Study Showing Greater Racial Bias By Republican Judges Has to Shatter Our Assumptions

I was getting ready to draft a rebuttal to an article from the New York Times, Would you go to a Republican Doctor, reporting a study that “knowing about people’s political beliefs did interfere with the ability to assess those people’s expertise in other, unrelated domains,” and suggesting that that interfered with rational decision-making.  In one of those “cooperation in meaningless tasks studies” (my term), “people sought and then followed the advice of those who shared their political opinions on issues that had nothing to do with politics, even when they had all the information they needed to understand that this was a bad strategy.”  If you want the detail, look at the article.  In short, people trust those who agree with them politically, even if irrational.

But according to a very different article:

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.“Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”


The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

Perhaps most astonishingly:

“The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote.

This has profound implications.

Firstly, first think about the fact that almost two thirds of the racial sentencing disparity in a case in the Federal Court is attributable to being a Republican judge.  Now, judging is perhaps the most transparent and discretion-guided element in the system.  What on earth is this number for the other players, who operate more in the shadows, and with less constraints on the behavior.  Moreover, it would be nice to think that the judicial selection process somewhat filters out the more obviously racist judges.

Add to this all the emerging data about correlations between Trump voting and things like authoritarian personality, preference for dominance in society, contempt for science, and racism.

So, put simply and sadly, political attitudes are highly relevant to certain kinds of capacity, and as the judge study shows, appears to have been so for a long time.  In medicine, for example, the doctor’s attitude to human relationships is absolutely critical.  I hope I will be persuaded otherwise, but for now, I do care about my doctor’s world view. — and not just my doctor’s.






Posted in Access to Justice Generally, Bias, Chasm with Communities, Discrimination, Federal Courts | 1 Comment

Excuses for Not Agreeing to Represent Donald Trump

Here are some of the possible excuses:

I have clients who are Democrats — that’s a conflict.

I have clients who are Republicans — that’s a conflict.

I have clients who are Americans — that’s a conflict.

I have clients who are Russians — that’s NOT a conflict, but it might appear to some to be one.

Posted in Humor | 1 Comment

Trump-Olson Retainer and Non-Disclosure Agreement

So, that was quick.  The story that Trump might be represented by Ted Olson, was shot down within hours.

This blog has obtained a document which might explain why this marriage (a subject on which Olson has argued before the Supreme Court) might not have been made in heaven.

Below are extracts from the Draft Retainer and Non-Disclosure agreement apparently submitted to Trump by Olsen.

1.  This agreement for representation is between President of the United States of American Donald J. Trump (alias and hereafter “Moron”) and Theodore Olson, Esquire (hereafter Counsel).

2.  Moron agrees to provide to Counsel any and all information that might be used to support a process of impeachment against Vice President Mike Pence.  Counsel may use this information in his sole discretion.

3  Moron agrees that any breach of this agreement, whether intentional or unintentional, momentary or permanent, material or non-material, will constitute waiver of all Moron’s rights to confidentiality regardless of any and all provisions of low to the contrary.

4.  Moron agrees that Counsel may, as a matter of absolute right, enter into any representation agreement with any entity, including if he so chooses, any investigatory, prosecutorial, or impeachment process, regardless of any and all provisions of law to the contrary.

5.  Moron agrees to attempt to engage in live sex with a man above the age of consent on Fox News in prime time.

Posted in Humor, White House | 3 Comments

Larry Nassar Sentencing Might Stimulate Discussion About Judicial Neutrality

The New York Times Headline sets it up perfectly:

Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge

Now, the spouse of a sexual assault advocate within me cheers this on, but the former public defender within me squirms in my chair.  Moreover, as an advocate for neutral judicial engagement, and as one who believes that such neutrality has broader limits when a decision has been rendered and compliance has become the issue, my antenna are up.

On the one hand, we want judges to speak forcefully as the voice of the community.  On the other hand, without neutrality, that voice is nothing more than the baying of the crowd.

