They simply do not teach this stuff in law school evidence class nor in new judge school.  But, for everyone who’s been asked to interpret texts or Facebook messages in a domestic abuse case, check out this article from Slate.

A divorcing husband who claimed his wife’s law firm ran up its legal bills with excessive discovery and unreasonable legal claims won’t be able to pursue his lawsuit alleging fraud and breach of fiduciary duty.

The Vermont Supreme Court upheld dismissal of the suit in an October 16 opinion, the Legal Profession Blog reports:

The husband, Kenneth Felis, alleged the litigation strategy of his wife’s law firm was to “build its fees and harass and injure” him by “pursuing unreasonable legal positions, demanding extensive and unnecessary discovery, promoting and claiming outrageous asset valuations, raising claims without proper foundation … and billing excessive time.”

The law firm, Downs Rachlin Martin of Burlington, Vermont, had billed $800,000 in legal fees in a contentious, multi-year divorce involving a marital estate worth up to $15 million, though the family court awarded a substantially lower sum from the marital estate, according to the opinion. Felis alleged the law firm required his wife to agree to use divorce proceeds to make up the difference. The agreement, he contended, demonstrated that the law firm had an improper motive to engage in protracted and vexatious litigation to build fees that would be paid through the marital estate.

The supreme court said Felis failed to establish two required elements of a fraud claim. One was the requirement that the alleged fraud not be open to the defrauded party. Felis’ allegation that “the red fee-building flag went up early” in the case showed he was aware of discovery practices he targeted in his suit, the court said.

Family court judges make significant decisions affecting our nation’s families, yet these judges are often undervalued—even by their peers on the bench. And, there is insufficient acknowledgement of the broad expertise required to do the job well. This publication aims to change this by drawing attention to the special knowledge, qualities, and skills that these judges need to be successful—and hopefully reprioritizing and revaluing their role in the legal system.

Twenty-seven requisite skills, qualities, and areas of knowledge are discussed in the report, including: knowledge of child development and family dynamics; understanding of domestic violence, child maltreatment, substance abuse and addiction, and mental health issues; cultural competence and understanding one’s own biases; communication that emphasizes clarity and brevity; honed listening skills; and exercising leadership from the bench.

The report can be found here.

Rebecca A. Sharpless (University of Miami – School of Law) has posted Clear and Simple Deportation Rules for Crimes: Why We Need Them and Why It’s Hard to Get Them (Denver University Law Review, Forthcoming) on SSRN.

Here is the abstract:

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly facilitate the implementation of Padilla, enhance the legitimacy of immigration law, and conserve judicial and administrative resources. However, pro-immigrant reformers hesitate to push for simple deportation rules because legislative reform in the area of immigration and crimes would likely widen the deportation net. Assuming the existence of the political will for more moderate treatment of noncitizens with criminal convictions, this Article argues for a bright-line trigger for the commencement of removal proceedings of five years imprisonment actually served and calls for the restoration of judicial discretion to halt deportations on a case-by-case basis.

Thanks to How Appealing there is a post on what to make of the Canadian election results when it comes to the justice system:

After a decade-long Conservative reign, what’s on Trudeau’s justice agenda?

Sean Fine of The Toronto Globe and Mail has an article that begins, “Following the decade-long reign of a prime minister determined to erase the Liberal Party’s imprint on the justice system, Justin Trudeau inherits a tough-on-crime approach and judicial appointment processes vastly different than the ones left behind by his party forebears.”

Certitude is an attitude that many judges struggle with. The fear is if you acknowledge that there are two sides to the question you invite appeal, reversal or disrespect. So here is a thought for the day:  In all affairs, it is a healthy thing now and then to hang a question mark on the things you have taken for granted.

From the Mainstream TJ Blog, guest blogger Vicki Lens, JD, Ph.D., Columbia University, writes about her recent study:

Over the last few decades, specialized problem solving courts have proliferated, with TJ exemplifying some of these courts’ best practices. But for most people, justice is still dispensed-or-not- through traditional courts. TJ has much to offer these courts, especially traditional Family Courts where claims of child maltreatment are adjudicated, and where the focus is less on the legal, and more on the psychological and the social.

The tenets of TJ, including its emphasis on respectful, supportive courtroom interactions, is a natural fit for a court whose stated mission is to rehabilitate families.

But most traditional Family Courts do not operate on a TJ model. To the contrary, they have been criticized for lacking many of its virtues, including judges insufficiently attuned to the social and psychological complexity of family strife.

Although tasked with fixing some of society’s most intractable problems, Family Courts often subsist on scant resources. In such an environment, is a TJ approach even possible?

The answer to this question is yes, based on a study I conducted in a traditional urban Family Court located in a part of the city where nearly half of the children are living in poverty, and where less than a dozen judges handle more than three thousand cases of child abuse or neglect annually. The study, which relied on ethnographic observations, found that despite these and other obstacles, some judges were able to transform non-therapeutic courtrooms into therapeutic ones.

Other than perhaps in criminal court, it is hard to find a group of people more vilified than mothers accused of harming their children. Thus I was not surprised to witness episodes of shaming and stigma, and to see parents huddled passively in their chairs, not even bothering to shed their heavy coats, while a bevy of professionals buzzed around them, talking for, about and over them.

I was surprised, though, how quickly the more therapeutic judges created an inclusive and respectful environment, and how little time and effort it took.

Despite the same obstacles faced by many of their colleagues, including too many cases and too little time and resources, these judges radiated compassion, benevolence, and respect.

