JUDICATURE LETTERS 3

Passing the torch Chief Judge Katzmann addressing It was with great sadness that, after Thank you! the topic of a sustainable justice more than 100 years advocating We received a flood of compliments and comments system for all litigants. for integrity in American justice, Levi perfectly catalogs the many the board of the directors for the about our inaugural issue. “Jurors on Film,” by Judge systemic problems currently facing American Judicature Society (AJS) Alex Kozinski and John Major, particularly struck a the judiciary. And, accordingly, decided to dissolve the society he proposes solutions to stem the chord with readers who appreciated the concerns raised and wind up its affairs. For the past ever-increasing demand on judicial several years, our efforts to maintain by the authors but mostly rejected the idea of filming resources. He correctly points a robust membership and sufficient juror deliberations. We’ve reprinted many of the letters out that the pressure on court funding for research activities had resources, especially in address- yielded unsustainable numbers. here, with some edits to minimize repetition. Thank ing the needs of unrepresented This prompted a thorough review you for your feedback and your kind words about our litigants (a problem which limits of all options and the unpalatable access and undermines neutrality), yet unavoidable conclusion that first issue. We hope to continue to impress and inspire must be approached by formulating it would be most respectful to our conversation. and implementing changes in founders and the many people — Publisher the process. Moreover, Levi offers who have contributed to our great thoughtful suggestions for criminal history to use our time and talents through excellent scholarship and performing a great service to the justice reform. As a trial judge, to preserve the various AJS assets, practical information to assist our judiciary. faced daily with these problems, by finding them good homes with judges. I welcome any changes that will Robert Katzmann, CHIEF JUDGE, flourishing organizations. The pursuit of fair and impartial further the system’s goal of provid- U.S. COURT OF APPEALS FOR THE SECOND While we took this difficult courts — the very foundation of ing fair and efficient justice to all. CIRCUIT step with heavy hearts, we are now American liberty — was funda- Finally, I read with enthusiasm pleased to report that the crucial Levi’s exchange with Cantil-Sakauye, mental to the work of AJS. We are High fives work of AJS will continue to live delighted that Duke — where this is Hecht, and Katzmann. Too often I’ve now caught up with my “profes- on through the work of others. a shared value — has breathed new “solutions” to judicial problems sional pleasure” reading and am Today, the Center for Judicial Ethics, life into this publication that we come in the form of suggested sending my “high fives” to you for Judicial Selection in the States, hold so dear. Congratulations and budget cuts — a counter-solution the reinvigorated Judicature! Thank and the Jury Center are thriving as thank you. that only serves to exacerbate the goodness the Center stepped up to part of the National Center for State challenges set out by Levi and the Tom Leighton, PRESIDENT, Courts, where they are receiving salvage, refurbish, and enliven this AMERICAN JUDICATURE SOCIETY panelists. great care. publication. It is needed and appre- Judge Martha Jamison, J. Garvan Murtha, U.S. DISTRICT JUDGE, As for our other crown jewel, ciated. This first issue portends well! IMMEDIATE PAST PRESIDENT, AMERICAN DISTRICT OF VERMONT Judicature, we were honored to Gene E.K. Pratter, U.S. DISTRICT JUDICATURE SOCIETY pass the torch to Dean David Levi, COURT JUDGE, EASTERN DISTRICT OF Nonlawyers can help John Rabiej, and the other distin- PENNSYLVANIA A service to the judiciary Among Dean Levi’s challenges is guished scholars at Duke Law’s Congratulations on the wonderful that of extending justice to ordinary Center for Judicial Studies. The new Challenges and solutions first issue of Judicature under Duke people. In scale and scope this Judicature is a beautiful, thought- I found the articles in Judicature auspices. I very much enjoyed challenge is large and complicated. ful publication and a very worthy enlightening as well as relevant to participating on the panel with Nevertheless, there may now be reimagining of the magazine that judges, academics, and attorneys. Chief Justices Tani