Ultra Vires

Hello and short comment

Hello.  Good to finally be here again (finally).  I hear it gets lonely blogging alone, so I'll start the tango with a short comment.  Hopefully we'll have a court management mosh pit before long.

I've been working with a few counties in PA on their financial practices and had the chance to interview and work with the local court managers and president judges.  I cannot imagine a better case for centralized funding and administration of the courts. 

Imagine being a state employee going to work every day in a dilapidated building leased by a county commission that can barely pay its own bills or provide adequate maintenance for its own buildings.  The county's court administrator is also a state employee, but all of his employees work for the county and are covered under a labor agreement negotiated by the commissioners and an elected solicitor.  Imagine not having a paper and supplies budget (envision a beg and barter system) and facing criticism for spending approximately $53,000 annually to run your court.  The county evaluates you on your ability to generate revenues and the AOC evaluates your decisions as a jurist. 

Is it reasonable to apply "organization theory" to such situations?  And is it unreasonable to question the sanity of those who pay good money to campaign for these positions?  Who the hell would want that job?

The Ever-Brilliant, Iron-Willed Commander!

When I worked in court administration we always looked forward to receiving what we referred to as the Kim Il-Sung Report, otherwise known as the annual report of the Hawaiian Administrative Office of the Courts. The reason became obvious when you compared the treatment of the Chief Justice of that state in the report to publications about the Ever-Brilliant, Iron-Willed Commander. About the only things missing were smiling children holding bouquets and enemies with the traditional gray faces. Now we get this puff piece on the new CJ.

Ok, I know he's new and there's no reason (yet) to gang up on him, but, really, this kind of panageric is a bit pre-mature. It took 20 years and a lot of work for Rehnquist to earn the same treatment. Let's make Roberts do the same.

- Tracy Lightcap

I'm just not paying attention!

To Rob Perry's blog, that is. If I was I wouldn't have missed this about five state appellate courts beginning RSS feeds. It's old news now, but this is actually a very interesting development.

Unfortunately, vistas of endless news reading stretch in front of us as a result. Ah, well. I knew the job was dangerous when I took it.

- Tracy Lightcap

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

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