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View Diary: It's not as sexy as waterboarding, but.... (93 comments)

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  •  A basically comprehensive response to the Doc (3+ / 0-)
    Recommended by:
    Farugia, pvasileff, Braising Kane

    First off, let me start by observing, as Benito Juarez did, that "respect for the rights of others is peace."  I would reject utterly the perverse Ayn Randian notion of 'sanction of the victim': "I suppose somebody's got to be sacrificed.  If it turns out to be me, I have no right to complain."  Or to put it another way, while I might be willing to sacrifice your rights on the altar of "finality," I am unprepared to sacrifice mine.  If any judicial decision is indisputably wrong, it should be remedied.  Period.  Our life, liberty, and property interests are too important to accept any less.

    Doc: 'Our system would grind to a halt!'
    Second, your assumption that our legal system would be ground to a halt by endless lawsuits is unsupportable, and relies on absurd presuppositions. I do not suggest that we abandon our appellate court system but rather, submit that every single litigant has a right to equal protection of the law, that our courts do not have the legal authority to write "designer law" applying to one and only one set of litigants, and that federal appellate courts have an unflagging responsibility to ensure that this does not happen.  If every judge does his or her job as intended, we would never encounter a situation where a litigant would have valid grounds for complaint.

    The problem comes, as it always does, with a court system that is completely devoid of any semblance of meaningful accountability.  Within a rational legal system, if Smith v. Jones has been applied in fifty cases with legally indistinguishable facts, litigants have the right to expect that it will be applied in their case.  When a trial judge suddenly decides that he doesn't have to follow Smith v. Jones, that judge bears a burden to offer a compelling explanation as to why he decided not to do the same, and if falls upon the appellate court to evaluate the validity of his explanation in a searching manner.  As a general rule, a trial court doesn't have the power to decide for himself that he will not follow Smith v. Jones, nor should he have.  Problem is, in the real world of American courts, trial judges disregard precedent all the time, and appellate courts are generally loath to review their work, to say nothing of correcting what are obvious errors.  If personal liability in tort would serve the same function as malpractice suits does in medicine, we'd end up with a much higher quality of judicial care.

    Doc on the use of foreign precedent

    Third, I fail to see what the decisions of a variety of foreign courts have anything to do with our structure of government.  I certainly would not want to cite Iranian jurispudence as precedent for any US decisions.

    Uh, thank you, Justice Scalia.

    "International law is a part of our law," The Paqueete Habana, 175 U.S. 677, 700 (1900), and has been an integral part of our law since the dawn of the Republic. E.g., Pennington v. Coxe, 6 U.S. 33 (1804). This Court "is bound by the law of nations which is a part of the law of the land." The Nereide, 13 U.S. 388, 423 (1815).  In light of this long, unbroken string of precedent, it "would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals." Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), slip op. at 36.

    'The judicial discipline system is adequate'

    There have been lots of judges prosecuted for willful misconduct.  See, e.g., Alcee Hastings.  

    Second, there are plenty of state judges who have been removed from the bench for a variety of misconduct.

    The claim that the current system of judicial discipline is even close to being adequate is unsupported by the evidence; see Help Stop Nuclear Winter in the Judiciary for an in-depth examination of the federal system.  And don't expect the Department of Justice to come after judges with knives.

    'Summary judgment comes years later'
    Again, your claim is devoid of evidentiary support. The first response to a lawsuit of this nature is a Rule 12(b)(6) motion.  If a case is truly devoid of evidentiary support, it dies a quick and painless death; if it is not, it should go to trial if there is to be any justice.  No man is above the law, and no man should ever be beyond its protection.

    'Rule 11 is of no help'

    Nor is Rule 11 of great help, as it does not mandate sanctions, and to the extent sanctions are imposed they are most often in form of a reprimand.  And of course, they are of little consequence to pro se litigants.

    Tell that to a pro se litigant I know of who got hit with a bill for $102,000.

    'You're just unhappy with the verdict'

    Third, it seems that what you call "abuse of power" amounts to nothing more than disagreement with the outcome.  You do not provide any evidence for the assertion that judges routinely take bribes or otherwise act nefariously.  And if all you are unhappy with is the outcome, there is a process called "an appeal."

    Be honest: It "seems" that way to you because you need that fact to be true to support your argument. There are many cases wherein judges refused to follow the binding precedent of the U.S. Supreme Court, and on legally indistinguishable facts.  As lower court judges do not have the legal authority to defy those authoritative pronouncements, the victimized litigant has every right to be upset with the outcome.  If an appeal would fix the problem, then by all means, the appellate process should be exhausted; the problem we face in America's appellate courts is pandemic sloth and indolence.  If a litigant has a valid objection (a decision that on its face would suggest improper conduct by the judge) does not get satisfaction in the appellate courts, he should be able to sue the judge for damages.  Hopefully, the specter of tort liability would induce our appellate courts to take more care in discharging their obligations.  If the system works as it should all the time, there would never be grounds for such a suit.

    'Misconduct should only be limited to cases of conclusive proof of bribery'

    Finally, to the extent that in your case you can show that the opposing party gave a bribe and the judge accepted it, you could probably have the verdict set aside, without resorting to suing the judge.

