Alex Kozinski

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Alex Kozinski
Alex Kozinski cropped.jpg
Chief Judge of the United States Court of Appeals for the Ninth Circuit
Incumbent
Assumed office
December 1, 2007
Preceded byMary Schroeder
Judge of the United States Court of Appeals for the Ninth Circuit
Incumbent
Assumed office
November 7, 1985
Appointed byRonald Reagan
Preceded bySeat established
Personal details
Born(1950-07-23) July 23, 1950 (age 63)
Bucharest, Romania
Alma materUniversity of California, Los Angeles
 
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Alex Kozinski
Alex Kozinski cropped.jpg
Chief Judge of the United States Court of Appeals for the Ninth Circuit
Incumbent
Assumed office
December 1, 2007
Preceded byMary Schroeder
Judge of the United States Court of Appeals for the Ninth Circuit
Incumbent
Assumed office
November 7, 1985
Appointed byRonald Reagan
Preceded bySeat established
Personal details
Born(1950-07-23) July 23, 1950 (age 63)
Bucharest, Romania
Alma materUniversity of California, Los Angeles

Alex Kozinski (born July 23, 1950) is an American federal appellate court judge. He has served as Chief Judge of the United States Court of Appeals for the Ninth Circuit since November 2007. In addition to his judicial duties, Kozinski is an essayist and a judicial commentator.[1]

Biography[edit source | edit]

Kozinski was born in Bucharest, Romania, in July 1950. In 1962, when he was 12, his parents, both Holocaust survivors, brought him to the United States. The family settled in the Los Feliz neighborhood of Los Angeles, California, where his father, Moses, ran a small grocery store. Kozinski, who had grown up as a committed communist in Bucharest, became what he described as "an instant capitalist" when he took his first trip outside of the Iron Curtain, to Vienna, Austria, where he partook of such luxuries as chewing gum and bananas.[2]

Kozinski graduated from the University of California, Los Angeles, receiving an A.B. degree in 1972, and from the UCLA School of Law, receiving a J.D. degree in 1975. Kozinski clerked for future Supreme Court Justice Anthony Kennedy on the Ninth Circuit from 1975 to 1976, and then for Chief Justice of the United States Warren E. Burger from 1976 to 1977. From June 5, 1981 to August 1982, Kozinski served as the first U.S. Special Counsel appointed by President Ronald Reagan.

Judicial career[edit source | edit]

In 1982, Kozinski was appointed chief judge at the newly formed United States Court of Federal Claims. In 1985, at the age of 35, Kozinski was appointed to a new seat at the U. S. Court of Appeals for the Ninth Circuit by President Reagan, making him the youngest federal appeals court judge at the time of appointment. Defending the court against criticism because of a controversial decision, Elk Grove Unified School District v. Newdow, Kozinski went on record emphasizing judicial independence: "It seems to me that this is what makes this country truly great—that we can have a judiciary where the person who appoints you doesn't own you."[3] He also took a stand against the charge that the Ninth Circuit is overly liberal, which led some to call it "The Notorious Ninth": "I can say with some confidence that cries that the Ninth Circuit is so liberal are just simply misplaced."[4] On November 30, 2007, Kozinski was appointed the tenth chief judge of the Ninth Circuit.[5]

In 2008, according to The Los Angeles Times, Kozinski "maintained a publicly accessible website featuring sexually explicit photos and videos."[6] In response, Kozinski called for an ethics investigation of himself.[7] In July 2009, Kozinski was admonished by a panel headed by Judge Anthony Scirica.[8][9]

Notable cases[edit source | edit]

Thompson v. Calderon[edit source | edit]

Thomas Martin Thompson had been convicted based largely on the testimony of his fellow inmates, and doubts about the effectiveness of his defense counsel led seven former California prosecutors to file briefs on Thompson's behalf. The Ninth Circuit originally denied Thompson's habeas petition attacking the state court decision. Two days before Thompson's scheduled execution, the Ninth Circuit en banc reversed (7-4) the earlier denial.

Kozinski dissented:

If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself. ... That this is a capital case does not change the calculus. The stakes are higher in a death case, to be sure, but the stakes for a particular litigant play no legitimate role in the en banc process.

Kozinski's opinion was criticized by Judge Steven Reinhardt, who called it "bizarre and horrifying" and "unworthy of any jurist."[10] The en banc decision was reversed by the Supreme Court, which called the Ninth Circuit's action "a grave abuse of discretion."[11]

White v. Samsung Electronics America, Inc.[edit source | edit]

Images of Vanna White and the Samsung robot, from Kozinski's dissent in White v. Samsung Electronics America, Inc.

