San Francisco Bar Association

 

The Litigation Section Presents:

 

Bench Bar Conference - 2017

 

November 2, 2017: 5:00 pm - 7:30 pm

MCLE Credits - 1.5 H

 

 

Speakers:

Judge Haywood S. Gilliam
United States District Court, Northern District of California

Justice William J. Murray, Jr.
California Court of Appeal

Presiding Judge Teri L. Jackson
San Francisco Superior Court

Jim Stiff
Focal Point LLC

Moderator:

David A. Carrillo
Executive Director, California Constitution Center

Discussion:

This year we are focusing on the changing face of the San Francisco jury pool and the need to secure and ensure more diverse jury panels. The program will open with a short presentation by a jury consultant Jim Stiff, Focal Point on how the demographics of San Francisco juries have changed over the last decade. It will be followed by a moderated discussion among California Court of Appeal Justice William J. Murray, Jr., San Francisco Superior Court Presiding Judge Teri Jackson, and U.S. District Judge Haywood Gilliam.

The conference will include small group discussions with a reception to follow.

Members of the media, please RSVP to kfirmin@sfbar.org

 

Printable Flyer ( PDF)

 

Location:

BASF Conference Center
301 Battery Street
3rd Floor
San Francisco, CA 94111

Directions

 

 

Schedule:

MCLE Registration: 4:30 - 5:00 p.m.
Program: 5:00 - 6:30 p.m.
Reception: 6:30 - 7:30 p.m.

 

Cost:

Student	$35.00
Government	$50.00
Nonprofit	$50.00
Guest Ticket	$95.00

 

Note: All prices increase by $10.00 on the day of the program.

 

Event Code: G173108

 

Questions about our seminars and the registration process?

 

 

 

Fax or Mail your registration: Registration Form ( PDF)

 

 

San Francisco Bar Association

 

The Estate Planning, Probate and Trust Section presents:

 

Who's Your Client; Do You Owe Duties to the Beneficiaries?

 

November 1, 2017: 12:00 pm - 1:15 pm

MCLE Credits - 1 H, in Legal Specialization. This is a brown bag luncheon.

 

 

 

 

 

A primer on and review of the law governing when a trust and estate lawyer may owe a duty to a third party beneficiary who is not a client. The law will be examined in the context of estate planning, trust and estate administration and litigation.

 

Speaker:
Stacie Nelson
Holland & Knight, LLP

 

 

Topics:
• When do estate planners owe a duty to beneficiaries?
• Do lawyers for fiduciaries owe a duty to beneficiaries?
• What are the exceptions to the general rules?

Section Chair: Rebekah Sapirstein, BNY Mellon Wealth Management

 

 

Printable Flyer ( PDF)

 

Location:

BASF Conference Center
301 Battery Street
3rd Floor
San Francisco, CA 94111

Directions

 

Schedule:

MCLE Registration: 11:30 a.m. - 12:00 p.m.

Program: 12:00 - 1:15 p.m.

 

Cost:

BASF Student Member	Complimentary
Section Member	$30.00
BASF Member	$40.00
Government	$40.00
Nonprofit	$40.00
Non-Member	$55.00

Note: All prices increase by $10.00 on the day of the program.

 

Event Code: G170514

 

Questions about our seminars and the registration process?

 

 

 

 

Fax or Mail your registration: Registration Form ( PDF)

 

Bloomberg Law

October 24, 2017

By Melissa Heelan Stanzione

 

 

Providing top-notch pop-up legal clinics to rural communities in California requires a few things: lawyers willing to volunteer time, a lot of coffee, and a few tickets for the 7 a.m. departure of the Justice Bus.

 

When the bus rolls up to a law firm or corporate headquarters—actual tickets not required—those boarding will embark on a several-hour trip to a rural California community.

 

The destination isn’t a firm-sponsored retreat or networking event but a chance for legal professionals to provide assistance to low-income residents with little or no access to legal help.

 

Rural legal aid clinics don’t have access to the resources that urban ones do, like law students and attorneys who can come by or set up a clinic, Julia R. Wilson told Bloomberg Law.