    In the real world, the chances of you having that kind of evidence at your disposal are infinitesimal; requiring that level of proof is like expecting a victim of the TSA to show that the government illegally eavesdropped on their confidential conversations as a prerequisite to standing.  Surely, you don't think that those should be the only victims who are entitled to compensation?
       

    •  Response (0+ / 0-)

      If any judicial decision is indisputably wrong, it should be remedied

      Yes.  And the process for that is called an appeal.  There is no need to civilly sue the judge.  (By the way, are you planning to extend your civil suit rule to jurors as well?  If not, why not?)

      Within a rational legal system, if Smith v. Jones has been applied in fifty cases with legally indistinguishable facts, litigants have the right to expect that it will be applied in their case.

      Not necessarily.  Only if the litigant decides to bring up Smith v. Jones.  It is not the judge's job to go search the lawbooks for cases that are favorable to a litigant. Judges are simply supposed to resolve the questions of law taht litigants actually dispute.  Failure to dispute a point results in losing it.

      Problem is, in the real world of American courts, trial judges disregard precedent all the time, and appellate courts are generally loath to review their work, to say nothing of correcting what are obvious errors.

      I do not believe that to be true, and you have failed to demostrate it by any sort of empirical evidence.  Citations to other lawyers who believe the same does not qualify as proof.  But even if it WERE true, what makes you think that upon a collateral suit in tort, another trial judge will not be loath to "review the[] work" of the previous trial judge?

      If a case is truly devoid of evidentiary support, it dies a quick and painless death

      That is simply false.  Rule 12(b)(6) is not meant to test sufficiency of the evidence.  That is black letter law.  ALl that is asked is if there is any conceivable set of fact that if proven (after discovery) would entitle you to relief.  Dismissals on 12(b)(6) are actually exceedingly rare.

      Be honest: It "seems" that way to you because you need that fact to be true to support your argument.

      It seems to me that as one alleging pervasive corruption in the judiciary you are the one who ought to provide evidence.  Giving your lack of evidence, I have no choice but to assume that you are just unhappy with results.

      International law is a part of our law,"

      You are just quoting cases out of context.  International law has NEVER been part of our Constitutional interpretation process.  It made its appearance recently and only in very limited contexts, viz., Eight Amendment and gay rights.  It is indisputably part of "international law" that variety of "hate speech" can be proscribed (e.g., Holocaust denial).  Despite that being "law of nations," it is just as indisputably part of the US law that such speech CANNOT be proscribed.  The cases you quote have absolutely nothing to do with our domestic constitutional law, but involve maritime law (Paquette Habana; Nereide) which of necessity involves international law.  Alvarez-Machian also did not deal with our domestic constitutional issues, but rather with recovery under Alien Tort Statute that specifically provided for jurisdiction in District Courts over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."  Thus, statute explicitly incorporated the "law of nations" into the US law, but to a limited extent.  Nothing in the cases you cite even remotely suggests that US constitutional law is subject to the whims of the Iranian judiciary.

      (As an aside, I wait with a baited breath when Iranian law will be cited with respect to an abortion and gay rights cases.)

      In the real world, the chances of you having that kind of evidence [of bribery by a judge] at your disposal are infinitesimal

       

      If that is so, then your tort suit will be equally unsuccessful and pointless.

      •  Objection, assuming facts not in evidence (0+ / 0-)

        Yes.  And the process for that is called an appeal.  There is no need to civilly sue the judge.

        As a practical matter, the rule that a plaintiff must act to mitigate damages mandates that the aggrieved litigant exhaust his remedies by filing an appeal.  If an appellate court could be counted on to correct 100% of flagrant errors, the remedy I propose would be rendered theoretical.  In the final analysis, the litigant would have to travel a long and arduous path before he could seek damages in tort -- there would have to be a systemic failure.

        But what happens when the appellate process fails or worse yet, when the appellate process is the problem? This is where a remedy is necessary.  

        (By the way, are you planning to extend your civil suit rule to jurors as well?  If not, why not?)

        No, for several compelling reasons.  First, jurors don't possess any special level of competence in the law.  Second, the judge is expected to maintain control over the trial (and can negate the effects of a runaway jury through JNOV).  Third, the proposed standard for liability is willful misconduct, and it would be extremely rare for a jury to be in the position to commit it.  

        Not necessarily.  Only if the litigant decides to bring up Smith v. Jones.  It is not the judge's job to go search the lawbooks for cases that are favorable to a litigant. Judges are simply supposed to resolve the questions of law taht litigants actually dispute.  Failure to dispute a point results in losing it.

        My hypothetical here presumes reasonably competent advocacy; as in all tort law, contributory negligence rules apply, and an aggrieved litigant is required to mitigate damages in any event.  As everyone would be expected to know that if you don't raise an issue or preserve it for appeal, you lose it, the Court's failure to take it into account would not rise to the level of willful misconduct.

        When a litigant cites a case to the Court in response to a motion for summary judgment and explains to that court why it is dispositive, you're talking 'bout a whole different critter. [2bcont]

        •  If you are assuming that the appellate (0+ / 0-)

          process is broken (and you have yet to cite evidence of such systemic breakdown) what makes you think that suing the judges in tort, in front of the very same appellate court that already rejected your claim would give result in a victory?

