The Volokh Conspiracy - "Deference":

An exchange between the majority and the dissent in Norwood v. Vance, decided yesterday by the Ninth Circuit. The issue:

Defendants claim the district court erred by refusing to give the following jury instruction:

In considering whether defendants were deliberately indifferent to the need for outdoor exercise, the jury should consider that defendants had a competing obligation under the Eighth Amendment to ensure the safety of prisoners, including protecting prisoners from each other. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.

The district court initially agreed to the language but, after plaintiff objected, declined to include it on the ground that "deference" was "undefined."

Part of Chief Judge Kozinski's argument for the majority:

The district court declined to give the proposed instruction because the meaning of deference would not be "clear to a lay person." But "deference" is not Urdu or Klingon; it is a common English word. See, e.g., Michael Crichton, Airframe 78 (1996) ("[S]he certainly knew where all the bodies were buried. Within the company, she was treated with a deference bordering on fear."). It may be true that deference has varied meanings, Dissent at 8515 n. 4, but so do most English words. If the district judge believed the term needed further context or definition, he could have provided it.

Part of Judge Thomas's dissent:

The majority criticizes the trial judge on this point, contending that deference is a commonly understood lay term, and could not have been confusing. However, its citation of language in the novel Airframe illustrates the problem. Instructing a jury to give prison officials deference, if deference commonly "borders on fear," is not a correct application of the law and would have amounted to directing a verdict in favor of the government. Even in our sterile legal environment, deference comes in varietals, such as Chevron deference, Skidmore deference, and sardonic deference. See, e.g., Massiah v. United States, 377 U.S. 201, 208 (1964) (White, J., dissenting) ("With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects rest on anything like the solid foundations which decisions of this gravity should require."). And, of course, there is more than one breed of institutional deference relevant to this case. See, e.g., McCord v. Maguire, 873 F.2d 1271, 1274 (9th Cir.1989) (correctly noting that we must be "mindful of the deference due the verdict of a jury") (citation omitted). Here, the trial judge quite rightly concluded that to give an instruction that mixed legal standards and, in effect, told the jury to layer deference upon deference, was not appropriate -- particularly when the judge had already given an entirely proper instruction on the topic. (I must, however, acknowledge that the majority is quite correct in intuiting that, unsurprisingly, there is no Klingon word for "deference." See generally Marc Okrand, THE KLINGON DICTIONARY (Star Trek 1992)).

Thanks to commenter Dave N for the pointer.

	[Eugene Volokh, July 10, 2009 at 5:35pm] Trackbacks "Deference": An exchange between the majority and the dissent in Norwood v. Vance, decided yesterday by the Ninth Circuit. The issue: Defendants claim the district court erred by refusing to give the following jury instruction: In considering whether defendants were deliberately indifferent to the need for outdoor exercise, the jury should consider that defendants had a competing obligation under the Eighth Amendment to ensure the safety of prisoners, including protecting prisoners from each other. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison. The district court initially agreed to the language but, after plaintiff objected, declined to include it on the ground that "deference" was "undefined." Part of Chief Judge Kozinski's argument for the majority: The district court declined to give the proposed instruction because the meaning of deference would not be "clear to a lay person." But "deference" is not Urdu or Klingon; it is a common English word. See, e.g., Michael Crichton, Airframe 78 (1996) ("[S]he certainly knew where all the bodies were buried. Within the company, she was treated with a deference bordering on fear."). It may be true that deference has varied meanings, Dissent at 8515 n. 4, but so do most English words. If the district judge believed the term needed further context or definition, he could have provided it. Part of Judge Thomas's dissent: The majority criticizes the trial judge on this point, contending that deference is a commonly understood lay term, and could not have been confusing. However, its citation of language in the novel Airframe illustrates the problem. Instructing a jury to give prison officials deference, if deference commonly "borders on fear," is not a correct application of the law and would have amounted to directing a verdict in favor of the government. Even in our sterile legal environment, deference comes in varietals, such as Chevron deference, Skidmore deference, and sardonic deference. See, e.g., Massiah v. United States, 377 U.S. 201, 208 (1964) (White, J., dissenting) ("With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects rest on anything like the solid foundations which decisions of this gravity should require."). And, of course, there is more than one breed of institutional deference relevant to this case. See, e.g., McCord v. Maguire, 873 F.2d 1271, 1274 (9th Cir.1989) (correctly noting that we must be "mindful of the deference due the verdict of a jury") (citation omitted). Here, the trial judge quite rightly concluded that to give an instruction that mixed legal standards and, in effect, told the jury to layer deference upon deference, was not appropriate -- particularly when the judge had already given an entirely proper instruction on the topic. (I must, however, acknowledge that the majority is quite correct in intuiting that, unsurprisingly, there is no Klingon word for "deference." See generally Marc Okrand, THE KLINGON DICTIONARY (Star Trek 1992)). Thanks to commenter Dave N for the pointer.