 

Wilson is CEO of OneJustice, a group dedicated to increasing legal services to those in need. It launched the Justice Bus Project in San Francisco in 2007.

 

The project has greatly expanded, and more than 7,100 clients in 43 counties have been served by more than 3,700 volunteers from all over the state since then, Wilson said.

 

The group acts as a “matchmaker” between more than 100 legal aid non-profits in California and attorney volunteers, she said.

 

The hope is that law firms and in-house legal departments in cities over time will include rural areas of California as an essential part of their commitment to pro bono, Wilson said.

 

Donuts, Team Building

 

After the group of about 20 volunteers boards the Justice Bus, they’re welcomed with coffee and donuts to fuel them for training during the ride.

 

This training differs from that offered before the trip. That online training lasts about 15 minutes, is “super targeted,”and focuses on the area of law each attorney will be working in, Wilson said.

 

Justice Bus volunteers can help three client groups: immigrants, veterans, and low-income seniors.

 

Training on the bus includes “cultural humility,” Wilson said. OneJustice staff members explain what it means to work with low-income clients and about legal and other challenges these people face, she said.

 

They also go over data points on the community where they’ll be working, Wilson said. Volunteers learn about the poverty in the community, the number of local attorneys, and information about the local legal aid organizations, she said.

 

After that, the volunteers work on team building to make sure everyone knows each other, Wilson said.

 

It’s interesting to hear attorneys talk about why they’re volunteering, Wilson said. A lot of the volunteers come from rural areas and bring a “personal rural perspective” to the work, she said.

 

 

 

Waves’ of Clients

 

Justice Bus clinics last from three to five hours and most volunteers see between two and five clients.

 

“We get as many people through as we can during that time period,” Wilson said.

 

Appointments last between 60 and 90 minutes. “Waves of clients” come to the clinics, Wilson said.

 

Every client is matched with two volunteers and possibly a third, if an interpreter is needed. “The issue areas are so document intensive” that they require two people: one to ask questions and one to focus on the paperwork brought in by the clients, she said.

 

In the area of immigration, for example, attorneys help people who want to become citizens. For the elderly, they help with end-of-life planning and draft simple wills.

 

OneJustice is able to let clients know they’re coming through the “deep relationships” it has built in the communities it serves, Wilson said. The group has staff dedicated to outreach and client screening in those areas, she said.

 

When we know what county we’re going to, we activate our network at schools, churches, food banks, homeless shelters, and through the local government and community leaders to let people know to make an appointment, Wilson said.

 

Walk-ins are welcome, she said, but the group can’t guarantee they’ll be seen that day. If not, they’re added to the list for the next clinic in the region or provided with referrals to resources that can help.

 

Some areas have such a long wait list, however, that OneJustice doesn’t publicize the bus’s arrival ahead of time to make sure it can serve those clients on the list, Wilson said.

   

Justice Jet?

 

OneJustice serves most of the state but there are some extremely remote areas in northeastern California with very small populations that “we haven’t been able to get to,” Wilson said.

 

“It’s in the back of my mind” to get a plane there, she half-joked.

 

Justice Bus can go much farther when it sets out for an overnight trip, she said.

 

Law students are willing and more able to do these runs than practicing attorneys because it’s a big time commitment, Wilson said.

 

OneJustice books hotel rooms, which is possible because of the group’s donors.

 

“We have a core group of foundations, one of which has funded us since the beginning of the project,” she said.

 

Law firms, law schools, and corporations that participate also “pay into that pot,” Wilson said.

 

Beyond the Golden State

 

Although OneJustice focuses on rural legal needs in California, the group would like to spread its model nationally.

 

There are so many rural communities that need help, Wilson said.

 

This is a conversation “we’re just starting to have” with legal aid groups and law school legal clinics in other states, she said.