          •  'Cuz they'll all be on the hook for malpractice (0+ / 0-)

            If there is anything that makes judges nervous, it is the prospect of people suing judges.  I'd also like to see a process whereby aggrieved citizens could act as private attorneys general (at least, to the point of presenting one's case to a grand jury), so that we aren't wholly dependent upon the caprice of a corrupt Department of Justice for the prosecution of crimes.

            I'm expecting that the mere specter of tort liability will go a long way toward cleaning up the mess.

            •  Ummm.. but who will adjudicate malpractice? (0+ / 0-)

              The SAME judges!  Why would they come out with a different decision on the second go-round than on the first?

              •  Facts are determined by a jury (0+ / 0-)

                and the question of whether a judge defied the binding pronouncement of a superior court is a question of fact.  

                Remember that in theory, all a judge should be doing is administering the trial.

                •  Until the judges (0+ / 0-)

                  set the verdict aside on JNOV.  Your system makes no sense.

                •  Oh, and the question of whether (0+ / 0-)

                  the judge refused to follow a binding precedent is not a question of fact, it is a question of law.  Because it involves the question of what the law was, and how it was applied, etc.  It is a purely legal and not a factual question.

                  •  I would disagree here (0+ / 0-)

                    in the sense that the judge's mental state is for the jury to decide, and most of the cases where this is going to matter are very clear-cut in any event.  By way of example, it is almost impossible for a judge to say that he doesn't know that a state court of general jurisdiction is required to hear a properly presented federal civil rights claim under Claflin v. Houseman.

                    This is why I say there is very little fear that there will be a rash of frivolous lawsuits.  You have to honestly think you would win to go through the brain damage of filing a lawsuit of this nature.  People are rational, for the most part.

                    •  The point is that under your scenario, (0+ / 0-)

                      post-appeal of the original case, the appellate court has already ruled AS A MATTER OF LAW that the original trial court was correct.  Consequently, there is nothing to submit to a jury in a subsequent case because it has already been held as a matter of law, that you did not present a proper claim for adjudication.

                      In any event, you would be bound by res judicata and collateral estoppel against relitigating issues you have already lost on.

                      •  Different parties, different cause of action (0+ / 0-)

                        Whether the matter is decided is beside the point; see Carey v. Piphus.  If the matter was decided using an unconstitutional procedure, the tort (I'm not really certain it should be called a tort) complained of is the deprivation of procedural due process (of course, other constitutional violations are also possible), and the operative question is whether that litigant's rights have been violated.  Let us assume for sake of argument that a judge decided a case from the bench by flipping Judge Younger's infamous silver dollar (I assume you've heard his classic talk on evidence), and the appellate courts upheld the decision.  Naturally, the decision is final as a matter of law, and Ellen's hairdresser gets to keep the pooch, but the parties' rights have still been violated.  Both parties could sue the judge (barring the immunity question for the moment) under Carey v. Piphus, but only one would have damages, and she would be the one suing the judge.

                        The only way the original case even comes up is in the computation of damages, which is what the Carey court held.

                        •  The point is you won't be able to show damages (0+ / 0-)

                          since the appellate court had already held that the decision (however reached) was a correct one.  So you won't be able to show that you suffered from the alleged violation.

                          •  Not necessarily (0+ / 0-)

                            If you can show that the process was unfair, and that you would have prevailed had the process been fair, you could recover on that theory (the injury was the unfairness of the process, and the damages are what you would have gotten in a fair one).  See, Carey v. Piphus.

                          •  Umm... no... because you would not be able (0+ / 0-)

                            to show the second part.  If you would have prevailed in a fair process, you would have won on an appeal, since the challenged decision would be wrong (however arrived at).  If, on the other hand, the challenged decision was right, it doesn't matter how it was arrived at, because you would have lost regardless.

                          •  That presupposes that the appeal is a (0+ / 0-)

                            functional process.  The simple fact is that sloth and indolence has so overwhelmed the system that we can no longer have any faith in that process.  Smith v. Mullarkey is a classic case in point, where the judges ruled in favor of their fellow guildsmen, and placed a heavy hand on the scales of justice.

                            It is the abject failure of the appellate courts which mandates this new remedy.

                          •  Once again, the remedy you seek (0+ / 0-)

                            will be in the same courts that you so deride.  In front of the same appellate judges who already ruled against you.  There is nothing that leads one to believe that the second go round would result in a verdict that is any more favorable than the first go round.

                            BTW, I sincerely hope that you are not Mr. Smith of the eponymous 10th Circuit case.

      •  The inherent inadequacy of appellate review (0+ / 0-)
          Problem is, in the real world of American courts, trial judges disregard precedent all the time, and appellate courts are generally loath to review their work, to say nothing of correcting what are obvious errors.

        I do not believe that to be true, and you have failed to demostrate it by any sort of empirical evidence.  Citations to other lawyers who believe the same does not qualify as proof.  But even if it WERE true, what makes you think that upon a collateral suit in tort, another trial judge will not be loath to "review the[] work" of the previous trial judge?

        Whether you believe it or not of course beside the point.

