This one again comes from the pen (keyboard) of Chief Judge Easterbrook in a concurrence to an opinion drafted by then-Chief Judge Flaum. The majority opinion (joined by Judge Bauer) upheld a line of cases in the Seventh Circuit allowing district courts to deny an award of costs to the prevailing party based on the other party’s indigence, but remanded the case for the district court to make clearer findings regarding the indigence of this particular losing party (including her future inability to pay). Judge Easterbrook would rather award costs automatically, and leave issues of indigence to the bankruptcy courts. He concurred, however, because he considered the issue best left to the Supreme Court to resolve because of a circuit split. He explains:

Making the award of costs routine has three additional benefits: (a) It avoids the expense of suit-by-suit inquiries into indigence, which as this case shows may be complex. Why replicate a bankruptcy proceeding just to decide on an award of costs? (b) It avoids false positives. Some people who claim to be indigent aren’t. Indeed, the very assertion “I’m indigent, so please excuse me” implies solvency. Why seek to avoid an award that, if you are destitute, cannot harm you? (A pauper who fears that the award could be collected from future income may have it discharged in bankruptcy.) (c) It avoids disparate treatment of identically situated litigants. District judges differ substantially in how they use the discretion this court’s decisions give them. Some regularly excuse costs for indigents; some never do; some draw hard-to-articulate lines. Rights measured by the chancellor’s foot are not “rights” of any kind, and such a stochastic process is not the administration of justice. We need rules that apply in an even-handed fashion.

Rivera v. City of Chicago, 469 F.3d 631 (7th Cir. 2006) (Easterbrook, J. concurring). Stochastic means characterized by randomness or conjecture and the term is used in statistics. The Chancellor’s foot seems to originate from this quote from English jurist John Seldon (1584-1654):

Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’T is all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ’T is the same thing in the Chancellor’s conscience.

To paraphrase in the words of Dr. Seuss (which I read a lot of lately . . . ): “How many different feet you meet!”