartial judicial review is followed.

If there is the same number of judges for increasing number of cases,  the concept of equal protection of law means simply that it will take longer for any given case to be reviewed,  not that the judge is somehow allowed to cut corners and provide a less than diligent review because he is so busy.

Yet, cutting corners is exactly what federal appellate courts are doing by designating over 80% of appellate cases (according to research of Erica S. Weisgerber, footnote 7 p. 624 and accompanying text), without notifying appellants or giving them an opportunity to object before it is too late, for a less than diligent review and production of the so-caller "unpublished opinions" where the courts hardly provide any explanations for their decisions,  finally snaping appellants' lives and practically tarot 80% of appeals as a total waste of time and money,  all in the name of the claimed judicial efficiency, meaning expediency that sacrifices diligence or fairness.

It is appalling that, without notice or opportunity to be heard,  for the courts' own convenience,  over 80% of appellants in federal appellate courts ate denied diligent appellate review,  while the remaining 20% or less of appellants are given such review,  for unlearn reasons,  based on the judges' sole and absolute discretion which is practically unreviewable by any other court.

When federal appellate courts refuse to explain over 80% of their decisions,  they are no different from arbitration.   Yet,  arbitration is not what the appella ts who are denied proper review chose.

The difference between the court of law and arbitration is that,  while arbitration is also binding,  the arbitrator is not required to cite the law or provide his or her analysis or reasoning for the decision. That is exactly what federal appellate courts are doing with their "unpublished opinions".

Yet, arbitration is voluntary, and if litigants chose judicial review in federal courts as of right,  they cannot be forced into an arbitration or arbitration-like review without their knowledge or consent, which is what is happening now in federal appellate courts.

My legal opinion is that such a practice is unconstitutional and invalidates federal appellate courts as entities, where such courts, for their own convenience' sake, unilaterally, voluntarily and without authority started to act as arbitrators and not courts in the overwhelming majority of cases.

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