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August 29, 2007

"A serious and secret bias"

When is a secret not a secret?

In a speech, Judge Dennis Jacobs, of the U.S. Court of Appeals for the Second Circuit in New York, disclosed that judges have "a serious and secret bias" in favor of lawyers. Shhhhh! Don't tell anyone!

Adam Liptak wrote about this a couple of days ago in the Times (link goes to Times Select):

Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law.

But Judge Jacobs’s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money.
Then, there's that matter of high-profile public-policy cases:
“Judges love these kinds of cases,” said Judge Jacobs, whose speech was published in The Fordham Law Review in May. “Public interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy.”

There are costs here, too, he said, including “the displacement of legislative and executive power” and “the subordination of other disciplines and professions.”
This is a very candid man, Judge Jacobs.

He is also a very blunt man at times. As Liptak noted, Judge Jacobs struck a nerve not long ago with a dissent in a case Liptak described as a "tangled lawsuit about something a college newspaper published in 1997," in which the majority felt "important First Amendment principles were at stake, though they acknowledged that the case involved, at most, trivial sums of money."

I remember when this decision came down, because some law professor bloggers were, absurdly, alarmed at what Judge Jacobs wrote at the beginning of his dissent (page 45 of this PDF):
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.
Eugene Volokh, at The Volokh Conspiracy, wrote in response:
It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.
The writer at Appellate Law and Practice quoted various "tidbits" of the dissent (worth reading) and asked: "So, is this the kind of opinion that constitutes good legal writing? Is this what law schools teach people to write?"

On the other hand, Professor Bainbridge and Beldar both thought it was pretty cool. Michael Dorf thought Judge Jacobs had a point but complained that "the dissent contains some gratuitous red-baiting of the plaintiffs."

Well, whatever.

Justice O'Connor, both before and after she left the Supreme Court, seemed to be of the view that criticism of the judiciary was a threat to judicial independence. I rather think that a little more candor of the sort offered by Judge Jacobs, both in his speech and in his dissent -- a little self-criticism can only be a good thing.