        Appellate courts perform no meaningful oversight of most lower court decisions in even the best of times; unfortunately, the sloth appear evenly distributed throughout the Circuits. The only time that a judge even considers an appeal not selected for publication is in a judicial conference, where judges spend more time bragging about their golf game than on individual appeals.  The leading proponent of unpublished opinions, Judge Alex Kozinski of the Ninth Circuit, openly admitted that panels in his circuit may issue 150 rulings per three-day session, Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (copy on file) -- that’s less than ten minutes per decision! But even they are shameful slackers compared to the late Judge Arnold of Anastasoff fame, who confessed in a speech at Drake University that he participated in a two-hour conference deciding fifty appeals. Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings," Des Moines Register, March 26, 1999, at 12. Every judge is aware of this shocking state of affairs, and some are even willing to admit it in open court. Professor Sarah Ricks uncovered this remarkable exchange in a trial transcript:

        THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought. So it’s hard to say that that’s a well-reasoned opinion that has any precedential value.
        MR. WINEBRAKE: Well, we concede—
        THE COURT: It’s instructive on what they’ll do without much thought.

        Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269 (2006).

        At the end of the day, the typical unpublished appellate opinion is more toxic than a Chinese Barbie doll. Judge Kozinski famously described them as "inedible sausage," unfit for human consumption -- which begs the question attorney Philip Mann asks:

        In [Judge Kozinzki’s] words, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway." True. But the real problem lies not with the committee but with the faulty sausage itself. If future litigants shouldn't have to consume the "sausage" of an ill-considered decision, why should the parties to that particular case have to eat it either?

        Philip Mann, "Citation To 'Non-Precedential' Opinions To Be Permitted. It's About Time," IP Litigation Blog, Apr. 14, 2006, available at http://www.iplitigationblog.com (visited Dec. 31, 2006).

        Frankly, if it wasn't for the fact that appellate courts have been so obviously turning out warmed-over garbage for so long, this fix wouldn't be needed.

        •  I have clerked on Court of Appeals (0+ / 0-)

          and will do so again next year.  The reason most appeals are unpublished and cursory is because most appeals are frivolous and also because they raise no new substantive points of law.  If an appeal raises no new substantive points of law, I fail to see why the Federal Reporter should be swelled with non consequential opinions.

          Simply because an opinion is not published does not mean that the judges did not consider the legal issues involved.  It just means that the issues weren't that hard and did not merit an in depth discussion.

          •  I've seen some of the cases you call "frivolous" (0+ / 0-)

            and know from an examination of the briefs that there were live issues that the Court refused to examine.  By way of example, in one of the cases dismissed by the trial court on its own motion, the magistrate had to cite Ninth Circuit precedent because the question posed was one of virgin law in the Circuit.  How that one got dismissed at the appellate level in an unpublished opinion is unfathomable to me.

            Quality control in our nation's federal appellate courts is akin to that of a 1979 Yugo.

            Frankly, I am absolutely appalled that that someone like you (who apparently, hasn't even graduated from law school) is the one effectively deciding appeals.  It's nothing personal, you understand, but I think we have a right to expect that the briefs are read by someone with more seasoning, and a broader background in the law generally.

            As things are now, we'd be better off outsourcing appellate review to India.

            •  A) Why would you assume I didn't graduate (0+ / 0-)

              law school?  I did.  And I didn't decide the appeals.  Judges did that.  I helped them draft the opinions and research relevant law.

              Questions of "virgin law" often get decided in an unpublished opinions for a variety of reasons.  The case may simply not be a good vehicle for delving into what may be a complicated legal question.  Nor is the question always necessary for resolution of the appeal.  

              And yes, most appeals are frivolous.

              •  I assumed that because you said it was a summer (0+ / 0-)

                job.  You said that you clerked in the summer last year, and would also be doing it this upcoming one.  That was the way it was when I was in law school, and I wasn't aware that it had changed.  Besides, once you're out of the joint and passed the bar (passing on the first time is not a particularly difficult task), you should be about your career, and shouldn't really be going back and forth between a law firm that practices before a court on a regular basis and the court itself.

                What Circuit do you clerk in?  The practice varies from circuit to circuit, and some circuits may do it a bit differently.  The Third, Eighth, Ninth, and Tenth are nothing short of horrendous, and the Sixth is (in this case, thankfully) so short-staffed that I don't think it possible for them to do a decent job.  I've heard that the First is still pretty good; it would be a comfort to know that somewhere, someone is doing a half-way decent job of processing appeals.

              •  Give me at least some credit here (0+ / 0-)

                Obviously, a question that is not essential to the decision shouldn't be decided; give me enough credit to know when a question must be addressed to reach a proper decision.

                As for your claim that most appeals are "frivolous," that is patently ridiculous to the point of complete bullshit, because the word "frivolous" actually means something in the law.  In asserting that, you are claiming that no rational argument based on the facts or law can be made in support of the claims presented, and an awful lot of attorneys are deserving of Rule 11 sanctions.  How many attorneys in your Circuit have been sanctioned for filing frivolous appeals?  One?  Two?  Three?  No, every one of the appeals is made with a good-faith basis (I will concede that pro se prisoner appeals are excepted).  Based on historical records, over 40% of appeals resulted in a reversal or significant modification; these days, it's a lot closer to 15%.  The reason: Appellate courts are a lot more sloppy than they used to be.  