Kozinski dissented from an order rejecting the suggestion for rehearing en banc an appeal filed by Vanna White against Samsung for depicting a robot on a Wheel of Fortune set, in a humorous advertisement. While the Ninth Circuit held in favor of White, Kozinski dissented, stating that "All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy."[12]

An extended extract from the opinion is widely quoted: "Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture".[13]

Kozinski's dissent in White is also famous for his sarcastic remark that "for better or worse, we are the Court of Appeals for the Hollywood Circuit."

Mattel, Inc. v. MCA Records, Inc.[edit source | edit]

Yet another of Kozinski's high-profile cases was the lawsuit filed by Mattel against MCA Records, the record label of Danish pop-dance group Aqua, for "turning Barbie into a sex object" in their song "Barbie Girl." Kozinski opened the case with "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong" and famously concluded his opinion with the words: "The parties are advised to chill."[14]

United States v. Ramirez-Lopez (2003)[edit source | edit]

The majority found the due process rights of a man accused of smuggling illegal immigrants across the border were not violated because witnesses who could have exonerated him were deported before they could be deposed. Despite winning, federal prosecutors, apparently pushed by Kozinski's dissent, dropped all charges and released the defendant.[15][16] In 2012, after prosecutors used similar tactics in another case, United States v. Leal-Del Carmen, Kozinski's position in Ramirez-Lopez became the law in the Ninth Circuit.[17][18]

United States v. Isaacs[edit source | edit]

Kozinski was assigned an obscenity case in which Ira Isaacs was accused of distributing videos depicting bestiality and other images, similar to the 1973 Miller v. California case.[19][20] During the trial, on June 11, 2008, the Los Angeles Times reported that Kozinski had "maintained a publicly accessible Web site featuring sexually explicit photos and videos" at alex.kozinski.com. The Times reported that Kozinski's site included a photo of naked women on all fours painted to look like cows, a video of a half-dressed man cavorting with a sexually aroused farm animal, images of masturbation and public and contortionist sex, a slide show striptease featuring a transsexual, a series of photos of women's crotches as seen through snug fitting clothing or underwear, and content with themes of defecation and urination. Kozinski agreed that some of the material was inappropriate, but defended other content as "funny."[21]

Calling the coverage a "baseless smear" by a disgruntled litigant, Stanford University law professor Lawrence Lessig pointed out that the Times had unfairly taken the videos and pictures out of context in its descriptions. He wrote that one frequently mentioned video—the video described above as a "half-dressed man cavorting with a sexually aroused farm animal," which actually involves a man running away from a donkey—is available on YouTube,[22] and is not, as is implied by the Times article, an example of bestiality. He also argued that the Kozinski family's right to privacy was violated when the disgruntled litigant exposed the private files which were not intended for public viewing. Lessig compared this to breaking and entering a private residence.[23]

Kozinski initially refused to comment on disqualifying himself,[24] then granted a 48-hour stay after the prosecutor requested time to explore "a potential conflict of interest."[21] On June 13, Kozinski petitioned an ethics panel to investigate his own conduct. He asked Chief Justice John Roberts to assign the inquiry to a panel of judges outside the 9th Circuit's jurisdiction. Also, he said that his son, Yale, and his family or friends may have been responsible for posting some of the material.[25][26]

Kozinski had previously been involved in a dispute over government monitoring of federal court employees' computers. Administrative Office head Ralph Mecham dropped the monitoring program, but protested in the press.[27]

On June 15, 2008, it was reported that Kozinski had recused himself from the case.[28] On June 5, 2009, the Judicial Council of the Third Circuit issued an opinion clearing Kozinski of any wrongdoing.[29][30]

Cetacean Research v. Sea Shepherd[edit source | edit]

In February 2013, Kozinski wrote an opinion reversing a district court ruling denying Japanese whalers Institute of Cetacean Research a preliminary injunction against the US-based anti-whaling group Sea Shepherd Conservation Society. Kozinski found that the militant conservationist group were "pirates", reversed the denial of injunction by the district court, and affirmed its own provisional injunction against Sea Shepherd. The injunction bars Sea Shepherd from approaching within 500 yards of ICS vessels.[31] [32] Sea Shepherd founder Paul Watson dismissed the opinion as "entirely devoid of real evidence" and claimed that Sea Shepherd USA was in full compliance with the injunction.[33]

Essayist[edit source | edit]

Kozinski has won admirers across the political spectrum who praise his "common sense" decisions, his libertarian instinct, and his sense of humor.[1] His essays have been featured in publications such as Slate, The New Yorker, The New Republic and National Review.[citation needed]

What judges eat for breakfast[edit source | edit]

In a speech delivered on March 19, 1993, at the Symposium on the California Judiciary at Loyola Law School in Los Angeles,[34] Kozinski described as "horse manure" the idea that judicial decisions depend on what judges eat for breakfast. Peer-reviewed research demonstrates that judicial decisions do depend on the time elapsed since the last meal.[35]

See also[edit source | edit]

References[edit source | edit]

