Robophobia: Great New Law Review Article – Part 1

May 19, 2022

This blog is the first part of my review of one of the most interesting law review articles I’ve read in a long time, Robophobia. Woods, Andrew K., Robophobia, 93 U. Colo. L. Rev. 51  (Winter, 2022). Robophobia provides the first in-depth analysis of human prejudice against smart computer technologies and its policy implications. Robophobia is the next generation of technophobia, now focusing on the human fear of replacing human decision makers with robotic ones. For instance, I love technology, but am still very reluctant to let an AI drive my car. My son, on the other hand, loves to let his Tesla take over and do the driving, and watch while my knuckles go white. Then he plays the car’s damn fart noises and other joke features and I relax. Still, I much prefer a human at the wheel. This kind of anxiety about advanced technology decision making is at the heart of the law review article.

Technophobia and its son, robophobia, are psychological anxieties that electronic discovery lawyers know all too well. Often it is from first-hand experience with working with other lawyers. This is especially true for those who work with active machine learning. Ediscovery lawyers tire of hearing that keyword search and predictive coding are not to be trusted, that humans reviewing every document is the gold standard. Professor Woods goes into AI and ediscovery a little bit in Robophobia. He cites our friends Judge Andrew Peck, Maura Grossman, Doug Austin and others. But that is only a small part of this interesting technology policy paper. It argues that a central question now facing humanity is when and where to delegate decision-making authority to machines. This question should be made based on the facts and reason, not on emotions and unconscious prejudices.

Ralph and Robot

To answer this central question we need to recognize and overcome our negative stereotypes and phobias about AI. Robots are not all bad. Neither are people. Both have special skills and abilities and both make mistakes. As should be mentioned right away, Professor Woods in Robophobia uses the term “robot” very broadly to include all kinds of smart algorithms, not just actual robots. We need to overcome our robot phobias. Algorithms are already better than people at a huge array of tasks, yet we reject them for not being perfect. This must change.

Robophobia is a decision-making bias. It interferes with our ability to make sensible policy choices. The law should help society to decide when and what kind of decisions should be delegated to the robots, to balance the risk of using a robot compared to the risk of not using one. Robophobia is a decision-making bias that interferes with our ability to make sensible policy choices. In my view, we need to overcome this bias now, to delegate responsibly, so that society can survive the current danger of misinformation overload. See eg. my blog, Can Justice Survive the Internet? Can the World? It’s Not a Sure Thing. Look Up!

This meta review article (review of a law review) is written in three parts, each fairly short (for me), largely because the Robophobia article itself is over 16,000 words and has 308 footnotes. My meta-review will focus on the parts I know best, the use of artificial intelligence in electronic discovery. The summary will include my typical snarky remarks to keep you somewhat amused, and several cool quotes of Woods, all in an attempt to entice some of you to take the deep dive and read Professor Woods’ entire article. Robophobia is all online and free to access at the University of Colorado Law Review website.

Professor Andrew Woods

Professor Andrew Woods

Andrew Keane Woods is an Professor of Law at the University of Arizona College of Law. He is a young man with an impressive background. First the academics, since, after all, he is a Professor:

  • Brown University, A.B. in Political Science, magna cum laude, 2002;
  • Harvard Law School, J.D., cum laude (2007);
  • University of Cambridge, Ph.D. in Politics and International Studies (2012);
  • Stanford University, Postdoctoral Fellow in Cybersecurity (2012—2014).

As to writing, he has at least twenty law review articles and book chapters to his credit. Aside from Robophobia, some of the most interesting ones I see on his resume are:

  • Artificial Intelligence and Sovereignty, DATA SOVEREIGNTY ALONG THE SILK ROAD (Anupam Chander & Haochen Sun eds., Oxford University Press, forthcoming);
  • Internet Speech Will Never Go Back to Normal,” (with Jack Goldmsith) THE ATLANTIC (Apr. 25, 2020).
  • Our Robophobia,” LAWFARE (Feb. 19, 2020).
  • Keeping the Patient at the Center of Machine Learning in Healthcare, 20 AMERICAN JOURNAL OF BIOETHICS 54 (2020) (w/ Chris Robertson, Jess Findley, Marv Slepian);
  • Mutual Legal Assistance in the Digital Age, THE CAMBRIDGE HANDBOOK OF SURVEILLANCE LAW (Stephen Henderson & David Gray eds., Cambridge University Press, 2020);
  • Litigating Data Sovereignty, 128 YALE LAW JOURNAL 328 (2018).

Bottom line, Woods is a good researcher (of course he had help from a zillion law students, whom he names and thanks), and a deep thinker on AI, technology, privacy, politics and social policies. His opinions deserve our careful consideration. In my language, his insights can help us to move beyond mere information to genuine knowledge, perhaps even some wisdom. See eg. my prior blogs, Information → Knowledge → Wisdom: Progression of Society in the Age of Computers (2015); AI-Ethics: Law, Technology and Social Values (website).