Cantil-Sakauye good opportunity to meet the AJS members have relied on for I particularly appreciated the and Nathan Hecht on the big challenge. so many years. Judicature at Duke articles centering on Dean Levi’s challenges facing the legal system. I The essence of the problem is will continue to promote the ideals UNLV lecture and the subsequent thought the other articles were first the mismatch between the general of AJS and its mission, advocating roundtable with Chief Justices rate — thought-provoking, useful, public’s need for legal assistance integrity in American justice, Cantil-Sakauye and Hecht, and and very well-produced. You are and the rules governing how 4 VOL. 99 NO. 2 such assistance can be provided. have practical training. Thus we The premise of the article that to their assigned tasks; they care- The need arises in the myriad could put advanced students, under the video will be sealed seems to be fully weigh the evidence — and they encounters of ordinary people supervision, in the misdemeanor inconsistent with the goal of satisfy- even verbally sanction the rare jury with courts and public agencies. courts, the license bureaus, and ing the public’s curiosity about the member who attempts to stray from These tribunals have procedures other points of interaction between reasons for a particular verdict. Thus, the rules set forth by the judge. . . . supposedly affording justice, but ordinary citizens and the “justice that particular advantage does not If jurors are told, or otherwise which are complicated beyond the system.” appear to actually be advanced. . . . learn, that their deliberations are competence of most ordinary citi- Geoffrey Hazard, EMERITUS THOMAS Additionally, once we embark on open to scrutiny by the court, the zens: What to put in the forms, what E. MILLER DISTINGUISHED PROFESSOR OF this adventure, won’t every dissatis- disclosure will inhibit the jurors’ free information or evidence to provide, LAW, UNIVERSITY OF CALIFORNIA–HASTINGS fied litigant seek access to the video exchange of interpretations of the what to say, how to get review from COLLEGE OF THE LAW to fish for some form of error? . . . evidence and erode the trust that an initial adverse result? Most Indeed if lawyers can seek the they now perceive is given them. people can do pretty well with the A tradition worth keeping video, won’t there develop a stan- Neil Vidmar, RUSSELL M. ROBINSON II motor vehicle department, but even Judge Alex Kozinski and John dard of practice which requires that PROFESSOR OF LAW, DUKE LAW SCHOOL that encounter can be baffling. Major provide a thought-provoking they obtain and review it? A lawyer’s The average citizen can also have look at the possibility of cameras failure to do so may have malprac- Cameras in chambers next? difficulty with private agencies such in the jury room notwithstanding tice, bar discipline, or ineffective . . . If recording [jurors’ deliberations] as the telephone company. their acknowledgement that “the assistance-of-counsel consequences. is appropriate, why not also place The present rules allow the tradition of jury room secrecy is one We should constantly be in cameras in chambers, recording a average citizen to act for himself, of the oldest and most rigorously pursuit of a fair jury trial. This judge’s debate with his law clerks, but they prohibit “practice of law” protected in the American justice proposal seems aimed at pursuit or discussions about draft opinions? by anyone not licensed as a lawyer. of the perfect jury trial. How many system.” . . . David J. Beck, BECK REDDEN LLP There are some exceptions, for We conscript citizens to serve retrials can the system stand? example in workers compensation as jurors, sometimes for weeks at James A. Teilborg U.S. DISTRICT COURT Jurors deserve privacy matters. Also, the clerical staff in a time and for little per day in pay. JUDGE, DISTRICT OF ARIZONA Jury deliberations are conducted many agencies does a good job Voir dire is already an invasion in secret for sound reasons. Jurors helping bewildered people, but that of jurors’ privacy. Now we would Jurors do their jobs well need to be frank with each other and is not universal. add to that by recording them. To I respectfully disagree with the free of any concern that what they Washington state has recently increase this invasion, our need proposal to allow cameras in the say or do is going to be dissected broken new ground by establish- must be solidly justified. I do not jury room. . . . As an empirical later by others. That judges and ing licensed paralegals. What is find the justification of motivating researcher I have been studying, lawyers might peer over a jury’s needed is a general approach like the jurors to better service by writing about — and occasionally shoulder could undermine the that in Washington — rules that recording their every word and testifying about — juries since the confidence that we instill in jurors allow trained nonlawyers to act as action to be a valid justification. 