Adam Liptak’s latest Sidebar column in the NYT highlights a new study [pdf] conducted by the Chief Supervising Attorney of the Supreme Court of California, Jake Dear, and Edward Jessen, the Reporter of Judicial Decisions in California. The study, published in the UC Davis Law Review, finds that California’s Supreme Court is the most “followed” state court in the country.

Using the Shephard’s signal “followed by”, the study determined that from 1940-2005, state court decisions were “followed” approximately 24, 400 times by courts in other states. California leads the pack with 1260 such decisions. When you narrow the field to decisions followed 3 times and 5 times, California is still number one.

In each category, California beats New York handily, by 160 to 39 for three or more followed cases and by 45 to 6 for five or more. The race has tightened a little, though, in the last 20 years.

Connecticut is in the top half of the list, having its decisions followed at least once 508 times, three or more follows 28 times (putting it 18th on that list) and five or more follows 3 times.

Whoopee.

I understand that Law Reviews have to fill their pages and someone somewhere is curious about almost everything, but does this study actually help? In other words – so what?

In writing an appellate brief (and those that are far more experienced than me, feel free to chime and tell me how wrong I am), you first seek citations from within your own jurisdiction and perhaps include cases on point from other jurisdictions in a string cite. Only when there’s nothing on point in your own state do you need to look to other states (and even then, perhaps you’d look to your federal circuit court first). And even then, you would cite the sister state opinions you want your court to follow, but the number of times that opinion has been followed by other states may or may not be included in your brief. Wouldn’t you instead just cite to the other state decisions? That can easily be found by Shepardizing the opinion you’re relying on.

So I guess what I’m trying to say is that I don’t see the point of this study – other than to say “look at us”. Maybe there is no point other than to satisfy idle curiosity. Is there a point? What am I missing?

Just seems like the equivalent of whipping out the ruler and comparing.

Update: As Scott rightly points out in the comments, why is this even a column worthy of print in the NYT? Isn’t there something else going on in the legal world? Like, I don’t know, Elliot Spitzer’s mess or the absolute quagmire that is Georgia’s indigent defense system? Have we even seen a column from him on that? Or anyone in the NYT?

Also, in hindsight, I think a cleverer title may have been “The long arm of the law”. In fact, I’m going to go change it now.

There’s some nonsense on the interweb about Hillary Clinton when she was appointed by the court to represent an individual accused of assaulting a teen and how she cross-examined the 12-year old complainant and what this means about her as a person or some such thing. Rushing out the door now, but read for yourself here, here and here. Here‘s the story in question. I might have more on it later, I might not.

Update: Okay, I’m going to jump in. This whole “story” makes me rather upset. To portray her in a bad light because she did the very thing every competent criminal defense attorney should do just exemplifies the lack of understanding of the functioning and the importance of our adversarial system. So what if the victim was 12 years old? If the defense was that she was lying, then you have to go after her. What if she really was lying? What if she was and Hillary went soft on her? Would we be celebrating Hillary for effectively abandoning Constitution? Have we become that blinded by the media glare on sex crimes that we cannot recognize that every charge must be zealously defended or our rights will be eroded?

Lots of people are chiming in, with various views. Take this, for example:

Indeed, if the young victim were lying, one wonders why Hillary agreed to plead her client to “unlawful fondling of a minor under the age of 14, which carried a five-year sentence.”

And yes, I understand that even a child rapist is entitled to present a defense, but there are other ways to present a defense than by trying to destroy a complaining witness, especially where exoneration is not the goal, but conviction on a lesser charge, as in Hillary’s case. All-out destruction of the “opponent” is not often, if ever, required for effective representation. I’ve seen truly competent attorneys who manage to retain their moral integrity while carrying out their legal duty to their clients.

This monday morning quarterbacking is bullshit and offensive. It’s also disingenuous. At trial, the goal is the best possible outcome, be it a not guilty verdict or a guilty verdict on a lesser included. Why is “all-out” destruction of the opponent’s credibility not required? Why are we encouraging half-hearted lawyering? Different people have different styles and there is absolutely nothing wrong with what she did. Let’s see if you have the same feelings when you’re charged with a crime and your lawyer doesn’t ask the unpopular questions.

Tom, have you never gone to trial on a weak case? Have you never offered a plea bargain to a defendant despite knowing that you’d lose at trial? Then why this bs of “one wonders why Hillary agreed to plead her client”. You know damn well why.

It really is disgraceful that someone who fights to uphold the Constitutional rights of an accused individual is vilified in such a manner.

Strange goings on in the 2nd Circuit these past few days. On Thursday, it posted a decision in Higazy v. Templeton. The case involved an Egyptian Egyptian student detained as a material witness after the Sept. 11 attacks. The student claimed that he had been coerced by an FBI agent to make a false confession. But the court withdrew its opinion several hours later because of concerns that the decision contained information filed under seal. Unfortunately, by that point, some readers had downloaded it and one sent it to Howard Bashman who posted the original decision.

So the clerk called Bashman and asked him to take it down. He refused. He explains why. Patterico compares the two versions:

First, let’s look at the passage as it reads in the Second Circuit’s amended opinion:

[Plaintiff] Higazy alleges that during the polygraph, [FBI Agent] Templeton told him that he should cooperate . . . .

This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.

Higazy then gave Templeton a series of explanations as to how he obtained the radio.

Here is the full passage, including the redacted information. As you read it, ask yourself why it was submitted under seal:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.” Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Worthy of redaction?

S.Cotus is all over this and wonders why Volokh hasn’t jumped in.