Quick Summary of Robophobia

Bad Robot?

Robots – machines, algorithms, artificial intelligence – already play an important role in society. Their influence is growing very fast. Robots are already supplementing or even replacing some human judgments. Many are concerned with the fairness, accuracy, and humanity of these systems. This is rightly so. But, at this point, the anxiety about machine bias is crazy high. The concerns are important, but they almost always run in one direction. We worry about robot bias against humans. We do not worry about human bias against robots. Professor Woods shows that this is a critical mistake.

It is not an error because robots somehow inherently deserve to be treated fairly, although that may someday be true. It is an error because our bias against nonhuman deciders is bad for us humans. A great example Professor Woods provides is self-driving cars. It would be an obvious mistake to reject all self-driving cars merely because one causes a single fatal accident. Yet this is what happened, for a while at least, when an Uber self-driving car crashed into a pedestrian in Phoenix. See eg. FN 71 of Robophobia: Ryan Randazzo, Arizona Gov. Doug Ducey Suspends Testing of Uber Self-Driving Cars, Ariz. Republic, (Mar. 26, 2018). This kind of one-sided perfection bias ignores the fact that humans cause forty thousand traffic fatalities a year, with an average of three deaths every day in Arizona alone. We tolerate enormous risk from our fellow humans, but almost none from machines. That is flawed, biased thinking. Yet, even rah-rah techno promoters like me suffer from it.

Ralph hoping a human driver shows up soon.

Professor Woods shows that there is a substantial literature concerned with algorithmic bias, but until now, its has been ignored by scholars. This suggests that we routinely prefer worse-performing humans over better-performing robots. Woods points out that we do this on our roads, in our courthouses, in our military, and in our hospitals. As he puts it in his Highlights section, that precede the Robophobia article itself, which I am liberally paraphrasing in this Quick Summary: “Our bias against robots is costly, and it will only get more so as robots become more capable.

Robophobia not only catalogs the many different forms of anti-robot bias that already exist, which he calls a taxonomy of robophobia, it also suggests reforms to curtail the harmful effects of that bias. Robophobia provides many good reasons to be less biased against robots. We should not be totally trusting mind you, but less biased. It is in our own best interests to do so. As Professor Woods puts it, “We are entering an age when one of the most important policy questions will be how and where to deploy machine decision-makers.

 Note About “Robot” Terminology

Before we get too deep into Robophobia, we need to be clear about what Professor Woods means here. We need to define our terms. Woods does this in the first footnote where he explains as follows (HAL image added):

The article is concerned with human judgment of automated decision-makers, which include “robots,” “machines,” “algorithms,” or “AI.” There are meaningful differences between these concepts and important line-drawing debates to be had about each one. However, this Article considers them together because they share a key feature: they are nonhuman deciders that play an increasingly prominent role in society. If a human judge were replaced by a machine, that machine could be a robot that walks into the courtroom on three legs or an algorithm run on a computer server in a faraway building remotely transmitting its decisions to the courthouse. For present purposes, what matters is that these scenarios represent a human decider being replaced by a nonhuman one. This is consistent with the approach taken by several others. See, e.g., Eugene Volokh, Chief Justice Robots, 68 DUKE L.J. 1135 (2019) (bundling artificial intelligence and physical robots under the same moniker, “robots”); Jack Balkin, 2016 Sidley Austin Distinguished Lecture on Big Data Law and Policy: The Three Laws of Robotics in the Age of Big Data, 78 OHIO ST. L.J. 1217, 1219 (2017) (“When I talk of robots … I will include not only robots – embodied material objects that interact with their environment – but also artificial intelligence agents and machine learning algorithms.”); Berkeley Dietvorst & Soaham Bharti, People Reject Algorithms in Uncertain Decision Domains Because They Have Diminishing Sensitivity to Forecasting Error, 31 PSYCH. SCI. 1302, 1314 n.1 (2020) (“We use the term algorithm to describe any tool that uses a fixed step-by-step decision-making process, including statistical models, actuarial tables, and calculators.”). This grouping contrasts scholars who have focused explicitly on certain kinds of nonhuman deciders. Seee.g., Ryan Calo, Robotics and the Lessons of Cyberlaw, 103 CALIF. L. REV. 513, 529 (2015) (focusing on robots as physical, corporeal objects that satisfy the “sense-think-act” test as compared to, say, a “laptop with a camera”).

I told you Professor Woods was a careful scholar, but wanted you to see for yourself by a full quote of footnote one. I promise to exclude footnotes and his many string cites going forward in this blog article, but I do intend to frequently quote his insightful, policy packed language. Did you note his citation to Chief Justice Roberts in his explanation of “robophobia”? I will end this first part of my review of Robophobia with a side excursion into the Justice Robert cite. It provides a good example of irrational robot fears and insight into the Chief Justice himself, which is something I’ve been considering a lot lately. See eg. my recent article The Words of Chief Justice Roberts on JUDICIAL INTEGRITY Suggest the Supreme Court Should Step Away from the Precipice and Not Overrule ‘Roe v Wade’.

