Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions

Laura Ray

Widener University – School of Law

November 12, 2013

 Indiana Law Journal Supplement, v. 89, 2013

Widener Law School Legal Studies Research Paper No. 13-39

Abstract:

In her first two terms on the Supreme Court, Justice Elena Kagan has crafted a distinctive judicial voice that speaks to her readers in a remarkably conversational tone. She employs a variety of rhetorical devices: invocations to “remember” or “pretend”; informal and even colloquial diction; a diverse assortment of similes and metaphors; and parenthetical interjections that guide the reader’s response. These strategies engage the reader in much the same way that Kagan as law professor may well have worked to engage her students, and in the context of judicial opinions they serve several purposes. They make Kagan’s opinions accessible to lay readers as well as legal professionals, a goal she has specified. More generally, her conversational style works to persuade her readers that her arguments are grounded in both legal doctrine and the familiar texture of human experience.

Judge Edward Devitt was a distinguished federal District Court Judge.  In 1979, he authored his version of the 10 Commandments for a new judge:

TEN COMMANDMENTS FOR THE NEW JUDGE

1.  Be Kind

2.  Be Patient

3.  Be Dignified

4.  Don’t Take Yourself Too seriously

5.  A Lazy Judge Is a Poor Judge

6.  Don’t Fear Reversal

7.  There Are No Unimportant Cases

8.  Be Prompt

9.  Common Sense

10.  Pray for Divine Guidance

Judge Richard Kopf is a senior status federal District Court Judge who is the author of a very good blog called Hercules and the Umpire (which can be found here).  He has a more modern version of the Ten Commandments:

TOP TEN LISTS OF LESSONS TO BE LEARNED BY A YOUNG FEDERAL TRIAL JUDGE REGARDING THE SCHEINDLIN/SECOND CIRCUIT FIASCO

10.  Remember the first law of physics: crap flows downhill.

9.  Even otherwise brilliant and perfectly decent federal Circuit judges can be megalomaniacs.  Far removed from your hearing, lawyers say the same thing about you.  They are indisputably correct.

8.  It’s not your job to save the world.  Do law, leave justice to Clint Eastwood.

7.  A good journalist’s job is to get you to say something you will regret.

6.  If you can’t take a sucker punch, quit.

5.  If you care more about a case than anyone else, ask your Chief to reassign it.

4.  Get mad, but don’t get even.

3.  For good or for ill, one case will define you.  You won’t ever know which one it will be, so stop worrying.

2.  Remember the joy you felt the day you learned that the President of the United States wagered a little of his prestige on you.  Everything that follows is gravy.

1.  Whether it be an accolade or an accusation, you probably don’t deserve it.

P.S.   If you are a young federal trial judge, here is the 11th commandment:  Never rely on advice from an old federal trial judge.

Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning

John Monahan

University of Virginia School of Law

Jennifer L. Skeem

University of California, Irvine

October 28, 2013

Virginia Public Law and Legal Theory Research Paper No. 2013-36

Abstract:

After almost four decades of “just deserts,” the past several years have seen a remarkable resurgence of risk assessment as an essential component of criminal sanctioning. In this article, we review current practice in the incorporation of risk assessment into the sanctioning systems of several illustrative states, and describe the major dimensions on which state practices differ. We then elaborate the various meanings ascribed to the foundational concept of “risk” in criminal sanctioning, and contrast “risk” with what are now often called “criminogenic needs,” the fulfillment of which ostensibly reduce an offender’s level of “risk.” Finally, we address the choice of an approach to risk assessment in sentencing, particularly in the resource-starved state of current correctional practice.

The Brennan Center unveiled a new proposal to reform the federal government’s largest criminal justice funding program:

Reforming Funding to Reduce Mass Incarceration sets out a plan to link dollars to modern criminal justice goals – as a tool to promote innovative crime-reduction policies nationwide.  It reflects a broader proposed shift in criminal justice funding at all levels of government.  It is supported by conservatives, progressives, and law enforcement.

Read the press release here.  Read the executive summary here.

Yesterday, this Blog had a post on R. v. PAPPAS and the defense of provocation.  Now, there are more thoughts on this defense via another case out of Canada, R. v. Cairney:

R. v. Cairney: Predictable Responses and the Shrinking Defence of Provocation

Peter Sankoff

University of Alberta – Faculty of Law

November 19, 2013

Abstract:

This commentary focuses on the Supreme Court of Canada’s latest decision on provocation, the Cairney judgment from Alberta. In it, I critique the majority’s approach to the “suddenness” element in provocation, suggesting that it was: (1) questionable in light of the statutory language, jurisprudence and historical rationale of the defence; (2) troublesome given the facts of the case; (3) likely to have undesirable ramifications in future for a host of actors who might otherwise claim provocation; and (4) wrongly driven, at least in part, by a mistaken desire to assess provocation as a justification based defence, rather than an excuse.

