Vexatious Litigants

posted by Judge_Burke @ 15:30 PM
February 10, 2016

Almost everyone plays by the rules. There are, to be sure, aggressive lawyers and occasionally self-represented persons who abuse the system. But, what should courts do with the truly vexatious litigant?  The problem of vexatious litigants is one that many courts in many nations are struggling with:

In Morrow v. Attorney General For Northern Ireland [2015] NICA 69 (21 December 2015), the following order was issued in relation to Mr. Morrow:

(i) That no legal proceedings shall without the leave of the High Court be instituted by the appellant in any court or tribunal;

(ii) That any legal proceedings instituted by the appellant in any court or tribunal before the making of the order shall not be continued by him without such leave;

(iii) That such leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court and that there is a prima facie ground for the proceedings;

(iv) That notice of the making of an order under this section shall be published in the Belfast Gazette.

Mr. Morrow appealed to the Court of Appeal, referring to the order as being “scandalous.”

The Court of Appeal noted that it “is clear that both under domestic and Strasbourg jurisprudence the court has power to regulate its own affairs to ensure that its processes are not abused.” However, the Court of Appeal indicated that such an order must ensure that (at paragraph 13)

(a) The limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Stubbings v UK (1997) 23 EHRR 213 at para 48);and

(b) A restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aims sought to be achieved (Bhamjee v Forsdick No. 2).

The Court of Appeal held that the issuing of an order limiting a person’s access to the courts requires evidence establishing that the person who is the subject of the order:

(a) has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings.

(b) whether against the same or against a different person.

and, if so satisfied, may, after hearing the person or giving him an opportunity to be heard, make the order.

The Court of Appeal also indicated that the “following factors ought to be considered by the decision-maker” (at paragraph 14):

(a) The citizen begins with a prima facie right to invoke the jurisdiction of the civil courts. See Barker at para. [2].

(b) There is a countervailing need to provide members of the public with a measure of protection against abusive and ill-founded claims. Again see Barker at paragraph [2].

(c) The need to prevent scarce and valuable judicial resources being extravagantly wasted on barren and misconceived litigation to the detriment of other litigants with real cases to try. (AG v Ebert [2002] 2 All ER 789 DC at 793f).

Applying these principles to this case, Mr. Morrow’s appeal was dismissed.  The Court of Appeal concluded that the order issued could not be “faulted” (at paragraphs 14 and 15):

The judge expressly adverted to all these factors and this court considers that his conclusion from them in the exercise of discretion that an order ought to be made in the terms sought cannot be faulted. The appellant has doggedly pursued each one of this series of hopeless cases with tiresome persistence to every judicial tier, advancing the same baseless contentions repetitively until each case had been advanced as far as he could possibly make it go. He seems impervious to the considered explanations of Masters, High Court Judges and of this court as to why his claims are manifestly ill-founded and that same inflexible approach was again plainly in evidence at the hearing before us. His apparent lack of any insight might be thought unfortunate were it not for the harm which it has done and would, we are satisfied, if uncontrolled be likely to continue to do, both to those who are made Defendants to his misguided and promiscuous litigation and to the orderly administration of justice.

For these reasons we consider that the order made by the judge has not and cannot be faulted and this appeal is accordingly dismissed.



The Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence. Generally speaking, most states that have sentencing guidelines are similar in their approach.  Is that the right thing for a judge to do or the law to require?

Emily Anderson recently published in the Boston College Law Review.  Here is the abstract:

Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges.  Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics.  Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.

This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence.  This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities. 


For the full article, go here.


Adverse Inferences & The Fifth Amendment

posted by Judge_Burke @ 16:43 PM
February 4, 2016

James J. Duane (Regent University – School of Law) has posted The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment (Stanford Journal of Criminal Law and Policy, Vol. 3, p.1, 2015) on SSRN.

Here is the abstract:

This year marks the fiftieth anniversary of the Supreme Court’s landmark ruling in Griffin v. California, 380 U.S. 609 (1965), which forbids the drawing of adverse inferences from a criminal defendant’s decision to exercise his Fifth Amendment privilege at trial because that would unfairly penalize the defendant for exercising a constitutional privilege. But the decision did not immediately answer a host of obvious questions as to how far its logic should extend to other arguably analogous situations, such as defendants who exercise the privilege during pretrial interrogation, at a civil trial, or at sentencing. Only seven years later, the Federal Rules of Evidence Advisory Committee drafted and approved a proposed evidence rule that would have extended Griffin essentially without limitation, but the rule was rejected by Congress, which left the matter to be worked out by the courts. 

