That is both a lament about how behind I am on so many fronts (but not blogging!) and a reference to the fact that in less than a year we have seen 3 high-profile cases in which a litigant paid dearly for missing a deadline.
First, we had the Supreme Court's outrageous decision in Bowles v. Russell, denying a habeas corpus petitioner's right of appeal on the ground that he missed the properly calculated filing deadline, even though he complied with the deadline as calculated and told to him by the federal district judge. (See my discussion of the case here.) Then came the Texas man who was executed by lethal injection---despite a de facto moratorium on such executions pending the Supreme Court's review of the issue---because his petition for a stay was delayed by a computer malfunction and, in the words of the presiding judge of the Texas Court of Criminal Appeals, "we close at 5," even though other judges were in the courthouse and would have entertained the petition. (See story here.)
And most recently, we have the case of the one-minute late courier, in which a $1 million fee application was denied because the courier arrived, well, one minute after the deadline, due to unexpectedly heavy traffic. "[T]he entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time," said the judge.
Is there a trend in these three unrelated cases? Maybe, maybe not, but I do think there is at least a political irony. Strict adherence to deadlines is a hallmark of modern formalism, which is in turn a creature of the political right. Yet in each of these cases, I daresay that most people would say that the courts have lost sight of the point of litigation as a means of dispute resolution: namely, decisions on the merits. Of course, no legal system could function without deadlines, but in each case there was a good reason to think that the judge had discretion to permit the filing. The cold insistence on deadlines in these circumstances looks uncomfortably like the mindless bureaucracy run amok that conservatives are supposed to detest.
Posted by Mike Dorf