Effective Pretrial Decision Making:  A Model Curriculum for Judges

Following the Conference of Chief Justices and the Conference of State Court Administrators’ recent calls for reforms in pretrial release decision making, the National Judicial College and the Pretrial Justice Institute, through funding from the Bureau of Justice Assistance, have developed a four-hour live, interactive training for judges on effective, legal and evidence-based pretrial release decision making. The curriculum was designed with extensive input from judges from around the country, following a national survey of judges on their pretrial release training needs. We are seeking to pilot this curriculum in several jurisdictions.

To learn more, please visit PJI’s Court Resources page.

You can spend a long time on the bench (or practicing criminal law) and never have a case in which the defense of provocation is ever raised legitimately.

So, a case from Canada is interesting:

In R. v. PAPPAS, 2013 SCC 56, October 25, 2013, the accused was charged with second degree murder.  The accused shot and killed the deceased, who had been blackmailing him. The accused asked the deceased to stop blackmailing him. The deceased replied by indicating that he had “great fucking insurance.” The accused retrieved a handgun he had brought with him and shot the deceased in the head.

At the accused’s trial, the trial judge charged the jury on the defense of provocation. The jury convicted the accused of second degree murder. A majority of the Alberta Court of Appeal dismissed the appeal.  The accused appealed to the Supreme Court of Canada.

The appeal was dismissed.  The Supreme Court of Canada concluded that there was no air of reality to the defense of provocation and the defense should not have been left to the jury.  The conviction for second degree murder was affirmed.

The Supreme Court held that an air of reality “cannot spring from bare, unsupported assertions by the accused.”  The Court noted that the defense of provocation includes a requirement of “suddenness” which applies to both the act of provocation and the accused’s reaction to it.

In this case, the Supreme Court concluded that the accused knew he would have to kill the deceased to end the extortion.  The element of suddenness was supported by little more than the accused’s “bald assertions that he ‘snapped’ and ‘everything was just automatic.’”

The Eighth Amendment as a Warrant Against Undeserved Punishment

Scott Howe

Chapman University – School of Law

November 11, 2013

William & Mary Bill of Rights, Vol. 22, p. 91, 2013

Chapman University Law Research Paper No. 13-14

Abstract:

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules and mandatory-minimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has largely limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. Yet, this Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I am to clarify both what the Eighth Amendment reveals about the kind of people we want to be and why the Supreme Court is not able to force us to live up to the aspiration.

The American Civil Liberties Union has released a new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes.

The report, which can be accessed at this link, is titled “A Living Death: Life without Parole for Nonviolent Offenses.”

Among those serving Life is a person who stole a $159 jacket and a “middleman” in the sale of $10 worth of marijuana.

If you think such cases might be a good case to test the ban on cruel and unusual sentencing, pause.  Few of these challenges are ever successful.

And so the question is, can we learn from the Ontario Court of Appeals?  A three-year mandatory minimum sentence for gun possession is “cruel and unusual punishment,” Ontario’s top court ruled in striking down a plank of Ottawa’s law-and-order agenda.

The full opinion can be found here.

Maryland Judge Really Has a Way with Words

BY MCCLATCHY NEWS

By Emilie Eastman

“Unlike the bullet or the misplaced banana peel, the effect of toxic substances on the body is often subtle and slow, leaving cause uncertain.”

That’s not how many judges begin their official written opinions. But for Maryland Court of Appeals Judge Robert McDonald, a little flair goes a long way.

McDonald, a Harvard Law School graduate and a former chief counsel for the Maryland Attorney General’s Office, was appointed to the state’s highest court nearly two years ago. Since then, he has written several opinions that include literary references, creative rhetoric or even a touch of humor.

“I think one thing that all the judges try to do when they write opinions is to, hopefully, make them accessible and understandable to even people who are not lawyers,” he said.

The banana peel example introduced the court’s March opinion in a case in which a woman was seeking damages, claiming she was exposed to lead paint as a child.

McDonald’s literary citations in other cases have included references to Shakespeare and the Bible.

While McDonald said he doesn’t view his written opinions as particularly unique, the judge’s lingual liberties are fairly uncommon for a court opinion.

The complete story can be found here.