Monday, February 27, 2006

Justices Opinions Law Clerks Chess and Appellate Delay

Numerous years ago (1973-1974), I worked together with the late Prof. Jim Lake (Harvard Law) of the University of Nebraska Law School on a project to alleviate appellate court delay. The project is referred to here and the results of the project were published as Lake, James A. "The Appellate Process and Staff Research Attorneys in the Supreme Court of Nebraska: A Report of the Appellate Justice Project of the National Center for State Courts, 1973-1974" Denver, 1974.

Our direct partner for this project was the Nebraska Supreme Court for whom our project "central staff" of "research attorneys" functioned as fact-finding "super clerks". The Supreme Court wanted to know if appellate delay could be reduced by such a "central staff" which drew up preliminary memoranda on "clear cases" before the Supreme Court. Such memoranda could then be used (or not) or edited by the Supreme Court Justices when drafting their opinions of law, thus reducing their workload and speeding up the judicial process.

Although it proved nearly impossible to draw up memoranda which the opinion-writing judge would adopt without amendment (the conservative Nebraska judges were sceptical of delegating any of their judicial role), the project demonstrated that the availability of "more" clerks or "staff attorneys" could in fact reduce judges' workloads and reduce appellate delay, presuming that judges were amenable to this solution, which was not always the case.

We note in this regard that the number of clerks for many judges around the country have increased since that time to help accommodate increasing caseloads.

Indeed, Bradley Best in his book, Law Clerks, Support Personnel, and the Decline of Consensual Norms on the United States Supreme Court, 1935-1995, as reviewed by Scott A. Comparato, came to the conclusion that the increase in the number of separate opinions written by U.S. Supreme Court Justices has been enabled by the continuous increase in the number of law clerks and support personnel for each Justice.

This assessment was supported ten years later by Michael Barone's August 2, 2005 article, "Clerk dependency", in the Washington Times, where Barone concludes that "a proliferation of law clerks has proliferated opinions".

We do not doubt that this is true. However, there is another side to the law clerk equation which must be counterbalanced against that development, and this is the increasingly litigious nature of modern society (see here generally, Overlawyered) and the general problem of overloaded courts (see e.g. Sunblog for the situation in Florida, as also the problem of statistics at the DOJ).

One solution to overloaded courts is surely arbitration but another - proven and very effective solution - is surely more law clerks for overloaded judges. Indeed, as the National Center for State Courts writes:

"Research has demonstrated that the number of law clerks per judge is a very good predictor of an intermediate appellate court's timeliness. Expeditious courts tend to have more law clerks per judge than the least expeditious courts. (See Roger Hanson, "Resources: The Key to Determining Time on Appeal," and Stephen J. McEwen, "On the Effective Use of Resources in Pennsylvania," Court Review 35, no. 3 (1998)." [emphasis added]

That was also the impression that yours truly had as a central staff research attorney for the Nebraska Supreme Court thirty years ago. When faced with work overload - delegate.

A hat tip for suggesting this topic goes to the Boylston Chess Club Weblog and their recent posting "A novel use for chess clocks", where they cite to the Newark Star Ledger report:

"In a bid to limit New Jersey's next Vioxx trial to just three weeks, Superior Court Judge Carol Higbee will use a pair of chess clocks to closely track the amount of time each side has to make its case."

We thought that such a novel approach to court delay deserved a more in-depth treatment.

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