 

 

 https://biglawbusiness.com/wheels-of-justice-turn-on-the-justice-bus/

 

Bloomberg Law

October 25, 2017

By Elizabeth Dexheimer, Bloomberg News

 

 

The U.S. Senate moved Tuesday to overturn a rule aimed at making it easier for customers to sue banks, handing financial firms a big win in their battle against post- crisis regulations.

 

Majority Republicans pushed through a reversal of Consumer Financial Protection Bureau limits on mandatory arbitration in a 51-50 vote. Vice President Mike Pence was called in to cast the tie-breaking vote. The move using Congress’s power to overturn agency rules follows a similar vote by the House in July.

 

The CFPB rule announced in July would limit companies’ ability to impose arbitration agreements on customers in financial contracts, making it easier for aggrieved parties to join together in class-action lawsuits. Democrats and other supporters of the rule argued that it would give consumers an important protection against mistreatment by banks.

 

The Senate vote seals a significant victory for Republicans in their longstanding campaign to rein in the consumer bureau, which they have fought since it was created as an independent agency by the Dodd-Frank Act. The arbitration rule stems from a requirement in the 2010 law that the CFPB study the issue.

 

Republican President Donald Trump applauded the outcome.

 

“By repealing this rule, Congress is standing up for everyday consumers and community banks and credit unions, instead of the trial lawyers, who would have benefited the most from the CFPB’s uninformed and ineffective policy,” the White House said in a statement.

 

Financial firms lobbied for years against the rule, which they say would make lending more expensive while doing little to help consumers.

 

Republicans lawmakers have long complained that the CFPB inhibits economic growth by burdening lenders with red tape and that its director, Richard Cordray, consistently oversteps the agency’s mandate.

 

“Tonight’s vote is a giant setback for every consumer in this country,” Cordray said in a statement. “Wall Street won and ordinary people lost. This vote means the courtroom doors will remain closed for groups of people seeking justice and relief when they are wronged by a company.”

 

The move to overturn the arbitration rule employed the Congressional Review Act, which enables lawmakers to undo regulations by majority vote within 60 working days from when they are announced. Republicans previously used the mechanism to overturn other Obama-era measures, including parts of the Affordable Care Act.

 

The CFPB rule targets clauses that are often buried in the fine print of contracts that consumers sign when they get credit cards or open checking accounts. The language bars customers from banding together to file class-action suits, instead requiring them to settle disputes through arbitration. Companies would have to remove such clauses from contracts by March.

 

“This bill is a giant wet kiss to Wall Street. Bank lobbyists are crawling all over this place, begging Congress to vote and make it easier for them to cheat consumers,” Senator Elizabeth Warren, the Democrat from Massachusetts who led opposition to the bill, said before the vote.

 

The U.S. Chamber of Commerce and other industry groups have sued the CFPB, arguing that the regulation was based on a flawed study. The rule also has been at the center of public clash between Cordray and the Trump administration. Acting Comptroller of the Currency Keith Noreika and other officials have challenged how it was created. The Treasury Department also blasted the measure in a report released on Monday.

 

“The elected representatives acted to stop a rule from going into effect that would have likely increased the cost of credit for hardworking Americans and made it more difficult for small community banks to resolve differences with their customers without achieving the rule’s goal of deterring future financial abuse,” Noreika said in a statement after the vote.

 

“The action by Congress is a victory for consumers and small banks across the country.”

 

 

 https://biglawbusiness.com/consumer-bureaus-arbitration-rule-overturned-by-senate-vote/

 

 

ABA Journal News

October 24, 2017

By Debra Cassens Weiss

 

 

The ABA Center for Innovation hopes to identify wrongful conviction trends

 

Wrongful conviction trends will be identified with the help of e-discovery software in a new project that will use a network of forensic and legal experts to investigate potential cases.

The ABA Center for Innovation and software developer Relativity on Tuesday announced the project known as DFENDR, an acronym for Distributed Forensic Expert Network Delegating Review. The project will analyze data on cases to determine whether bias or other factors could have contributed to wrongful convictions, according to the Bar Leader.

