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Gupta Trial Judge Reprimands Law Student Spectator
June 16, 2012 8:28 PM   Subscribe

Benula Bensam, not having landed a summer job, decided to attend the Rajat Gupta trial. She felt that some of the judge's evidentiary rulings were incorrect, and so sent him three letters. The judge, Jed Rakoff, was not amused.
posted by reenum (119 comments total) 9 users marked this as a favorite

 
"Jed Rakoff is not amused" could be a pretty good image "meme."

Jed Rakoff is frequently not amused.
posted by grobstein at 8:39 PM on June 16, 2012


From that first article, does anybody know what the author means by referring to Benula as a "gunner"?
posted by benito.strauss at 8:42 PM on June 16, 2012 [1 favorite]


Or, as he's known in the trade, Jed "Spoonerism" Rakoff.

Joking aside, I'm frankly sympathetic with the judge here. Receiving multiple communications regarding an ongoing trial is potentially a ground for appeal, and certainly makes the judge look unprofessional.
posted by Space_Lady at 8:45 PM on June 16, 2012 [10 favorites]


Law school "gunners" raise their hands all the time and are typically hyper-competitive and very brown-nosey to profs, but in that law school eat where arguing is better than regulations add-kissing. It's not a complimentary term, though itay occasionally be used admiringly; gunners are know-it-alls who try too hard.
posted by Eyebrows McGee at 8:47 PM on June 16, 2012 [7 favorites]


I read the first article last, and by the time I got to it I was absolutely thinking "gunner, gunner, gunner, GUNNER.
posted by Sternmeyer at 8:48 PM on June 16, 2012 [1 favorite]


(sorry, many errors: law school way, not eat. Regular ass-kissing, not regulation add-kissing, that was autocorrect. Irate is "it mtay". Clearly I am gunning for nothing.)

They are also more prevalent at some schools than others. Some schools pride themselves on a collegial attitude and gunners don't get as far.
posted by Eyebrows McGee at 8:51 PM on June 16, 2012 [1 favorite]


Couldn't he just not read the letters?
posted by b1tr0t at 8:52 PM on June 16, 2012 [2 favorites]


A "gunner" is a hyper-aggressively competitive law school student. The type who raises his or her hand at every question and ass-kisses and, well you get the idea. But for the record, gunners generallty have their Summer jobs lined up in September. She isn't a gunner. SHe's a punk, in all of the best senses of the word.

Old law school joke:

Q: "What do you call the person who graduates last in his class in law school?"

A: "Your Honor."

But seriously, most judges I've dealt with have been decent people, and knowledgeable, and as far as their reputations are concerned been mostly worried about how diligently they apply the law. One of my close friends is a very conservative guy, whose own wife has said can be shockingly lacking in empathy, but he's a magistrate now, and has found that much of his time is now spent trying to put the kibosh on "driving-while-black" cases and such. He is not alone. Most judges - and being a judge is kind of a shit job, full of eye-rolling tedium and hearing the same technicality arguments all day long - pride themselves on weathering it all while remaining impartial.

But some judges, like some cops, assert their authority as a case for itself, and in this instance, Rakoff seems like one of those. A cleverer man than I could think of something that rhymes with his name and do something with that, but I'm no poet.
posted by Navelgazer at 8:55 PM on June 16, 2012 [7 favorites]


I like her. Grilled by Marshals on Monday, and she's back in the gallery on Wednesday, just to show them that they were "wrong and unjustified." A lot of people would have been too scared to come back at all.
posted by Kevin Street at 8:57 PM on June 16, 2012 [5 favorites]


The whole "gunner" thing has the complication of leading to entire classes of people who don't want to volunteer information at all because it's so bad to Be A Gunner. Well, classes where the people with *brains* don't want to volunteer for that reason, although some get over it, because the alternative is the other group, the people who are both idiots and so socially tone-deaf that they don't catch on to any of the signals that would indicate to anyone else that they don't know what they're talking about.

Even for the ones with brains, summer jobs coming out of lower-ranked places are a bit harder to come by now than they used to be. But I'm guessing most people here aren't assuming that the individual in question was so smart she really knew evidence better than the judge, so I'm going to guess they mean "gunner" more in that "oh dear lord shut up you moron and let us move on" kind of way.
posted by gracedissolved at 9:00 PM on June 16, 2012 [2 favorites]


The problem seems less with the judge here and more with the marshalls, at least from the linked articles. I do hope he answers her questions after the trial, however.
posted by kavasa at 9:01 PM on June 16, 2012 [1 favorite]


Damn, this makes me want to go observe something in my spare time too. "I did not spend my summer in pajamas with my cat doing nothing, I spent it observing cultural Internet things all professional-like! Also, cay behavior."
posted by nicebookrack at 9:02 PM on June 16, 2012 [3 favorites]


Cat behavior. In cays. Conclusion: cats do not surf well.
posted by nicebookrack at 9:04 PM on June 16, 2012 [4 favorites]


So who is she going to address her questions to, her profs? During the summer break?
posted by Slackermagee at 9:04 PM on June 16, 2012 [1 favorite]


Joking aside, I'm frankly sympathetic with the judge here. Receiving multiple communications regarding an ongoing trial is potentially a ground for appeal, and certainly makes the judge look unprofessional.

The judge may or may not be in his rights to not read the letters, but sending or otherwise allowing US Marshalls to harrass her, take her phone, and otherwise intimidate her is pretty shitty, abusive and unprofessional behavior on behalf of a public servant.
posted by Blazecock Pileon at 9:08 PM on June 16, 2012 [4 favorites]


sending or otherwise allowing US Marshalls to harrass her, take her phone, and otherwise intimidate her is pretty shitty

Did I miss that part?
posted by stbalbach at 9:13 PM on June 16, 2012 [1 favorite]


The Constitution explicitly forbids the government from the confiscation of private property without compensation. It's good to know that the Constitution is applied in Judge Rakoff's court.
posted by Goofyy at 9:14 PM on June 16, 2012


gracedisolved: I'm guessing you have some law school experience based on your comment, but it is different from mine.

"Gunners" are not necessarily by any means any smarter than anyone else in the class, which will be taught in the Socratic method anyway, so that everyone speaks and shares knowledge and insight. They are, rather, the ones "gunning" to be at the top of the class, and thus fucking up the process for the rest of the students who are supposedly in there to learn from the discussion, and not to compete for who gets the most attention.

The "gunners" I knew ran the spectrum of the smartest to the dumbest in my classes, but were the ones bragging as they entered the classroom that they got to hold someone's phone that had Sandra Day O'Connor's phone number in it. And then they would hold the class hostage with questions about stuff everyone already understood so that they could talk. That's what we're discussing here. And I don't think Benula Bensam is among them.
posted by Navelgazer at 9:15 PM on June 16, 2012 [7 favorites]


The whole "gunner" thing has the complication of leading to entire classes of people who don't want to volunteer information at all because it's so bad to Be A Gunner.

I'd never heard of this term before today. But a few months ago, I bumped into an old law school acquaintance. He told me that, at the start of each semester, people would figure out which tutorials that my best friend and I were in, and try and get into those tutes. This was because we reliably would do the readings, and talk and argue and debate, and they could just sit back and coast and not do anything to get their participation marks.

So I guess I was a 'gunner'. But I did that stuff because it was fun and interesting, rather than because I was dedicated to getting good grades (although there was that, too). It's good to be smart, and curious, and engaged. So fuck anyone who wants to judge me for it. Or, really, for anything.
posted by His thoughts were red thoughts at 9:19 PM on June 16, 2012 [10 favorites]


From that first article, does anybody know what the author means by referring to Benula as a "gunner"?

Yeah, as others have said, a "gunner" is basically an irritating know-it-all. My father went to Yale Law School about thirty-five years ago and they played a game called "gunner bingo". He and his friends would put various gunners on bingo cards and check them off whenever they talked in class, then (allegedly) stand up and shout "BINGO!" when they got five in a row.
posted by Mrs. Pterodactyl at 9:21 PM on June 16, 2012 [12 favorites]


His thoughts were red thoughts: if you weren't doing it for the adoration of the profs, you weren't a gunner. Several of my friends were Summa, and weren't gunners.
posted by Navelgazer at 9:22 PM on June 16, 2012


His thoughts were red thoughts: if you weren't doing it for the adoration of the profs, you weren't a gunner. Several of my friends were Summa, and weren't gunners.

I see. Maybe Australian law students are just too apathetic for that, because I'm not sure that I can remember anyone doing a damn thing for the adoration of my law school lecturers. The friend I mentioned to went back and taught at our alma mater last year, and ain't nobody be trying to impress him.

