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January|February 2004
The Trials of John Edwards By David Greenberg
Deep Impact By Daphne Eviatar
What's Your Happiness Worth? By Brendan I. Koerner
Elsewhere

Elsewhere

Living on a judge's salary, suing your lawyer for malpractice, and other ideas from the nation's law reviews.

EXPERIENCE A MUST

If recent speculation about President Bush's possible Supreme Court nominees is to be believed, the next candidate for the Supreme Court will come from another court, probably a federal appeals court. In looking to the bench, Bush is following the lead of his predecessors. No president has nominated a justice lacking prior judicial experience since Richard Nixon appointed William Rehnquist, then an assistant attorney general, in 1971.

Judicial credentials haven't always been a sine qua non of Supreme Court nomination, however. Before the 1950s, justices had come from all walks of life: They included lawyers in private practice (Louis Brandeis), legislators (Hugo Black), academics (Felix Frankfurter), cabinet members (John Marshall), and executives (Earl Warren). Even candidates who lacked law degrees had a shot. Though he never attended law school, Nathan Clifford served as attorney general before joining the court in 1858, and Robert Jackson, appointed in 1941, had spent only a year in law school.

In "The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court," Lee Epstein, Jack Knight, and Andrew D. Martin question the rise of judicial experience as the primary qualification for Supreme Court nomination. They argue that because federal judges tend to have comparable resumes—typically featuring lengthy tenures as government lawyers or academics—the court has become stuffed with men and women with similar life experiences. A group of judges with diverse backgrounds, the authors posit, would make better decisions than a group of career Solomons. The authors cite numerous studies showing the effects of career experience on judicial decision making—according to one study, for example, former politicians are more prone to dissent than ex-judges—and recommend that the next court nominee come from an underrepresented career group. If an Austrian bodybuilder-turned-action-hero can be the governor of the nation's most populous state, why not? California Law Review, Volume 91, Number 4

THE PAY SCALES OF JUSTICE

In the public square, Supreme Court justices are generally a taciturn bunch, preferring reticence to recusals. Yet every year since he became chief justice of the United States in 1986, William Rehnquist has made a point of decrying the state of judicial pay. He has declared that "inadequate compensation seriously compromises the judicial independence fostered by life tenure" and has described judges' salaries as "the most pressing issue facing the judiciary."

Michael J. Frank, a judge advocate for the Army, isn't convinced. In "Judge Not, Lest Yee Be Judged Unworthy of a Pay Raise," Frank notes that while federal judges have been griping about their pay for centuries—district court judge Nathaniel Pendleton complained to President Washington only two years after the passage of the first Judiciary Act in 1789—judges have never left the bench in large numbers due to financial concerns. What's more, highly qualified aspirants to the bench are not now and never have been in short supply.

Frank makes a convincing case that benefits not related to income—prestige, intellectual challenge, autonomy, and unparalleled job security—are what lure talented and accomplished men and women to the job. Judges who wish to make pots of money in private practice can do so before serving in the judiciary. Or after serving: Frank believes that if judges took "life tenure" a bit less literally, the courts would have a better shot at realizing the goal of judicial diversity envisioned by Epstein, Knight, and Martin.

With salaries ranging from $150,000 to $192,000, federal judges are not exactly taking a vow of poverty, Frank notes. If we should be worried about anything, he says, it's the Senate confirmation process. With the fights over federal judges becoming ever more acrimonious, we may begin hearing more and more potential nominees saying you couldn't pay them to take the job. Marquette Law Review, Volume 87, Number 1

SUE THE LAWYERS

Pity Angel Claudio. His attorney (he alleges) advised him to confess to a murder even though the police had only an anonymous tip linking him to the crime. The confession led to an indictment and ultimately a conviction. Claudio later got a new lawyer who challenged his confession and won, convincing the trial court that his Fifth and Sixth Amendment rights had been violated because he was denied effective assistance of counsel. (Incriminating himself hadn't proved to be such a good idea.) When Claudio later tried to sue his lawyer in civil court for malpractice, however, his claim was thrown out.

A body of case law has grown up around malpractice claims against defense attorneys that make such cases almost impossible to win. Unlike most tort claims, which require a showing of negligence, aggrieved former criminal defendants must meet several other requirements before their malpractice cases get a hearing in most jurisdictions. Despite the lengthy criminal appeals process, potential plaintiffs are constrained by a short statute of limitations for related civil actions. Even if a court has ruled that their lawyer's negligent conduct contributed to their conviction, defendants like Angel Claudio are still required to show that they are innocent in order to have a malpractice claim. And if they've lost a post-conviction appeal based on ineffective assistance of counsel, their civil claims are barred from the get-go.

These requirements make it difficult for true criminals to profit from their crimes, but, as University of Houston Law Center professor Meredith Duncan points out, they also make it exceedingly difficult for bad lawyers to be held accountable for their harmful actions. In "Criminal Malpractice: A Lawyer's Holiday," Duncan argues that defense attorneys should not be immune from civil punishment just because they often represent unsavory characters. Duncan views the tort system as a means of punishing "delinquent defense lawyers, not rewarding poorly represented defendants." But at a time when legislators are eagerly limiting medical malpractice awards, does Duncan really think they will remove tort-claim barriers for convicts? Sounds unlikely—unless lawyer-hating lawmakers see it as a chance to give the bar a taste of their own torts. Georgia Law Review, Volume 37, Number 4

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