Monday, October 2, 2017

Happy First Monday!

It's the First Monday in October, so there are plenty of SCOTUS articles everywhere. Today's DJ offers The First Monday: Justice Ginsburg's prediction of a "momentous" term may prove to be quite an understatement, by Blaine Evanson and Taylor King of GDC.

The DJ also has PJ Gilbert's monthly column, titled The End (V.1): Did you know that some shows film alternate endings, to keep spoilers from getting out? All this electronic filing has me thinking maybe judges should do the same. His concern is with hackers gaining access to appellate courts' computer systems and seeing how cases will be resolved. Thus, taking a page from Hollywood, he ponders drafting multiple decisions:
So why not use this approach with Supreme Court and Court of Appeal opinions? It might take a little more time to draft multiple endings. And I suppose the endings would have to have a reasonable relation to the facts and law that precede them. The rule I usually follow is that the ending naturally falls into place by what precedes it. But I doubt hackers would be the type of people who read what precedes the ending that closely. In fact, does anybody, except maybe an annoying law professor? When I was a trial judge and received an opinion from the Court of Appeal on one of my cases, I always read the last page first. But due to a startling experience, I stopped doing that. I recall reading the last page of such an opinion and seeing that heartbreaking word “reversed.” I was crestfallen until I realized I had read the last page of the dissent.
And Moskovitz on Appeals presents 'Realist' or 'Formalist': Part I, about Judge Richard Posner:

The key to winning appeals is to get into the minds of appellate judges. This is quite difficult, in part because judges don’t say much about how they think about cases. Many “just do it” without much introspection. Others have some idea about what they do, but don’t want to talk about it. And many think they are doing one thing but are actually doing another. Reading their opinions helps, but not as much as you might suppose, because opinions are often written largely by research assistants. I learn how judges think mostly by inference and intuition: experience handling cases, talking to judges, watching them during oral argument — and by serving as a “judge” myself, during moot courts ... .
Posner is a breath of fresh air. He actually thinks about how he thinks. And about how other judges think. And then he writes about it, extensively and candidly. I’ve pored over his book “Reflections On Judging” for hours. Posner notes that “Lawyers find it difficult to get inside the head of an appellate judge,” and his book provides a peek into at least one judge’s thinking.
The October issue of OC Lawyer is also out, and that means more Beds! This time in Baseball for Trappists, in which he explains how he can watch an Angels game and do his day job at the same time: "I can read a full six pages of argument, two of the cases relied upon to support that argument, and double-check the language of the statute, and all I’ve missed is four foul balls, a visit to the mound, and an instant replay review."