Maybe this difference can be accounted for by the fact that law is most often an undergrad degree in Australia, rather than a post grad like in the US. No such thing as 'pre-law' here.

We did have tropes about mature age students though - the kind that wore business shirts to class, and sat in the front row of lectures with clipboards and neatly laid out selections of pens; "SHHH! SOME OF US ARE HERE TO LEARN".
posted by His thoughts were red thoughts at 9:29 PM on June 16, 2012


"sending or otherwise allowing US Marshalls to harrass her, take her phone, and otherwise intimidate her is pretty shitty

Did I miss that part?
"

I believe it was in the India Express article.

I do note that nobody seems to be saying that she thought he was incorrect, rather that she was writing admiring his decisions.
posted by klangklangston at 9:29 PM on June 16, 2012 [1 favorite]


Or here's a better way to think about it. Gunners are the ones who come into law school ready to look into the cameras and say, "I didn't come here to make friends. I came here to win."
posted by Navelgazer at 9:29 PM on June 16, 2012 [5 favorites]


Joke's on them, then. These days, the only way to win at law school is not to play.
posted by His thoughts were red thoughts at 9:33 PM on June 16, 2012 [29 favorites]


I believe it was in the India Express article.

It says
She said when she was called by the judge, she told him that her phone had been confiscated and her pictures taken by the marshals, to which Rakoff "expressed surprise and said he was not aware of it."
posted by stbalbach at 9:33 PM on June 16, 2012 [1 favorite]


I think in these post-militarization-of-the-cops days you can pretty much expect any interaction with law enforcement to include seizure of your personal devices and the perusal/confiscation of any information on them. Protecting the fatherland and all that.
posted by maxwelton at 9:40 PM on June 16, 2012 [6 favorites]


his thoughts were red thoughts: I find it really varies depending on department. For example, in my experience, in Philosophy classes there would reliably be what is currently being described as "gunners," rather obnoxious and loud students which held professors hostage with stupid questions to the detriment of others. While in literature and geography classes, the "gunners" were actually very well-engaged and thoughtful students who came prepared to discuss the readings and were often appreciated by their fellow students (often too much, as you describe, allowing them to depend on them).

The difference is probably whether or not the subject matter is interesting, rather than anything to do with the students. Sometimes you're in classes because you want to be, and other times you're there to get them over with and get your piece of paper.

A related problem is increasing class sizes. Teaching philosophy (and probably law too) is really hard to do with rooms of 50+ students of varying learning styles.
posted by mek at 9:52 PM on June 16, 2012


Protecting the fatherland

Does India have any groups that might want to see Rajat Gupta kept out of jail (or put into jail)? I mean, this ain't Bob from Milwaukee on trial for poaching. It's a high profile case and security would be pretty tight.
posted by stbalbach at 9:54 PM on June 16, 2012 [1 favorite]


Absaolutely stupid. This student knows nothing of how real courtrooms work. It is not the province of a citizen to interfere in the midst of a trial of another citizen--especially as the Rules of Professional Responsibility likely prohibits this.
posted by Ironmouth at 10:01 PM on June 16, 2012 [8 favorites]


rather that she was writing admiring his decisions.

The defense might have some objection about the impartiality of the court if it was found the judge ruled in a way that concurred with the points made in her letters.
posted by stbalbach at 10:03 PM on June 16, 2012 [2 favorites]


I think in these post-militarization-of-the-cops days you can pretty much expect any interaction with law enforcement to include seizure of your personal devices and the perusal/confiscation of any information on them. Protecting the fatherland and all that.

Such evidence, you bet seized pursuant to an airtight subpoena, would be critical to any prosecution of a violation of the securities laws. When charging a person sittling on millions upon millions of dollars with a crime he's going to have the best legal talent ever. The prosecution will cover every base.

Her letters create a fair trial question later upon appeal.
posted by Ironmouth at 10:05 PM on June 16, 2012 [5 favorites]


Does India have any groups that might want to see Rajat Gupta kept out of jail (or put into jail)? I mean, this ain't Bob from Milwaukee on trial for poaching. It's a high profile case and security would be pretty tight.

Nope. No one cares.
posted by discopolo at 10:07 PM on June 16, 2012


Also, Bensam is not Rajasthani like i assume Gupta is from his name. So the idea of any kind of spy/conspiracy thing is weird if you know anything about India.

India is really, really, really big.
posted by discopolo at 10:16 PM on June 16, 2012 [5 favorites]


Here's what the WSJ wrote:
That isn’t what the Marshals thought. Bensam said the Marshals pulled her out during Blankfein’s testimony Monday to question her. After a half hour, she said, she decided to go home and and refused to answer any more questions. Bensam said she returned Tuesday to retrieve her phone, which she had to leave with security.
Somewhat ambiguous, it's not clear if they 'seized' her phone or if they simply removed it from her for the 'interrogation' and she didn't have a chance to ask for it back or what.
Such evidence, you bet seized pursuant to an airtight subpoena, would be critical to any prosecution of a violation of the securities laws. When charging a person sittling on millions upon millions of dollars
We are talking about the person who wrote letters to the judge. Try to pay attention.
posted by delmoi at 10:27 PM on June 16, 2012 [1 favorite]


This student knows nothing of how real courtrooms work.

So... Why is this in any way interesting other than in a "coming-of-age-did-something-stupid" sort of way? The woman involved has said "Yup, I made a mistake." What are we doing here other than kicking her when she's down?

Also, most people's "coming-of-age-did-something-stupid" stories end with an actual arrest. Getting the feds involved instead of the local policy is impressive, but over all this is really pretty tame.
posted by Tell Me No Lies at 10:31 PM on June 16, 2012 [2 favorites]


It's not that far-fetched:

1) Young female student writes letters to judge.
2) Judge reads letters.
3) Judge makes decision.
4) Those decisions coincide with arguments made by student in said letters, received previously.
5) Defense lawyers find out somehow.
6) Hilarity ensues.
7) MISTRIAL.

But the whole thing should have ended at "this thing you're doing, please don't do it anymore." Of course it's also surprising that you could go through all of law school and lack the sense to perceive the issues with doing this.
posted by mek at 10:36 PM on June 16, 2012 [3 favorites]


"Bensam said once she was escorted out of the courtroom on Monday, the US Marshals questioned her for about 30 minutes and refused to give her cell phone saying she could get it back only after she answered all their questions."

I suspect the judge didn't "sic" the Marshalls on her so much as ask them to talk to her about it. For some reason they decide to act like bullies, which is a complete and total mystery, because cops never ever do shit like that.
posted by Xoebe at 10:48 PM on June 16, 2012 [14 favorites]


If the woman in question had decided to post her letters on a blog as "open letters to the judge"...I assume that's OK? Or are people, in theory, not allowed to ever discuss a case? I mean, if I go sit in the Island County courthouse and watch a trial, am I not allowed to discuss it on my blog?
posted by maxwelton at 11:02 PM on June 16, 2012


maxwelton, that would be perfectly fine, because it is the judge's obligation to not seek out and read commentary on a case they are currently presiding over. In the case of personal letters, the problem is that the judge doesn't really know they are inappropriate until after they have opened and read them.
posted by mek at 11:09 PM on June 16, 2012


Quite likely she had to check her cell phone with security before entering the court room as a routine procedure for all visitors, and the Marshals who questioned her had nothing to do with her not possessing it.

That Indian Express article stinks of spin.
posted by Ardiril at 11:21 PM on June 16, 2012 [4 favorites]


Ms. Bensam said that she had sent three letters to Judge Rakoff about various evidentiary rulings that he had made in the case, posing questions about some and disagreeing with others.

How could someone ever think it would be okay to send to a judge letters that contained commentary on an ongoing trial? Doesn't common sense kick in? "You know what would be awesome? If I sent a letter to a judge discussing the federal rules of evidence as they apply to this case, and he actually read it! How cool would that be, to have a federal judge read my letter! ... Wait, wait, wait. It would be cool that he read it but less cool when the letters are seen as trying to influence the case."

I try to remind myself that I'm approaching this issue as someone who works in a court, so maybe this seems more "DUH!" to me than some other people. But the flip side is that I haven't been to law school (yet), and this girl has. She isn't a random citizen whose only experience with the law is the occasional Law & Order rerun; this is an actual Student Of Law who thought that it would be okay to send letters to a judge about an ongoing case. I understand that she's excited about the federal rules of evidence, but there are other rules that apply in courtrooms too.
posted by hypotheticole at 11:22 PM on June 16, 2012 [8 favorites]


Old law school joke:

Q: "What do you call the person who graduates last in his class in law school?"