 

The project has these three goals:

1. To collect data and identify the key factors contributing to wrongful convictions based on forensic science. An initial focus will look at the link between cognitive biases and two common forensic techniques that produce invalid or improper evidence: hair analysis and arson investigation.
2. To improve the review process for wrongful convictions with the help of e-discovery technology. Relativity’s e-discovery platform will be used to bring together the work of a network of legal and forensic experts.
3. To develop a talent pipeline by giving law and forensic science students real-world experience.

Bryan Wilson, a fellow with the ABA Center for Innovation, is heading the project. “With Relativity and a growing network of legal and forensic experts, the DFENDR Project should be better equipped to accelerate the review of wrongful convictions around the country,” Wilson said in the press release.

 

“We’re looking forward to setting an example of how the legal community can use technology to fight injustices caused by incorrect assumptions about human behavior.”

 

 http://www.abajournal.com/news/article/aba_project_will_use_e_discovery_software_to_identify_wrongful_conviction_t

 

 

ABA Journal News 

October 23, 2017

By Debra Cassens Weiss

 

 

Raihana Asral / Shutterstock.

 

 

Updated: A judge in California has overturned a $417 million verdict and granted a new trial in a suit claiming talcum powder causes ovarian cancer.

 

Judge Maren Nelson of Los Angeles Superior Court said damages were excessive and causation proof was insufficient, report the Associated Press, the New York Times, Reuters and a Reuters On the Case column. Nelson also said three jurors who voted against liability were improperly excluded from determining damages.

 

Nelson overturned a verdict in a case brought by Eva Echeverria, who died after the verdict. An appeal is planned, according to lawyer Mark Robinson Jr.

 

Jurors had found Johnson & Johnson was liable for $408 million of the verdict and its subsidiary responsible for the rest, Bloomberg Technology reports. Nelson said Johnson & Johnson can’t be held liable for failing to warn talcum powder users of an alleged cancer link if it didn’t make or market the product, according to the Bloomberg story. Nelson also said there was no clear and convincing evidence that Johnson & Johnson or its subsidiary acted with malice to support a punitive damages award.

 

A lawyer for Johnson & Johnson, Bart Williams of Proskauer Rose, told Reuters On the Case that Nelson’s ruling on insufficient proof was important. “Given the court’s rulings that the evidence at trial did not establish that talc causes ovarian cancer generally, and that plaintiff’s specific causation expert did not properly employ the methodology she espoused, we believe the court’s ruling should have significant impact on pending California cases that rely on the very same studies,” he said.

 

Johnson & Johnson said it was pleased with the verdict. “Ovarian cancer is a devastating disease—but it is not caused by the cosmetic-grade talc we have used in Johnson’s Baby Powder for decades,” the company said in a statement.

 

The California decision is the second victory for Johnson & Johnson this month in a talcum-powder suit. The Missouri Court of Appeals ruled the family of Jacqueline Fox had sued in the wrong jurisdiction and overturned a $72 million verdict. Story updated on Oct. 24 to add information from Reuters On the Case story.

 

 

http://www.abajournal.com/news/article/california_judge_tosses_417m_talcum_powder_verdict

 

 

 

New York Times

October 23, 2017

By Adam Liptak

 

 

Voters at a polling station in Dublin, Ohio, in 2012. After skipping a single federal election cycle, Ohio voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls. Credit Aaron P. Bernstein for The New York Times

 

 

WASHINGTON — Larry Harmon, a software engineer who lives near Akron, Ohio, says he is “a firm believer in the right to vote.” But sometimes he stays home on Election Day, on purpose.

 

In 2012, for instance, he was unimpressed by the candidates. He did not vote, he said, because “there isn’t a box on the ballot that says ‘none of the above.’”

 

Three years later, Mr. Harmon did want to vote, against a ballot initiative to legalize marijuana. But his name was not on the list at his usual polling place.

 

It turned out that Mr. Harmon’s occasional decisions not to vote had led election officials to strike his name from the voting rolls. On Nov. 8, the Supreme Court will hear arguments about whether the officials had gone too far in making the franchise a use-it-or-lose-it proposition.