This Essay examines how the law was taken in one direction by the Supreme Court for the first decade after Griffin, and how those early precedents were severely cut back over the next four decades after conservatives took control of the Court and started limiting those earlier rulings, often by announcing unprincipled distinctions that were the only possible way to get around those precedents. The Essay shows how the Court’s overt hostility toward those precedents has precisely mirrored the sort of judicial reasoning that Justice Scalia once mockingly compared to judges who see themselves and previous members of the Court as contestants in a game of Scrabble or football — and how this process has created a body of legal doctrine that it is utterly chaotic and unprincipled.


Polls are Sometimes Inaccurate, But…

posted by Judge_Burke @ 15:30 PM
February 3, 2016

Confidence in race relations in America continues to fall, with hopes for the future at their lowest level yet.

A new Rasmussen Reports national telephone survey finds that 50% of American Adults now think race relations in this country are getting worse, up from 44% a year ago  and 30% as recently as January 2014.  Only 20% believe race relations are getting better, a new low that compares to 38% five years ago. Twenty-six percent (26%) say race relations are staying about the same. (To see survey question wording, click here.)

Only 18% rate race relations in America today as good or excellent, unchanged from last year at this time but down from 34% two years ago. Thirty-three percent (33%) now consider race relations poor, up from 15% in 2011 and 29% last January.

Interestingly, unlike most questions related to race, there isn’t a wide difference of opinion on these questions between blacks and whites. Other minority Americans are the least pessimistic.

But blacks are much more likely than whites and other minorities to believe the United States is headed in the right direction.


An Ill-Thought-Out Idea Advances in Florida

posted by Judge_Burke @ 15:30 PM
February 2, 2016

Last week, the Florida House Appropriations Committee approved “a controversial bill that would ask voters to impose term limits on state appellate judges” despite testimony against it by former Supreme Court Justice Major Harding.

In the Miami Herald, Mary Ellen Klas explains that the bill, which could be on the 2016 ballot if it passes the House and Senate, would limit those who serve on the state’s supreme court and intermediate appellate courts to a total of 12 years, with some exceptions for judges appointed to partial terms. Rep. Richard Corcoran (R), a major proponent of the bill, stated that “if legislators and governors have term limits, the judiciary should as well.” Former Justice Harding, however, expressed concern that the measure would “not only discourage people from seeking a court appointment but will diminish the quality of people who serve on the bench.” According to Klas, The Florida Bar, many legal scholars, and judicial advocates also oppose the bill.


Risk Assessment: How Accurate is the Tool You Use?

posted by Judge_Burke @ 15:30 PM
February 1, 2016

There are many probation departments who rely on risk assessment tools in making recommendations about bail, eligibility to be in a drug court, and sentencing. Proponents argue these assessments make the criminal justice system more fair. Many judges and many lawyers have a cursory knowledge of the tools used in their jurisdiction. But, what if the tool used in your jurisdiction has flaws? 


Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men

Jennifer L. Skeem 

University of California, Berkeley

John Monahan 

University of Virginia School of Law

Christopher T. Lowenkamp 

Government of the United States of America – Administrative Office of the U.S. Courts

January 18, 2016



Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning. Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.


Ruthann Robson is a Professor of Law and University Distinguished Professor. She recently wrote an interesting short commentary on a case regarding the attempt by Thomas Dart, the Cook County Illinois Sheriff, to stop or curtail advertising in a publication called Backpage.

Very few judges will ever face ruling on a case like this, but Professor Robson’s commentary and the case’s opinion, written by Judge Posner, are an interesting read:

Writing for a unanimous three judge panel, Judge Posner’s opinion in LLC v. Dart, finds that the “campaign” by the Sheriff of Cook County, Tom Dart to “crush Backpage’s adult section—crush Backpage, period, it seems—by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution,” violated the First Amendment.

The centerpiece was a letter from the sheriff, beginning “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like” The court finds it important that Dart is “sheriff first,” and later observes:

Imagine a letter that was similar to Sheriff Dart’s but more temperate (no “demand,” no “compels,” no “sever [all] ties”) and sent to a credit card company by a person who was not a law-enforcement officer. The letter would be more likely to be discarded or filed away than to be acted on. For there is evidence that the credit card companies had received such complaints from private citizens, yet it was Dart’s letter that spurred them to take immediate action to cut off Back- page. For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff. It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious.