A: "Your Honor."


I think that joke works only in the US and possibly the UK.
In Asia and most countries in Europe, you usually need to be among the top 10% or so to become a judge.
It's a well-respected, decently paid job. Of course, it can't compete with the pay of big law, but then again, the hours are much better and you actually get to sleep at night.
Perhaps things will change in the US as well, with the impeding break-down of much of big law.
posted by sour cream at 11:28 PM on June 16, 2012


So the only thing required to get a mistrial declared is to have someone send the presiding judge a letter? That seems like an awfully tempting Achilles heel.
posted by maxwelton at 12:01 AM on June 17, 2012 [4 favorites]


One thing that I always thought was weird about the whole Gunner phenomenon was that there was just no connection between aggressive and frequent class participation and the final grade. There was one final exam, and they were graded anonymously, so no matter how much ass you kissed or how much you tried to impress the professor, it didn't have any effect on your grade.

But it eventually dawned on me that was just how those people were. They weren't doing it because they were angling for better grades, they were doing it because they couldn't help themselves.
posted by MoonOrb at 12:06 AM on June 17, 2012 [1 favorite]


maxwelton, of course it's not that easy - but that's precisely because of swift and stern responses such as this one. Avoiding the appearance of impropriety is deadly serious. Unfortunately for our hapless student, public exposure is part of that process - attempting to keep the whole incident quiet would have potentially made things worse.
posted by mek at 12:19 AM on June 17, 2012


Having occasionally been a "gunner," though not in law school, I know a few reasons people do that:
a) Being really interested and engaged in a topic, and not realizing that you're actually nitpicking and taking up class time with things that aren't really important.
b) Showing off to the other students (or maybe professor), and not being aware enough to know that this doesn't work.
c) If it's a class where the professor calls on people at random for really difficult questions, you can maybe get him sick of your voice on answers to easy questions, and he won't call on you for the tough ones. This can easily backfire.
posted by JohnnyB at 12:48 AM on June 17, 2012 [3 favorites]


Yeah, being a diligent student who participates in class doesn't make you a gunner. Gunning requires some combination of aggression, disdain for your fellow students, social cluelessness, showing off, and narcissism ("my legal thoughts are both original and so important I can't leave them unsaid! Someone might not be enlightened by my brilliance!"). Not necessarily all of these things, but some combination. Always aggressive, though. It takes a certain amount of, well, douchebaggery to manage to completely dominate a conversation in a room full of hyperverbal people who got in to the top tier school of your choosing.

Having observed many gunners in their natural habitat, I can tell you one of the more interesting things about gunners is their interaction with professors, because they typically succeed the best at gunning in classes where the professor has many of the same characteristics as gunners -- aggressive towards students, narcissistic about his ideas, disdains the classroom and its dynamic, is too socially clueless to realize that by allowing the gunner to dominate, he's losing the rest of the class and people are tuning out. It only takes the barest of classroom management skills to keep a gunner in check, so that he can participate but his gunning doesn't dominate the entire classroom conversation, but lots of law professors either can't be bothered or simply don't notice it's going on.

My worst class for gunning was constitutional law, which was taught by a brilliant, well-known con law scholar who was on a Supreme Court shortlist at one point. He'd stand in front of the class, put his leg up on the podium, and proceed to scratch his balls. He was socially inappropriate pretty much 24/7 and got reprimanded repeatedly for creeping on female students and just none of it registered. So he definitely didn't register the five or so gunners who were complete and total assholes, who interrupted classmates, talked over others, just talked louder to keep from being re-interrupted, acted like they had DISCOVERED the constitution and no one else had read it, were belittling assholes to classmates ("Only a moron could think [well-established, well-considered opinion] because [it differs from my brilliance in some way]!" "There must be something seriously wrong with you if you think that ..."). It was basically like internet trolls released into real life to argue as nastily as possible and take over as many threads as possible, and the moderator was LITERALLY scratching his balls. Anyway, literally half the class quit coming because it was absolutely unbearable and nobody was learning anything. 100% of the grade was the final so plenty of students decided it was easier to learn nothing while sitting at home or in the student lounge, instead of learning nothing while resisting the urge to stab the gunners.

Anyway, it was one of the more bizarre experiences of my life, between the dude propping up his leg for better ball-scratching access while lecturing, and all these people with literally zero social skills (him and the gunners) in a room together just ... allowed free reign to all be assholes to one another, while the rest of us watched what by mid-semester was basically a six-way shouting match that frequently had nothing to do with con law. AND THE GUY KEPT SCRATCHING HIS BALLS. He'd be screaming at someone, leg propped on podium, scratching his balls. Like, I was worried he had some new and untreatable STD. Also that with his leg like that, he was going to fall over while screaming and gesticulating with his non-scratching arm.
posted by Eyebrows McGee at 1:46 AM on June 17, 2012 [31 favorites]


But the whole thing should have ended at "this thing you're doing, please don't do it anymore."

Which is actually what Rakoff seems to have tried first. According to the Indian Express article:

According to court transcripts, Rakoff mentioned the letters to attorneys in the case and repeatedly asked court officials to tell Bensam to refrain from sending them.

If she kept sending them after the judge actually mentioned them in court, it's very difficult to feel any sympathy for her.
posted by Skeptic at 2:15 AM on June 17, 2012 [4 favorites]


Ow, the WSJ link is even more damning:

According to court transcripts, Judge Rakoff mentioned the letters to attorneys in the case and repeatedly asked court officials to tell the student to refrain from sending them. After the first letter, Judge Rakoff said he would treat it as an amicus brief.

In an interview outside the courthouse Wednesday, Bensam said the letters were about legal theories, and not the case itself. She says she doesn’t favor either side in the trial and wasn’t attempting to influence the judge.

“The purpose of the letters was really academic,” she said, calling them “more like a colloquy.”


[Facepalm]. Yeah, gunner alright. Like the judge hadn't more important concerns than running a "colloquy" with an unemployed law student...
posted by Skeptic at 2:24 AM on June 17, 2012 [5 favorites]


This is what happens when judges disable comments on their law blog.
posted by dumbland at 2:38 AM on June 17, 2012 [3 favorites]


[Facepalm]. Yeah, gunner alright. Like the judge hadn't more important concerns than running a "colloquy" with an unemployed law student...

But here is what's interesting in this story, I think. US culture seems, pretty much uniquely, to aggrandise the status of being a lawyer. To outsiders like me, it frequently appears that in the US lawyer is a class rather than a job. I don't think that this story would make much sense in another country.
posted by howfar at 2:55 AM on June 17, 2012 [1 favorite]


I talked a lot in law school because I find it more interesting to participate in a 2 hour-long class. I don't think I was a gunner but if others thought so, they weren't rude about it. I think they could tell I just wanted a dialogue, not that I was trying to show off or that I was overly sure I was right all the time.
posted by miss tea at 4:20 AM on June 17, 2012 [1 favorite]


Everyone feels some need to share their thoughts with others. People who have less than a certain amount don't even post on MetaFilter. Some have such a strong drive for it, that they impose the character of discussion (or argument, or even browbeating) onto any social interaction whatsoever. Some just want to be seen to be agreeing, for purposes of group affiliation.

I suspect that this woman has a higher-than-average conversational drive, and a much lower-than-average sensitivity to social heirarchy and etiquette. If she's not a MeFi member yet, she probably should become one.
posted by aeschenkarnos at 4:45 AM on June 17, 2012 [10 favorites]


But seriously, most judges I've dealt with have been decent people, and knowledgeable, and as far as their reputations are concerned been mostly worried about how diligently they apply the law.

You spend much time in state court? Because I'll give you the "decent people" bit but take serious issues with the latter. Most of the state-court judges I know are really lovely people, but a significant number of them seem far more interested in (1) getting re-elected, and (2) making sure the case comes out the way they think it ought to come out, requirements of the law be damned. I've got examples of state court judges finding that there's an issue of fact about whether a court order means what it says. Which is doubly weird, because not only is he ignoring the actual text of a judicial order, but we had filed a motion to dismiss, so "issue of fact" isn't really part of the standard.

Most of the judges in my part of the state are almost incapable of awarding summary judgment on anything. Sure, they'll grant partial summary judgment if that means getting rid of some bullshit claims or parties, but they will almost never grant judgment in the entirety, because that means someone won't get money. And we couldn't have that could we?

