International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2014 Issue


Confronting Complexity: A Major Need of the Judiciary

Dr. James G. Apple

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

himself. He was introduced to a Brookings audience by Strobe Talbot, the Institution’s President, who remarked that “the internationalization of law is a subject that Justice Breyer has been thinking about for a long time.”

Justice Breyer, in his speech, commented on a confrontation that he had with a Virginia Congressman who had objected to Supreme Court Justices (and perhaps other judges) referring in opinions to “other countries courts.” The Justice responded by commenting:

[T]hey don’t bind us, what other countries do. It’s not binding, but they have problems like we do and they’re similar and they have constitutions more and more like ours and trying to protect liberty and trying to protect a democracy. And they have jobs where the judges have some role to play. So if I have a person with a job like mine, problem like mine, you know, a Constitution like mine, why don’t I read what he says. I don’t have to follow it It. But why not read it? I might learn something.

And then, after commenting that the world is changing and the docket of the Supreme Court is changing (which may be the source of the angst and worry among Tea Party members and followers about citing international or foreign law) Justice Breyer made a very important observation:

Whether we refer to or don’t refer to questions that come up abroad or answers that foreign courts give or what the law’s like in some other places has nothing to do with what you’re worried about. It is the world that’s Changed and our docket has changed….[I]f you want to preserve our American values, you better learn something about what’s going on elsewhere because that affects directly what we do. Now, of course, nobody’s going to accept that who doesn’t already believe it, so I want to give a few examples of kinds of very serious questions that we face where, of course, it’s helpful and sometimes necessary to know something about what’s happening somewhere else in the world. (emphasis added)

What all of this means is that it is very important for judges to know something about how the world has changed and how that change in the U.S. is affecting life generally and domestic courts in particular, and how courts and judges should respond and use that knowledge to protect American values. Many of the issues that judges have to face involving international relations, international law, and the laws of other countries are complex (one example Justice Breyer cites is national security issues), so this is yet one other area of complexity that is involving the courts and judges.

So what is to be made of all of these complexities that Judge Poser and Justice Breyer are talking about. Judge Posner provides some answers, which he characterizes as “modest.” But many of the suggestions that Judge Posner presents are in fact not modest. One for which there is authority in the Federal Rules of Civil Procedure, is “greater use of court appointed experts.”

Rule 706 of the Federal Rules of Civil Procedure provides as follows:

(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But he court may only appoint someone who consents to act.

(b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:

(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that called the expert.

It is easy to determine that use of court appointed experts could help resolve many areas of external complexity that plague the courts, including even those involving international and foreign law.

Here are some other suggestions Judge Posner makes:

  1. Greater weight be given to the technical sophistication of candidates for federal judicial appointments (a suggestion that Judge Posner says borders on Utopian).
  2. Selection of law clerks with more technical sophistication.
  3. Creation of a judicial fellows program that would “provide scientifically trained advisors for federal judges.”
  4. Better initial and continuing judicial training.
  5. More training for judges in good management skills (poor management skills result in situations such as the “long delays between the oral argument in an appeal and the issuance of the opinion deciding the appeal, and at the district court level in long delays in bringing litigation to a conclusion.”
  6. Having the Federal Judicial Center staff search academic literature continuously for technical material directly relevant to the work of federal judges.
  7. Training in how certain technical subjects, like statistics or medical technology, can be screened for accuracy and explained in terms that a lay person could understand.
  8. Taking a cue from the specialized training received by administrative law judges (e.g. Social Security Administrative Judges).
  9. Encouraging academic writing to concentrate more on literature that will assist judges, including interdisciplinary legal scholarship (e.g. law and technology, law and economics).
  10. Make adult education on line programs accessible to judges
  11. Having more courses or perhaps judicial fellows or court appointed advisers about international law and international courts.

Judge Posner has done a great service in not just writing about complexity and the challenges it poses to the American legal system. He has also done a great service in making some very practical suggestions for remedies to the issues of complexity that have invaded courts in the United States and elsewhere and pose serious threats to the quality of justice that comes out of those courts.

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© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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