10 December 2017

Ask a Stupid Question...

One of the big controversies going on in law right now concerns American Bar Association "ratings" of candidates for the federal judiciary. (n.b. State and local bar associations do the same thing for judicial elections with even less effect on anyone.) It's somewhat annoying to see that one party — the Heffalumps — has historically shown substantial disdain for the right-centrist leanings of the professional trade association of lawyers' determinations of what matters in judicial candidates. (Anybody who says that the ABA leans left should look at the ABA's various ethics rules and opinions and ask themselves how much those rules benefit the insurance industry, large-firm corporate practice, and obstructionist tactics depending upon superior resources.) But, as annoying and distressing as this is at the outset — because over time, an intelligent "conservative" judge who actually pays attention to the facts in front of him (it's almost always him historically; there aren't enough examples of intelligent "conservative" female judges in the same timeframes with full track records to support full analysis) will do a Blackmun, if not perhaps as extreme — even the ABA's ratings are woefully inept and fail to encourage diversity in the judiciary that actually matters to individual case results.

The ABA has recently, if unintentionally, provided another example of why lawyer specialization needs to be acknowledged: Formal Opinion 478, Independent Factual Research by Judges Via the Internet (PDF). This opinion doesn't entirely decry factual research, but it does implicate one obvious problem with how judges are selected, and how lawyers are allowed to press factual theories without understanding their basis, in one of the offered hypotheticals:

Hypothetical #2: The judicial district in which the judge is assigned has many environmental contamination cases involving allegations that toxic chemicals have been released and have contaminated soil and groundwater. The judge is unfamiliar with this area of environmental law. Before a case is assigned to the judge, the judge reads online background information including articles. Does this action violate Rule 2.9(C) of the Model Code of Judicial Conduct?

Analysis #2: Judges may educate themselves by independent research about general topics of interest, even on topics that may come before the judge. General background learning on the Internet may be analogized to attending judicial seminars or reading books, so long as there is reason to believe the source is reliable. Even general subject-area research is not permissible, however, if the judge is acquiring information to make an adjudicative decision of material fact.

Form. Op. 478 at 7 (footnote omitted). Which, of course, is an arrogantly antiintellectual and improper statement of the relevant inquiry: It never asks whether the judge has the initial scientific background to understand the reasoning of and basis for the articles, as opposed to taking them as accurate descriptions on faith.

The probability is exceedingly high that it is not "this area of environmental law" with which the judge is unfamiliar, and for which he or she is motivated to do research on the internet… and will probably wait until there's a brief in hand (written/submitted, in all probability, by an equally-science-deficient lawyer, however eminent a partner at a large law firm he/she may be) and use that as a starting point. After all, if it's merely the law, he or she will much more probably run to a legal treatise or law journal, whether electronically or on paper. "Online background information including articles" is not how lawyers characterize Westlaw/Lexis and other "for lawyers" legal research systems that predated teh Interwebs; indeed, most sitting judges' first experience with Westlaw/Lexis was probably via a dialup modem to dedicated servers, not a 'net-based connection… mine was at a top-25 law school (and on active duty before that).

Instead, the problem is almost certainly a deficit in knowledge of environmental science, which is only exacerbated by the selection mechanisms for judges: Elections and partisan appointment systems, combined with the outright hostility of both law schools and the profession for even so much science background as a decades-out-of-date bachelor's degree in physics (let alone geology or biology!). Let's translate this hypothetical into a university setting — and the unstated consequences — so that you can see how ridiculous it is.

Hypothetical 2' Dean Wormser, a classical historian, knows that he is going to have to make tenure decisions for the science faculty and allocate resources among science and nonscience faculty (not to mention the football team and homecoming parade). He is unfamiliar with the science faculty's work and budgetary concerns. Before the first budget meeting and/or tenure decision, the Dean reads online background information including articles, including a number of very popular websites and social media sources that do not originate with academics in the respective fields — perhaps some not-academically-curated wikis and commercial equivalents of WebMD. Does this violate any obvious duty of care toward the faculty members in question?

Well, if reading articles online will suffice as a substitute for a bachelor's degree (or better) in the discipline, and laboratory experience is irrelevant (in which case, we can do away with those expensive new buildings! good!), I suppose that might work.

