A Second Chance for Judges to Comment?
What limits should be placed on a judge's freedom to speak to the news media and to defend his or her opinions in the court of public opinion? That question is very much in debate in Massachusetts, where a proposed change in the Code of Judicial Conduct would broaden the current rule to allow a judge to provide additional explanation for a decision at any time after issuing it -- a so-called second-chance opinion.
In January, the state's Supreme Judicial Court announced that it had appointed a panel to consider whether to revise the rule limiting public comment by judges. As it now stands, Canon 3B(9) of the code requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." As I noted then at my Media Law blog, the rule came under fire most recently when one-time Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who was charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.
The ad hoc committee has published its proposed revision to the canon, and the proposal that is drawing the most controversy would allow a judge to add an explanation for a decision at any time after making it. The proposed commentary explains:
[A] judge, at any time, may supplement the court record by a written memorandum explaining his or her reasons for judicial action. For example, to educate the public, if he or she deems it appropriate, a judge may choose to issue a written memorandum in order to articulate in greater detail the rationale for the judge's action at the time that action was taken. ... Canon 2 does not prohibit a memorandum of decision from being issued, even in response to public criticism, when that memorandum is based solely on the facts in the record and reflects the judge's reasoning at the time of the original decision, whether or not that reasoning previously was articulated.
Two members of the ad hoc committee have issued separate statements to express their disagreement with this proposed change. Juvenile Court Judge Jay D. Blitzman wrote in his statement that a judge's discretion to explain a decision should not be unfettered. He does not oppose supplemental memoranda, but believes the canon should provide clearer parameters about when they are appropriate. "Judges should be circumspect about when, and if, it is appropriate to file supplemental memoranda," he says.
Meanwhile, Harvard Law Prof. Andrew Kaufman says in his statement that the committee's reasoning in allowing second-chance opinions "is both disingenuous and wrong." While acknowledging that a judge has an interest -- perhaps even a First Amendment interest -- in self-defense against public criticism, Kaufman writes:
The strength of these interests is weakened by the fact that the judge already passed up, for any of a variety of possible reasons, an opportunity to explain, to educate, and to be accountable to the public. It is also weakened by the fact that the 'educate the public' justification is not altruistic. It is usually triggered by the desire to defend against public criticism.
The SJC is seeking public comments on the proposed changes to the judicial canon. It has set Aug. 22, 2008, as the deadline. The committee's report and the separate statements of Blitzman and Kaufman can be found here.
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Posted by Robert J. Ambrogi on May 19, 2008 at 09:16 AM | Permalink | Comments (0)
BC Law Readies for Mukasey's Visit
This is the week in which Attorney General Michael Mukasey makes his controversial visit to Boston College Law School to speak at its commencement. I've had several previous posts (here, here and here) about the student and faculty dissent resulting from Dean John Garvey's decision to invite Mukasey, given his equivocation on the legality of waterboarding. The law school's Web site has nothing new to report about Mukasey's visit, but it has posted the commencement-week schedule. Mukasey speaks Friday in a graduation ceremony that begins at 2 p.m. at the law school's campus in Newton. (Today, by the way, is the 3L pub crawl, according to the schedule.)
But while the official law school Web site shows no evidence of the controversy surrounding Mukasey's visit, the law student blog Eagleionline yesterday published a draft of an upcoming article by BC Law Prof. Daniel Kanstroom, "On 'Waterboarding': Legal Interpretation and the Continuing Struggle for Human Rights." Kanstroom, director of the law school's International Human Rights Program, is far from equivocal in his stance on waterboarding and on Mukasey. From the abstract:
While some aspects of the 'waterboarding' debate are largely political, the practice also implicates deeply normative underpinnings of human rights and law. Attorney General Michael Mukasey has steadfastly declined to declare waterboarding illegal or to launch an investigation into past waterboarding. His equivocations have generated anguished controversy because they raise a fundamental question: should we balance 'heinousness and cruelty' against information that we 'might get'? Mr. Mukasey's approach appears to be careful lawyering. However, it portends a radical and dangerous departure from a fundamental premise of human rights law: the inherent dignity of each person. ... [W]aterboarding is and was illegal. Official legal equivocation about waterboarding preserves the potential imprimatur of legality for torture.
Earlier, Eagleionline surveyed students about Mukasey's visit and found that half of those polled supported him speaking. At the same time, several students had concerns about the process used to select the commencement speaker. No word on whether Kanstroom will share a seat on stage with the AG.