1970s. Of especial importance is that they are the sole finders of fact. advisers and advocates. This need In my experience jurors are very the fact that in the late 1980s I was The mere existence of video would could be matched with evolving conscientious and take their task co-principal investigator, with Prof. impair the finality of jury verdicts requirements that law students very seriously. . . . Shari Diamond of Northwestern Law and spawn applications for its disclo- School, on a project, funded by the sure simply because it exists. WE WANT TO HEAR FROM YOU! National Science Foundation and Many citizens are already other sources, in which we video- reluctant to serve on juries because SUBMISSIONS ARE WELCOMED. Judicature explores all aspects of taped 50 Arizona civil jury trials of the burdens such service places the administration of justice and its improvement. We publish articles and the ensuing jury deliberations. on them, including the inevitable based on empirical research as well as articles based on fact and opin- A condition for the study, clearly invasion of privacy that comes with ion from members of the bench, the bar, and the academy. Complete explained to the jurors, was that the voir dire and social media research submission guidelines, including instructions for length and format, deliberation tapes would be strictly by counsel. Cameras in the jury may be found on our website at www.law.duke.edu/judicature. confidential, used only for research, room would only add to the chill. LETTERS TO THE EDITOR ARE ENCOURAGED. Email your letter, and, most important, would have William H. Pauley III, U.S. DISTRICT including your full name and title, with Attn: Editor in the subject line, no impact on their verdict. We JUDGE, SOUTHERN DISTRICT OF NEW YORK to [email protected]. concluded that juries are dedicated JUDICATURE 5

Opening a floodgate directly or indirectly interviewing . . . [I]f cameras improve the public’s any juror after any civil or crim- right to view a trial, why shouldn’t inal trial absent an order of the Save the date we use unobtrusive equipment court. Jurors are informed of this * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * to give the public the same right prohibition upon their discharge to view jury deliberations? . . . If A NATIONWIDE BENCH-BAR from service. I suspect that our EDUCATIONAL PROGRAM deliberations are recorded, it will district is not unique in having this be just a matter of time before the prohibition. addressing the recordings are available on the Internet. Roy B. ‘Skip’ Dalton, Jr., U.S. DISTRICT One answer is that jury deliber- JUDGE, MIDDLE DISTRICT OF FLORIDA ations are not already public. And, DECEMBER 2015 Judicial orrderrrrrs unlike trials themselves, where formalities must be observed, we The state of Oklahoma was stunned FEDERAL RULES permit juries to render a verdict when the immortal Justice Opala for almost any reason they care to. died five years ago this October. No AMENDMENTS one has ever left a bigger imprint Absent some prohibited influence, Sponsored by we do not overrule verdicts because on the Oklahoma judiciary, and I’m Duke Law Center for Judicial Studies some number of jurors just did not skeptical that anyone ever will. and ABA Section of Litigation get it right. Or even because they One did not read his writings refuse to follow instructions. without a dictionary nearby. He This series of three-hour master programs is designed to help . . . There is a big difference taught us that a common law lawyers and judges understand and implement the Federal Rules amendments taking effect on Dec. 1, 2015. The program between filming what is already marriage was, in fact, a “pre- will particularly focus on the new Discovery Proportionality public, i.e. trials, and what is not and Tridentine canonical consensual amendments to Fed. R. Civ. P. 26, which comprise the most never has been: jury deliberations. marriage.” The motel guest was bitten during the