Federal court is an entirely different kettle of fish, and defendants would rather be in federal court 99% of the time. Why? Because those judges do actually care about what the law says, and if you give them a reason to dispose of a case on SJ, they will. State court? Not on your life.
posted by valkyryn at 4:50 AM on June 17, 2012 [3 favorites]


I was a psychology version a Gunner during my undergrad. My greatest regret in life is that I didn't start being a keener earlier. Getting called "Mr. Psychology" behind my back was a bit embarrassing. Getting $30K in scholarships, graduating first in my class and getting into grad school wasn't.

People who try to shame others for being interested and openly trying are the real world equivalent of vampires. They try to suck the life out of others to make themselves feel better. I suggest you take their coolness for what it is - a lack of heart.
posted by srboisvert at 4:53 AM on June 17, 2012 [3 favorites]


We are talking about the person who wrote letters to the judge. Try to pay attention.

You're subject to search and seizure in a courtroom. Use against you in criminal proceedings? Doubtful. Civil contempt? You bet.
posted by Ironmouth at 5:06 AM on June 17, 2012


I suggest you take their coolness for what it is - a lack of heart.

Who are you addressing, precisely?
posted by Diablevert at 5:35 AM on June 17, 2012


People who try to shame others for being interested and openly trying are the real world equivalent of vampires. They try to suck the life out of others to make themselves feel better. I suggest you take their coolness for what it is - a lack of heart.

"Being a gunner" has been repeatedly defined in this thread as not just actively participating in class but showing an unhealthy degree of narcissism and a lack of social skills, coupled with extra servings of naked ambition, in a context where that type of display, ironically, can not affect one's grades and where it is deemed excessive even in a room filled with over-achievers.

I dn't think anyone is criticizing genuine enthusiasm, are they? Or is calling someone a gunner the structural equivalent of telling someone they're acting white?
posted by mecran01 at 5:56 AM on June 17, 2012 [5 favorites]


I can't comment on the legal aspects of this case, but I can assure everyone that gunners are a well known phenomenon in med school as well.
posted by TedW at 6:26 AM on June 17, 2012


This student, like so many others, made a mistake in judgment prompted by enthusiasm and curiosity. This author's attitude towards her bothers me.
"Really, this is the fallacy of all gunners, everywhere. They think their opinions are (a) important, (b) useful, and (c) helpful, to themselves or others. They are not. I bet for most of her life, people have told this girl to raise her hand and speak up and generally be assertive. I bet everybody told her she was God’s own special snowflake, and if she had an insightful question for Judge Rakoff, there was no harm in asking."
God's own special snowflake, huh? What a putz. I hope her parents, teachers and friends always have told her to 'speak up and generally be assertive'. I hope they taught her to take risks, and make mistakes. I hope we all tell our children that. This writer can have no real idea of the student's social skills, her past behavior in law school, her reasons for not having a summer job - this is jealousy and intellectual bias wrapped in a social skills cloak of sit-down-shut-up and know your place repression.
posted by Liz Soldwish-Zoole at 6:28 AM on June 17, 2012 [4 favorites]


I hope they taught her to take risks, and make mistakes.

In this case, her mistake endangered a trial concerning billions of dollars in insider trading. Right now, we are living through an economic crisis brought upon us by just this kind of "assertive", "risk-taking", selfish and myopic behaviour. It's alright to take risks on one's own behalf. It's a very different matter to put other people at risk through one's ego-driven behaviour. If she hasn't understood this yet (and, unfortunately, reading her comments it seems that she hasn't), then she has no business whatsoever practicing law. Certainly not in view of US professional liability rules.
posted by Skeptic at 6:57 AM on June 17, 2012 [13 favorites]


this is jealousy and intellectual bias wrapped in a social skills cloak of sit-down-shut-up and know your place repression.

Arguably it is neither of those things. What it is, is an article on the Internet. There is nothing wrong with that.

Why do you support the kid's assertiveness but find fault with the author speaking up?
posted by deo rei at 7:02 AM on June 17, 2012


How could someone ever think it would be okay to send to a judge letters that contained commentary on an ongoing trial? Doesn't common sense kick in?...I try to remind myself that I'm approaching this issue as someone who works in a court, so maybe this seems more "DUH!" to me than some other people.

Yeah, I think that's right. I don't have technical knowledge of law, but common sense tells me that if you notice someone making an error on the job that might lead to problems later, you tell them, and you tell them privately so as not to show them up in public. Apparently this is a problem in the context of a trial, but it's not obvious to an outsider that this should be so. It might should have been obvious to a law student, though.
posted by escabeche at 7:02 AM on June 17, 2012 [2 favorites]


People keep making the distinction between honest enthusiasm and "gunning" but I wonder how clear that distinction is in practice. I'm a Prof although not in Law School and I'm always amazed at how much resentment can develop in a class against honestly enthusiastic and engaged students who are just genuinely passionate and knowledgeable about the material. I'm sure that there are plenty of such students who are routinely described as ghastly, brown-nosing, grade-grubbing socially maladjusted creeps when their sole crime is to always be ready with a question or a further contribution to the discussion etc.

It is true that there is usually an element of social unawareness to these people (they don't, for example, see that many of their classmates are looking at them with seething resentment), but not in the sense that they're bullying or shouting others down or what have you. Their socially aware kin learn to not display their enthusiasm and interest so nakedly in order to preserve an amicable relationship with their classmates. But it is sad--the absolutely ideal class to teach would be one where everyone was that enthusiastic and engaged, where everyone walked into the room bursting with ideas and questions about the day's reading and wanted to hear what everyone else had to say. It's sad that the 1or 2% of the class who do feel that way learn that acting on those feelings is an easy road to social isolation.
posted by yoink at 7:09 AM on June 17, 2012 [7 favorites]


FWIW, I used to work at the Chutick Law Library, which serves the Cardozo School of Law. I got to know some of the students, and observed a lot of students coming and going through the Library. Let me tell you, this is the Talk of the Town. I wouldn't be surprised if (rightly) there were discussion or lecture-oriented events devoted to the relevant issues.
posted by datawrangler at 7:12 AM on June 17, 2012


I should say probably the Talk of the blah blah blah.
posted by datawrangler at 7:14 AM on June 17, 2012


Yeah, I think that's right. I don't have technical knowledge of law, but common sense tells me that if you notice someone making an error on the job that might lead to problems later, you tell them, and you tell them privately so as not to show them up in public.

Well yes, but common sense should also tell you that if you are a law student, and the person you think is making an error is a federal court judge, that you yourself might be the one that is mistaken. Also that the judge isn't really there to respond to any questions you might have about aspects of a case that is currently being tried. Though I expect many would be happy to have a quick chat about the particulars of a settled matter with an enthusiastic student.
posted by Hello, I'm David McGahan at 7:28 AM on June 17, 2012 [1 favorite]


Gunning can be tricky to manage. Some law profs take no volunteers for the entire class session, calling on a succession of students in a way that ends up having most or all of, say, an eighty-person class speaking each day. There are no gunners that way, but it tends to require a very firm idea of where the prof wants the discussion to go, and while it keeps the students on their toes, it can reinforce the idea of the professor as oracle who hides the ball, and the students' answers as trying telling the prof the "right" answer.

In a more free-form but still Socratic class, the prof can ask questions while also helping the students to ask ones too. It's more apprenticing the students to the vernacular of the law, to analogic reasoning, and to the idea that while there may well be truth, there's no particular reason to assume it emanates from the well of the room. Often eighty students, working together, can come up with more interesting insights than a single prof despite the prof having better familiarity with the material and its context. The prof's responsibility then is only to prevent gunning in the sense of (1) someone expressing an unchallenged view the same way from class to class, creating an intellectual Groundhog Day effect, and (2) someone hogging all the time.

Legendary Socratic prof Phillip Areeda gave a talk on the Socratic method, and his notes were later published. I can only find them on JSTOR, so access is sadly limited. Maybe the law review can be persuaded to just put them online on its site -- it's an interesting read.
posted by zittrain at 7:35 AM on June 17, 2012


How could someone ever think it would be okay to send to a judge letters that contained commentary on an ongoing trial?

Honestly, I find it a bit confusing that amicus briefs are fine and dandy but this was so over-the-top verboten that it should be self-evidently terrible to everyone.

