Rosa Parks, Samuel Alito and Innovation

How on earth can the Rosa Parks news thread ever be tied in with the Samuel Alito news thread? What does one have to do with the other? Plenty, when viewed from the vantage point of the innovation process.

Innovation requires the ability to view a situation from a fresh perspective, unbound to the prevailing conventional wisdoms. Implementing an innovation requires breaking down the natural human resistance to change. Pershing and Patton had to overcome resistance to the idea of tank warfare, and Billy Mitchell was court-martialed essentially on account of his promotion of military uses of the airplane. Sarah Schenirer faced resistance from the rabbis when she brought Torah education to religious Jewish girls, and Rabbi Pam faced more resistance than anyone in the Agudath Israel is comfortable admitting when he implemented his idea of bringing Torah education to Jewish children from irreligious backgrounds. In many religious Jewish social circles, the idea of procuring life insurance is met with recalcitrant resistance. Samuel Plimsoll ran up against much resistance in his campaign to save sailors' lives by preventing the overloading of cargo ships. And in our own day, the prevailing culture of Iraq has trouble dealing with this innovation known as democracy.

There can be no denying that much of this brouhaha over Rosa Parks is plain and simple pandering to the
b-l-a-c-k community.

HOWEVER, neither can there be any denying of Rosa Parks's role in the practical implementation of the principles enunciated a year earlier by the Supreme Court in Brown v. Board of Education. The Supreme Court can file a paper mandating cultural diversity as an ideal, but it took some real striving to put that ideal into practice.

Diversity of culture brings along diversity of ideas, and facilitates better reactions to new ideas. In other words, the diverse American society of the late 20th Century and beyond, which Rosa Parks helped to create, was a society conducive to innovation.

It is always very easy to engage in "what if" speculations; the fact is that we usually have no way of knowing what would have happened if we had done things differently. Accordingly, I will not make any point blank statement to the effect that all of the great American innovations in science, technology, the arts and commerce were facilitated by our cultural diversity.

But neither will I bet even my lunch money (let alone the mortgage money) that so much innovation would have been possible if America had not been brought beyond the stage of arguing over which members of the public should be sitting in which seats of the bus!

So what does this have to do with Judge Alito?

For various reasons, not all judicial dispositions are published in the official court reporters. In many instances, the so-called "unpublished decisions" (if I can read it then how can it not be published?) outnumber by large margins those that have been officially published.

Some courts place limitations upon which prior court cases that can be cited as precedent in legal memoranda. Specifically, some courts do not permit the citation of cases duly decided, but not published in the official court reporters. In fact, at least one court has chastised an attorney for citing an "unpublished" decision in her brief.

In other words, some judges trying to avoid accountability for their decisions. Judges can "hide" an opinion in an obscure or complicated area of the law (including but not limited to taxation) by arranging for it to not be officially published. This opinion, if it is not citable, cannot be considered as valid precedent.

The potential for abuse is not insignificant. After the Civil War, the Erie Railroad litigation was characterized by secret unpublicized decisions of corrupt judges. In our own day, the published/unpublished status of a judicial opinion can easily be subject to the whims of judges or other courthouse personnel whose object view been obscured by the placement of silver coins over their eyes.

Fortunately, Federal Rule of Appellate Procedure 32.1, when implemented in 2006, would allow attorneys in the Federal Circuit Courts to cite any opinion, published or otherwise, without fear of chastisement or sanction. FRAP 32.1 does not go far enough because it still does not give the "unpublished" opinions any precedential value. But at least the lawyers who cite "unpublished" opinions will no longer be chastised for so much as mentioning them in their briefs.

The proponents of FRAP 32.1 faced stiff opposition in getting as far as they did. They fought the good fight, and even got some small modicum of success.

This is good because expanding the universe of citable opinions adds diversity to our legal literature. Not only is the judiciary held accountable, but diverse ideas are introduced into the legal literature, and we can better engage in productive legal innovation.

And one staunch proponent of FRAP 32.1 was none other than Judge Alito.

Never mind the debate over the supposed "right" of a woman to do as she pleases with her body (for the record, I strongly oppose abortion whenever some non-lethal alternative is available)! Never mind the debate over whether the Constitution is a "living document!" These are all meaningless unless the judiciary is held to the standards of accountability and honesty.

Judge Alito, in championing the citability of the so-called "unreported" judicial opinions, has done his part for diversity.