 

Failing to vote — or deciding not to vote — is not unusual. In 2016, more than 70 million registered voters did not cast ballots, according to the United States Election Assistance Commission. That was more than a third of all registered voters.

 

Even in Ohio, a swing state where votes really matter, about 29 percent of registered voters did not cast ballots in 2016.

 

Ohio is more aggressive than any other state in culling its voter rolls based on the failure to vote. After skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls.

 

The idea behind the notices is that failing to vote suggests that the voter may have moved. State officials say their approach protects the integrity of the voting rolls.

 

Mr. Harmon, a Navy veteran, said he had voted in 2004 and 2008 but skipped the next presidential election, along with the midterm elections in 2010 and 2014.

 

When he tried to vote in 2015, he had lived in the same place for about 16 years.

 

“I’ve been living in Ohio my whole life,” he said. “I pay property taxes and income taxes. I register my car. They obviously had all the data to know that I was a resident. They could have looked it up, but they were too cheap.” 

 

The question for the justices is whether two federal laws allow Ohio to cull its voter rolls using notices prompted by the failure to vote. The laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote.” But they allow election officials who suspect that a voter has moved to send a confirmation notice.

 

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in favor of Mr. Harmon last year, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.

 

Without that decision, “the ballots of more than 7,500 eligible Ohioans would have gone uncounted in the November 2016 election,” Mr. Harmon’s lawyers at Demos and the American Civil Liberties Union wrote in a Supreme Court brief.

 

There are other ways to calculate the impact of Ohio’s approach. A Reuters study last year found that at least 144,000 people were removed from the voting rolls in recent years in Ohio’s three largest counties, which are home to Cleveland, Cincinnati and Columbus.

 

“Voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods,” the study found. “Neighborhoods that have a high proportion of poor, African-American residents are hit the hardest.”

 

State officials say they sent Mr. Harmon a notice in 2011. He said he never saw it.

 

“I don’t remember getting that, and I don’t know why they sent it in the mail,” he said. “I’m out in a rural area, and sometimes I get other people’s mail. Sometimes other people get my mail.”

 

Twelve states, generally Democratic-leaning, filed a brief supporting Mr. Harmon. Seventeen states, generally Republican, filed a brief on the other side.

 

The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement. In the appeals court, the Obama administration filed a brief supporting Mr. Harmon. After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.

 

Mr. Harmon said he suspected something larger was afoot in some states’ efforts to restrict voting.

 

“I really never had a problem with voter ID, because I’ve always had a driver’s license,” he said. “But now I really feel that they’re trying to get rid of voters.”

 

Mr. Harmon said Ohio’s system for managing its voting rolls would never pass muster in the private sector.

“As an engineer,” he said, “we have to collect data all the time from all over the world and manage information. It doesn’t seem like they’re even trying.”

 

A few other states use variations on Ohio’s approach, but none of them move as fast. “Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a brief from the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.”

 

Mr. Harmon said he hoped the Supreme Court would protect his right to vote.

 

“In most other aspects of civil liberties, the government goes out of the way to make sure your rights are enforced,” he said. “The right to vote is the most important right you have. If you can’t vote, you really don’t have a democratic system.”

 

 

https://nyti.ms/2zuF9eh

 

 

ABA Journal News

October 20, 2017

By Debra Cassens Weiss

 

 

Shutterstock.com.

 

 

Federal law doesn’t prevent Yahoo from releasing a dead man’s emails to the personal representatives of his estate, according to the top court in Massachusetts.

 

The Stored Communications Act doesn’t prevent release of the emails when the personal representatives consent to the disclosure, according to the Massachusetts Supreme Judicial Court. The Boston Globe, Reuters, Law360 (sub. req.) and Masslive.com covered the Oct. 16 decision (PDF).

 

Yahoo could still prevail, however, in its bid to withhold the emails. The next step in the case is for a judge to determine whether Yahoo’s terms of service amounted to an enforceable contract that authorized the company to withhold the emails.