Is the difference that amicus briefs are (normally) filed in the pretrial? It's okay to try to influence a judge not to accept a piece of evidence before the trial, but not to make the same argument during it?
posted by ROU_Xenophobe at 8:15 AM on June 17, 2012


"Truth takes a backseat to process." - me

The difference here, I believe, is that amicus briefs probably have some protocol for submission beyond blind delivery by ordinary mail.
posted by Ardiril at 8:43 AM on June 17, 2012


I know nothing about the law, but I would have assumed this was innappropriate at best, illegal at worst. I am impressed by her gumption, though, even if said gumption makes me feel she got the message not at all.

As for gunner style students, they exist in all disciplines and seem equally problematic in all. Engaged and active students are great; students who believe the class is run for their benefit alone are not. As a prof it's frustrating because you spend huge amounts of time and energy trying to ensure that everyone feels like their voice is entitled to be heard and protecting such students from the wrath of their peers. I have had classes where the hostility to domineering (and rarely correct about anything) is so palpable that you can almost see it hang in the air.
posted by lesbiassparrow at 10:40 AM on June 17, 2012 [1 favorite]


The Gunner phenomenon has a special place in law school classes taught by Socratic method. In these classes, there aren't that many reasons or opportunities to raise one's hand, so people who develop Gunner reputations do so because they break a social norm. This is why it is viewed uncharitably, and I think also why the somewhat mean spirited article deemed Ms. Bensam to be a Gunner-the complete tone deafness and social impropriety of her actions. Face it- we're tough on people who violate social conventions when we think they ought to know better. Just think about how people are treated on here sometimes when they don't adhere to the site norms.
posted by MoonOrb at 11:00 AM on June 17, 2012 [1 favorite]


I'm puzzled by the reactions here. Her actions seem unambiguously okay, to me. Despite the reverential treatment that people accord federal judges, they are, in theory, public servants, and people are free to send non-threatening correspondence to them. (Judges get lots and lots of mail from prisoners and generally ignore it. Also, judges get lots of character references for defendants that are sometimes considered in the sentencing phase of trial.) The judge did the right thing to share the letters with the parties, but there is no way that her letters endangered or jeopardized the trial if the judge was doing his job right. In fact, let's say the judge did read her letters and realize, "Hmm, maybe I did get that evidentiary ruling wrong" ... and revise his ruling ... I fail to see the harm. How is the law student's letter any different from a treatise passage the judge happens across, leading him to realize his earlier ruling was wrong?

It seems to me that the judge was annoyed by the letters, annoyed by the impertinence of the student, and objected to her letters only because he regarded them as unseemly. I think her letters were brave and reflect well upon her willingness to ruffle feathers, which is a laudable quality that we like to see in lawyers, who should not be cowed by authority figures.
posted by allnamesaretaken at 12:24 PM on June 17, 2012 [4 favorites]


Most of the judges in my part of the state are almost incapable of awarding summary judgment on anything.

I take your word for that, but I would note that it sounds like you live in a jurisdiction where judges are elected and that's not the case everywhere.

In my experience in Massachusetts, there are two competing interests at play in summary judgment. (Setting aside, for a moment, the legal standard.) On one hand, I have found Massachusetts judges are conscientious and cognizant of the value of giving both parties "their day in court." Judges see this as an important role of our system.

On the other hand, we also have a serious budget crisis in our state courts. There has been a hiring freeze in place since 2008 affecting everyone apart from judges, so we cannot replace personnel that leave. You have one person doing the job(s) formerly done by three or four people. And simultaneously, the economy that caused the hiring freeze has also created more litigation. Less staff, more workload. And trials are the most labor-intensive thing courts do.

Those are just the behind-the-scenes policy concerns, of course. In practice, I've found judges to be conscientious about looking at the material facts* and applying the legal standard. Massachusetts courts aren't as liberal with summary judgments as federal courts infamously are, but it also definitely isn't off the table. Short version, I'm thankful we don't elect our judges.

* If we're going to talk about professional incompetence in a summary-judgment context, then I think the conversation begins with the inability of most attorneys to prepare joint statements of facts. It's difficult to grant summary judgment if the parties have made a train wreck out of the asking.

** Apologies for the derail. I missed out on the whole "gunner" phenomenon by attending the Disneyland of law schools.
posted by cribcage at 12:42 PM on June 17, 2012


the judge was annoyed by the letters, annoyed by the impertinence of the student, and objected to her letters only because he regarded them as unseemly.

You answered your own question.
posted by Ardiril at 12:51 PM on June 17, 2012


FWIW, in my jurisdiction, making any written communication to a judge absent a specific invitation to do so is a serious no-no. Doing that in the midst of a trial, about the trial, is practically unheard of. The US Marshall treatment was maybe a bit much, but the student was out of line.

Curious about the reason the judge made the ruling? Spend some quality time with Lexis or Westlaw (law students get them free) and find out that evidence can be pretty nuanced and rules of thumb you learn in class are just the beginning.

Anyway, to add my two cents to the gunner-or-not debate, I say the combination of cluelessness with the willingness to waste others' time with said cluelessness screams gunner.
posted by AV at 12:52 PM on June 17, 2012 [1 favorite]


The practical definition of "gunner" has undergone some changes in recent years. It used to be reserved for those who dominated classes and finished at or near the top, like in the top 10%. Now, however, it is often used to refer to people who dominate class time, rather than the class. In other words, there used to be a much stronger correlation between gunner status and GPA...but these days, it refers more to a state of mind.

Gunners are usually not well-liked. Not all successes are gunners. You get the idea.
posted by 3200 at 1:10 PM on June 17, 2012


On the other hand, we also have a serious budget crisis in our state courts. There has been a hiring freeze in place since 2008 affecting everyone apart from judges, so we cannot replace personnel that leave.

See, I'd think that this actually would mitigate against a grant of summary judgment, because this...

And trials are the most labor-intensive thing courts do.

...while true, masks the reality of the situation. The vast majority of cases don't go to trial. At my firm, something like 99% of our cases settle. One of the partners at my firm has in excess of 350 cases open at any given time and goes to trial between zero and two times a year. Tops. Average is less than one.

So yes, trials are considerably time consuming for judges. But so are dealing with summary judgment motions seriously. It's a lot easier to just deny the motion without reading and dealing with the briefs and write a cursory opinion than it is to actually analyze and apply the law properly. And since the case almost certainly isn't going to trial anyway, this isn't a bad bet to take from the perspective of minimizing the amount of work one has to do.

What, you think that state-court judges actually read briefs? I mean, sometimes that happens, yeah. But I can't tell you the number of times I've gone in to argue a motion only to have the judge tell us that he hasn't read a thing we've written.
posted by valkyryn at 1:23 PM on June 17, 2012


You answered your own question.

Uh, how? Finding something unseemly is not a license for a judge to send federal marshals to "put the heat to" somebody. Something can be unseemly but entirely within a person's rights to do. This student is not a party to the case, didn't disrupt the courtroom, could not conceivably be in contempt of court since her actions were not done within the judge's presence. A judge can't order someone, not a party or lawyer before him, not to send him correspondence, I'm fairly sure. So the judge's actions were the only actions that were out of line, it seems.
posted by allnamesaretaken at 1:57 PM on June 17, 2012


The only link that states that the judge "put the heat on" is the New York Observer, and that paper is not a reliable source for accurate reporting but for grandstanding linkbait. More likely the judge only passed the letters on to the Marshals, and they took their own initiative to detain her, and that is within their rights to do, as through her extraordinary actions, she established herself as a potential nutcase.
posted by Ardiril at 2:26 PM on June 17, 2012


The timeline is pretty clear from the links - the judge received the letter and immediately let the court know this had happened, and took a recess and discussed the matter with both attorneys as well as the student. They apparently agreed to move on, but the student continued to attend the trial (and possibly send letters), at which point the Marshals intervened and removed her from the courtroom.
posted by mek at 2:37 PM on June 17, 2012


Note too, that the highest tier news source among the links provided is an at-large financial columnist. This is just a blip in a boring-ass trial, the Marshals doing their jobs, and not even considered newsworthy by anyone but muckrakers.
posted by Ardiril at 2:54 PM on June 17, 2012


A judge can't order someone, not a party or lawyer before him, not to send him correspondence, I'm fairly sure.