It's not realistic to expect every judge to have sufficient factual/doctrinal knowledge to handle every case arising from every set of facts. However, the profession's structure virtually ensures that no other person inside the courthouse can even assist in determining the credibility and currency of general information sought for self-education. Curiosity is a good thing; curiosity without rigor or context, even by the highly intelligent, leads to believing anti-vaccination hysteria, flat-earth pronouncements, incrutableintelligent design, trickle-down economics, characterization of electronic communications as a series of tubes, and that "parody" inherently has more free-speech value than "satire." Opinion 478 would discourage reference to this article once a judge has actually been assigned a case, let alone the underlying resource, and by itself that exposes a substantial intellectual deficit in the opinion.

There's a variation on Hypothetical 2 that further demonstrates the failure of Formal Opinion 478 to grapple with the real problem.

Hypothetical 2'' The judicial district in which the judge is assigned has many environmental contamination cases involving allegations that toxic chemicals have been released and have contaminated soil and groundwater. Before a case is assigned to the judge, the judge reads online background information including articles and professional journals, and begins free online prerequisites for and junior-level courses in vertebrate development and ground-water geology offered by a single university. At some point during this self-education process, the judge is assigned one of these cases. Would it violate Rule 2.9(C) of the Model Code of Judicial Conduct for the judge to complete the courses?

I am afraid that under the reasoning implicit in the remainder of Formal Opinion 478, the judge has probably crossed the line here.

If the profession, and especially the judiciary, had a broader basis of general knowledge that specifically included a reasonable proportion of members with science and engineering degrees, we'd all be less worried about the results of judges doing background research; they'd understand why perpetual-motion devices may not be patented instead of resorting to Chevron deference and taking it as administrative fiat on faith (and that's just an example that I observed a few years back while waiting my turn for oral argument on a different, copyright-related case later in the morning). Instead, the profession's emphasis on "high undergraduate grades" (more-readily achieved in small seminars that do not have a grading curve than in even relatively small lecture courses) as a screening device for better, or at least more-prestigious, law schools — and hence better original positions in the profession itself and among instructors for the profession — operates to discourage such candidates… and funnel them away from paths leading to judicial appointment/election when they are allowed in, because they are archly sidetracked as specialists in the one area that the law allows is a specialty: The patent bar.

The unstated premise of Formal Opinion 478 is that research in secondary and tertiary sources — without more, and specifically without context in scientific method, surrounding scientific principles, and understanding of data-gathering methodology and flaws — is sufficient not just for policy arguments, but for accurate and rapid decisions concerning specific matters turning on science, both factually and conceptually. Eppur si muove, you self-satisfied jerks… and you don't know why. Your failure to know why, your failure to accept that the facts must always determine the legal rule of decision and not the other way around, and your intellectual dishonesty in believing that alone among all fields of knowledge the law need never defer to another field's fundamental precepts for gathering and evaluating those facts in the first place, dwarf the Heffalumps' mere partisan failures. I don't demand that every judge randomly assigned to environmental law cases have an A.B. or M.S. in a related field — just that enough do so that there's inside-the-courthouse guidance available for colleagues, and a decent chance that the more-qualified will at least occasionally get those cases. But the egos in the profession are too bloody immense* to admit at an institutional level how much they don't know… whereas in most fields of study, that admission of how much one doesn't know is precisely what qualifies one for leadership. In short, Formal Opinion 478 is a subtle demand that judges must close their ears… not exactly what I ever want to see happen.

I give Formal Opinion 478 a C+. It answers the specific question stated, but fails to acknowledge its own context and thus represents an improper inquiry: The question presumes that the judiciary is competent in the first place to evaluate all factual material, even that to which the profession of law is hostile ab initio. It silently rejects the fundamental scientific principle that the framing of the hypothesis largely determines the outcome of the inquiry — a dizzying bit of Möbius-strip reasoning that by fiat elevates centuries of mistaken pronouncements by privileged white men of no scientific background over present knowledge.

* They are not battle stations — they are small moons. I do not claim any lack of ego, but do claim familiarity with (and respect for) enough different star systems to spot the difference.