They did this in ways large and small. Seemingly minor adjustments in courtroom rituals and routines had large social payoffs.

Parents who are often addressed generically as “Ma’am” or referred to as “the mother” or the “father” were addressed by their formal name, a sign of respect afforded to the other actors in the room.

The swearing-in ritual, which can be unnerving to ordinary people, was accompanied by more welcoming social gestures.

In contrast to less therapeutic court rooms, parents were asked their preference for a return date, thus signaling that their time and preferences were valued.

Therapeutic judges also found ways to harmonize the rules of the adversarial process with the principles of TJ.  They did not insist that all dialogue flow through the attorneys, and engaged parents in discussions about their progress, their needs, and their children.

Their default mode was praise and support, rather than condemnation.

They seized upon evidence of rehabilitation, emphasizing strengths rather than weaknesses.

They did all this without sacrificing efficiency. Indeed their approach saved time because it was less likely to trigger time-consuming and disruptive emotional outbursts.

In one proceeding I observed, the judge took a mere seven minutes to put a mother at ease, solicit her progress in drug treatment, applaud her for her sobriety, and talk to her about her son. In a gesture rare in Family Court, the mother thanked the judge as she left the courtroom.

Such judges prove the viability of using TJ in any courtroom, no matter how under-resourced and overburdened.

It highlights the singular power of judges, who set the tone and tenor of their courtrooms. The study’s findings show that TJ does not require a specialized court, but, in essence, a specialized judge, one versed in therapeutic techniques and willing to use them.

This suggests that Family Court judges be selected based on judicial temperament and style, and ability to implement therapeutic techniques.

TJ is too potent a tool to be confined to specialized courts. It must also become the province of traditional courts, especially those courts- like Family Court- where legal transgressions are inextricably intertwined with participants’ social and psychological well-being.

The full study can be accessed here.

Professor Eugene Volokh had an interesting little piece in his Washington Post column:

A footnote I’ve found in three recent Tennessee Court of Criminal Appeals cases, where Judge John Everett Williams was on the panel (e.g., State v. Wilson):

We acknowledge that we do not use titles when referring to every witness. We intend no disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper titles is disrespectful even though none is intended. He would prefer that every adult witness be referred to as Mr. or Mrs. or by his or her proper title.

Good for Judge John Everett Williams!!!!!

Carissa Byrne Hessick (University of Utah – S.J. Quinney College of Law) has posted Johnson v. United States and the Future of the Void-for-Vagueness Doctrine (NYU Journal of Law & Liberty, Vol. 10, No. 2015, Forthcoming) on SSRN.

Here is the abstract:

Last Term, in Johnson v. United States, the U.S. Supreme Court struck down a portion of the Armed Career Criminal Act as unconstitutionally vague. The Johnson opinion is certain to have a large impact on federal criminal defendants charged with unlawfully possessing a firearm. But it is also likely to have other important consequences. The language deemed vague in Johnson is similar or identical to language in the Federal Sentencing Guidelines and other statutes. What is more, the Johnson opinion elaborates on the void-for-vagueness doctrine in important ways. Those elaborations ought to make vagueness challenges easier to win in the future.

This Commentary examines the implications of Johnson. It also briefly discusses Justice Thomas’s concurrence. Justice Thomas refused to join the majority opinion, instead opting to decide the case in Johnson’s favor on statutory construction grounds. In addition to his statutory construction analysis, Justice Thomas questioned the constitutional basis of the void-for-vagueness doctrine. Justice Thomas’s approach to the vagueness doctrine, if adopted by other members of the Court, could eviscerate the notice function of the doctrine.

Ok, it is not me, but Alafair S. Burke (Hofstra University – Maurice A. Deane School of Law), who has posted Consent Searches and Fourth Amendment Reasonableness (67 Fla. L. Rev. 509 (2015)) on SSRN.

Here is the abstract:

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of reasonableness in the Court’s consent jurisprudence is helpful in explaining the puzzling disconnect between language and doctrine, much of this current emphasis has been distorted by the dichotomy between coercion and voluntariness: Did police use (unreasonable) coercive tactics that would override a (reasonable) person’s free will? However, the Fourth Amendment’s default concept of reasonableness is based not on coercion or volition but on its requirement of a warrant based on probable cause. Typically when the Court recognizes an exception to the default rule, it grounds that exception in a concept of reasonableness that requires a weighing of the governmental interests served by the warrantless conduct against the level of the intrusion on affected Fourth Amendment interests: liberty and privacy. Because the Court has relied on the myth of voluntary consent as a proxy for the warrant and probable cause requirements that normally define “reasonableness” in the Fourth Amendment context, the Court has bypassed the usual substitute proxy for Fourth Amendment reasonableness: an express weighing of the governmental and citizen interests at stake.

This Article engages in the reasonableness inquiry that the Supreme Court has avoided. Drawing on the Court’s approach to reasonableness in other Fourth Amendment contexts, this Article first looks to the concept of “macro reasonableness” to argue that the Court has overestimated the value of consensual searches to law enforcement and underestimated their effect on privacy. While the Court has emphasized the value of consensual searches yielding incriminatory evidence that might go undetected absent the consent-search doctrine, many consent searches serve no government interests at all. Meanwhile the pervasiveness of the practice imposes tremendous costs to privacy. This Article then seeks to reshape the consent-search exception, using a requirement of “micro reasonableness,” to make the doctrine of consent more reflective of Fourth Amendment reasonableness. Under this requirement, courts would examine not only the voluntariness of the consent underlying the search, but also the government’s reasons for requesting the consent and the scope of the consent requested.