He sure as heckfire can. It's called a contempt order, and it's one of the inherent powers of the judiciary.
posted by valkyryn at 3:52 PM on June 17, 2012 [2 favorites]


+1 for "sure as heckfire".
posted by benito.strauss at 4:17 PM on June 17, 2012 [1 favorite]


I'm having a hard time understanding what lawful basis the court would have to order a person not to send it correspondence. First of all, obviously, in this case there's a first amendment issue, and her communication would be entitled to a pretty high presumption of protection since it is directed to a government official and concerns a government operation. Second, and more generally, sending a letter to a judge does not as far as I know make someone subject to that Court's orders. Her mere attendance at the trial, separate from writing the letters, is a nonissue. Her letter was presumably mailed outside of court. A person can be held in contempt for actions committed in court; a person can be held in contempt for disobeying an order of the court; but it's not apparent what power the court has over this student. I live in a federal judicial district of the US, but not having any business in the federal court here (not being a litigant, a lawyer, or a witness) the court can't order me not to do something as long as it's not in the Court's presence.

Maybe this analysis is totally wrong. If so, how is it wrong?
posted by allnamesaretaken at 4:22 PM on June 17, 2012


To be a bit more concise in making my point, I am under the impression that there are two types of people subject to a Court's orders (and thus to its contempt power):
(1) people who are subject to its orders by virtue of the judicial process (parties and their counsel, and witnesses, and those who have evidence), and
(2) people who, by their presence in the courtroom, make themselves subject to the Court's orders as they pertain to orderly running of the court. The court can order these people only to do or refrain from doing things IN the courtroom.

If the spectator mailed the letter, or otherwise delivered it, outside the courtroom, I don't understand what judicial power could be invoked to order her not to do so.

If Joe Sixpack, who has never set foot in the court house, sends a letter to the judge saying "hey judge, go get stuffed!" I don't believe there's any basis for the judge to order him not to do that. And I'm not sure how this law student spectator is any different.
posted by allnamesaretaken at 4:49 PM on June 17, 2012


Judging from some of the comments upthread, I think there is some equating of engagement with the material with being a gunner. In my opinion, nothing could be further from the truth. In my law, there were many people who were smart and well-liked and also spoke up in class. There were also people who talked for the sake of hearing their own voice, belittled others openly, and were generally hated by all except other gunners.

Some examples of "gunner" behavior":
In my Federal income tax class, there was one gunner who delighted in coming up with increasingly convoluted hypotheticals to try and stump the prof.

There were a group of gunners on law review whose pre exam routine was telling each other (rather loudly) that they were smarter and better than everyone else in class and that there was no reason to worry about getting a bad grade.

In my Con Law class, some of the Federalist Society douchebags would debate the prof on cases like Roe v. Wade and Brown v. Board of Education, where the holdings went against their personal beliefs.

One of the TA's in my first year legal writing class had attracted the attentions of a gunner. In a move I'm sure he found charming, he would corner her and then grill her about upper level classes he was thinking of taking. It got so bad that a few of us felt compelled to rescue her whenever we saw this happening. She always effusively thanked whoever got her away.

Finally, at my school, there's a special part of graduation where the graduates of every school walk the campus to the football stadium. The valedictorian of each class held a flag denoting which school they were representing. Everyone usually cheers for their flag bearer. Our flag bearer was so hated and so obnoxious that only his own family cheered him when he was announced as the law school's flag bearer. To this day, I do not feel bad about this.

So, it takes more than simple smarts and engagement with the material. You have to possess a sociopathic malice and disdain for your fellow students while maintaining an unjustifiably high level of self regard.
posted by reenum at 4:51 PM on June 17, 2012


Anyone else think Eyebrows McGee's SCOTUS shortlist ball-scratching prof was Robert Bork? Probably not but it would have been hilarious.
posted by delmoi at 4:55 PM on June 17, 2012


The Joe Sixpack you describe, anat, is not addressing a specific case. However, his letter will most likely be turned over to whichever police agency has jurisdiction for investigation, especially if he continues mailing letters.

As for the law student, courts have specific procedures for unrelated parties to submit their opinions, with rules that address the documents' format, the number of copies, etc., and a law student should know that. Otherwise, a judge could get bogged down dealing with needless, extraneous crap.

Also, you are mistaking a judiciary official for a legislator; the latter is responsible for writing the laws and they are the ones to whom citizens should write addressing their concerns on how laws are interpreted.
posted by Ardiril at 5:41 PM on June 17, 2012


As well, I can tell you absolute surety, if someone wrote a letter to me when I was inspecting for the Nuclear Regulatory Commission telling me how I should be interpreting 10 CFR xxx, they would have had the FBI showing up at their place of employment within the hour with badges held high for all to see.
posted by Ardiril at 5:51 PM on June 17, 2012 [1 favorite]


I live in a federal judicial district of the US, but not having any business in the federal court here (not being a litigant, a lawyer, or a witness) the court can't order me not to do something as long as it's not in the Court's presence.

It's a nice thought. It just happens to be incorrect. Because this...

(2) people who, by their presence in the courtroom, make themselves subject to the Court's orders as they pertain to orderly running of the court. The court can order these people only to do or refrain from doing things IN the courtroom.

...is wrong. If a judge thinks anything is likely to be disruptive to proceedings in his court, he has wide discretion to do something about it.

Further, you're wrong just generally speaking: as someone residing within the jurisdiction of a particular court, you are subject to that court's jurisdiction whether or not you want to be. That's why it's called jurisdiction: you can be forced to do things you'd rather not do, simply because you live there. You don't have to be a party to an action. Heck, the only way you can become a party to an action is by the court issuing an order called a summons. Defendants don't willingly come to court, generally speaking; it takes a court order to get them there.

Or consider the subpoena power. You can be ordered to produce documents, give deposition testimony, or testify in court, whether you want to or not, just because you happen to live in your particular judicial district. Refuse and you can be fined or imprisoned.

Not to put too fine a point on it, but your understanding of the judicial power is flat out wrong. It is not limited to the courtroom, and it is not limited to parties to particular causes. The judicial power is part of the sovereign power of the state, just as much as the legislative and executive powers are. It is limited with respect to many things, and due process applies generally. But with respect to protecting the integrity of the judicial process it is almost unlimited.
posted by valkyryn at 5:52 PM on June 17, 2012 [2 favorites]


Anyone else think Eyebrows McGee's SCOTUS shortlist ball-scratching prof was Robert Bork?

I, of course, don't know personally, but I'd say it's unlikely. She said that the guy was on a shortlist. Bork was a nominee.
posted by valkyryn at 5:55 PM on June 17, 2012


What, you think that state-court judges actually read briefs?

I admit, I've seen occasions where it appeared the judge didn't read the papers, and in some jurisdictions it might be the rule. However, I also clerked for state trial courts after law school, and in my experience the judges always read the papers submitted.

State and federal courts have plenty of derisive stereotypes about each other. "The level of practice in state courts is abysmal." "Federal courts will look for any reason to throw a case out." "State courthouses are filled with political appointees and nepotism." Et cetera. There's probably truth in all of it. But in my experience, especially in Massachusetts, the folks wearing the robes tend to be exceptional people who work harder and care more about the system and "justice" than anybody else in the room. Which doesn't get publicized enough.
posted by cribcage at 6:29 PM on June 17, 2012 [1 favorite]


It was NOT Robert Bork, but that WOULD have been hilarious!
posted by Eyebrows McGee at 7:57 PM on June 17, 2012


State and federal courts have plenty of derisive stereotypes about each other.

Yep. Only most of the federal judges I know would take the stereotypes that state courts have about them as compliments. The reverse is rarely true.

the folks wearing the robes tend to be exceptional people who work harder and care more about the system and "justice" than anybody else in the room. Which doesn't get publicized enough.

This I'll grant you. I still find the lack of care for the law to be frustrating, but I'll never say that it's because they aren't taking their jobs seriously.
posted by valkyryn at 8:01 PM on June 17, 2012


FWIW, in my jurisdiction, making any written communication to a judge absent a specific invitation to do so is a serious no-no. Doing that in the midst of a trial, about the trial, is practically unheard of. The US Marshall treatment was maybe a bit much, but the student was out of line.

Even for people who are not parties to a case?

I will say this: letter writing aside, I give high kudos to this student for deciding to watch trials during her summer break.
posted by gjc at 8:29 PM on June 17, 2012


Also, you are mistaking a judiciary official for a legislator; the latter is responsible for writing the laws and they are the ones to whom citizens should write addressing their concerns on how laws are interpreted.

The First Amendment doesn't just protect communications to legislators.

As well, I can tell you absolute surety, if someone wrote a letter to me when I was inspecting for the Nuclear Regulatory Commission telling me how I should be interpreting 10 CFR xxx, they would have had the FBI showing up at their place of employment within the hour with badges held high for all to see.