In this case lots of factors have to be taken into account.  This is a sentencing hearing, which at its best is a conversation between the parties enhanced by judicial candor.  The case was resolved by plea.  Moreover, the ultimate minimum sentence was what had already been accepted by the defendant in the plea agreement.  Thus, there is no argument that the defendant in this case was harmed (unless you read the judges comment on a death warrant as incitement to other inmates, which given prison dynamics, it may well function as.)

But, but, but.  There is something unseemly about the overall picture, if only because of “slippery slope” concerns.

So, maybe it is helpful to lay out what is necessary before “judicial advocacy” is appropriate.

No impact on neutrality of fact finding or decision-making.  In this case, there was no real decision-making.  But given judicial discretion in pleas, that may be less usual than we think.

No impact on perception of neutrality of the process as a whole.  Thus, if the judge was the fact finder, or if they entered controversial rulings in the court of the case, and then let rip at sentencing, there might be a perception of lack of neutrality that is ultimately in no one’s interest.

No Impact on perception of neutrality of the general role of the judicial.  This is the hardest and most speculative, given that it may depend on nuanced understanding of the phases of a case.

Any thoughts?




Posted in Access to Justice Generally, Judicial Ethics

Florida Bar Foundation and SRLN gets Kudos For their ATJ Mapping from ESRI, the GIS Company

I have already raved about this product, which brilliantly brings together multiple data to show the ATJ burden and treat from the Hurricane.

So it is great to see that ESRI, a very major GIS-mapping company has honored this project with posting on their Maps Gallery.

I really have only one point:  While the hurricane highlights the power of this tool, really it is just as powerful in every environment.  In particular, the pioneering of the LVI , “Legal Vunlnerbility Index,” both makes the data easier to understand, and makes it much more forceful.

I would challenge every ATJ Commission and every IOLTA program, to use these technologies to demonstrate need and impact.

Indeed, I would love to see a national LVI map.

Here is one of the LVI maps from the project.




Posted in Access to Justice Boards, Access to Justice Generally, Census Bureau, IOLTA, Mapping/GIS, Metrics, Software Developers, Technology

Nice to Get ABA Journal Award

The AB Journal now does a Web 100 list honoring “the best of lawyers and the law on the web.”  They have included this blog this year on their list.  The logo signifying this award is on the right side of this blog.

Quoting the blog, they describe it as follows (its hard to find, under R for Richard, on page 2 of the blogs only list):

“We define access to justice broadly to include innovations in courts, the bar, legal aid and community that make it easier for people to obtain access to justice institutions, and to just results within those institutions.” Posts cover a broad range of subjects, including access to counsel, foreclosures, self-service, law schools and technology.

The recognition is much appreciated.  I hope that there will many access to justice tools soon.

Remember, all my blogs are listed here.

Posted in ABA, Access to Justice Generally, Technology, This Blog | 4 Comments

Roberts Choice of Garland to Head Executive Committee of Federal Judicial Conference is a Huge ATJ Opportunity

In what many would consider a “class act,” Chief Justice Roberts recently appointed Chief Judge of the DC Circuit Judge Garland to chair the Executive Committee of the Federal Judicial Conference.

As the release explains:

The 26-member Judicial Conference is the policy-making body for the federal court system. By statute the Chief Justice of the United States serves as its presiding officer and its members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch. 

This is obviously a potentially very broad remit indeed.  Given Judge Garland’s well known and longstanding committement to access to justice, I am certain that he will want to use this opportunity to advance a broad Federal Court access agenda.

Here, for example, is what LSC President Jim Sandman said at the time of Garland’s nomination to the Court.

I do not know a finer person than Merrick Garland.  .  .  .   He gave a magnificent speech at the LSC reception at the Supreme Court last April, and he has attended every one of our White House forums on Increasing Access to Justice.  He is deeply committed to the rule of law and access to justice.

Here are some of my prior blogs on access to justice and the Federal Courts (some more opinionated than others.)

I would welcome thoughts on how the  Judicial Conference could advance access to justice, particularly with a broad focus on a multi-element agenda, as supported by the general public.


Posted in Access to Justice Generally, Federal Courts, LSC