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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
An Overlooked Aspect of the Judicial Pay Raise Debate
Thursday, January 01, 2009
An Overlooked Aspect of the Judicial Pay Raise Debate
Chief Justice Roberts made the following (familiar) plea in his year-end report on the Federal Judiciary:
I appreciate this.
The issue of judicial pay is worth concern, but it also should be noted that federal judges have certain perks (including tenure during good behavior, which basically means not breaking the law too egregiously) that should be factored in, even as compared to lawyers.
I'm not sure if they always are.
On a previous thread I pointed out that by my calculations UK Judges were paid more than US Judges at equivalent levels of responsibility. That is disturbing because I suspect the more senior partners in the leading US law firms may earn somewhat more than our top silks and partners.
Over here a senior silk (QC) or partner in a major law firm will still take a considerable drop in earnings on accepting a judicial appointment. There are other compensations: a somewhat less stressful life, a first class and inflation-proof pension, the honour of knighthood for High Court judges, the fact that appellate judges are made Privy Councillors, the immense prestige which comes from being "one of Her Majesty's Judges", the chance to have one's name in the law books and to shape the law for future generations.
But surely it must be wholly undersirable for judicial salaries to get too far out of line with the earnings of the profession. If the partners in good law firms are pulling in a certain level of earnings then the remuneration package of 1st tier judges should be comparable. Should there be too great a disparity the non-monetary compensations will not serve to redress the financial disincentive to migrate to the bench and one ends up having first class minds preparing cases to be judged by second class minds.
In the UK, the earnings of the major law firms in the City of London and the cream of the bar are significantly enhanced because the UK is a "jurisdiction of choice" - a very high proportion of the work of our Admiralty, Commercial, Construction & Technology and Patents courts comes from disputes between parties who have no connection with England other than they they have chosen to contract on English law terms. That is good for our balance of payments - and it is the existence of the specialist Courts with expert judges (and, I would add, no juries in most civil claims) that enables the jurisdiction of choice work to continue to flow to the capital from around the world.
But if the judges were second-class, or corruptible, or the if the law's delays were to became unacceptable, the world business community would take its custom elsewhere.
I was concerned to see that the comparators being used for US judicial salaries were those of academics rather than of legal professionals taking responsibility for major litigation. How do professorial stipends compare with the earnings of partners in the top 500 law firms?
Either way, on other threads I suggested that the time may be ripe for systemic reforms of the justic system to be considered. The remuneration package and the mechanism by which it is indexed is obviously part of this: the judiciary are not immune from the principle that if one pays peanuts one gets monkeys.
With all due respect, I don't buy this argument at all... because it's the same argument that is made regarding military salaries (although the purported "entitlement" is a sliding 50-75% of base pay after 20-30 years). I realize full well that this looks like mere "deferred compensation" or a golden parachute; it's not. It is, instead, a budget-balancing technique that is used to shove personnel costs off onto future years in the hope that the personnel in question will somehow lose eligibility for those benefits. Take a close look at the way Congress has managed the last three sets of "major" military pay raises (particularly those affecting flag officers), for instance, and compare the rhetoric to what's going on here.
Mr Petit: with every respect, there is a special difficulty with military comparables: what should be the enhancement for having been willing to put your life on the line. Arguably "0" at any rank above Captain.
The average colonel is seen as having little utility in civilian life and the general perhaps only as a lobbyist. In fact, those who are engineers or logistics experts have skills a civilian employer can put to very good use, but what special skills for civilian life do the non-specialists have?
I happen to think that my military service taught me a great deal - but the things I learned do not count for that much in civilian life.
C.E. Petit: this looks like mere "deferred compensation" or a golden parachute; it's not. It is, instead, a budget-balancing technique that is used to shove personnel costs off onto future years ...
That depends on whether the benefits are pre-funded by putting money away as they are earned, or paid for only at the time they are due and payable. I don't know whether this is the case for either judges or military officers.
We are not even getting our money's worth now. Here are two examples of lousy federal judges:Post a Comment
District-court judge "Jackass" Jones:
(1) -- showed extreme prejudice against Intelligent Design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Kitzmiller v Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions.
(2) -- The ID-as-science section of the Dover opinion was copied nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs.
(3) -- has been criss-crossing the country lecturing that critics of his Dover decision have no respect for judicial independence.
District-court judge TJ "Mad" Hatter:
-- has a bad reputation for issuing decisions without opinions.
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Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
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Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
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Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
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Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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