Chief Justice Roberts Told High School Graduates in 2018 to “Beware the Robots”

The Chief Justice gave a very short speech at his daughter’s private high school graduation. There he demonstrated a bit of robot anxiety, but did so in an interesting manner. It bears some examination before we get into the substance of Woods’ Robophobia article. For more background on the speech see eg. Debra Cassens Weiss, Beware the robots,’ chief justice tells high school graduates (June 6, 2018). Here are the excerpted words of Chief Justice John Roberts:

Beware the robots! My worry is not that machines will start thinking like us. I worry that we will start thinking like machines. Private companies use artificial intelligence to tell you what to read, to watch and listen to, based on what you’ve read, watched and listened to. Those suggestions can narrow and oversimplify information, stifling individuality and creativity.

Any politician would find it very difficult not to shape his or her message to what constituents want to hear. Artificial intelligence can change leaders into followers. You should set aside some time each day to reflect. Do not read more, do not research more, do not take notes. Put aside books, papers, computers, telephones. Sit, perhaps just for a half hour, and think about what you’re learning. Acquiring more information is less important than thinking about the information you have.”

Aside from the robot fear part, which was really just an attention grabbing speech thing, I could not agree more with his main point. We should move beyond mere information, we should take time to process the information and subject it to critical scrutiny. We should transform from mere information gatherers, into knowledge makers. My point exactly in Information → Knowledge → Wisdom: Progression of Society in the Age of Computers (2015). You could also compare this progression with an ediscovery example, moving from just keyword search to predictive coding.


Part Two of my review of Robophobia is coming soon. In the meantime, take a break and think about any fears you may have about AI. Everyone has some. Would you let the AI drive your car? Select your documents for production? Are our concerns about killer robots really justified, or maybe just the result of media hype? For more thoughts on this, see AI-Ethics.com. And yes, I’ll be Baaack.


Jerry Seinfeld Meets eDiscovery: Rules of the Game and the Pony Scene

May 14, 2022
Ralph Reading the Rules

I could not resist writing about a new case that mentions electronic discovery (yes, I have a standing Lexis search), not because it creates any kind of great precedent or anything, but because it involves one of my all-time favorite comedians, Jerry Seinfeld. Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196 (AJN), (SDNY, April 29, 2022). The opinion is by Judge Alison Julie Nathan, who was sitting by designation after her elevation on March 30, 2022, to the Second Circuit Court of Appeals. The opinion itself, is, with all due respect, kind of like the Seinfeld’s series. It is not about anything terribly important. It’s not about much really. But still, I found it very funny in a cynical, jealous lawyer sort of way and it does have an important, between the lines, message. Read on if you are into that sort of thing.

Rules of the Game

To lay the proper groundwork for this blog about Seinfeld (personal opinions only), I have to start by sharing, for fair use educational purposes only, one of my favorite Jerry Seinfeld quotes. You’ve all heard it, the one about lawyers and judges. It explains my photo.

“What are lawyers, really? To me a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has read the inside of the top of the box. I think one of the fun things for them is to say, ‘objection.’ ‘Objection! Objection, Your Honor.’ Objection, of course, is the adult version of, ‘’fraid not.’ To which the judge can say two things, he can say, ‘overruled’ which is the adult version of ‘’fraid so,’ or he could say, ‘sustained,’ which is the adult version of ‘Duh.’”

Jerry Seinfeld, Seinfeld, Season 4: The Visa

Who Wouldn’t Love A Pony ?

I have seen every episode of Seinfeld many times. The famous Pony scene in Season 2, Episode 2, immediately came to mind when I read Charles v. Seinfeld. As you read on, see if you can figure out why that popped into my head. In case you don’t have instant recall of this great, family dinner table scene, check out this excerpt on YouTube. Better yet, treat yourself and watch the whole episode. It’s one of the best.

Before I do a fair use educational quote of the Pony script, let me share another Seinfeld quote, one that is supposedly serious. Being the naive idealist that I am, I believe it. Anyway, Jerry is credited with saying: “I like money, but it’s never been about the money.” I get that, as I truly feel the same way. Still, I do like money as much as the next person, maybe even the next lawyer (nah, probably not), and money is what Charles v. Seinfeld is all about. It considers a request for an award of fees and costs in favor of the prevailing party, Jerry Seinfeld, which includes costs of $32,692.21 for electronic discovery database hosting fees. Charles v. Seinfeld at *18 (by the way, check out Fn 5 on that page for a great Seinfeld-like note by the obviously very sharp, Judge Nathan: “There is a $0.30 discrepancy in the costs requested ($100,918.71) and the sum of the component costs.”)