See, assertions like this really have nothing to do with what I am arguing. What power-hungry U.S. marshals ACTUALLY DO is quite different from what they have a LEGAL BASIS for doing. I'm talking about what they have a legal basis for doing. Yes, they may "investigate" this student for making a nuisance of herself, mainly to intimidate her, but I am talking solely of whether the court has the authority to stop her from sending her letters. Your little anecdote about nuclear inspections has nothing to do with what I am arguing.

If a judge thinks anything is likely to be disruptive to proceedings in his court, he has wide discretion to do something about it.

I'd like to see one case (or heck, a verifiable anecdote) where a judge's order to a non-party, non-witness governing communications made outside the courtroom during pending litigation was enforced. I don't think you can produce one. And you know there's lots of case law on contempt power. I could be totally wrong, I accept that, but your view of judicial power reeks of judicial jock-sniffing to me, and I would like to see a case supporting what you're saying.

That's why it's called jurisdiction: you can be forced to do things you'd rather not do, simply because you live there. You don't have to be a party to an action.

Again, I just want one example of a judge issuing an order to a non-party, non-witness, during pending litigation, concerning speech outside the courtroom, and the order was upheld when challenged.

Heck, the only way you can become a party to an action is by the court issuing an order called a summons. Defendants don't willingly come to court, generally speaking; it takes a court order to get them there.

Did you think I said "plaintiff"? That's why I have said "party" throughout my comments. I didn't say they were willingly in court. Party incudes "defendant." Re-read my comment.

Or consider the subpoena power. You can be ordered to produce documents, give deposition testimony, or testify in court, whether you want to or not, just because you happen to live in your particular judicial district. Refuse and you can be fined or imprisoned.

Yes, that's why my comments were very clear in stating that the judicial power extends to parties and witnesses or people who have evidence. Re-read my comments.

Not to put too fine a point on it, but your understanding of the judicial power is flat out wrong. It is not limited to the courtroom, and it is not limited to parties to particular causes.

And I would submit that, during litigation, it is limited to the parties, witnesses, and the particular issues of a case or controversy ... plus people in the court's presence. I just want one example of a court issuing an order that was upheld restricting communication about a case ... especially communication to a judge.
posted by allnamesaretaken at 9:28 PM on June 17, 2012 [1 favorite]


My advice, Valkyryn. Personally I stopped reading at the phrase "judicial jock-sniffing."
posted by cribcage at 10:20 PM on June 17, 2012


No joke.
posted by valkyryn at 6:20 AM on June 18, 2012


If she's a law student who plans to practice in Federal Court, she should learn to read the Judges' rules -- especially for Judges like Judge Rakoff.

"Correspondence with the Court, and copying the Court on correspondence with others, is strictly forbidden, except as specifically authorized by these rules or expressly requested by the Court." (Individual Rules of Practice of Judge Rakoff (emphasis original))

Judge Rakoff is a serious guy. He rejected Citigroup's $285 million settlement with the SEC because Citigroup refused either to admit or deny liability, and he felt the public had a right to know. So you may call this judge a hard ass, but everyone knows that if you are going to practice in front of him (which this law student evidently hopes to do) you had darn well better read his rules and follow them to the letter. Does the rule on correspondence apply only to parties? Maybe. But rule number Zero of Jed Rakoff's courtroom is you do not take chances on any of the other rules if you aren't sure.

Plus the cellphone thing is just outright bullshit. Cellphones are not permitted in the SDNY Courthouse at 500 Pearl without special permission.
posted by The Bellman at 7:41 AM on June 18, 2012 [4 favorites]


stbalbach: "sending or otherwise allowing US Marshalls to harrass her, take her phone, and otherwise intimidate her is pretty shitty

Did I miss that part?
"

No. It's a piece of punditry that Blazecock Pileon invented, apparently to bolster his opinion.
posted by IAmBroom at 8:34 AM on June 18, 2012


valkyryn: "A judge can't order someone, not a party or lawyer before him, not to send him correspondence, I'm fairly sure.

He sure as heckfire can. It's called a contempt order, and it's one of the inherent powers of the judiciary.
"

Curious here - they certainly have that control if she's in the courtroom (in fact, AFAIK they could put her in jail for wearing loud colors if they so wished)... but could they exercise those powers upon someone who wasn't in attendance?
posted by IAmBroom at 8:35 AM on June 18, 2012


allnamesaretaken: "To be a bit more concise in making my point, I am under the impression that there are two types of people subject to a Court's orders (and thus to its contempt power):
(1) people who are subject to its orders by virtue of the judicial process (parties and their counsel, and witnesses, and those who have evidence), and
(2) people who, by their presence in the courtroom, make themselves subject to the Court's orders as they pertain to orderly running of the court. The court can order these people only to do or refrain from doing things IN the courtroom.
"

Thanks, you answered my question.
posted by IAmBroom at 8:39 AM on June 18, 2012


Thanks, you answered my question.

Incorrectly, unfortunately. "Indirect contempt" is contempt for things done outside the courtroom.
posted by valkyryn at 9:27 AM on June 18, 2012


I think the contempt question is being dismissed to easily without fully being answered. To the extent the conduct occurs in the courtroom, there is (hopefully) little disagreement that the court has the power to hold disruptors (however loosely this is defined) in contempt.

To the extent the conduct occurs outside the courtroom, though, I'm not sure that the question is answered just by describing the conduct as "indirect contempt." While indirect contempt indeed refers to conduct occurring outside the courtroom, as far as I know, the only people in jeopardy of being held in indirect contempt are people actually involved with the proceeding--like parties, attorneys, or maybe witnesses--or people who violate a court order (like an order restricting certain media coverage, prior restraint concerns aside).

But what about someone wholly uninvolved with the proceedings who is not violating an existing court order?

In the case of someone actually attending the trial who writes repeated letters about the rulings to the judge during the trial, I can imagine that once the judge has instructed the letter writer to stop doing so, this is tantamount to an order restricting certain media coverage, and then if the behavior were repeated, there's an argument that the behavior is contemptuous.

But take the hypothetical case of someone who isn't involved/attending the trial in any way and just likes to send the judge her opinions about his rulings, even while the trial is ongoing? Finding contempt in this type of situation would be dubious.

In this particular case, the law student was actually right there, in the courtroom during the trial, which makes this much more straightforward: the judge perceived the student as disrupting/attempting to potentially influence/creating the appearance of influencing the trial and asked the marshals to speak to her about it.
posted by MoonOrb at 9:56 AM on June 18, 2012


There are lots of gunners on MeFi.
posted by Kokopuff at 10:38 AM on June 18, 2012 [3 favorites]


In that hypothetical, MoonOrb, the judge might order the person to stop mailing those letters. If the person continued mailing letters, then the court might find "clear and convincing evidence of disobedience of a clear and unequivocal command," in which case the person would be found to have committed contempt of court.
posted by cribcage at 10:52 AM on June 18, 2012


(I should have clarified: "clear and convincing evidence" is a standard that a jurisdiction might use for civil contempt. Criminal contempt would require the usual "beyond a reasonable doubt." Depending on the jurisdiction, it might be up to the judge to pursue one versus the other, and generally judges will try to use as light a touch as possible in contempt contexts, in order to rectify the situation.)
posted by cribcage at 10:56 AM on June 18, 2012


@allnamesaretaken, you wrote, "her communication would be entitled to a pretty high presumption of protection since it is directed to a government official and concerns a government operation."

Thus, my anecdote. Her communication entitles her to nothing whatsoever.
posted by Ardiril at 3:19 PM on June 18, 2012


Now this is just getting comical.
posted by allnamesaretaken at 6:58 PM on June 18, 2012


I have always felt there should be courses in law school on the lines of "this is how it really works, in real life" and "this is what a form pleading looks like, and this is what you do with it," and most importantly, "Common Sense: What It Is and How To Use It." IMO, nobody should ever hire this student because she totally lacks common sense, just to start with, and her ego? 3L trumps experienced judge? This girl, should she ever be able to pass the bar, would be a clear liability to any employer. I know a guy like this, has known it all since 1L, never was able to pass the bar, and spends his life on disability filing and appealing in pro per lawsuits against public entities. It's what he does. He misinterprets every concept and every fact and cannot learn, despite multiple attorneys and judges trying their very best to educate him. I think law schools should make some attempt to weed these people out, and not just deposit them outside their gates to run amok.
posted by lphoenix at 11:18 AM on June 19, 2012 [1 favorite]


This is an interesting, quick read that is somewhat (not precisely) on point with answers from federal judges in Massachusetts. The question asked was, "Do you permit counsel to correspond directly with you?"
posted by cribcage at 11:35 PM on June 19, 2012



As cribcage's quote shows, judicial practice in this area is far from uniform. This is especially surprising given that federal courts are all governed by the same rules. Take each district court's own operating procedures and each judge's procedures and there turns out to be no uniformity at all.

