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Brill Speaks! The Conclusion

Updated: Apr 13

Today TAP concludes Dan Greenberg’s 2017 interview with Professor Howard Brill of the University of Arkansas School of Law. The discussion between Greenberg and Brill has covered many topics, ranging from the judge’s background as a law professor to his views on the Arkansas BAr Association. We hope you have found this series of posts of interest. Yesterday’s post discussed Brill’s impression of how the Arkansas court system works, how judges deal with ambiguity in the law, and opinion-writing. Today’s portion of the interview begins with a discussion of the role of the Arkansas Bar Association in the state’s legal system: GREENBERG: So, you might remember that I sent a questionnaire to appellate candidates a few years ago.


GREENBERG: And I actually sent you one question from that questionnaire, and I’d be happy to read it to you if you’d like…

BRILL: Sure.

GREENBERG: “Roughly 2,000 men seek Emergency Room assistance every year because they’ve zipped up their pants, but by mistake, have caught a part of their body in the zipper. Suppose an Arkansan has filed suit in a trial court against a clothing manufacturer, arguing that the injurious pants are an inherently dangerous consumer product, that they lacked appropriate warnings, and suppose further that the trial judge, the presiding judge, granted defendant’s motion to dismiss prior to trial, and suppose you’re an appellate judge who had to examine whether the motion to dismiss was proper. Tell me your thoughts about how such a decision on the appellate level is properly made.” BRILL: I think what an appellate judge would do, and should do with that, is to start by examining the statute on product liability and look at language such as ‘defective’, ‘inherently dangerous’. I think an appellate judge would look at phrases in the case law and in the statute, such as ‘common sense’ and the responsibility of the consumer. All that would have to be evaluated. And so, the question for an appellate court would be, as a matter of law, how should that phrase be applied to this fact pattern. When the fact finder, whether a judge or a jury, made a factual determination, it is that factual determination that  has to be evaluated according to the standard of review.

So, I don’t think there’s anything unusual about that fact pattern. We could change it to any other type of product and I think the task of the appellate court would be exactly the same.

GREENBERG: Well, I’m curious to know, with respect either to zippers or to cups of hot coffee, what do you think, is that a hard question or an easy question? BRILL: Do I think it’s a hard question or an easy question? I think that…

GREENBERG: Or, if you’d like to avoid the question, that’s up to you, as well. I mean, I told you, you could pick the questions you wanted to answer.

BRILL: Right.

GREENBERG: Or, maybe another way to put it is…

BRILL: Whether we’re talking about a zipper or hot coffee, it is the same legal question. Number one, what does the statute provide, and second, what were the facts in that particular case? So, I don’t think that the product changes anything. It’s still the responsibility of the appellate court to apply the law, and then to interpret the law, and then apply the facts to that.

GREENBERG: And do you think the question of whether zippers are inherently dangerous is a hard question or an easy question? BRILL: Oh, I don’t think I’m going to comment on that specifically. But I do use zippers and I do drink hot beverages, and I suppose my own experiences might be appropriate to me to consider.

GREENBERG: And I also wrote you about Caperton v. Massey, and you probably remember that that has to do with an extremely large independent expenditure. And the part of the holding that really raised my eyebrows had to do with, and I’ll paraphrase, the extremely large independent expenditures, what the Court calls extreme facts, can create a decisive probability of bias with respect to judicial elections. What’s your view on that? I mean, do you have any opinions on whether extremely large private expenditures in judicial elections should be understood as decisive? BRILL: I agree with the result in the Caperton case, but I’m also persuaded by that dissenting opinion which lists, I think, 40 questions that have to be resolved going forward. And Caperton had such extreme facts that I think that that individual was denied due process. So, I have no concerns with the majority conclusion, but I think those questions raised by the dissent are very appropriate. Where do we go now? Because rarely are we going to have anything, expenditures or contributions, of that type.

So, yes, I think that those types of extreme facts can create a probability of bias, and the judge, justice should recuse in that type of case.

GREENBERG: So, if you’ll help me understand what you’re getting at, is it fair to say that you think that the proper or correct scope of the holding is unclear? BRILL: Yes.


BRILL: It’s important for Courts to write opinions that give guidance to lower Courts in the future with different fact patterns, and I think there’s a lot of unknowns after that case. And I can remember having discussions when I was on the Court as to what did Caperton mean, and how far did it go, and what did it suggest in different fact patterns. These discussions did not involve any particular case we were dealing with, of course, but just in general, what else might fall into the category described by the five-person majority.

GREENBERG: So, tell me if I’m understanding you right. You’re suggesting that there’s something of a guidance failure with respect to positions.

BRILL: Yes … I would say that one of the purposes of an appellate decision is, as far as possible, to give guidance for future Courts. This Court really doesn’t do that, in part, because the facts are so overwhelming. So, it’s going to take other facts, different variations, for this decision, this holding, to sort of evolve over time.