Judge Posner’s opinion takes pains to point out that the sheriff is not “on solid ground” in suggesting that “everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.)” (emphasis in original).  Posner cites an article from and wikipedia for information; he does not cite his own 1994 book Sex and Reason, though he might well have.

Posner rejected the conclusion of the district judge that the credit card companies were not coerced – - – what would one expect the corporate executives to say?  – - – and likewise rejected the argument that the credit card companies were acting on new information brought to their attention by the sheriff.  An email exchange between two credit card employees referencing “blackmail” is mentioned.  Moreover, Posner rejected the argument that the sheriff had his own First Amendment right, as a citizen and even to engage in “government speech.”

A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens.

Posner then expands on why the sheriff’s speech was a threat, and, with a resort to a bit of “law and economics” explains why the credit card companies would ‘knuckle under’ with “such alacrity.”


Remorse & Sentencing: Just How Much Weight Should You Give To It?

posted by Judge_Burke @ 15:30 PM
January 27, 2016

Judges make decisions at sentencing every day — and factor in the defendant’s remorse. Sometimes the term used is “acceptance of responsibility,” but the bottom line is:  perception of remorse frequently helps temper the sentence.

But, what if the perception of remorse is inaccurate?  There is an interesting paper on the subject of remorse, written by Professor Susan Bandes of DePaul University College of Law.

The abstract begins:

 A defendant’s failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing. Yet there is currently no evidence that remorse can be accurately evaluated in a courtroom. Conversely there is evidence that race and other impermissible factors create hurdles to evaluating remorse. There is thus an urgent need for studies about whether and how remorse can be accurately evaluated. Moreover, there is little evidence that remorse is correlated with future law-abiding behavior or other legitimate penal purposes, and, in fact, there is evidence that remorse is often conflated with shame, which is correlated with increased future criminality. More accurate information on the nature and evaluation of remorse can be used to reform the criminal justice system. 

The paper is available here:



Are We Too Lax in Allowing Seizures?

posted by Judge_Burke @ 15:30 PM
January 26, 2016

Lauryn P. Gouldin (Syracuse University College of Law) has posted Redefining Reasonable Seizures on SSRN.

Here is the abstract:

The government’s power to seize individuals who are suspected of crimes — by arresting, stopping, or otherwise detaining them — has expanded significantly in the twenty-first century. The Supreme Court’s gradual redefinition of what constitutes a reasonable Fourth Amendment seizure has occurred without meaningful evaluation of whether the government needs additional seizure or detention power.

There are key differences between search and seizure doctrine that make the development of a general and unifying explanatory theory of modern Fourth Amendment search and seizure trends difficult, if not impossible. These differences suggest that a focused, independent analysis of Fourth Amendment seizure developments (uncoupled from search- and privacy-focused analyses) is overdue.

This Article documents the expansion of seizure power across the spectrum over the last fifteen years. These cases reveal missed opportunities to provide greater protection to individuals, and they identify spaces where new technologies might justify revisiting settled rules. In addition, these decisions reveal how the Court’s reluctance to probe government motivations and to consider less intrusive alternatives undermines its efforts to balance individual rights against government interests.

The Article then outlines the individual rights and collective interests that are implicated in seizure cases. Finally, the Article analyzes the problems presented by the Court’s approach to calculating necessity in seizure cases. Proposals for reform are focused on four areas: requiring precise statements of government needs in seizure cases; looking to existing laws, guidelines, and police norms to support (or refute) necessity claims; requiring greater proof of a need to seize in cases involving more minor offenses; and considering alternative approaches, technological changes, and long-term costs in calculating necessity.


Questions from Jurors

posted by Judge_Burke @ 15:30 PM
January 22, 2016

It is a practice that divides the courts. There are proponents who argue that by allowing jurors to ask their own questions you get more attentive jurors and better results. But, there are equally thoughtful people who say that by allowing jurors to ask their own questions, you fundamentally change the nature of our legal system from adversarial to inquisitorial — and change the meaning of the burden of proof. It is a debate that will not quickly be resolved.

Thomas D. Waterman , Mark W. Bennett and David C. Waterman (Iowa Supreme Court , U.S. District Court (Northern District of Iowa) and United States Courts – United States Court of Appeals for the Eighth Circuit) have posted A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers (Drake Law Review, Vol. 64, 2-16, Forthcoming) on SSRN.

Here is the abstract:

An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.