Here are the lines and scene that came to mind when I read Charles v. Seinfeld. First, to set the stage, Manya is an elderly Jewish immigrant relative who is hosting a family dinner that Jerry and Elaine were roped into attending. Jerry and Elaine were bored and wanted to leave. At Elaine’s prodding, Jerry started to rant about children who had ponies.

Elaine: What about Ponies huh? What kind of abnormal animal is that? And those kids who had their own ponies.

Jerry: I know. I hated those kids. In fact, I hate anyone that ever had a pony when they were growing up.

Manya: I had a pony!

Jerry: Well, I didn’t mean a pony per se

Manya: When I was a little girl in Poland, we all had ponies. My sister had pony, my cousin had pony. So, what’s wrong with that?

Jerry: Nothing. Nothing at all. I was just expressing

Helen: Should we have coffee? Who’s having coffee?

Manya: He was a beautiful pony. And I loved him!

Jerry: Well, I’m sure you did. Who wouldn’t love a pony? Who wouldn’t love a person who had a pony?

Manya: You! You said so!

Jerry Seinfeld, Seinfeld, Season 2, Episode 2.

At the end of this scene, Manya storms out, very upset at Jerry, saying “That’s it! I had enough!” Unfortunately, Jerry learns the next day that Manya died later that night.

Charles v. Seinfeld: A Run of the Mill Frivolous Copyright Case

If you are really interested (I’m not) in the dubious merits of the case, see the 2019 order granting the defendants’ motion to dismiss (Fraid-so!) by then District Court Judge Nathan. Charles v. Seinfeld, 410 F. Supp. 3d 656, 2019 U.S. Dist. LEXIS 169543, 2019 WL 4805684 (S.D.N.Y., Sept. 30, 2019). It is enough for my purposes to hear Judge Nathan’s later summary of the case in her April 29, 2022 order ruling on defendants’ motion for attorneys’ fees and costs under 17 U.S.C. § 505.

Plaintiff Christian Charles, an award-winning writer, director, and producer, alleged copyright claims against Jerry Seinfeld and several related Defendants related to the show Comedians in Cars Getting Coffee. The Court ultimately dismissed the second amended complaint on statute-of-limitations grounds, explaining [*2] that Charles was on notice of his claims since at least 2012 but did not file suit until 2018, far outside the three-year statute of limitations for such claims. Id. at 8.

Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196, *1-2, at pg. 5 of 13, (SDNY, April 29, 2022),

The Second Circuit affirmed (Fraid not. Duh!) the Sept. 30, 2019 dismissal on June 18, 2020. The obvious Statute of Limitations winner, Jerry Seinfeld, et al, then moved for fees. That’s when the real fun began. To get an award of fees under the copyright statute Seinfeld’s attorneys had to show that Charles’s claims were objectively unreasonable. They failed to convince the Magistrate (Fraid not!) who was assigned to hear their motion for fees and costs, Judge Katharine H. Parker.

Seinfeld then objected to Judge Parker’s Report and Recommendation and Judge Nathan agreed (Fraid so. Duh!) with Seinfeld. Judge Nathan concluded that Charles’s claims were objectively unreasonable and that other relevant factors favored awarding Defendants’ attorneys’ fees. Id. She ordered Charles to file a brief on “the amount of the fee award,” with particular attention to the relative financial strength of the parties. Id.

Charles didn’t do that, instead he re-argued the merits of the Magistrate Judge’s report and recommendation denying any award at all. That usually upsets a judge, but here, Judge Nathan, now an appellate judge sitting by designation to wrap up old business, showed great restraint. She heard the procedurally improper, caveman lawyer type motion for rehearing and ruled on it here. She denied the rehearing argument (Duh!) and went on to address the issue of the amount of the award with no help from Charles. Id. at *3-5 at pgs. 5-6 of 13. Who knows, that might have been a smart move on his part.

Seinfeld Attorney’s Fee and Costs Motion – Those Are Some Expensive Ponies!

Before we get to the ponies, remember that this case was decided on a motion to dismiss. There was no discovery. None. Yet, somehow Seinfeld’s attorneys incurred costs of $32,692.21 for electronic discovery database hosting. Hmm. They moved for an award of these costs and, of course, the motion was denied. They got nada, because, as all ediscovery lawyers know, the ancient federal costs award statute does not allow for ediscovery costs. Moreover, as Judge Nathan patiently explained, instead of just saying duh:

Similarly, the electronic database hosting fees are [*19]  very high and not properly imposed on Charles in a case that did not proceed to discovery. Defendants of course had an obligation to preserve relevant documents for discovery, as did Charles, but both sides bear and typically retain that cost.

Id. at *17 at pg. 11 of 13.

Seinfeld’s attorneys were, however, awarded costs of $92 for paper copies. I personally find that funny.