  1. ^ a b David A. Golden (1992), Humor, the Law, and Judge Kozinski's Greatest Hits, Brigham Young University Law Review: 513.
  2. ^ Welch, Matt; Krainin, Todd (March 8, 2013). "Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals". reason.com. Retrieved March 11, 2013. 
  3. ^ Online NewsHour: Debate Brews over Splitting 9th Circuit Court - January 17, 2005
  4. ^ Michaels, Spencer (January 17, 2005). Controversial Court. NewsHour with Jim Lehrer.
  5. ^ Gavel Passing to Mark Changing of the Guard for Ninth Circuit Court of Appeals, United States Courts for the Ninth Circuit Public Information Office news release, November 23, 2007.
  6. ^ "9th Circuit's chief judge posted sexually explicit matter on his website". The Los Angeles Times. June 11, 2008. 
  7. ^ Slater, Dan (June 17, 2008). "CJ Roberts Assigns East Coast Judges to Kozinski Investigation". The Wall Street Journal. 
  8. ^ "L.A. Now". The Los Angeles Times. July 2, 2009. 
  9. ^ Panel Decision
  10. ^ Bazelon, Emily. The Big Kozinski. LegalAffairs, January–February 2004. Retrieved on April 30, 2006.
  11. ^ Calderon v. Thompson, 523 U.S. 538, 542 (1998).
  12. ^ White v. Samsung Electronics America, Inc., 989 F.2d 1512, 1512 (9th Cir. 1993) (en banc).
  13. ^ http://www2.bc.edu/~yen/Torts/Vanna%20White%20Koz%20ed.pdf
  14. ^ Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).
  15. ^ Weinstein, Henry (April 23, 2003). "Appeal Lost, Yet Freedom Won". Los Angeles Times. Retrieved December 17, 2011. 
  16. ^ United States v. Juan Ramirez-Lopez, No. 01-50164 (9th Cir. January 10, 2003). [1]
  17. ^ Hull, Tim (September 14, 2012). "Prosecutors Told to Stop Deporting Witnesses". Courthouse News Service. Retrieved September 17, 2012. 
  18. ^ U.S. v. Leal-Del Carmen, no. 11-50094, (9th Cir. Sept. 14, 2012) ("We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today."). Retrieved September 17, 2012.
  19. ^ Kim Zetter (2008-06-11). "Chief Judge in Obscenity Case Caught Posting Porn". WIRED. 
  20. ^ USLaw (2008-08-11). "What "Stuff" was on Judge Kozinski’s Personal Website?". Celebrity Justice. 
  21. ^ a b Scott Glover (2008-06-11). "9th Circuit's chief judge posted sexually explicit matter on his website". Los Angeles Times. 
  22. ^ Video on YouTube
  23. ^ Lessig, Lawrence (June 12, 2008). The Kozinski mess.
  24. ^ Adam Liptak, "Calif. Trial Focuses on Pornography: Los Angeles Jury Will Decide If Videos Are Obscene," New York Times, June 12, 2008, A21.
  25. ^ Associated Press (June 13, 2008). California: Judge Calls for Inquiry Into His Conduct Over Web Site.
  26. ^ Blood, Michael R. (June 13, 2008). ap.google.com, Calif judge wants panel to probe his porn postings, Associated Press.[dead link]
  27. ^ Slater, Dan (June 11, 2008). "A Look Back at Judge Kozinski's Attack on Monitoring Court Computers". The Wall Street Journal. 
  28. ^ eFluxMedia report[dead link]
  29. ^ Jones, Ashby (July 2, 2009). "A ‘Pleased’ Kozinski Cleared of Wrongdoing". WSJ Law Blog. Retrieved September 20, 2011. 
  30. ^ In re Complaint of Judicial Misconduct, J.C. No. 03-08-90050, Judicial Council of the Third Circuit (June 5, 2009).
  31. ^ "US judge labels anti-whaling group 'pirates'". AFP. 2013-02-27. 
  32. ^ Keith Herting (2013-02-27). "Federal appeals court rules anti-whaling group modern-day 'pirates'". Jurist.org. 
  33. ^ "Ten Questions With Answers from the Southern Ocean", Sea Shepherd, 2013-02-27 
  34. ^ Kozinski, Alex (1993), "What I Ate for Breakfast and Other Mysteries of Judicial Decision Making", Loyola of Los Angeles Law Review 26 (4) 
  35. ^ Danziger, S.; Levav, J.; Avnaim-Pesso, L. (2011). "Extraneous factors in judicial decisions". Proceedings of the National Academy of Sciences 108 (17): 6889–6892. doi:10.1073/pnas.1018033108. ISSN 0027-8424. 

Sources[edit source | edit]

External links[edit source | edit]

Legal offices
New seatJudge of the United States Court of Appeals for the Ninth Circuit
1985–present
Incumbent
Preceded by
Mary Schroeder
Chief Judge of the United States Court of Appeals for the Ninth Circuit
2007–present