Bench Memos

Law & the Courts

Judge Barron’s Barren Reasoning

Strange things are going on in the little-noted First Circuit.

Next Tuesday, a panel will hear oral argument in Doe v. Trustees of Boston College. In that case, Boston College is appealing the district court’s grant of a preliminary injunction that bars Boston College from suspending “John Doe,” a male student whom it accused of sexual misconduct.

Doe recently filed a routine motion asking the First Circuit to allow him to substitute in Harvard law professor—and Title IX expert—Jeannie Suk Gersen as his counsel. An odd series of events (discussed more fully here by Scott Greenfeld on his Simple Justice blog) then ensued:

1. First Circuit judge (and former Harvard law professor) David J. Barron denied Doe’s motion on the ground that Gersen’s representation of Doe “would create a recusal” among the First Circuit judges. Barron didn’t explain why it “would create a recusal.” Nor, more importantly, did he address why the prospect of a recusal should trump Doe’s right to select his counsel. Given that the composition of the panel hadn’t yet been announced, there was no reason to think that Doe’s selection of Gersen had been made in order to cause a recusal.

2. When the calendar was announced for next week, it turned out that Barron was sitting on every case being heard on Tuesday except the Doe case. That led observers to think that Barron himself was the source of the unexplained conflict. But if he were, it would be very odd that he would have seen fit to rule on the motion in the first place.

3. Doe then filed an extensive—and, to my mind, compelling—motion for reconsideration in which he spelled out the circumstances that led to his motion to have Gersen represent him. I don’t see how anyone who reads that motion for reconsideration would think that Doe was trying to manipulate the composition of the panel. Nor is there any apparent reason why any of the judges chosen for that panel would have to recuse if Gersen argued the case. Yet the panel, over a dissent, denied the motion for reconsideration without any explanation.

Doe might soon file a motion for en banc reconsideration. [Update: Doe filed that motion late on 10/31.] If so, we shall soon see whether the First Circuit will vindicate the right of a civil litigant, absent unusual circumstances, to be represented by his counsel of choice.

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