                •  I used frivolous in a colloqual not legal sense (0+ / 0-)

                  How about "without merit."

                  As to why the reversal rate dropped, could it be because the law in many areas is more settled?  Or that district judges are now better (given the attention bith the President and the Senate pay to the selection of judges?)

                  In patent cases the reversal rate is over 50%.  Does that mean that a)Federal Circuit is doing its job extremely well? b) District Judges have no clue what they are doing? or c) The law is a muddle and one judge's guess is as good as another.

                  I would submit it is not A.  The fact that it is not A is evidenced by the increased rate of SCOTUS review and reversal of FedCir's decisions as of late.  

                  Conversly, the fact that some courts have a very low reversal rate is not indicative of the fact that the appellate courts are doing a poor job.

                  •  If this were the case (0+ / 0-)

                    you would expect to see a steady decline in reversal rates over time.  To the best of my knowledge (I read it in a law review article somewhere), this has not happened, and there is quantitative evidence that you can predict the outcome of garden-variety appeals by knowing who appointed the judges hearing the appeal (Merritt and Brudney did an extensive study on this).

                    Based on academic studies and anecdotal evidence that confirms the essential findings of the studies, it is clear that our appellate courts are largely ignoring the law whenever they can get away with it.

      •  Systematic discrimination deserves a remedy (0+ / 0-)

        If a case is truly devoid of evidentiary support, it dies a quick and painless death

        That is simply false.  Rule 12(b)(6) is not meant to test sufficiency of the evidence.  That is black letter law.  ALl that is asked is if there is any conceivable set of fact that if proven (after discovery) would entitle you to relief.  Dismissals on 12(b)(6) are actually exceedingly rare.

        Given the arduous journey one would have to make to even get into court, it is unlikely that there would be an avalanche of cases -- especially, when judges are put on notice that their conduct may be subject to similar scrutiny.  If the appellate courts really tried to do their jobs, the incidents in question would be exceedingly rare.  But even that is beside the point.

        Our investigation revealed that courts of the District of Colorado have engaged in systematic discrimination against pro se litigants -- whose only crime is that they cannot afford representation -- effectively denying access to the courts through fraud, deceit, the fabrication of facts and irregular interpretation of the law. Stunningly, Magistrate O. Edward Schlatter put this remarkable confession into writing: "Since I've been here, in 12 years nobody who does not have a lawyer has ever proceeded to a trial and won. And that's out of 600 cases filed per year." Order Denying Pl’s Mot. To Recuse, Steiner v. Concentra, Inc., No. 03-N-2293 (Colo. Dist. Ct. Aug. 6, 2004) at 3.

        The recipient of Magistrate Schlatter’s remarkable confession, Ivy League-educated physician Elizabeth Steiner, was understandably aghast. She accurately perceived that he had "cooked the books" to her detriment, and sought his recusal. She recognized the ugly ramifications of his confession, and ‘did the math.’ Schlatter continued:

        She learned from me that I have been a magistrate judge for 12 years. I mentioned "600 cases per year," so she concluded that I handled that number of cases -- each year, every year -- for a total number of 7,200 cases over the span of my career. She figures that if approximately 60 per cent of those cases are cases that were filed by pro se litigants, I have been responsible for 4,320 pro se cases. Plaintiff learned from my remarks that none of the pro se cases survived to a jury trial where the pro se litigant prevailed.

        Id.

        Her math can be refined somewhat. Roughly 10% of the District’s business is comprised of nonprisoner pro se cases. That translates to roughly 3,500 pro se civil cases filed during Magistrate Schlatter’s career -- his "600 case" figure may well be accurate, if one counts pro se prisoner petitions -- and one is hard-pressed to find a single civil case brought by a pro se litigant that even made it to trial.

        According to the Department of Justice, the percentage of tort cases concluded by trial in U.S. district courts has also "declined from 10 percent in the early 1970s to 2 percent in 2003." Number of Federal Tort Trials Fell By Almost 80 Percent From 1985 Through 2003, United States Dept. of Justice, Aug. 17, 2005, at 1. As the plaintiffs prevailed in 48% of tort cases during the study period, id., and the overwhelming majority of pro se actions are in tort, the odds of this outcome occurring by random chance are (1 - (.02*.52))3500, or about one in two quadrillion. Moreover, as availability of alternative dispute resolution was cited as a contributing factor to the decline of jury trials, id., and this beneficial feature of the judicial system is unavailable to pro se litigants, the chances of a case going to trial would be far higher; in which case, the odds of no successful outcomes occurring would approach a googol to one.

        Numerous instances have been identified where federal judges in the District have apparently discriminated against pro se litigants, including the skirting of proper procedures and outright fabrication of facts and flagrant misapplication of the law, to the ultimate effect of denying them their day in court.

        While there may be a few cases that survive summary judgment that don't deserve to, the balance of harms in a Matthews v. Eldridge analysis makes this a total no-brainer. These people should have access to some kind of meaningful remedy.

