Questions about Posner's participation in Apple v. Motorola

July 12, 2012 9:53 AM

Three questions brought up by Richard Posner and his participation in Apple v. Motorola: 1) Do his frequent extrajudicial writings ever cause any questions of partiality or disqualifications in his cases? 2) How would a circuit judge come to be designated to hear such a case? Is it on his initiative or someone at the district court? Is there any risk that the special treatment will seem unfair when compared to the usual random assignment of cases to judges? 3) How does a judge decide how to spend time on cases versus extrajudicial activities? Does Posner's docket ever suffer because he is spending his time writing law review articles?
posted by grouse to Law & Government (14 answers total)

Someone far more qualified than I will be able to answer more of these questions, but I do recall that in the recent Slate Supreme Court round-up that it was mentioned that he couldn't comment on the health care case until the verdict was announced. So he is obviously careful of the rules around his extrajudicial writings.
posted by ldthomps at 10:23 AM on July 12, 2012

Best answer: 1) Do his frequent extrajudicial writings ever cause any questions of partiality or disqualifications in his cases?

Not as such, no. Part of this is that he's careful to avoid writing about cases which are still pending. But stuff he's written before a case starts or after it finishes isn't really held against him.

More generally, having a tendency to interpret laws in a certain way isn't the same thing as unfairly favoring one party over another. Taking it up a level, we might think that a Supreme Court justice is acting politically in a certain case, but that's not quite the same thing as accusing them of being impartial. The legal profession certainly tends to draw this distinction anyway. Having political beliefs which would tend to push a judge one way or the other on certain issues is different from having a conflict of interest.

The fact of the matter is that significant portions of any given case are subject to the trial judge's discretion. Managing discovery, rulings on expert testimony--the issue on which Apple v. Motorola was decided--deadlines, and evidentiary rulings are largely left to the judge's discretion. This means that appellate review is for "abuse of discretion," and incredibly high bar. Trial judges are almost never overturned for abusing their discretion, and appellate judges are almost never overturned for saying that a trial judge hadn't abused their discretion. So the fact that a given judge leans one way or the other on a particular issue or set of issues is something he's allowed to do as long as there's no suggestion that he has some personal connection with any particular party.

2) How would a circuit judge come to be designated to hear such a case?

28 U.S.C. 291. Circuit judges are occasionally designated by the Chief Justice of the US (Roberts at this point) to serve as district judges. District judges can also be designated to serve on a circuit panel. The chief judge of the circuit needs to give a "Certificate of Necessity" to the Chief Justice. There's a discussion of the issue here. It's mostly done to help with heavy caseloads. I'd image this case in particular was designated because it was a high-profile, complex patent case, and the district judges quite simply had enough on their plates. Certain appellate judges make it a policy to preside over a trial case every year or so, to keep their hand in, and the district courts frequently assign the messier or bigger cases to them, partly out of courtesy, partly to free up the regular district judges to get on with the everyday business of running their courtrooms. Keeping up with the criminal docket alone can be tough.

3) How does a judge decide how to spend time on cases versus extrajudicial activities?

However he damn well pleases. Being a federal judge is an awesome gig. You can't be fired. Being impeached takes a vote by the House and trial by the Senate with a 2/3 vote for removal. There's only been fifteen such impeachments. Eight have ended in removal, while a further three resigned. In every case, there was some pretty glaring misconduct, like taking bribes, or in one case sex crimes. So as long as he's not pissing off the chief judge, Easterbrook, he's pretty much got a free hand.

Does Posner's docket ever suffer because he is spending his time writing law review articles?

