I previously noted that I think the absence of judicial experience is not a drawback (May 11). ABC News reports that in a speech in Washington, Justice Antonin Scalia, a conservative hero, stated that he is "happy" that Kagan is not a judge. The ABC report can be found here.
Friday, May 28, 2010
One of the criticisms of President Obama's nomination of Solicitor General Elena Kagan to the United States Supreme Court, particularly from conservative quarters, focuses on the nominee's lack of judicial experience.
Wednesday, May 26, 2010
Under New York law interest on judgments secured in state court runs at the rate of 9% per annum. CPLR § 5004. But what is the rate of interest when a judgment is secured in a diversity action in a federal court located in New York? Ordinarily, interest on a federal judgment is based on the yield on a Treasury note, 28 U.S.C. § 1961(a), a rate which these days is considerably lower than 9%.
In FCS Advisors, Inc. v. Fair Finance Co., Inc., the plaintiff brought a diversity suit in the United States District Court for the Southern District of New York and was awarded summary judgment for $1.5 million. The District Judge awarded prejudgment interest at the New York rate of 9%. He also awarded post-judgment interest at the New York rate of 9%, and not at the lower federal rate, because the parties' contract had a choice-of-law provision that the contract would be governed by New York law.
The United States Court of Appeals for the Second Circuit reversed the award of post-judgment interest at the New York rate, and directed that the federal interest rate applies. The Circuit made several points.
First, in diversity actions state law governs the award of prejudgment interest.
Second, in diversity actions the federal rate applies to post-judgment interest.
Third, parties by contract can agree in "clear, unambiguous and unequivocal language" that a different rate of post-judgment interest will apply to federal judgments.
Fourth, the standard choice-of-law provision of a contract will not alter the federal rate of post-judgment interest because it does not contain "clear, unambiguous and unequivocal language" expressing an intent that a rate other than the federal rate will apply post-judgment. The parties must be more precise. The decision can be found here.
Friday, May 21, 2010
Patrick Leahy, chairman of the United States Senate Judiciary Committee, has announced that Committee hearings to consider the nomination of Solicitor General Elena Kagan to the United States Supreme Court will begin on June 28.
Senator Leahy's announcement noted that the Committee hearings last year on the nomination of Sonia Sotomayor began 48 days after the nomination was made by President Obama. The hearings on Elena Kagan will begin 49 days after the President's nomination. Senator Leahy's full statement can be found here.
The Senate Committee has also released the bipartisan questionnaire submitted to Solicitor General Kagan and her responses to the questionnaire. The questionnaire, and all the supplemental material transmitted to the Committee, can be found here.
Wednesday, May 19, 2010
Yesterday afternoon I was a member of a three-lawyer panel which quizzed eight Justices of the Appellate Division, Second Department, on appellate practice as part of the "Meet the Justices" program sponsored by the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association. About 130 attorneys attended the two hour program which was held in the Second Department's courtroom in Brooklyn.
The questions covered a wide range of topics from brief writing and oral argument, to the internal operations of the Court. Depending on the year in question, the Second Department is either the busiest appellate court in the United States, or among the three busiest (the other two are in California and Texas). Of particular interest to me were the following points made by the judges.
First, all of the Justices present agreed with Presiding Justice A. Gail Prudenti that oral argument is important (a topic I have commented on before). A number of the Justices stated that while half of the cases are relatively easy to resolve, the other half are "close," and in these close cases oral argument is important in resolving the matter. There was agreement among the judges that no appellant should forego oral argument, and agreement that when an attorney does not appear for oral argument this sends a message to the Court that the attorney thinks little of his client's case.
The Justices also emphasized the importance of counsel's knowledge of the record at oral argument ("We should not know the record better than you do"). From personal observation I can confirm that the Justices on the Second Department come onto the bench with a thorough understanding of the record.
Second, with respect to brief writing, all of the Justices criticized the use of footnotes as a distraction ("If it is important enough to put it in the brief, it is important enough to put it in the body of the brief"). Because most cases are fact driven, a detailed statement of the facts is important, but they criticized the extended discussion of facts not relevant to the legal issues raised in the brief. They emphasized that an appellate brief is not a law review article, and that "string citations"--citing many cases for the same legal proposition--have no place in a brief. They all thought a brief should contain a preliminary statement setting out the "nub" of a party's contentions.
