Ultra Vires

Divide the Ninth Again!?!

Here we go again. Of course, we know what's behind this and it has nothing to do with judicial administration. It DOES, however, have a lot to do with the discourse of judicial administration.

I've been re-reading Foucault recently and his ideas directly apply here. Consider Rep. Sensenbrenner's argument. The 9th needs to be divided because of its "mammoth size". Why? Because "A court that is too far removed from those whose disputes it is responsible for adjudicating imposes severe costs on those who must appear before it." Besides, adds Friend Simpson, Congress has to exercise its duty to "… realign the United States Court of Appeals into more efficient and manageable circuits that best represent the people within the circuit and provide them with an expeditious judicial process."

Ok, there is precedent for this argument; it's made in the Declaration of Independence. But this isn't the 18th century. As the ABA pointed out the last time THEY tried this, the 9th disposes cases with dispatch and provides one of the things we keep saying we want: consistent precedent over a large region of the country. Further, the very idea that, in a day of computerized filing proceddures, we need to worry about the "severe costs" of appearing before judges who are "too far removed" is downright silly.

It's obvious what's up here, of course; the Pubs are trying to create an opportunity for Dubya to appoint a pasel of new judges in areas of the country where their party is showing signs of wear. Here I don't blame them; you do what you can and hiding from public wrath in the judiciary is an old American custom. What does bother me, however, is the continuing fiction that: a) there are regional sub-cultures in the U.S. today that should be "represented" in the judiciary, and b) that size is, in some way, an immediate sign of "administrative inefficiencies".

I think both of these ideas are as dead as doornails myself. We really do have a national culture these days. There is no surer sign of that then the frantic effort by people in areas that used to show regional differences to cling to the trappings of the old folkways. Al Stewart said it best: "In the village, where I come from, nothing is the same, it's the outside that remains, an empty shell." It is best we realized that in court administration circles. And where, pray, does it say that size is necessarily inefficient? Returns to scale apply to courts also. What is inefficient is the continuation of general jurisdiction courts as the complexity of the law and the society it regulates increases. A more specialized system (I've got the Germans in mind here) would work much better.

But to get past that we need to analyze the discourse of judicial administration and identify the institutional interests that keep it disconnected from its actual object. That, I suppose, will be for another day.

- Tracy Lightcap

Executive Initiative to the Max

I was reading this article about Hugo Chavez when it suddenly struck me why the Venezuelan opposition was having such a hard time getting anything going against him. They're up against Julius Caesar. As in the Roman Republic, the "normal" course of democratic politics in Venezuela had fallen into the hands of an increasingly disconnected political elite who left the bulk of the country's population to the tender mercies of the economic winds and who had wired politics to exclude popular alternatives. Unfortunately for them there was an ambitious and very effective political figure working below their radar. Chavez wasn't a patrician, but he, like Caesar, had kept the promise of popular politics alive by personal contacts with many mid-level figures in Venezuela's most important institutions, especially in the armed forces. He never promised anything specific; just that someday he would change everything. Everyone was surprised when he emerged in the failed coup of 1992 and were flabergasted when he won election as President in 1998 and withstood a coup attempt in 2002, largely because of his support from the officer corps of the armed forces and massive popular demonstrations. A smashing victory in a recall referendum and a new constitution later, Chavez seems poised to win the presidency again; his supporters are looking for a 70% majority and are very likely to get it.

So what does this have to do with us and with the Imperator? It comes down to the way Chavez is ruling the country. Like Caesar, he is putting himself before the people weekly (Allo Presidente!, his tv show, has monster ratings). Like Caesar and his successors, the new social services he is delivering in the barrios aren't connected to the usual government ministries. The misiones, as they are called, are run directly out of the president's office using monies allocated by the new single house legislature through that old favorite, the enabling act. So where do the courts get purchase? Goooood question and one that hasn't been studied yet, so far as I know. The new constitution gives the Supreme Judicial Tribunal plenty of power (art. 266), but also make selection of justices a three step procedure: first, the Judicial Nomination Committee, then the "Citizen Power nomination Evaluating Committee", then selection by the National Assembly (art. 264). Two guesses (first one doesn't count) who gets to select the officers who make up the "Citizen Power" that appoints that evaluating committee.

I can see why this causes people to have doubts about where Venezuela is headed. But, as they say in the barrios and said in the Subura, "Y ellos, ¿Qué hicieron?" ("And they, what did they do?"). Nothing and they may have lost their idea of a republic in the process.

Administration of Justice in Iraq: DOA

I have been spending some spare time looking at the draft Iraqi constitution (hereinafter DIC)and some analyses of it. The prospects for the effective administration of justice seem pretty bleak in the present draft. Nathan Brown's critique does a particularly good job of pinpointing the difficulties.

If appellate courts are to exercise their control function over lower courts, there has to be some way to insure that a) the structure of the court systems involved allows effective appeal routes and b) there is clear legal authority for appellate writs to run within the system. The DIC appears set to fail both prongs of this test.

Some might question concerns about the structure of Iraq’s new court system since, at present, there isn’t one specified in the draft. But here is where the leeway the DIC gives for forming regional confederations becomes problematic. The scope of federal power in document is limited by a few exclusive powers; most of the central government's power is shared with the regions (Articles 107 - 110). Further, the regional authorities described in the DIC are given considerable grants of power to establish their own legal and judicial systems in Article 117. It is worth noting that this article provides that regions can “amend the implementation” of federal laws when they conflict with regional statutes. But, some might say, how about the new Supreme Federal Court? It has powers of judicial review and explicit power to adjudicate disputes between the federal and regional authorities (Article 90). Subsequently, however, the DIC provides (Article 111) that, unless the limited exclusive powers of the federal government are involved, regional or provincial law will be given “priority in disputes”. Or, short DIC, the Supreme Federal Court applies regional law when there are any conflicts and Article 13 (constitutional supremacy) isn’t worth a bucket of warm spit.

This might not be such a big deal if the federal courts had concurrent jurisdiction and there was a clear statement of the scope of civil rights and liberties. I think it is pretty clear, however, that the regional court systems will have relatively free rein to apply regional laws without much interference from the center. This is especially worrisome when we consider the waffles on rights in the final draft. Take, for instance, the inclusion of “personal status” law in the DIC (Article 39). As Brown points out, this is Middle East code for laws about marriage, divorce, and inheritance. The DIC provides that law in these matters would be applied to Iraqis according to their “religion, sects, beliefs, or choices”. So who hears your divorce case in Basra, the judge or the cadi? Given the place of Islam as a source of law in the DIC AND the powers given the regions to establish judicial systems AND the priority given regional law AND Article 39, it looks like anybody’s guess. And it doesn’t look like the decisions - whatever they are and whoever made them - could be readily appealed to any federal court at all.

I guess I should sum up: if anyone asks you to consult on setting up the administration of justice in Iraq, be sure you ask for a big fee. Up front.

- Tracy Lightcap