In another Fraid Not! type eliciting move, Seinfeld’s attorneys also asked for an award of costs of $66,386.26 for electronic research fees. Again, same result, zero award for that. (Duh!) As Judge Nathan ruled, it is well settled such charges are already accounted in the attorneys’ hourly rates and research time. Id. at *16 at pg. 10 of 13. Wish it were not so, but it is; besides, $66,386.26 is one large Westlaw or Lexis fee for a simple Statute of Limitations case. Plus, as everyone knows, including the judge I presume, law firms are not charged by the project.

Still, Seinfeld’s attorneys justified the reasonableness of the fees and costs award requested on the representation that these were the fees and costs at rates actually billed to and paid by their clients. Here again is Judge Nathan explaining that argument, one which I have carefully used myself, and I emphasize carefully, because the representations better be true. Note I have omitted the lawyers names here as I have no intent to offend and I understand their frustration perfectly well with the obviously very annoying opposing counsel.

Generally, an “attorney’s customary billing rate for fee-paying clients is ordinarily the best evidence of” a reasonable hourly rate.

According to the ______’s declaration, the rates listed above are those actually charged and paid by ___________ clients for comparable work. That weighs in favor of finding the rates reasonable, but is not dispositive.

Id. at *6, *9 at pgs 6, 7 of 13.

Now we finally get to the unusually large ponies, the facts that took my breath away, namely the hourly rates of the attorneys, the fees requested, and the things they billed their client for. They also seemed to shock Judge Nathan, a very experienced judge in New York City, where all of the judges have pretty much seen it all, and so that’s really saying something.

Defendants request a staggering $872,939.66 in attorneys’ fees and $100,918.71 in costs. … That fee amount is constituted by 1,465.9 hours of work completed by eight attorneys as well as paralegals and support staff…

Id. at *8 at pg. 7 of 13.

Wow. I’m staggered. All for a simple copyright case that the defense argued was frivolous and they won on a motion to dismiss based on an obvious statute of limitation defense. But wait, there are still more ponies. The senior partner in charge of the case represented that his hourly rate in 2020 was $1,550.00. Yup, that’s One Thousand, Five Hundred and Fifty Dollars per hour. Ok. I’m really impressed, maybe just a wee bit jealous. <Secret thought: I really need to raise my rates. I’ve read the rules on the back of many game boxes.> And that was two years ago. I bet his rate is even higher now.

But wait, my sisters and cousins have ponies too. The sixth year associate working on the case had a standard rate of $965 per hour. Gees! But wait, there’s more. Five first-year associates, yup, kids barely out of law school, had their own ponies. Their hourly rates ranged from $545 in 2018 to $650 in 2020. <Secret thought: All right, that does it! I’m raising my rates.> There’s still more. Everyone had ponies. Three paralegals working on the case had standard rates of $431.25 per hour. If you are not astonished yet, consider this additional detail by Judge Nathan, who, along with her clerks, obviously put a lot of work into this. But I guess “a lot of work” is relative as these comments show.

A few examples demonstrate the excessive nature of the hours billed. First, take the series of motions to dismiss that Defendants filed. The lead associate, _______, alone billed 120 hours to research and draft the initial motion to dismiss; an additional [*14]  130 hours to update the motion following the first amended complaint; and a further 37 hours to update it following the second amended complaint. And partners and junior associates also billed hours to contribute to and review this work. The Court finds substantial overlap in the authorities across the three briefs filed in support of the motions to dismiss, suggesting that the hours billed to modify later briefs were in large part unnecessary. And the approximately 180 hours spent by associates to analyze Charles’s response and to draft a reply exacerbates the issue. At bottom, given the straightforward statute-of-limitations defense at the center of this case, Defendants’ request of $300,000 for drafting just the moving briefs alone is plainly unreasonable.4

FN 4- As Defense counsel observed at the oral argument before Judge Parker: “There was no novelty here. There was no mystery here. This case was as dead on arrival as a copyright case can be. I’ve been practicing copyright for a lot of years, 30 years.” Tr. at 13, Dkt. No. 135.

Id. at *13-14 at pg. 9 of 13.

I could go on, but the icing on the pony cake for me was that the defense attorneys put on and billed for a mock argument. Not only that, they even billed for first years to watch it. I kid you not. Here is Judge Nathan again and her dry wit. I’m pretty sure she is a Seinfeld fan too.

Third, the records reflect hours billed for multiple attorneys, including junior associates, to attend a mock argument and oral argument. Typically, courts do not pass the cost of associates observing mock arguments or oral arguments on to the opposing party in a fee award.

Id. *15 at pg. 9 of 13.

Conclusion – DUH!

Judge Alison Nathan

Second Circuit Court of Appeals Judge Alison Julie Nathan, sitting by designation as the former trial judge of Charles v. Seinfeld, considered Seinfeld’s motion for award of fees of $872,939.66 and costs of $100,918.71. She also considered the objections of the plaintiff, Charles. She ruled and awarded only $28,750 in attorneys’ fees and $92 in costs for a total of $28,842. Judge Nathan did make the award joint and several against the plaintiff and plaintiff’s counsel. Some small solace to Seinfeld’s attorneys. They were pushing hard for personal sanctions against opposing counsel. On the other hand, as a final gesture, that seems funny to me at least, Judge Nathan said Charles and his attorney could make these payments in equal monthly installments over a ten-year period.

