Monday, November 18, 2013

Daily Read: "Reassignment" by Toby Heytens (or was it so unusual that the Second Circuit reassigned the "Stop and Frisk" cases?)

As we discussed last week, in  In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin and as to the removal of Judge Scheindlin, wrote that reassignment "while not an everyday occurrence, is not unusual in this Circuit" and in support cited nine cases from 1999 - 2011, and discussed that it occurs in other circuits.

Would that the panel had had Professor Toby Heytens' forthcoming article, simply entitled "Reassignment," available in draft on ssrn.  Heytens discusses more than 650 reassignment cases and concludes that circuit courts have

exercised that power in pretty much every type of case imaginable: criminal cases and civil cases, federal question cases and diversity cases, “big” cases and “small” cases. Reassignment has been going on since 1958, but the pace seems to be quickening: more than 20% of the cases in my 55-year dataset were decided during the last five years, at a rate of a little more than one every two weeks during that span.

US_Court_of_Appeals_and_District_Court_map.svg

Although Heytens begins his article discussing a contentious 1996 case from the Second Circuit, involving District Judge Jack Weinstein of New York, he finds that it is another circuit that has by far the most reassignments.  Guesses?  It's the Seventh Circuit.  Interestingly, the Seventh Circuit is the only one to have a circuit rule governing reassignments and thus allows for the circuit panel to simply cite the rule and not provide any rationale for the change.  Depending upon one's point of view, this may have obscured the "removal" of Judge Scheindlin or it might have portrayed it as a normal procedure.

Although not focused on Scheindlin, here's what Heytens says about the possible differences:

On one hand, this may seem problematic, because it violates the intuition that public reason-giving is an important part of justifying the exercise of coercive judicial power.

On the other hand, reassignment underscores that there can be virtues in circumspection as well. Appellate court decisions have many audiences: not just the trial judges and the parties, but also other judges, future litigants, and other interested readers. Both the Seventh Circuit’s approach of ordering reassignment via an unexplained reference to a circuit rule that may not mean anything to most readers and the First Circuit’s approach of separating the reassignment order from the underlying opinion can be seen as ways of reducing the salience of the decision to order reassignment and thus make the decision feel less like a public scolding.

 In the stop and frisk cases, the public scolding aspect of the Second Circuit's brief initial opinion predominated - - - at least in its reception by the public.  Indeed, the revised opinion seemingly took pains to refute that interpretation.  

In his conclusion, Heytens identifies the question of "whether more fine-grained methods of measuring judicial ideology reveal any interesting patterns about how appellate judges use reassignment" as one meriting further investigation.  Certainly the reassignment of Judge Shira Scheindlin in the highly controversial stop and frisk cases will prove fertile ground.  Moreover, the question of disciplining a judge's out-of-court activities, including those that might implicate the First Amendment, should also be added to the mix.

 [image of circuit courts of appeal map via]

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