- This month’s newsletter is about the importance of the Rule of Law in times of crisis. You’ve had a legal career that’s touched nearly every aspect of law, from in-house Chief Legal and Compliance Officer of a Fortune 50 company, to counsel in government contracts litigation groups for two law firms, to Trial Attorney with the US Department of Justice in the Commercial Litigation Branch, Adjunct Professor at the University of Maryland Francis King Carey School of Law, and now serving as a Federal Judge in the US Court of Federal Claims. You have experienced the Rule of Law from multiple perspectives. How has that informed your view of ability of the Rule of Law to be a force of stability during a national crisis?
Answer: I hope this isn’t conforming to some judicial or attorney stereotype, but we first must define our terms. One definition of rule of law describes the term as referring to the principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. I would add to that list understandable, predictable, and stable. Our role in the judiciary requires us to contribute to all those elements (except, of course, for promulgating law). During a national crisis, stability is particularly important, and that means trying to keep the machinery of justice moving forward as quickly as we would in normal circumstances. In that regard, given my background both representing clients doing business with, and litigating against, the government – as well as representing the government itself – I can assure you that everyone wants their disputes resolved yesterday. Litigants no doubt think that cases take too long and cost too much as it is, and my view is that we as judges should do everything we can to be sensitive to those concerns at all times, and particularly during this health crisis, when some measure of delay and inefficiency is unfortunately inevitable.
- Did your view of the role of Rule of Law evolve as you transitioned from private sector to public sector? If so, how?
Answer: Perhaps in one respect. There is a debate within the legal community – including politicians, judges, attorneys, and academics (and in the popular press) – regarding the proper role of the judiciary. Is the job of a judge to be a baseball umpire, calling balls and strikes as best we can? Or is that a poor metaphor because objectivity is impossible and the application of legal concepts to facts is not a mechanical process, subject to scientific verification? Those issues weigh heavily on me because they’re theoretical, until you’re wearing a robe and issuing orders that impact lives and, in the cases before our court, the public fisc. That said, I remain committed to the umpire metaphor. While attorneys are ethically obligated to frame the law in the manner most helpful to their clients, and while academics train law students to ask what they think the law should be, I would suggest that a judge should ask what the law is. I think the mindset is important. Even where a case asks us to decide an issue where there is no clear answer, we should view ourselves as being constrained or compelled by the right answer, as opposed to what we might want the outcome to be, or what we might hold if we were the legislature (or perhaps the Supreme Court). As one of my mentors once put it, the law may not be math or physics (in terms of its ability to be applied objectively), but neither is the law like poetry. Part of cultivating the rule of law – and our citizenry’s confidence in it – is fostering the belief that judges, although human, are doing their best to be as objective as possible.
- You’ve written a treatise on the US Court of Federal Claims. What, do you believe, is the unique role of the Court of Federal Claims with respect to the Rule of Law in the United States?
Answer: That’s an easier question than the last one. Our court has been referred to as “the keeper of the nation’s conscience,” and “the People’s Court.” I’ve recently started to research the provenance of those descriptions, but the basic point is that the U.S. Court of Federal Claims plays a unique role in deciding claims – albeit primarily monetary claims – against the United States itself. Not everyone on this planet – not by a long shot – has the great honor and privilege of living in a country where they can call their government to account for its dealings. I am particularly sensitive to that reality, given that my ancestors, who immigrated to this country in the late 1800s and early 1900s, fled persecution by their own (former) governments.
More granularly, the Court’s subject matter jurisdiction and the particular categories of claims we consider – as bar members are well aware – often require highly specialized experience to litigate. If I recall correctly, both Judge Allegra (of blessed memory) – for whom I clerked and who graciously wrote a foreword for the treatise – and I advised in the treatise that counsel litigating cases in our Court must have a sound and thorough understanding of the Court’s subject matter jurisdiction and procedures. If I may say so, that would be good advice in any court or with respect to any legal subject, but it is particularly true in litigating against the sovereign.
- What role does the Bar play in promoting and protecting the Rule of Law in times of crisis?
Answer: Whether members of the bar are in-house, represent private parties in the Court, or represent the government – whether at the Justice Department or a government agency – everyone supports the Rule of Law by doing their job ethically and well. Excellent lawyering really does help the Court make better decisions, even if one side is always disappointed with the result. And better decisions – however someone wants to define that – enhance the law, at a minimum by providing citizens and their government more clarity in their arrangements on a going forward basis.
- What is the role of judges in promoting and protecting the Rule of Law in times of crisis?
Answer: I apologize for plagiarizing my answer to the first question, but we need to keep the wheels of justice turning as fast as we possibly can to remove uncertainty, resolve disputes, and let everyone know that the judicial branch is not taking a vacation. It’s trite, perhaps, but justice delayed is justice denied … particularly if interest isn’t recoverable (that’s intended as sovereign immunity humor).
Rapid Fire Round!
- Mac or PC?
Answer: Both – Mac for home use; PC for work.
- Top-three songs on your Spotify/I-tunes playlist?
Answer: God’s Country; May We All; Something to Be Proud Of. (Yes, I like patriotic/sentimental country music.)
- Federer or Nadal?
Answer: Neither. I enjoy watching tennis in the summer months, but I don’t have much of a preference in any professional sports, much to my son’s frustration (he votes for Nadal, however).
- Rehoboth, Ocean City or Dewey Beach?
Answer: None. I’ve only been to those beaches a few times and not since high school. My family prefers the beach in Hilton Head, SC, where we’ve been vacationing for nearly 23 years.
- Stay-at-Home Binge: books or television?
Answer: My wife is a children’s librarian, so I feel compelled to respond with books, but the truthful answer is TV. My defense is that I read and write all day for a living.
The Bar Association provides its members numerous educational opportunities and opportunities for practitioners to meet and interact with the judges of the Court and colleagues from both public and private practice for these purposes. Our members work closely with the Court’s judges to develop programs, contribute to revisions of the Court’s Rules, and organize a broad range of educational and other activities.