night by a brown significant changes to discovery and case-management Important social science research practice in over a decade. indicates that people change their recluse spider or the “offending Judge Lee H. Rosenthal, former chair of both the Civil Rules behavior when they know they are arachnid,” if you will. His brilliance was tempered by Committee and the Committee on Rules of Practice and Procedure, being observed. . . . and Professor Steven Gensler, former Civil Rules Committee a puckish sense of humor. My wife Unless we are prepared to member, will lead a faculty of local district and magistrate judges and I were checking into a fine Tulsa permit review of jury deliberations and leading practitioners. The agenda will rely on the text of hotel one afternoon many years ago for all kinds of things, it is probably amended Rule 26 and accompanying Committee Notes and the better not to record them at all. when Justice Opala arrived next Standards, Guidelines, and Practices Implementing 2015 Discovery and stood behind us in line. “What William W. Taylor, ZUCKERMAN Proportionality Amendments, which the Judicial Studies Center is brings you to Tulsa?” he asked. developing with help from 40 volunteer judges and practitioners SPAEDER LLP When I answered that we were under the leadership of Judge Rosenthal and Professor Gensler. Post-trial jury contact celebrating our anniversary, Justice Details including cost, cities, locations, dates, and faculty, prohibited in some locales Opala arched his eyebrows and said as well as registration instructions, are available at (rolling his r’s, as always), “Then you . . . One of the observations related law.duke.edu/judicialstudies/conferences/ and must also celebrate your second to permissible jury contact would ambar.org/litigation/rulesprograms/. honeymoon. And that’s a judicial get you in hot water here in the orrderrrrr.” Middle District of Florida. Judge CHICAGO 10-29-15 * ST. LOUIS 10-30-15 Justice Opala, who stood Kozinski and Mr. Major state * NEW YORK 11-10-15 * PHILADELPHIA 5’4”, was a giant of a man. He is “Lawyers, the media, and anyone 11-12-15 * MAPLE GROVE, NJ 11-12-15 irreplaceable, and will remain else can interview jurors following * WASHINGTON D.C. 12-3-15 * ATLANTA unforgettable. their deliberations and ask whatever 12-4-15 * SAN FRANCISCO 1-8-16 * they please.” Allen Welch, SPECIAL JUDGE, DISTRICT LOS ANGELES 1-29-16 * SAN DIEGO 1-30-16 Our Local Rule 5.01(d) expressly COURT OF OKLAHOMA COUNTY, OKLAHOMA * PHOENIX 3-3-16 * DENVER 3-4-16 prohibits any attorney or party from * DALLAS 3-31-16 * MIAMI 4-1-16 BRIEFS6 VOL. 99 NO. 2 ON THE HILL: PATENT Act Aims To Curb Patent Trolls THINGS TO ADD TO On Apr. 29, a bipartisan coalition of Senate perceived problem of shell company PAEs JURY INSTRUCTIONS? Judiciary Committee members led by that may be able to evade attorney fee Do not flirt with defendant. Senators John Cornyn (R-TX) and Chuck awards. It requires that PAEs either certify Schumer (D-NY) introduced the Protecting that they are able to pay attorney fees or give* An Australian American Talent and Entrepreneurship notice to other parties with a financial inter- judge declared Act of 2015 (“PATENT Act” — S. 1137, est in the lawsuit that these other parties 114th Cong. (2015)). The bill may be liable for an award. a mistrial three aims to reform perceived abuses Compared to the Compared to the weeks into a of the patent litigation system Innovation Act, the case after a sheriff caught the by so-called patent assertion Innovation Act, the PATENT Act takes stances entities (“PAEs”). According to PATENT Act takes on pleading and discovery jury foreperson “flicking her hair, those who oppose PAEs, these that are more favorable to smiling, raising an eyebrow entities abuse the system by stances on pleading patent owners. On plead- and nodding in a potentially asserting low-quality patents and discovery that ing, although the PATENT against operating companies in Act requires the patent suggestive manner at the are more favorable order to secure quick, nuisance- owner to identify the accused man.” The incident type settlements. to patent owners. patent claims it believes are The PATENT Act increases infringed and to describe forced the judge to “discharge the risk associated with asserting low- how it believes the claims are infringed, it her and the remaining jurors and quality patents in a demand letter or lawsuit. does not require the owner to show where start the case again, slugging