        •  Have you considered the fact that the reason (0+ / 0-)

          pro se litigants don't win is that they are bad at law?  There is a reason for the old saying that "the person who has himself for a lawyer, has a fool for a client."  Have you considered that the pro se litigants often fail to follow procedural rules, thus necessitaing dismissal of their case?  Have you considered that the pro se litigants do not know how to conduct dicovery, how to talk to the jurors, how to object to testimony or exhibits offered by the other side, etc.  Frankly, it does not surprise me that pro se litigants uniformly lose.

          Furthermore, I have seen pro se litigants win.  I once even drafted an opinion for an appellate court siding with a pro se litigant over the Office of Personnel Management.

          And yet again, you fail to explain why or how a person who is unable to interest any lawyer in his original case, would be able to interest a lawyer in a collateral attack on the judgment via accusations of improper conduct against a sitting judge.  

          •  Discrimination vs. incompetence (0+ / 0-)

            Have you considered the fact that pro se litigants don't win is that they are bad at law?  There is a reason for the old saying that "the person who has himself for a lawyer, has a fool for a client."  Have you considered that the pro se litigants often fail to follow procedural rules, thus necessitaing dismissal of their case?  Have you considered that the pro se litigants do not know how to conduct dicovery, how to talk to the jurors, how to object to testimony or exhibits offered by the other side, etc.  Frankly, it does not surprise me that pro se litigants uniformly lose.

            Does that include attorneys with 30 years experience at bar?  

            You can and should dismiss some cases due to litigant inexperience, and we do.  But law is not so abstruse that it is beyond the ability of Ivy League-educated physicians, law school graduates, and attorneys with 30 years experience at bar to obtain a modicum of proficiency in.  I can point to a lawsuit right now where every salient fact is judicially noticeable.  Some cases are simpler than others; encyclopedic knowledge of the Federal Rules of Evidence is not always required.

            Let me tell you how a typical pro se case goes in the district we are studying.  It is shunted to a magistrate, who fabricates a few key facts and recommends a summary dismissal on the Court's motion.  The judge never bothers to read the recommendation; in one instance, the judge followed the recommendation even before the litigant's objections were due!  The judges know that the Tenth Circuit never reviews the cases, and as such, know that they can get away with their criminal behavior 99 times out of 100.  And this even happens with experienced attorneys, who should know how to get a case past summary judgment.

            •  The fact that someone is an Ivy-League (0+ / 0-)

              educated physician says nothing whatever about their ability to plead a case in a court of law, much like the fact that someone is an Ivy-League trained lawyer says nothing about their ability to treat pneumonia.

              As for other cases, the fact that lawyers with 30 year experience may know rules, does not change the fact that when one represents oneself, one becomes overly emtionally invested and cannot be counted on to provide sober advice to himself.

              •  It does say a lot about that person's relative (0+ / 0-)

                intelligence; anyone who could get through that is certainly as capable as the average student at, say, Western State.  Having been where you have been and more, and knowing some of the people out there malpracticing law, I know that law isn't rocket science.

              •  As to the merits of the attorney's case (0+ / 0-)

                said attorney is being represented by Geoffrey Fieger's firm before SCOTUS pro bono.  I've read the draft of the cert petition, and say that she had a meritorious claim.

      •  Alleging it with record support (0+ / 0-)

        Be honest: It "seems" that way to you because you need that fact to be true to support your argument.

        It seems to me that as one alleging pervasive corruption in the judiciary you are the one who ought to provide evidence.  Giving your lack of evidence, I have no choice but to assume that you are just unhappy with results.

        Here's a representative sample of the kind of results that a litigant has every right to be unhappy about.  Pro se litigant A files a lawsuit challenging the constitutionality of a statute on federal grounds.  The appellate court openly acknowledges that litigant A

        filed a complaint in federal district court setting forth twenty claims for relief for alleged violations of federal law and of plaintiff’s constitutional rights. Plaintiff sought declarations that the Colorado bar admission process and certain admissions rules were unconstitutional...

        Smith v. Mullarkey, 67 Fed.Appx. 535 (10th Cir. Jun. 11, 2003), slip op. at 4.

        While the Supreme Court has held that direct challenges to a decision by a state court cannot be heard in federal district court, it also holds that facial challenges to a bar admission statute must be heard there:

        The remaining allegations in the complaints, however, involve a general attack on the constitutionality of Rule 461 (b)(3). ... The respondents' claims that the rule is unconstitutional [because certain conditions are alleged] do not require review of a judicial decision in a particular case. The District Court, therefore, has subject-matter jurisdiction over these elements of the respondents' complaints.

        District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 487 (1980) (internal citation omitted).

        It is a simple syllogism: If condition X (applicant challenges the facial constitutionality of a bar admission rule) is true, then Y (a federal district court must hear his claim, by virtue of Feldman). Condition X is true (a fact that the Tenth Circuit openly admitted in the highlighted text). Therefore, Y (a federal district court must hear that claim). Yet, the Circuit affirmed a lower court decision denying jurisdiction, in open defiance of the clear dictates of the United States Supreme Court.  After all, as every judge knows, it is the Supreme Court's prerogative alone to overrule one of its precedents. State Oil Co. v. Khan, 522 U. S. 3, 20 (1997).