In New Jersey federal court, there is little motion practice by "motion"; instead lawyers write letter-memoranda to the court which are filed in the case file. Try this in Florida and you will face discipline.

But Miss Bensam was not a party to this case. She attended as a member of the public. Members of the public write to federal judges all the time, especially in criminal cases. These letters are also usually made part of the court file.

Judges are not subject to cautions given to jurors about avoiding mention of the case in the press and elsewhere. They are not told not to discuss the case with family members. Judges are presumed to be impartial. Miss Bensam's letter to the judge was innocuous. All Judge Rakoff had to do was disclose the letter, as I am sure he discloses and will disclose all the others, to counsel and that is the end of the matter.

Having your courtroom deputies harass a member of the public for this innocuous conduct is ridiculous and a symptom of black robe syndrome. If she had threatened the judge it would be a different story. Writing along the lines of, "I think your decision to keep out x evidence is wrong because it meets a hearsay objection" should not have been anything which would cause such a reaction by the judge.

I have found that most judges are sincere human beings who really want to do the right thing. Like anyone else, they can make mistakes. While few people like the suggestion that they have made an error in judgment, I have never found a judge to become upset when a suggestion is made in a respectful way--especially later, by letter--that a decision was incorrect. On the contrary, judges wish to correct any errors themselves rather than be corrected by appellate courts.

If Judge Rakoff was speaking at a CLE conference at which Miss Basam submitted her question, no one would complain or think ill of her. The fact that she did so during the trial is irrelevant. For Judge Rakoff to fear he could be influence by her letter is disturbing. For him to threaten her with contempt is simply improper.
posted by tesseract420 at 3:16 AM on June 21, 2012


Thank you, tesseract420, for your sensible analysis. I think you are exactly right. I find Judge Rakoff's actions disturbing, but almost as bad are the comments in this thread (apparently from MeFi lawyers) that seem to reduce to the argument, "but he's a JUDGE! She should know better than to write to a JUDGE! Something something CONTEMPT!" Way too many gavel sniffers in this thread!
posted by allnamesaretaken at 8:28 PM on June 21, 2012 [1 favorite]


For Judge Rakoff to fear he could be influence by her letter is disturbing. For him to threaten her with contempt is simply improper.

It's a good thing he didn't do that, then. If you read the New York Times account of the case, (linked above, but why not once more, just for kicks) you'll see the sequence of events goes like this:

Trial commences, judge makes several evidentiary rulings. Student sends him three letters raising questions about the legal basis for those rulings.

Judge repeatedly asks court officers to locate the student and ask her to stop sending the letters

Monday, June 4: Marshalls finally get their shizz together and figure out who student is, question her. According to student, are heavy handed about it.

Wednesday, June 6: Judge invites student into chambers along with lawyers to personally ask her to stop sending the letters.

That's it. No one was threatened with contempt. Valkyryn is arguing that something like that would be within the judge's power, but a theoretical argument about what the judge can do and what actually happened here are quite different.

As for whether or not he should have asked her not to send the letters --- this is the trial of a former muckety-muck at Goldman Sachs, yes? I am sure Gupta's legal representatives are among the most able admitted to the New York Bar. The letters, as even the student admits, in part questioned the basis for some of his procedural rulings in the case. If Gupta is convicted, how long do you think it will take for his lawyers to seek to overturn the verdict, on the basis that Rackoff made a error in his procedural ruling so obvious even a first year law student could call him out on it, while the trial was still ongoing? A hot minute, would be my guess. I don't think Rackoff was worried he'd be overcome by her incisiveness and subtle ratiocination. I think he knew any such letter would be a handy stick for the defense to beat him with should they lose, and wanted to nip that in the bud.
posted by Diablevert at 8:59 PM on June 21, 2012 [1 favorite]


If Gupta is convicted, how long do you think it will take for his lawyers to seek to overturn the verdict, on the basis that Rackoff made a error in his procedural ruling so obvious even a first year law student could call him out on it, while the trial was still ongoing? A hot minute, would be my guess.

Let me get this straight. You're saying that Rakoff was correct in wanting to stop her letters, for fear that she might point out an obvious error in one of his rulings and that the fact that a first-year law student recognized his error would make the grounds for appeal even stronger?

You're saying it's sensible for a judge to order this law student to be silent so that the obviousness of his potential errors is not brought to people's attention?

That's pretty ridiculous.

Listen, nobody here is arguing that it was the height of professional prudence for her to send the letters. My point all along has been that Rakoff has no lawful basis for ordering her to stop sending the letters. She has a first amendment right to send them, since she is not a party or witness in the case, and the letters are expressions of opinion concerning the court's business. I think it is arguably an abuse of power for Rakoff to send the marshals to question her, since there's been no suggestion that the letters could be interpreted as "crazy" or "threatening" or anything like that. Maybe she's making an ass of herself, but the first amendment protects one's right to make an ass of oneself.

And I note with interest that nobody has come to this thread with any examples where such authority as they claim Rakoff to have to stop the letters, was actually exercised and upheld.
posted by allnamesaretaken at 9:18 AM on June 22, 2012


allnamesaretaken,

The reason you won't find an example of when an exercise of authority like this has been upheld is because this type of situation is not going to escalate to an actual charge of contempt which could then be appealed and reviewed by another court. Thus, the absence of an example isn't really a persuasive argument.

If you're questioning whether the judge has the actual authority to have the marshals interview her, the answer is, yes. She was in his courtroom. The judge has the inherent authority to control the proceedings in her or his courtroom. This authority even extends, in some cases, to behavior outside of the courtroom. Ms. Bensam's case doesn't really raise that question, though.

If you're instead questioning whether this was a wise use of the judge's authority, well, reasonable people can disagree on that. I'd argue that what happened wasn't that big of a deal: he asked the marshals to speak with her, he spoke with her, they clarified that she wasn't involved in the trial, she was told not to do it again, the end. I think the reason why it's a story is because it was such a bizarre breach of etiquette/protocol for a 2nd year law student to do something like this. This was more a "news of the weird" story than a "judge abuses authority" story, at least in my mind.

For a while, I thought you were asking about the limits of the judge's power, and whether this power should extend to people, say, wholly unconnected with the case who have never been in the judge's courtroom, who send the judge unsolicited letters. Judges get those kind of letters all the time, and unless the letters appear threatening, nothing happens. Had Ms. Bensam not been attending the trial (and was, for example, watching it Tru TV or something), I doubt anything would have happened if she wrote letters to the judge.

The First Amendment, by the way, isn't a complete answer, either. There are obvious limits on First Amendment expression in the courtroom: people cannot disrupt the proceedings, communicate with the jurors, and so on. I think this case is best viewed as a judge being cautious to ensure that, in fact, the letters are benign, and creating a clear record that these letters have no influence on his rulings or decisions. That may seem silly to you, and that's okay. And judges have discretion in the ways they exercise authority, and there's an argument here that he needn't have done anything in this case. But, yes, he had the actual authority to ask the marshals to speak to someone who was arguably disrupting the proceedings and he had the actual authority to order her not to send any more communications to the court about the trial while the trial was ongoing.
posted by MoonOrb at 9:41 AM on June 22, 2012


Let me get this straight. You're saying that Rakoff was correct in wanting to stop her letters, for fear that she might point out an obvious error in one of his rulings and that the fact that a first-year law student recognized his error would make the grounds for appeal even stronger?

No. I didn't say that I thought it was likely Rakoff was wrong. I said I thought it was likely that Gupta's lawyers would seize on any excuse to appeal the case (if he is convicted), and the letters provide such an excuse, regardless of whether their reasoning is sound.

Therefore, I didn't think it was unreasonable for the judge to ask her not to send the letters. Ask --- not order. Which, as far as I can tell from everything that's been reported in this case, is all he did.

As for using the Marshalls, so what? If you grant me, for the sake of argument, that a judge might request a citizen to stop pestering him just as a citizen might speak her mind to a judge, what means do you think he should have used to accomplish this? The Marshalls keep order in the court for the judge, in an instance like this they're his minions. IIRC correctly, the student herself said the judge was surprised that they held her for questioning, an indication that he hadn't ordered them to do that. All he did was ask her to knock it off. He didn't use his official powers to hold her in contempt.
posted by Diablevert at 9:49 AM on June 22, 2012


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