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Posted by Robert J. Ambrogi on May 19, 2008 at 09:11 AM | Permalink | Comments (0)
The Courtship of Jonathan Zittrain
Harvard Law School's conference Thursday and Friday was ostensibly about celebrating the 10th anniversary of its Berkman Center for Internet & Society. But as it kicked off Thursday morning, it seemed more like an elaborate Ivy League courtship ritual aimed at luring back its prodigal son Jonathan Zittrain. It wasn't enough that the title of the conference, "The Future of the Internet," also happens to be the title of Zittrain's book, or that he was the lead-off speaker. After the day began with a brief welcome from Harvard Law Dean Elena Kagan, IP law Prof. William (Terry) Fisher III took the stage and announced that Harvard had offered Zittrain a tenured position and was hoping to attract him back from Oxford University, where he is chair in Internet governance and regulation. Fisher quickly added that Stanford is also courting Zittrain. "Our task this week," he told the SRO crowd packed into the law school's Ames Courtroom, "is to try to persuade him to stay." With that, Dean Kagan and a bemused-looking Prof. Charles Nesson stood up on stage and urged the audience to join them in chanting, "We want Zittrain! We want Zittrain!"
All this happened just during the welcoming remarks and before anyone even got around to introducing Zittrain's talk. Before that would happen, there would be one more welcome, in which Zittrain would make a cameo appearance. Nesson took to the podium to deliver his welcoming remarks, but as he tried to get his laptop to launch a video on the enormous screen behind him, he was unable to make it work. Still looking bemused as he fumbled with the laptop, he faced the audience and offered a quote he attributed to "my mentor," media great Fred Friendly: "Technology is out to fuck you." Suddenly someone rushed to the podium, laid hands on the laptop, and the video started to play. That someone, it turned out, was Zittrain. The sole purpose of the video, after all that fuss, was to have a Second Life-like avatar named Eon (the name of Nesson's blog) make the introduction of Nesson.
At long last, it was time to introduce Zittrain's talk. Kagan and Fisher appeared to have a brief on-stage exchange about who would make the introduction, with Fisher emerging the victor. He launched into a long and carefully spoken homage that was almost lascivious in its praise for Zittrain. Finally he finished, and as he turned to bring Zittrain on stage, Kagan jumped back up and added a few further words. By this point, I was beginning to feel a bit uncomfortable, like a third person along on a first date -- one that wasn't necessarily going well. Not that this was a first date. Zittrain co-founded the Berkman Center with Nesson in 1997, was its first executive director and continues as the Jack N. and Lillian R. Berkman visiting professor for entrepreneurial legal studies at Harvard.
When Zittrain finally took to the stage, he offered no clue as to whether the arrow of Harvard's tenure offer had pierced his heart. The one certainty about his speech was that he no doubt sold a number of books that day. As a speaker, Zittrain is both thoughtful and entertaining. But by the time he finished his nearly 90-minute presentation, many in the audience were left a bit unsure of just where he saw the future of the Internet heading. At lunch afterward, everyone at my table agreed they would buy the book, if only to help themselves understand his ultimate point. CNET blogger Dan Farber at Outside the Lines has a good synopsis of Zittrain's speech, although even he resorts to quoting the book more than the speech. He did capture this great Zittrain line: "The Internet is a collective hallucination that works as long as we don't stare at it too carefully." Perhaps the same is true of law school courtship rituals.
Further reading: Dave Winer at Scripting News has video of pre-conference schmoozing and of Zittrain's speech.
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Posted by Robert J. Ambrogi on May 19, 2008 at 09:04 AM | Permalink | Comments (0)
Other News from Harvard's Berkman
In another post today, I wrote about the courtship of Jonathan Zittrain during Harvard Law School's two-day Berkman@10 Conference to celebrate the 10th anniversary of its Berkman Center for Internet & Society. In addition to revealing the law school's offer of a tenured teaching position to Zittrain, Dean Elena Kagan had another major announcement to kick off the event. The Berkman Center will no longer be exclusively a law school project and instead will be a university-wide, interfaculty initiative. "By becoming an interfaculty initiative at Harvard, the Berkman Center will expand its reach into other disciplines and take advantage of synergies across the university, all while retaining its home and roots at the Law School," she said. According to the Harvard University Gazette, the law school will remain Berkman's base of operation and Berkman will continue to operate its Cyberlaw Clinic, which provides free legal services on cutting-edge issues involving technology and the Internet.
Last month, the law school announced that Berkman's longtime executive director, John Palfrey, had been named to become head of the Harvard law library. Now, in what is sure to be a much sought-after position, Harvard has opened the search for a new executive director, a "dynamic" person to "play a vital role in building on Berkman's past, helping to guide us into Berkman '3.0.'" Here is the full job posting.
And lest I leave the impression that this conference was all-Zittrain, it was not. The event brought together a who's who of the Internet cognoscenti, both as speakers and attendees. Other speakers included Harvard Law Prof. Yochai Benkler, entrepreneur and journalist Esther Dyson, former FCC Chairman Reed Hundt, Viacom GC Michael D. Fricklas, Talking Points Memo publisher Joshua Micah Marshall and Wikipedia cofounder Jimmy Wales. And the attendees, who came from all over the world, were equally impressive.
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Posted by Robert J. Ambrogi on May 19, 2008 at 08:59 AM | Permalink