        This is the kind of case where it is difficult to even imagine inadvertent error.  And we have plenty more where that comes from -- which we hope to get the DoJ interested in.  Trust me when I say that it happens on an industrial scale, even though a full presentation of the evidence is far beyond the scope of posts on this blog.

        •  There is no such syllogism (0+ / 0-)

          Simply because a District Court may generally have subject matter jurisdiction over a certain set of facts, does not mean that other doctrines, e.g., res judicata become inapplicable.

          The case you cited, barred consideration of the complaint precisely because of res judicata.  The litigant's claim would have been heard in the federal district court had he not chosen to go to state court first.  Having lost in state court, he is bound by that judgment.

          •  What case are you talking about??? (0+ / 0-)

            Uhhhh, there was no state court case challenging the constitutionality of the statute. Bar admission is an inherently administrative procedure.

            •  Edited and expanded (0+ / 0-)

              Uhhhh, there was no state court case challenging the constitutionality of the statute -- nor could there be, really. The only action taken by the state court was a one-sentence pronouncement (and an administrative one at that), and unless the actual question was decided at the state court level, res judicata cannot apply by definition.

            •  First of all, bar admission is not an (0+ / 0-)

              administrative procedure.  It is a judicial procedure.

              Second, in the case you cited, Smith v. Mullarkey, the plaintiff first challenged the bar admission rules in his application to the Colorado Supreme Court.  That court rejected his claims.  He cannot appeal Colorado courts' decision to the US District Court.  He had a judicial proceedings where he submitted responses and objections to the recommedations of the Board, and the Board responded.  Colorado Supreme Court adjudicated the dispute, and he was bound by that adjudication.  He does not get a second bite at the apple in a US District Court.

              •  You're completely out to lunch here, Doc (0+ / 0-)

                Bar admission is and always has been quasi-judicial in nature.  Even the defendants in Smith v. Mullarkey didn't argue otherwise.

                Second, I just happen to have a copy of the Colorado Supreme Court's decision in the bar admission case handy (it's an exhibit in the federal case), and it says nothing of the sort.  All it says was that the motion for admission was denied.  Period.  Where the basis of a decision is not made clear, it "will not be a bar to a subsequent action on the same cause of action unless the sole possible ground for the decision is a determination on the merits." 50 C.J.S. Judgment § 728 (1997) (citations omitted).  As a bar applicant may be lawfully denied a license on putative grounds of moral, ethical, or mental unfitness to practice law, the Defendants failure to explain their decision to deny said bar applicant a license means that the decision cannot be res judicata with respect to his facial challenges.

                Although the applicant does not get to challenge the actual decision -- he never tried, but you wouldn't know that from the dishonestly-written decision -- he can allege that his right to procedural due process has been violated (a separate and distinct injury of constitutional magnitude; see Carey v. Piphus for an explanation); the Rooker-Feldman doctrine was never intended to stop that, because it would result in litigants never getting even one bite at the proverbial apple.  As the appellant's brief explains:

                Recognizing this principle, [the Tenth Circuit] recently stated that it "is convinced that the Rooker-Feldman doctrine does not bar a federal action when the plaintiff . . . lacked a reasonable opportunity to litigate claims in state court." Johnson v. Rodrigues, 226 F.3d 1103, 1110 (10th Cir. 2000). Other courts agree. E.g., Whiteford v. Reed, 155 F.3d 671, 674 (3d Cir. 2000), cert. denied, 467 U.S. 1210 (2000), Wood v. Orange County, 715 F.2d 1543 (11th Cir. 1983). This exception is necessary to "ensure that the state cannot block access to the federal court by refusing to allow a state court litigant to raise federal issues in state court." Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 564 (7th Cir. 1986). The Eleventh Circuit explains:

                [I]interpreting Rooker to preclude a federal district court from considering an issue that the plaintiff had no reasonable opportunity to raise in a state court might pose due process problems. Such a harsh rule deprives the plaintiff of any forum, state or federal, where he has a reasonable opportunity to present his federal constitutional claims, a result arguably contrary to the requirements of due process. [Wood, 715 F.2d at 1547.]

                Aplt’s Opening Br. at 16-17; see also, Collins v. Kansas, 174 F.Supp.2d 1195 (D.Kan. 2001).

                Your interpretation of Rooker-Feldman (which is what the Tenth Circuit hung its hat on; res judicata wasn't even in play) would violate procedural due process, which is the beyond outer limits of what a court has the legal authority to do in its capacity as a rule-making body.  See, U.S.C. § 2072(b).  

                •  Rooker-Feldman doctrine is essentially (0+ / 0-)

                  res judicata under a different name.  But that is besides teh point.  The point is, the plaintiff had his chance to argue procedural defects to the Colorado Supreme Court.  If he did so and lost, he is bound by that judgment.  If he did not do so, then he waived the objection.  In either case he cannot now seek redress in district courts.  If he wanted federal review of his claims he could have petitioned Supreme Court for certiorari.  He did not do so.  That ends the matter.  He is not free to come up with new theories and litigate them in new fora.  