Third, and most interesting to me, was the acknowledgment that prior to oral argument Justices may discuss among themselves a case (or more) on the forthcoming calendar. I had seen an interview with Justice John Paul Stevens in which he stated that the Justices of the United States Supreme Court do not discuss cases prior to oral argument, and that the first sense he has of his colleagues' views comes at oral argument. That is not the practice in the Second Department.
Fourth, Presiding Justice Prudenti indicated that there is a greater willingness now than in the past for the Court to grant leave to appeal to the New York Court of Appeals in a civil case. The perception among members of the Bar is that the Appellate Divisions prefer to let the Court of Appeals determine its own calendar rather than have an Appellate Division send the high court a case. Justice Prudenti's remarks suggest that her Court may now be more open to a leave application.
Tuesday, May 11, 2010
President Obama's nomination of Elena Kagan to the United States Supreme Court has raised the complaint in some quarters that she is not qualified to sit on the Court because she has no judicial experience. The complaint is without merit.
A quick look back at the 20th century shows that the Supreme Court was the first judicial job for the most influential Justices: Louis Brandeis, Felix Frankfurther, William O. Douglas, Hugo Black, Robert Jackson, Earl Warren, and William Rehnquist immediately come to mind. While Benjamin Cardozo arrived at the Supreme Court after many years on the New York Court of Appeals, he began his tenure on the Court of Appeals after only a very brief stint on a Manhattan trial court.
The United States Supreme Court is a policy making body, and it does not appear that prior judicial experience makes one better equipped to set policy than being a former practicing lawyer (Brandeis), a former governor (Warren), a former law professor and chair of the Securities and Exchange Commission (Douglas), a former United States Senator (Black), or a former member of the Department of Justice (Rehnquist). The Supreme Court's recent decision in Citizen United v. Federal Election Commission which declined to limit corporate contributions to elections was a policy determination by five members of the Court on the reach of the First Amendment. The prior judicial experience of the five-person majority did not lead to the result; it was their policy predilections.
It can be helpful for one or more members of a high court to have had prior courtroom experience as a trial judge or a trial attorney. For example, Justice Sonia Sotomayor's experience as a United States District Court Judge is valuable in bringing to the Court an understanding of how particular procedural rulings will play out at the trial level. But I do not think her prior judicial experience necessarily makes her better equipped to address the broad constitutional policy questions with which the Supreme Court deals.
In sum, I am not fazed in the least about the absence of judicial experience in Elena Kagan's resumé.
Finally, much has been made of the fact that with the retirement of Justice Stevens (who attended Northwestern Law School), and the elevation of Kagan to the Court, all the Justices will have graduated from Harvard or Yale law schools. (While Justice Ginsburg did attend Harvard, she actually graduated from Columbia Law School.)
This just tells me that smart, ambitious people have a keen understanding of where political and legal power resides, a notion best captured by the title of the autobiography of westerner Justice Douglas, Go East, Young Man. I would be concerned if graduation from a small circle of schools was producing a single mold of thought, but it is not. The current Harvard and Yale graduates on the Court are on both sides of the ideological divide.
More interesting is that if Elena Kagan is confirmed there will be four New Yorkers on the Court: Chief Justice Roberts (Buffalo), Justice Ginsburg (Brooklyn), Justice Sotomayor (the Bronx), and Kagan (Manhattan). And while Justice Scalia was born in New Jersey, he was raised in Queens from the age of six. Maybe more important than law school is the New York water.
Tuesday, May 4, 2010
Yesterday the United States Supreme Court issued a statement that visitors to the Supreme Court Building in Washington will no longer be able to enter the building through the front entrance at the top of the stairs, although they will be able to exit the building through the front door. The statement indicates that the change has been made for security reasons.
In response, Justice Breyer issued a "Statement Concerning the Supreme Court's Front Entrance" in which Justice Ginsburg joined. Justice Breyer expresses "regret" at the closing of the Court's front entrance, and writes that the change defeats the vision that architect Cass Gilbert had for the building and the feeling he wanted to instill in visitors.
I recommend reading Justice Breyer's full statement. It reflects a sensitivity to a renowned architect's vision, and, more generally, the role that architecture plays in symbolizing what we expect from our halls of justice. The statement can be found here.