 

The opinion does not explain why the personal representatives—who were the brother and sister of of the decedent, John Ajemian—wanted the emails. Ajemian, who did not have a will, was 43 when he died in a 2006 bike accident.

 

The Stored Communications Act prevents companies that provide services to the public from voluntarily disclosing the contents of stored communications, with some exceptions. The court held that an exception applied; it allows disclosure with the “lawful consent” of an email writer or recipient.

 

Personal representatives lawfully consent on a decedent’s behalf in a variety of circumstances under both federal and common law, the opinion said. Giving a broad construction to the term in the federal law accords with the broad authority given personal representatives, according to the court.

 

Reuters sees the decision as “a notable precedent governing what happens to email after someone dies.” The articles note that trade groups had asked the court to rule for Yahoo.

 

 

http://www.abajournal.com/news/article/federal_law_doesnt_prevent_release_of_dead_mans_email_to_estate_representat

 

The Recorder

October 19, 2017

By Susan P. Elgin, Charles F. Knapp, Bonita D. Moore and Daniel G. Prokott 

 

(l-r) Charles Knapp, Bonita Moore, Dan Prokott, and Susan Elgin. (Courtesy photos

 

Beginning Jan. 1, 2018, California employers will no longer be able to ask job applicants about their salary history. California joins a small but growing group of states and cities that have enacted similar measures, including New York City, San Francisco, Philadelphia, Oregon, Delaware and Massachusetts. This development is the latest in a number of California legislative initiatives designed to promote pay equity.

 

Under California’s new law, Labor Code Section 432.3, employers may not ask, either orally or in writing, for an applicant’s compensation or benefits history. In addition, an employer cannot rely on an applicant’s past salary as a factor in determining whether to offer employment or in determining what salary to offer. Lastly, the new law requires employers to provide, “upon reasonable request,” the “pay scale” for the applicable position.

 

However, there are a couple of exceptions to Section 432.3. First, a prospective employer may consider an applicant’s pay history in determining what salary to offer the applicant if the applicant voluntarily offers salary history without prompting. But even if an applicant voluntarily offers salary history, the prospective employer may not ask additional questions about the applicant’s compensation or benefits history, such as requesting the employee to provide copies of W-2s related to prior employment or other documents to support the employee’s voluntary disclosure.

 

Second, pay history may be considered if it is publicly available under federal or state law, such as through California’s Public Records Act or the federal Freedom of Information Act. However, California’s Fair Pay Act (Labor Code section 1197.5) prohibits employers from relying solely on an employee’s prior salary history to justify a sex, race or ethnicity-based pay difference.

 

To comply with this law, employers should remove questions regarding salary history from job applications and other hiring materials, such as template interview forms. In addition, employers should counsel their internal recruiters, interviewers and others involved in the hiring process about these new obligations to ensure they avoid asking questions about an applicant’s salary history. Employers interested in gauging the market rate for a position or an applicant’s salary expectation should plan to replace salary history questions with questions about an applicant’s desired salary. Over time, specific guidance will develop regarding the application of the new law.

 

The authors all practice at Faegre Baker Daniels. Susan Elgin, an associate in the firm’s Des Moines, Iowa office, represents businesses in employment litigation and advises clients in the area of employment law. Chuck Knapp, a partner in the firm’s Minneapolis office, leads Faegre Baker Daniels’ employment litigation team and focuses his practice on representing employers in employment-related litigation. Bonita (Bonnie) Moore, a partner in the firm’s Los Angeles office, is a member of the firm’s labor and employment group. Dan Prokott, a partner in the firm’s Minneapolis office, advises businesses regarding complex workplace matters.

 

http://www.law.com/therecorder/almID/1202800899081/?slreturn=20170921212749

 

 

 

The New York Times

October 18, 2017

By John Pfaff

 

 

A report released by ProPublica suggests that Supreme Court justices struggle with statistical data. Credit Gabriella Demczuk for The New York Times

 

Supreme Court justices have a tough job. They are required to hand down decisions that can affect millions of people and cost billions of dollars. And while some of the issues before them are purely legal, many turn on complex policy questions: Do black voters in the South still face substantial discrimination? How reliable are eyewitnesses? Are people convicted of sex offenses very likely to reoffend?