It directs district courts to determine whether “each element of each claim” is found in the the losing party’s conduct and position were accused product. Additionally, in contrast taxpayers thousands in court and “objectively reasonable in law and fact.” If to the Innovation Act, the PATENT Act has legal costs,” according to the district court finds that the losing party’s only limited provisions for staying discov- The Daily Telegraph. conduct or position were not objectively ery and also gives the Judicial Conference reasonable, the court must assign reasonable discretion to develop discovery rules. Costumes not allowed. attorney fees to the prevailing party. As legislation moves through the Senate Although the PATENT Act does target and House, another hotly contested issue is The Associated Press reported low-quality patents through fee shifting, it what changes, if any, should be made to the in June that a prospective juror gives the district court more discretion than post-grant review proceedings established the Innovation Act (H.R. 9, 114th Cong. at the U.S. Patent and Trademark Office by in Vermont appeared for jury (Feb. 5, 2015)), a House bill proposed in the American Invents Act of 2011. A recent service wearing a black-and- February by a bipartisan coalition led by roundtable sponsored by the Duke Law white striped jail costume. Rep. Bob Goodlatte (R-VA-6). Under 35 Center for Innovation Policy reviewed the U.S.C. § 285(a) as revised by the Innovation empirical evidence relevant to this question. Deputies directed him to a Act, a district court must shift fees to the Details are available online at www.law. courtroom where a judge losing party unless the court finds that the duke.edu/innovationpolicy/ptabroundtable. told him he could be held in position and conduct of the losing party are — ARTI K. RAI is the Elvin R. Latty Professor of Law at Duke “reasonably justified.” University and former administrator of the Office of External contempt — but instead released The PATENT Act also addresses the Affairs at the U.S. Patent and Trademark Office. him from service.

, Senior U.S. District Court CURTIS L. COLLIER KAREN A. THOMAS, District Court Judge, Campbell Judge for the Eastern District of Tennessee , County, Kentucky, received the Civic Leadership received the 2015 American Inns of Court Award from the Northern Kentucky chapter of Kids Professionalism Award at the Sixth Circuit’s Annual Voting in recognition of her commitment to Kentucky Judicial Conference. The award honors a lawyer or youth. Judge Thomas presides over the Northern judge of sterling character, unquestioned integrity, Kentucky Teen Court in Campbell County, has served and dedication to the profession. Judge Collier serves on the Judicial as a member of the National Task Force for Youth Courts, and is a founding

JUDICIAL HONORS JUDICIAL Conference of the United States Criminal Law Committee and the Federal member of the National Association of Youth Courts. Judicial Center’s District Judge Education Advisory Committee. JUDICATURE 7 The Law, the Legal System, or the Administration of Justice

When can judges serve on commissions commission has an articulable connection to questions, proposed legislation or constitutional or engage in political activity? the law, the legal system, or the administration amendments, and funding plans on matters of justice, rather than an indirect or incidental such as judicial compensation, court structure, Many provisions in the code of judicial conduct relationship. For example, the Massachusetts court budgets, new courthouses, judicial selec- refer to “the law, the legal system, or the admin- committee stated that, to come within the excep- tion, and sentencing. On behalf of or in opposi- istration of justice” to define aspects of judges’ tion, a commission must have a “direct nexus” tion to such measures, a judge may, for example, ethical obligations, often using the term to create to how “the court system meets its statutory write newspaper editorials; appear on radio and an exception to a rule. Although the parameters and constitutional responsibilities — in other television talk shows; make presentations to of the phrase may seem self-evident, exceptions words, how the courts go about their business.” civic, charitable, and professional organizations; would become rules if the phrase were read to (Massachusetts Advisory Opinion 1998-13.) take part in panel discussions with other officials cover any undertaking involving