When I wrote my opinions, one of my goals was to give guidance to lawyers and trial judges. But that was sometimes inconsistent with the primary goal of deciding the issue, and only the issue, directly presented to the court.  Let me give you an example. In one of the proposed constitutional amendments that was removed from the ballot, I wrote a concurring opinion urging that more of the objections to the amendment be addressed by the court, not simply the one that was the fatal flaw. Some version of this amendment is most likely to put forward again. It would have been a service not only to future proponents and those gathering signatures, but also to the Attorney General and the Secretary of State to have addressed the other alleged flaws.

GREENBERG: Right, okay. So, I now want to come to a set of questions which I think is of importance to you, and you may have detected, it’s of importance to me. You talked about, in our previous interview, that the preservation of the independence of the judicial branch is important to you. Well, tell me a little bit about what you mean by the ‘independence of the judicial branch’ in the Arkansas context.

BRILL: The judicial branch in Arkansas has to be free to interpret and apply the law, even when the executive branch and the legislative branch are not happy with the result.

We had a case last year, a criminal case, involving an extreme set of facts, and we, in effect, reversed the conviction, or dismissed the charges, because we said this conduct by this particular man did not fall within the language of the criminal statute. I, for one, was reluctant to come to that conclusion because I thought the conduct did fall within the statute. But when the court comes to that type of conclusion, then it must hand down that decision, even though the legislature may not be pleased with the result. The court may reject the position taken by the Attorney General. That’s the ‘independence’ of the courts.


BRILL: Now, looking ahead, looking ahead to next year, I am troubled by this so-called ‘tort reform’ amendment, and I’m looking at both halves of it. First, I am putting aside the whole issue of limits on damages, and limits on punitive damages. But, second,  I’m particularly concerned, though, about the role that a legislative body would play in drafting rules of procedure. That troubles me.

GREENBERG: Well, good, because I want to get to that, but I do want to ask you just a little more about independence.

BRILL: Sure.

GREENBERG: Because I want to make sure that I see what you’re getting at here. So, two questions for you: Is it important to preserve the independence of the legislative branch and the independence of the executive branch? Or, maybe a better way to put this is, does the judiciary require a special kind of independence that the other two branches do not? BRILL: All three branches need their own independence, but in some ways, they’re all connected. For instance, the legislature appropriates money for the judicial branch. The Governor fills vacancies in the judicial branch. So, there is that type of relationship where they have to work together. That’s essential. But, when it comes to the essential role of the Court, which is deciding cases that come before it, that’s where the court needs its independence.

GREENBERG: Right. So, by ‘independence’, when you say we need to respect the independence, or appreciate the independence, you mean something like we need to make sure that the powers that are peculiar or unique to each branch are treated appropriately and respected. Is it something like that? BRILL: Yes.

GREENBERG: Okay. So, I do want to ask you a little more about… Let me ask you kind of the same question in a different way, because I’ve read things by Justice Hannah, and he talked about how important the notion of separation of powers is, and how he was concerned that the public didn’t really understand the notion of separation of powers. What, in your view, does the public need to know about separation of powers? BRILL: From a standpoint of the judicial system, the public needs to know that Courts make decisions and have to make those decisions based upon the law, not based upon what the legislature thinks or believes, and not based upon what the Governor’s Office thinks or believes. When it comes to making decisions, the Courts are independent and they are sometimes going to make decisions that the other branches of the government and the public do not approve of…. That’s why we need independence. And the public needs to understand and appreciate that, sometimes, judges and Courts are going to make decisions that people do not like.

GREENBERG: Is this true for the other two branches of government, as well? BRILL: Well, the other two branches will, I suppose, they sometimes make decisions, but the legislature, of course, because it has 135 members, and because it’s elected every two years or four years, is perhaps much more responsive to the public input than the executive branch, and particularly, than the judicial branch.

GREENBERG: Fair enough. So, when we look at the State Constitution, you know, the Constitution tells us that Arkansas government is divided into three distinct departments. One part exercises the legislative power; another part exercises the judicial power. Tell me your thoughts about, for instance, the rules of evidence, because some people might argue that that’s really part of a judicial power, and some people might argue that that’s part of a policy-making or legislative power, and I’m curious to know how you think, for instance, the rules of evidence are properly understood or conceptualized.

BRILL: I think the rules of evidence govern how trials take place, how evidence is offered, which witnesses qualify as experts. I think that’s an integral part of the judicial system, and I believe the rules of evidence should be drafted and promulgated by the Supreme Court of Arkansas because it’s an integral part of what Courts do.

GREENBERG: Yes. So, I’m sure you’re aware that things were a little bit different before Amendment 80, and that the legislature was participating in the rules of evidence prior to Amendment 80 in a way that it does not and cannot now. Do you think that the previous understanding was a mistake or kind of imbalance, and that Amendment 80 rectified the situation? BRILL: Can you refresh me on what the legislature’s role was before Amendment 80, please? GREENBERG: So, I think my answer might be a little controversial, but I believe that, as a  matter of law, that the legislature had, more or less, full authority to write such rules prior to Amendment 80, although they delegated that to a committee, starting in and around the 1970s, and I think it was a little bit less ambiguous before then.