 

These questions can be answered only by understanding what the data says. Unfortunately, a report released by ProPublica on Tuesday suggests that the justices struggle with that task. Looking at a random sample of cases from 2011 to 2015, ProPublica found that the court cited faulty research or introduced its own errors in nearly a third of the 24 cases that relied on such facts.

   

In 2013, for example, Shelby County v. Holder invalidated a critical portion of the Voting Rights Act of 1965, making it arguably one of the most consequential cases in recent years. Justice John G. Roberts Jr., arguing that the South had taken great strides that made the protections of the act unnecessary, based his decision in part on a Senate Judiciary Committee analysis that misinterpreted how the Census Bureau reports race and ethnicity data and wrongly suggested that registration gaps between minorities and whites had shrunk significantly, an error that neither he nor his clerks caught.

 

As ProPublica itself acknowledges, its sample is too small to draw any solid statistical inferences, but the results are still troubling. They are also not particularly surprising. None of the justices has any serious training in statistics, and the clerks who assist them are almost all recent law school graduates, who rarely have any formal statistical background. Empirical facts are central to what the court does, but its members lack expertise. 

   

Sometimes justices seem almost amused by that lack. When presented with potentially critical empirical evidence in a major gerrymandering case this month, Chief Justice Roberts joked that “it may be simply my educational background” before describing the material as “sociological gobbledygook.”

 

Policy is a major part of the court’s docket now, whether it likes it or not. The justices cannot avoid adapting to this, and they cannot simply dismiss evidence they don’t understand as “gobbledygook.”

 

 The court has historically relied on amicus briefs, written by outside experts, to provide it with that broader empirical background and help compensate for its own institutional shortcomings. Unfortunately, these briefs are easily abused. In a 2014 article, Allison Orr Larsen, a law professor at William & Mary, pointed out that many amicus briefs include false or unsubstantiated empirical assertions, at least some of which make it into justices’ opinions. ProPublica similarly identified amicus-writing organizations that could not explain where specific numerical claims came from.

 

It would be easy to avoid the more egregious problems by simply refusing to rely on unsourced claims. But that fix would not go very far. It’s not hard to get factually dubious articles published. Some industry groups appear to have their own nominally peer-reviewed journals, which provide the illusion of respectability for results skewed to advance their interests. And major cases that make it to the Supreme Court often spend years in the trial and appellate stages, providing interested groups plenty of time to gin up favorable findings.

 

So what to do?

 

In the 1980s, the legal expert Kenneth Culp Davis proposed that the court create an outside research organization, akin to the Congressional Research Service, to do research on its behalf. However worthwhile, the idea went nowhere.

 

Perhaps a more viable idea is one that Mr. Davis rejected: establish a group of technical advisers to the court. A small team of social scientists and statisticians could help justices sift through empirical evidence. There is no shortage of scholars with Ph.D.s who would be eager to do that work for the court.

The court could take steps today, without any institutional change, by hiring clerks with empirical training instead of only recently minted J.D.s. Or if there is an immediate and specific need that the current clerks can’t address, justices could have the ability to hire experts to assist them with specific issues. (The president of the American Sociological Association offered to have a team of sociologists sit down with Chief Justice Roberts after his “gobbledygook” comment.)

 

Any proposal like this would face hurdles, but they are surmountable. Perhaps there is a concern that justices would hire highly partisan experts, arguably making things worse. We could instead ask the clerk of the court to make nonpartisan hiring decisions, or require that six of the nine justices agree to any such expert, so that a bare majority couldn’t just pick someone who favors its position.

 

In the end, the question is a comparative one. It’s not, “Is there a perfect solution?” but rather, “Can the court make its policy decisions better?” The answer to the latter question is clear.

 

John Pfaff, a professor at Fordham Law School, is the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”

 

 

https://www.nytimes.com/2017/10/18/opinion/supreme-court-justices-factcheckers.html?smid=pl-share&_r=0