Not as far as anyone can tell. He wouldn't be as respected as he is if he wasn't doing good judicial work. But most judges, particularly at the appellate level, aren't actually in the courtroom as often as you might think. Even trial judges might only have a trial or two a month, plus a few dozen hearings, many of which are handled in chambers. Appellate judges might only hear oral arguments one day a week. They're still very busy people--appellate records can be immense--but it's not as if any particular hour of their day is spoken for most of the time. Good work, if you can get it.
posted by valkyryn at 10:35 AM on July 12, 2012 [9 favorites]

Response by poster: Are you referring to Walter Dellinger's comment in his Supreme Court Year in Review article? It says that sitting judges are restrained from commenting on pending cases, but I'm asking more about Posner's general commentary on areas of law, such as his article "Why There Are Too Many Patents in America." There's no concern that an article like that shows some bias against patent holders despite the disclaimer at the end?
posted by grouse at 10:35 AM on July 12, 2012 [1 favorite]

Best answer: There's no concern that an article like that shows some bias against patent holders despite the disclaimer at the end?

I mean, if you were a patent holder whose case wound up before Judge Posner, you'd curse your stars, maybe even moving for a change of judge, but that sort of thing happens all the time. The attorneys in a given jurisdiction get to know their judges. For example, there's a judge in my jurisdiction that seems incapable of granting a dispositive motion in any case for any reason, even on bright-line issues of law. So if we have a case assigned to him and think there's any likelihood that we're going to need to file such a motion, we move for a change of judge. There's another judge who's a real stickler over promptness and enforcing the deadlines in his case management orders, so we just know to be extra careful about timeliness. Or another judge who will deny any motion for summary judgment filed before the close of discovery. Or another judge who doesn't seem to care much about the rules of evidence. Etc.

So having an opinion about patents doesn't really fall that far outside the realm of "biases" that most judges have. But because you never really know which side of a particular issue you or your clients are going to wind up on, that's rarely the sort of thing that leads to accusations of judicial misconduct. What works for me now might work against me next time. It's more a feature of the landscape than an issue of real concern.
posted by valkyryn at 10:45 AM on July 12, 2012 [3 favorites]

Best answer: See this New Yorker profile circa 2001. (Subscription required, but you can view a picture of him holding his giant cat for free.)
posted by moammargaret at 10:54 AM on July 12, 2012

Response by poster: I mean, if you were a patent holder whose case wound up before Judge Posner, you'd curse your stars, maybe even moving for a change of judge, but that sort of thing happens all the time.

Would that be a motion under 28 USC § 144 or some other rule? How likely would such a motion be to succeed in such a case, where the judge is not alleged to have any personal interest, but a bias against a class of parties such as patent holders?
posted by grouse at 10:56 AM on July 12, 2012

Best answer: There's no concern that an article like that shows some bias against patent holders despite the disclaimer at the end?

The standard for disqualification is given by statute in 28 U.S.C. § 455 (bias or prejudice under § 455 is the same as under § 144).

With regard to the appearance of partiality under § 455(a), the leading treatise on federal practice (Wright & Miller) explains that

Section 455(a) is based upon the Code of Judicial Conduct, which clearly imposes a “reasonable person” test for recusal. The Reporter for the American Bar Association Committee that drafted the that Code explained:

Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge's “impartiality might reasonably be questioned” is a basis for the judge's disqualification. Thus, an impropriety or the appearance of impropriety in violation of Canon 2 that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard, as does participation by the judge in the proceeding if he thereby creates the appearance of a lack of impartiality.

Wright & Miller has this to say about bias or prejudice, in part (citations omitted):

For a judge to be disqualified for bias or prejudice ... the bias or prejudice must be “personal,” as opposed to “judicial.” A personal bias has been defined as “an attitude toward petitioner that is significantly different from and more particularized than the normal, general feelings of society at large.”

...

Earlier in the Liteky opinion the Court had said that “the origin of the ‘extrajudicial source’ doctrine, and the key to understanding its flexible scope (or the so-called ‘exceptions’ to it), is simply the pejorative connotation of the words ‘bias or prejudice.’” The words “connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate.” [emphasis in original] The opinion can be wrongful or inappropriate either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess, or because it is excessive in degree.

Judge Karen Moore of the Sixth Circuit has offered a helpful characterization of this aspect of the Liteky case: “[A]n extrajudicial source for a judge's opinion about a case or a party is neither necessary nor sufficient to require recusal. Instead, the presence of an extrajudicial source is merely a thumb on the scale in favor of finding either an appearance of partiality under § 455(a) or bias or prejudice under § 455(b)(1).”