But, you know, different people may have a different interpretation than I do of that, (although I have pretty strong views that my interpretation’s correct), so if you’re going to base your answer on my interpretation, or if you have any reason to have doubts about my own interpretation, you might want to come at this from a different angle. But, that’s my interpretation.

BRILL: As I recall, and I’m speaking now of the rules of civil procedure. I’m not as clear on the other rules. Right after the Civil War, the legislature passed our Code of Civil Procedure, and that lasted from 1874 until 1977. So, for about 100 years, our rules of procedure were actually statutes. They were all statutes.

And then, in 19—, I think 1973, the legislature passed a statute, saying to the Court, “Make the rules. We are giving up our authority, and we’re giving it to the court.”  And the Supreme Court created a committee that worked over 2 or 3 years and proposed rules of civil procedure, which were adopted by the Supreme Court. And so, starting in 1977, we’ve had these rules, at least of civil procedure, adopted and promulgated by the Supreme Court. So, you’re correct, 100 years ago, the legislature had statutes governing civil procedure, and then it gave it to the Court, and then the Court had to act on it for 27 years.

I think that my argument would be that Amendment 80 codified, and put into the Constitution, and made more official and permanent, the rule-making power of the Court.

GREENBERG: You might say constitutionalized it.

BRILL: Yeah, the people constitutionalized the rule making power. They constitutionalized what had been done by statutes since, probably, 1973.

GREENBERG: Yeah. And do you think that’s a better state of affairs? BRILL: I think it’s a better state of affairs for this reason. The committees of the Arkansas Supreme Court spend a great deal of time calling on their own experience, their own expertise, sometimes outside people. They propose rules. The committees are made up, usually, of lawyers from different types of practice, different types of firms, providing different inputs. When those rules are sent to the Supreme Court, they are then reviewed by the Supreme Court and sent out for public comment, and then there’s three or four months of public comment before the final version is adopted.

I think that process – the committees, the different input, the public, the deliberate consideration by the Supreme Court – is a very helpful and necessary product to adopt rules of procedure and rules of evidence. So, I think the way the committees have worked since 1977 or so in drafting these rules has worked very well….  I thought that before as a law professor, and I feel that even more strongly, sitting in on the Court.

We had a number of instances in which we would have a difficult case, and we would say the rules are unclear, and then after that case was decided, we would send a note to the committee, saying, “Would you look into this rule? Do you want to clarify this rule going forward?” And I think that process is a very beneficial process.

GREENBERG: Speaking generally, do you understand this process of rule-making as more in the department of the legislative power or the judicial power, from a very abstract point of view? BRILL: I believe it is a judicial power, and that’s where it is placed by Amendment 80, and I think it should remain in Amendment 80…. Or, it should remain with the Courts.

GREENBERG: Chief Justice John Dan Kemp spoke about SJR 8 earlier this year and expressed some concerns which I think are consistent with yours, but are a little bit different. He said, “Section 3 of SJR 8 destroys the delicate balance which our State Constitution has provided for the separation of powers within state government.” Do you think that there’s a balance of powers issue here, in that there’s a superior or inferior balance of powers when one or another department of government handles these types of questions? BRILL: I don’t know…

GREENBERG: And I can rephrase or withdraw if you think that’s an unreasonable question.

BRILL: I have the same concern that Chief Justice Kemp has, that SJR 8 is taking some authority which properly belongs to the Courts, and I think that’s unwise.

GREENBERG: With respect to the balance of powers, do you think that things were more imbalanced prior to 1978? BRILL: You know, I don’t know that I would use that phrase.


BRILL: So, I just think that this particular proposal takes something away from the Courts that properly belongs to the Courts.

GREENBERG: I’m interested in your view about ‘loser pays’ and reforming offer of settlement rules, because some people say that such reforms might make the legal process more efficient and might benefit litigants generally. I’m curious to know if you have thoughts about that.

BRILL: No, I don’t have general or comprehensive thoughts on that issue. You know, we have a statute in Arkansas that says, in some types of lawsuits, particularly in breach of contract claims, the loser has to pay the attorney fees of the winning side, and I think that is a movement in that direction, at least from the standpoint of attorney fees. And that came about over years, and I think that that part of ‘loser pays’ is now enshrined in our statutory law. When people bring breach of contract lawsuits, the lawyer says to the client, “Well, we bring this lawsuit, but, you know, if we lose, we’re probably going to have to the pay the other side’s attorney fees.” So, I think there are some elements of this. I don’t know how much I would expand it, but I think this is an instance in which it has worked, to have the losing party pay the attorney fees of the successful litigant.

GREENBERG: All right, well, I want to thank you very much for taking the time to do this.

While the interview with Brill is complete, this blog post series isn’t. Our next post will give some final thoughts on what Brill said, especially regarding judicial rulemaking.

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