By: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
In the last issue of the International Judicial Monitor (Winter 2014), the In Review section was devoted to a recent book by Judge
Richard Posner of the United States Court of Appeals for the Seventh Circuit,
sitting in Chicago, Illinois. Judge Posner titled his book Reflections on
Judging. In it he covers several different subjects relating to problems
with the federal judiciary and the court system in general. But by far the most
discussed and most pressing issue is complexity, in different forms that haunt
the judiciary.
Judge Posner talks about that subject in terms of “external
complexity” and “internal complexity.” In the "Introduction" to the book, he
includes a long list of “Sources of Complexity That Are External to the
Judicial System.” They range from biochemistry to financial engineering to
pharmaceutical drugs to telecommunications. There are in fact 45 subjects
included in this list. Another list is designated “Fields of Law Affected by
External Complexity.” There are 27 subjects in this list, which ranges from
antitrust to environmental protection to Second Amendment (U.S. Constitution)
to zoning. These lists, he acknowledges, are undoubtedly incomplete.
Also in the “Introduction,” following those lists, are two
other lists: “Sources of Complexity That Are Internal to the Federal Judicial
System” (six subjects) and finally “Judicial Escape Routes for Having to Meet
the Challenges of External Complexity” (seven activities).
Judge Posner points to the sentencing of convicted criminals
as illustrative of “both sorts of complexity” (external and internal). He notes
that the Sentencing Reform Act of 1984 “created within the federal judicial
branch the U.S. Sentencing Commission, which promulgates guidelines for federal
sentencing.” This was done because of the disparity in criminal sentences that
were being handed down in cases involving the same crime by different judges in
different parts of the country. The Commission did in fact establish guidelines
that definitely reduced the amount of arbitrariness in criminal sentencing in
the federal courts: the guidelines were based on two factors: the severity of
the crime and the criminal history of the convicted criminal.
The Supreme Court, in 2005, disrupted the criminal
sentencing jurisprudence that had been developed over a period of 20 years by
making the guidelines advisory rather than mandatory. This decision made the
whole subject of criminal sentencing much more complex. Judge Posner observed
that , alongside this development, is the fact that “crime itself has become
more complex.” The latter development is an example of “external complexity,”
(crime becoming more complex) and the former development representing “internal
complexity” (complexity developed as a result of judicial activity within the
legal system).
There is another aspect of the judicial experience that
involves complexity, coming under the rubric of internal complexity, and that
is administrative and management issues in the governance of courts. A frequent
observation that I heard a number of times when I was practicing law was that
lawyers generally are not good managers. Perhaps that is the reason why they go
to law school rather than graduate business school. I know that such an
observation does not have universal application, because I met during the time
I was practicing law some lawyers who were in fact good managers. But I also
found that there was enough truth in the observation that it did have some
validity.
Judge Posner describes this self-generated complexity as a
“a phenomenon of the organizational incentive and constraints that condition
the behavior of the personnel of an organization rather than a phenomenon of
technology.” Here the complexity occurs in the judges’ chambers and within the
court management structure and involves issues such as chambers management,
relationships with other judges, the sharing of judicial facilities, human
resources issues, and group behavior, rather than technological issues such as
electronic filing, use of computers by judges and court staff, and the use of
technology in the courtroom.
There are yet two other areas of complexity that
Judge Posner touches on briefly, but are more developed in a recent
presentation by U.S. Supreme Court Justice Stephen Breyer. These other areas
are international relations and international law. One example relating to international
relations cited by Judge Posner is immigration. He writes:
Many immigrants who base their claim to be
allowed to live in the United States on their status as refugees are seeking
asylum from religious persecution. They come from nations that most
Americans, including most American judges and administrative officials
know very little about. How many Americans know for example that Eritrea
persecutes Jehovah’s Witnesses? Who even knew that there were
Jehovah’s Witnesses in Eritrea? And how does a judge verify that an Eritrean
applicant for asylum who claims to be a Jehovah’s Witness really is one?
He also observes on the issue of international law:
Federal litigation increasingly involves foreign
and international law, not only commercial law but also tort, criminal, and
domestic relations law, as under the [U.S.] Alien Tort Statute and the
Hague Convention on the Civil Aspects of International Child Abduction.
Because of the size and self- sufficiency and global reach of the United
States, and the prevalence of the English language throughout the world,
Americans, including judges, tend to be monolingual, even
provincial. Most of us know little about foreign countries, foreign law,
or the institutional, procedural, and cultural aspects of foreign legal
systems. Some (especially some Supreme Court Justices) have taken to citing
foreign judicial decisions as possible guides to American law, a dubious tactic unless the judge understands the
cultural and institutional context of a decision.
The increasing number of cases in the U.S. that either
involve consideration of universal (world) values and the increasing number of
cases that involve transnational issues has led some U.S. judges to examine and
quote both international law and language as found in cases from other
countries (foreign law). This development has in turn caused some simple-minded
U.S. citizens and their representatives in government (especially those who
subscribe to the dogma of the “Tea Party”) to decry and denounce judicial
references to international and foreign law in their opinions, with a threat of
impeachment included in the denouncement.
Justice Stephen Breyer recently established at the Brookings
Institution in Washington, D.C., to his great credit, the Justice Stephen
Breyer Lecture on International Law. Its first lecture was the benefactor