Dear fellow lawyers, even if opposing counsel is beyond annoying, a real caveman, don’t kid around with a judge in seeking sanctions. This is, in effect, what was going on here, seeking sanctions in the form of fees against opposing counsel. The judges have not only read the rules of the game, but they know them well and know how to apply them fairly. Do not try to game the system with inflated demands.


Is the Supreme Court Dying? The Words of Past Great Justices Suggest Grave Danger.

May 7, 2022

More on What Our Great Justices Have Said About the “Imperative of Judicial Integrity,” the Pending Overturn of Roe v. Wade and the Importance of Avoiding the Appearance of Bias.

This is part two of my prior blog article last week, The Words of Chief Justice Roberts on JUDICIAL INTEGRITY Suggest the Supreme Court Should Step Away from the Precipice and Not Overrule ‘Roe v Wade’.

Justice Louis Brandeis

Justice Stewart wrote in 1960 about “the imperative of judicial integrity.” Elkins v. United States, 364 U.S. 206, 222-23, 80 S. Ct. 1437, 1447 (1960). To explain this imperative, Justice Stewart quoted two of the truly great Justices in American history, Mr. Justice Holmes and Mr. Justice Brandeis, in their dissents to Olmstead v. United States, 277 U.S. 438, at 469, 471 (1928). His quote of Justice Brandeis, the first Justice of the Supreme Court with Jewish heritage, is very relevant to the Roe v. Wade overturn crisis of today.

In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Justice Brandeis, Olmstead v. United States, 277 U.S., at 485. (Dissenting opinion)

To grasp the importance of this famous statement by Justice Brandeis, we need to recall the Supreme Court holdings on avoidance of judicial conflict. Consider the core case of Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, (1927). The Tumey Court concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has “a direct, personal, substantial, pecuniary interest” in a case. Id. at 523. This rule reflects the maxim that “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10, p 59 (J. Cooke ed. 1961) (J. Madison).

This imperative of judicial integrity is at the core of our system of justice. To depart from this basic principle “breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Is there no one close to “Justice” Thomas who can remind him and his wife of these basic principles of Justice?

Now consider the more recent holding in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009). Here Justice Kennedy, delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined, post, p. 890. Scalia, J., filed a dissenting opinion, post, p. 902. It seems that certain judges have always been uncomfortable with the imperative of judicial integrity and precedent requiring withdrawal to avoid conflict of interests. Every other court in the country, and every arbitration group, has explicit rules requiring disclosure of any conflicts and disqualification. And yet the Supreme Court does not. Here are the words of Justice Kennedy.

Following accepted principles of our legal tradition respecting the proper performance of judicial functions, judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case. This does not mean the inquiry is a simple one. “The work of deciding cases goes on every day in hundreds of courts throughout the land.  [*883]  Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.” B. Cardozo, The Nature of the Judicial Process, 9 (1921).

The judge inquires into reasons that seem to be leading to a particular result. Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work. To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings. There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case.

The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey, 273 U.S., at 532, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236; Mayberrysupra, at 465-466, 91 S. Ct. 499, 27 L. Ed. 2d 532; Lavoie, 475 U. S., at 825, 106 S. Ct. 1580, 89 L. Ed. 2d 823. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies  and human weakness,” the interest  [*884]  “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U.S., at 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712.

Justice Kennedy, Caperton at 883-84.

Is the Supreme Court Still Impartial and Law Abiding?

The evidence in the news already, including the tapes of prior confirmations hearings of the Trump judges, suggests actual bias and prejudgment on the issue of abortion by the majority on the Supreme Court who signed on to the leaked draft opinion. Worse, it looks like an attempt to deceive the Senate and the American Public has taken place. Any realistic appraisal of psychological tendencies and human weakness must lead to the conclusion that a majority of the Supreme Court is not impartial and is not following the law.

The new majority sitting in the Court do so believing that the ends of preserving what they consider a human life, justify the means. This is unlawful and they know it. They may erect high fences around the Supreme Court, but they cannot escape the contempt for the law that their behavior will inevitable provoke. They cannot evade the anger of the majority of U.S. citizens, especially women, whom their draft opinion and citations to witch burning and wife-beating seventeenth century British judge, Matthew Hale, show they hold in complete contempt. The feeling is now mutual by the vast majority of women in America. In fact, polls suggest 80% of the entire country support pro-choice on abortion. America’s Supreme Court faces a crisis of legitimacy (The Economist, May 7, 2022). These judges have invited contempt for the law and anarchy and now we will all suffer for their stupidity.