a law, any social at public meetings; and contribute personal problem affecting the courts, or any political Political activity funds to and participate in nonprofit organiza- issue playing out in the legal system. Further, a Canon 5C of the 1990 American Bar Association tions involved in the effort. broad interpretation could confuse the public Model Code of Judicial Conduct prohibited The phrase also defines when judges may about distinctions between the judiciary and judges from engaging in political activity but appear at public hearings or consult with execu- other branches. created an exception “on behalf of measures tive or legislative branch officials. The California The phrase has been extensively interpreted to improve the law, the legal system or the committee identified appearances addressing in the context of government boards or commis- administration of justice.” Canon 4 of the 2007 the legal process as “the clearest examples sions where judicial ethics advisory committees model code provides that a judge “shall not of permissible activities.” (California Advisory have had to define “the law, the legal system, engage in political . . . activity that is inconsistent Opinion 2014-6.) With respect to substantive or the administration of justice” to determine with the independence, integrity, or impartiality legal issues, the committee stated, a judge may which commissions are appropriate for judicial of the judiciary” but does not include an express “advocate only on behalf of the legal system — membership. The advisory committee for federal exception for political activity related to the focusing on court users, the courts, or the admin- judges has distinguished between commissions administration of justice. istration of justice,” not any particular cause or directed toward “improving the law, qua law, or Although such activity may still be implicitly group. Further, the committee concluded that improving the legal system or administration permitted as not “inconsistent with the indepen- judicial comment should be limited to the judi- of justice” and those “merely utilizing the law dence, integrity, or impartiality of the judiciary,” cial perspective and not “insert a judge’s views or the legal system as a means to achieve an the absence of explicit permission may discour- on economics, science, social policy, or morality underlying social, political, or civic objective.” age judges from engaging in such activity and into the official public discourse on legislation” (U.S. Advisory Opinion 93 (2009)). The commit- subject them to criticism if they do. (Several or encroach “into the political (policy-making) tee emphasized that service on a commission states that have otherwise adopted much of the domain of the other branches.” is more likely to be appropriate if it “enhances 2007 model code have retained the exception, the prestige, efficiency or function of the legal including Arizona, Connecticut, Missouri, New — CYNTHIA GRAY is director of the Center for system itself” or “serves the interests generally of Hampshire, New Mexico, Pennsylvania, and Judicial Ethics of the National Center for State Courts. The full version of this column appeared in the spring those who use the legal system, rather than the Wyoming.) 2015 Judicial Conduct Reporter, which can be found, interests of any specific constituency.” Interpreting the 1990 exception, advisory with cited advisory opinions, at www.ncsc.org/cje. A similar test adopted by other advisory committees have allowed judges to publicly committees analyzes whether the government support or oppose ballot initiatives, bond JUDICIAL HONORS MARY E. STALEY, Cobb County, Georgia Superior Court, received the RICHARD L. YOUNG, Chief District Court Judge 2015 Woman of Distinction Award from the Cobb Chamber of Commerce. for the Southern District of Indiana, received the Judge Staley presides over Cobb’s Mental Health Accountability Evansville Bar Association’s James Bethel Gresham Court, which provides an alternative to jail time for those with mental Freedom Award. Judge Young is the Seventh Circuit health issues. FERNANDE (NAN) R.V. DUFFLY, Associate Justice of the District Court’s judge representative to the Judicial Massachusetts Supreme Judicial Court, received the Margaret Brent Conference of the United States and has served on Women Lawyers of Achievement Award from the ABA Commission on its Committee on the Administration of the Magistrate Judges System. Women in the Profession.