One team member’s reaction to the First Circuit opinion

I was disappointed in yesterday’s ruling, if not particularly surprised. I think that the court was disingenuous in ducking the sheer weight of the relief it granted by invoking its “advisory mandamus jurisdiction.” As a matter of statutory interpretation, I also think the court got the local rule wrong. The broad policy aims of the First Circuit Judicial Council cannot require a tortured reading of the rule that the language simply doesn’t admit. As a matter of judicial restraint, I think that even if these three judges disagreed with Judge Gertner’s reading, it strains reason to call her reading “palpably erroneous.”

I watched this hearing in person and I couldn’t have been prouder to be part of such a great effort to change the outdated status quo. Though we may have lost this battle, it is difficult to doubt that the courts will be opened in the way for which Professor Nesson advocates in the future. It may take time and more lost battles; but I’m very glad to be part of a movement to press the issue sooner rather than later. As Judge Lipez noted wisely in his concurrence, “new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities.” Those expectations were not met yesterday, but I continue to hold them.

And seriously – what’s a sockdolager?

posted by Stephanie Weiner