Is there no introspection at work here by these judges to reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. As Justice Kennedy, a Ronald Regan appointee, pointed out, and these words bear repetition: “If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case.

Have these radical pro-life judges even considered doing that? Do they value neutrality at all? Or have they just been pretending to be neutral, to have not pre-decided on this critical legal issue, when if fact they have? How can anyone be so blind to their personal bias? I can easily see my personal bias in favor of women’s rights. If asked, especially if under oath as they were, I would say so. I would not try to hide my human rights, pro choice views. How can they not see their own bias? Are they blinded by misogynistic “rules of thumb?” Apparently, they just don’t give a shit. And now we are all going to pay the consequences.

Conclusion. The Supreme Court Is Dying.

It looks like this new, radical majority have all along just been saying or doing whatever it takes to get on the bench and carry out their own political agenda. If so, we have lost the checks and balances of the alleged third branch of the government, the judiciary. It is all just politics and power now. Politicians in black robes. There is no restraint of impartial justice. The Supreme Court is dying.

Justice Brandeis was a wise man. Consider again his prophetic words:

If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

The pro-life ends justify the means contemplated by the Trump judges and their supporters. If they continue unrestrained by judicial ethics, then the once stabilizing force of the Supreme Court could bring anarchy and terrible retribution. I do not like being all doom and gloom about this, but it seems consistent with the other evidence I see in society. Can Justice Survive the Internet? Can the World? It’s Not a Sure Thing. Look Up!

I sincerely hope the prediction oft quoted here of Justice Brandies is wrong and my dark projections of the next few decades are wrong. But still, look at the sign on the fence below that has already been erected around the Supreme Court. The answer, for me at least, is not to sink to their level. The answer is to reaffirm my own personal ethics, my commitment to impartiality, reason, fairness and justice for all. Laugh and mock me with cynical criticism as to my naivete if you will. I will hold fast to my ideals and how I choose to live my life. The Supreme Court may be closed, but all fair minded people should remain open and not fall into pits of despair and retribution.

AP Photo/Mariam Zuhaib


The Words of Chief Justice Roberts on JUDICIAL INTEGRITY Suggest the Supreme Court Should Step Away from the Precipice and Not Overrule ‘Roe v Wade’

May 3, 2022

In this blog I quote Chief Justice John Roberts on the critically important principle of Judicial Integrity to show why the Court should avoid the appearance of impropriety and stick with precedent. They need to step away from the brink of a major legal disaster and not follow like lemmings the political leaders that got most of them appointed. I sincerely hope, but do not expect, the Supreme Court to wise up, back away and not overrule Roe v. Wade.

My argument is based on only one of many opinions by the high court on this key subject, but this is the most recent one, Williams-Yulee v. Fla. Bar, 575 U.S. 433, 2015 U.S. LEXIS 2983 (U.S. 2015). In this case, where incidentally the Court ruled against a black female lawyer in Florida, Chief Justice Roberts had this to say about judicial integrity.

Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to  [*438]  treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.

Justice Roberts, Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437-438, 2015 U.S. LEXIS 2983 (U.S. 2015).

The Chief Justice went on trace the ancient history and grave importance to democracy of judicial integrity.

Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This principle dates back at least eight centuries to Magna Carta, which proclaimed, “To no one will we sell, to no one will we refuse or delay, right or justice.” Cl. 40 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 395 (2d ed. 1914). The same concept underlies the common law judicial oath, which binds a judge to “do right to all manner of people . . . without fear or favour, affection or ill-will,” 10 Encyclopaedia of the Laws of England 105 (2d ed. 1908), and the oath that each of us took to “administer justice without respect to persons, and do equal right to the poor and to the rich,” 28 U. S. C. §453. Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.

Justice Roberts, Id. at 445.

Justice Roberts went on to echo the hallowed words on judicial integrity of truly great Supreme Court Justices of the past.

The interest served by Canon 7C(1) has firm support in our precedents. We have recognized the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the nation’s elected judges.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 889, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (internal quotation marks omitted). The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions. As Justice Frankfurter once put it for the Court, “justice must satisfy the appearance of justice.Offutt v. United States, 348 U. S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954). It follows that public perception of judicial integrity is “a state interest of the highest order.” Caperton, 556 U. S., at 889, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (quoting White, 536 U. S., at 793, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (Kennedy, J., concurring)).

Justice Roberts, Id. (emphasis added to Justice Frankfurter’s quote and Robert’s follow)

Chief Justice Roberts goes on to stress the great historical importance of judicial integrity.

The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe  the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829-1830, p. 616 (1830).

Justice Roberts, Id. at 447.

Finally, Justice Roberts observed the sometimes obtuse nature of the concept of judicial integrity. This may be one of these times.

The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling.

Justice Roberts, Id. 447.

In the Concurring Opinion of Justice Ginsberg to Williams-Yulee v. Fla. Bar, which in the Part II here quoted was joined by Justice Bryer, she wisely observed the political context and influence of money on the appearance of judicial integrity.