                  Your last citation supports my point.  Rooker-Feldman is only inapplicable if the petitioner had no chance to raise the issue in state court proceedings.  There is no indication that the Colorado Supreme Court denied the applicant the opportunity to argue his constitutional claims.  That he did not do so does not open the door to the federal courthouse.

                  •  This is where I have an unfair advantage (1+ / 0-)
                    Recommended by:
                    Braising Kane

                    There is no indication that the Colorado Supreme Court denied the applicant the opportunity to argue his constitutional claims.

                    Actually, there is ... but you would never know it from the dishonestly-written opinion.  The gravamen of the complaint was that the applicant didn't get a hearing in which to advance his claim for admission, a clear procedural due process violation.  Moreover, an odd SCOTUS case (Wadmond) held that even if an admission statute was facially unconstitutional, the state bar could salvage it by applying it in a constitutional manner.  Now, you can see the problem: in this weird situation, you can't challenge the statute without being able to develop salient facts (i.o.w., that the state bar was not applying the offending statute in a constitutional manner) ... and you can't develop salient facts when you can't get a hearing.  As such, the Colorado Supreme Court necessarily denied the applicant an opportunity to argue his constitutional claims -- as a matter of definition!

                    Ergo, res judicata cannot possibly apply.  The case gets even weirder, but if you see this, you'll see the problem with your presumptuous conclusion.

      •  I forgot to respond to this (0+ / 0-)

        Thus, statute explicitly incorporated the "law of nations" into the US law, but to a limited extent.  Nothing in the cases you cite even remotely suggests that US constitutional law is subject to the whims of the Iranian judiciary.

        You missed this part:

        In light of this long, unbroken string of precedent, it "would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals." Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), slip op. at 36.

        For the most part, human rights law has achieved jus cogens status.  Derogation from international norms is not permitted, which is why we can't engage in torture even if our constitution could be read in a way that would permit it.

        •  Your citation is out of context (0+ / 0-)

          The sentence was made in the context of ATS suit, not as a general statement of US Constitutional law.

          Again, as an example I cite the First Amendment.  Under the "law of nations" Holocaust denial is a crime.  But it cannot be criminalized in the US, "law of nations" notwithstanding.  It also seems to me that you pick and choose when to follow the "law of nations."  In abortion and gay rights cases, where the majority of the nations falls on the opposite side of the United States, no appeal to the "law of nations" is heard.  But in cases where the world opinion is more "liberal" than the US's law, then somehow "law of nations" becomes binding upon the U.S.

          •  Think state constitutional law (0+ / 0-)

            Remember the lecture in law school wherein it was said that the Bill of Rights is not a ceiling, but a floor?  The same principle applies to international law: it creates a floor; our Constitution can grant additional rights.

            As for Holocaust denial being a crime, I'm certain that that hasn't reached jus cogens status.

            Abortion and gay rights cases are prime examples of the "floor" principle.  Think Massachusetts, and its recognition of same-sex marriage under unique provisions of the state constitution.  That wouldn't translate very well in Mississippi's constitution; the MA constitution granted additional rights to its citizens, as it is entitled to do.  Same principle applies; you can't make heads nor tails of Roper v. Simmons without that understanding.

            •  Well, your distinction only makes sense (0+ / 0-)

              in the abortion context if you assume that the unborn is not entitled to any rights.  Which of course goes to the core of the disagreement.  And if unborn does have rights, then where is the "floor"?

              As to Holocaust denial/other hate speech being a crime, it is almost universal within democratic societies.  So, while it may not be punishable in Iran or Syria, it is illegal in the EU, Israel, most of the former USSR (under the broader prohibitions on speech inciting racial hatred), and other countries.

              •  Getting into a discussion of abortion is (0+ / 0-)

                FAR outside the scope of this topic, as it was merely offered to provide an illustration. However, the question you raise has been answered with respect to human slavery: As slavery is now universally considered to be a human rights violation from which no derogation is permitted, it is not permissible (at the risk of stating the obvious, this was not the case 200 years ago; jus cogens law changed, as it will as it develops).  Under that logic, abortion would be illegal.

                As for Holocaust denial, it constitutes a restriction upon speech; individual countries could provide greater guarantees for speech.  By way of example, Colorado law holds that the mall is a public forum, and the owner cannot impose improper content-based restrictions on speech.  Your law will vary.

                •  Again, this only makes sense if you (0+ / 0-)

                  pre-suppose that the rights of the speaker outweigh in all instances the rights of the offended party.  Which is not necessarily obvious.

                  In any event, there is no requirement that there must be a relief in tort AT ALL, against ANY tort.  Legislatures can choose to abolish tort law altogether if they so choose, and simply let people insure themselves against risk of injury.  And since there is no requirement for tort law at all, there by definition cannot be a requirement for a tort suit against judges.

                  •  While it is possible in theory (0+ / 0-)

                    it's not realistic in practice.

                    We get back to the basic premise that for there to be a right, there must be a corresponding remedy.  If the government can do whatever it wants to us with total impunity, we don't have any rights and certainly, we don't have any semblance of freedom.

                    It seems to me that at the extremes, the theory breaks down in any system.  Wasn't that the whole point of the Speluncean Explorers hypo?

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