...

Disqualification is not required because the judge has definite views as to the law of a particular case.

It is this last point that Posner himself has cited in denying a motion to recuse himself in a case, albeit one based on an expert witness affidavit written before he became a judge. "The affidavit repeated views about antitrust policy that I had stated in many different fora over a period of years, and the movants do not and could not argue that a judge should disqualify himself because he has views on a case." Schurz Communications, Inc. v. FCC, 982 F. 2d 1057, 1062 (7th Cir. 1992).
posted by jedicus at 11:04 AM on July 12, 2012 [2 favorites]

I should be clear that although I am an attorney, I am not your attorney, and this is not legal advice. I assume you are asking purely out of curiosity. Otherwise, you should hire an attorney.
posted by jedicus at 11:05 AM on July 12, 2012

Best answer: 3) How does a judge decide how to spend time on cases versus extrajudicial activities? Does Posner's docket ever suffer because he is spending his time writing law review articles?

You've gotten good answers on the bias issue, but as for this last question, Posner is famously known as both a workaholic and--from his past clerks--an incredibly fast writer. The (slightly exaggerated) version I've heard has him on a normal day getting up early, writing the first draft of an opinion, having breakfast, writing a chapter for a book, quick break for lunch, revise the opinion from that morning, and so on.

For example, from this Time magazine piece about his appointment in 1999 as mediator in the Microsoft antitrust case:

Posner has the kind of jaw-dropping resume that makes resolving the Microsoft case seem like a plausible Christmas vacation project. He is the chief judge of the federal appeals court in Chicago, where he pens about 100 decisions a year, and he teaches law at the University of Chicago. He also finds time to churn out scores of law-review articles, speeches, op-ed pieces and, oh yes, a book or two a year. (His latest: An Affair of State, a scathing account of President Bill Clinton's impeachment woes; and the less reader-friendly The Problematics of Moral and Legal Theory.) "Dick is sort of a legendary intellect," says law-school colleague Randal Picker. "He is one of the great legal minds of the 20th century."

Since then, the rate of "a book or two a year" hasn't really let up. In fact, he published 18 from 2001 to 2010.
posted by Partial Law at 11:29 AM on July 12, 2012 [1 favorite]

A judge can hold beliefs about what the law means. They all do.

Recusal usually happens when there is a direct financial interest in the case.
posted by Ironmouth at 11:33 AM on July 12, 2012

Even more generally: the fact that judges have different beliefs about what the law means is why, the issue of statutory law completely aside, the law isn't the same everywhere. The law is different in the Seventh and Ninth Circuits largely because the judges in those circuits have differences of opinion about things. If those differences get sharp enough and important enough, i.e., a genuine "circuit split," the Supreme Court will frequently step in to resolve the issue. But there are still lots of issues of lesser import which vary, sometimes quite dramatically.

That's even more apparent at the trial level, where there are more judges and more granular issues at play.
posted by valkyryn at 11:38 AM on July 12, 2012

Best answer: Posner's Slate diary from 2002 might be enlightening on some of your questions.
posted by Xalf at 4:46 PM on July 12, 2012

Does Posner's docket ever suffer because he is spending his time writing law review articles?

I have 3-4 friends who have clerked for him and worked as his research assistants. My understanding is that he writes constantly and nonstop, at the expense of spending time with his family and, like, eating regular meals. He also gives talks at the law school and teaches a seminar from time to time. He's a machine.
posted by anthropomorphic at 5:42 AM on July 24, 2012 [1 favorite]

Response by poster: Thanks for all the useful answers. I was a little surprised that you managed to answer this question completely, but I perhaps should not have been. The New Yorker article (which I obtained via my library's Factiva service) had much insight into how he works, which is clearly not something for well-rounded mortals to emulate. The Use of Visiting Judges in the Federal District Courts: A Guide for Judges & Court Personnel (linked by the blog post that valkyryn linked to) was also useful in understanding that process.
posted by grouse at 7:30 AM on July 24, 2012