In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. Following the Iowa Supreme Court’s 2009 invalidation of the State’s same-sex marriage ban, for example, national organizations poured money into a successful campaign to remove three justices from that Court. J. Shugerman, The People’s Courts: Pursuing Judicial Independence in America 3 (2012). Attack advertisements funded by issue or politically driven organizations portrayed the justices as political actors; they lambasted the Iowa Supreme Court for “usurp[ing] the will of voters.” A. Skaggs, M. da Silva, L. Casey, & C. Hall, The New Politics of Judicial Elections 2009-10, p. 9 (C. Hall ed. 2011) (internal quotation marks omitted).

Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. D. Goldberg, S. Samis, E. Bender, & R. Weiss, The New Politics of Judicial Elections 2004, pp. 5, 10-11 (J. Rutledge ed. 2005) (hereinafter Goldberg). In North Carolina, for example, in 2014, a political action committee aired “a widely condemned TV spot accusing [North Carolina Supreme Court Justice Robin] Hudson of being ‘soft’ on child-molesters.” Oliphant, When Judges Go Courting, National Journal Magazine, Oct. 18, 2014, p. 28. And in West Virginia, as described in Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 873, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009), coal executive Don Blankenship lavishly funded a political action committee called “And For The Sake Of The Kids.” That group bought advertisements accusing Justice Warren McGraw of freeing a “child rapist” and allowing that “rapist” to “work as a janitor at a West Virginia school.” Goldberg 4; see A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections 2011-12, p. 22 (L. Kinney and P. Hardin eds. 2013) (reporting that in 2011 and 2012, interest-oriented groups were 22 times more likely to purchase an “attack” advertisement than were judicial candidates themselves).

Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence.  [*461]  Numerous studies report that the money pressure groups spend on judicial elections “can affect judicial decision-making across a broad range of cases.” Brief for Professors of Law, Economics, and Political Science as Amici Curiae 14 (hereinafter Professors’ Brief), see id., at 5-17; J. Shepherd & M. Kang, Skewed Justice 1 (2014), available at http://skewedjustice.org (All Internet materials as visited Apr. 24, 2015, and included in Clerk of Court’s case file) (finding that a recent “explosion in spending on television attack advertisements . . . has made courts less likely to rule in favor of defendants in criminal appeals”).

How does the electorate perceive outsized spending on judicial elections? Multiple surveys over the past 13 years indicate that voters overwhelmingly believe direct contributions to judges’ campaigns have at least “some influence” on judicial decisionmaking. See Professors’ Brief 23 (citing polls). Disquieting as well, in response to a recent poll, 87% of voters stated that advertisements purchased by interest groups during judicial elections can have either “some” or “a great deal of influence” on an elected “judge’s later decisions.” Justice at Stake/Brennan Center National Poll 3, Question 9 (Oct. 22-24, 2013) (conducted by 20/20 Insight LLC), available at http://www.justiceatstake.org /file.cfm /media /news/toplines337_B2D51323DC5D0.pdf.

Justice Ginsberg, Id. at pgs. 459-461.

Conclusion

Skewed justice where big corporate money has unfairly elected unworthy government officials has brought us to a social crises. In my opinion, this crises is the inevitable result of technology and the unbridled explosion of information, most of it false, that it brings. Information → Knowledge → Wisdom: Progression of Society in the Age of Computers. The Pandora’s box of mis-Information explosion must be contained by Knowledge and Wisdom. Otherwise the consequences could be devastating. Can Justice Survive the Internet? Can the World? It’s Not a Sure Thing. Look Up! Perhaps this explains why we see no evidence of life on other planets in this vast Universe. Very few life forms may be able to survive this technology passage test and evolve onto other stars. Let us hope this is not true and we will continue to progress and will make it as a species. But it is not a sure thing. There is serious trouble ahead.

We are seeing terrible signs of a crises now, including the massive protests and violence I expect to see soon created by the Supreme Court’s apparent decision to make abortions illegal again. The appearance of lack of judicial integrity in this decision is obvious. I leave it to others to emphasize this and the political nature of the decision. Whether the new judges on the high court are actually beholden to politicians that had them appointed, is not something that must be proven as true or false. Judicial integrity, as seen in the quotes of Justice Roberts above, makes it clear that appearances are all important. There is undoubtedly the appearance that this sudden reversal and departure from well established precedent is a political act. True judicial integrity must consider appearances and this expected overruling of Roe v Wade looks bad, very bad.

Perhaps a majority on the court will have wisdom, including especially Chief Justice Roberts, and will step away from the precipice. No doubt that is why the 67 page draft opinion was leaked. That and its many inflammatory, ridiculing statements by Justice Samuel Alito. The draft language is truly shocking and could impact many areas of individual rights. But I for one doubt that the Supreme court will wise up. Brace yourself for the worst. Read the dissents carefully. Let us pray that justice survives in the long run.


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