Here in Illinois we have some well-known difficulties with our elected officials. Various reports about Rod Blagojevich since Tuesday have run through our list of not-so-distinguished former governors. One is Otto Kerner, Jr., governor from 1961 to 1968. Kerner
resigned in 1968 to join the United States Court of Appeals for the Seventh
In February 1973, while still a member of the Seventh
Circuit, Kerner and his campaign manager were convicted for "a variety of
offenses arising out of their activities on behalf of certain Illinois racing interests in return for
bribes of more than $ 150,000 each." United States v. Isaacs, 493 F.2d
1124, 1131 (7th Cir. 1974). See also United States v. Kerner, 895 F.2d
1159, 1160 (7th Cir. 1990). The charges were based on events occurring both before
and after Kerner joined the court.
Trying a Seventh Circuit judge in the Northern District of
Illinois raises some obvious concerns. Chief Justice Warren Burger therefore designated a judge from the Eastern District of Tennessee to preside over the trial in Chicago. Burger also designated senior judges from the Eighth, Second, and Tenth Circuits to
hear the appeal. Before a Seventh Circuit panel free of any actual Seventh Circuit judges, Kerner argued in
part that the district court lacked subject matter jurisdiction "to try a
federal judge upon an indictment before his removal from office by the
impeachment process." Isaacs, 493 F.2d at 1140. The panel disagreed, but
it did reverse Kerner's convictions on some of the counts.
Although he took a leave of absence from the court after his
indictment in December 1971 and lost his chambers and staff in April 1973, Kerner didn’t resign from the Seventh Circuit until July 1974, more than a
year after his conviction. For all practical purposes, the Seventh Circuit was short one judge for three years. Judge William Bauer finally replaced Kerner in December 1974. Kerner spent under eight months in prison and died
Note: In the photograph above, Judge Kerner is standing to the right of
John Paul Stevens. This photo is found on page 178 of Rayman Solomon’sHistory
of the Seventh Circuit 1891-1941 (1981), which at pages 179-180 discusses many of the
details above. Two other sources for the information above are Robert Sprecher, Review of The Politics of Federal Judicial Administration, 1974 Ariz. St. L.J. 723, 733 (1974) and Robert P. Murrian, To Do Justice Between Man and Man: Tribute to Judge Robert L. Taylor, 55 Tenn. L. Rev. xi, xiii (1988).
I have posted on SSRN my article, forthcoming in Hastings Law Journal, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court. This article examines the well-known and widely-used U.S. Supreme Court Database (created by Harold Spaeth) – and most recently mentioned here – and addresses the Database’s limitations particularly for those interested in law and legal doctrine. The key point of the Article is that the Database does not contain complete or accurate information about law and legal doctrine as they appear in Supreme Court opinions. Given Harold Spaeth’s own purposes in creating the Database, these limitations may not be surprising -- although they do raise at least some challenges to his attitudinal model. Unfortunately, however, they are frequently misunderstood. Scholars all too frequently use the Database in ways that it simply cannot support, leading to the possibility of invalid or unreliable results. This post summarizes the Article’s main arguments. The primary challenges presented by the Database involve the coding for the “issue,” “issue area,” and “legal provision” variables. As the names of these variables suggest, they are frequently used by researchers interested in studying law and legal doctrine. Yet, the coding protocols for these variables (as set forth in the Codebook are not conducive to such research. Some of the limitations of these variables include: (A) The “issue” variable is not, despite its name, designed to identify any legal issues in a case. Rather, it is designed to identify the “public policy context” of a case. A case like Schenck v. Pro-Choice Network of Western N.Y. is one example. In Schenck, a group of abortion protesters challenged an injunction limiting their activities as violating the First Amendment. The only legal issue in the case involves the First Amendment and the limits it places on judicial power. But the Database codes the case as having an issue of “abortion” because that is the factual, or “public policy” context in which the case arises. (B) The coding contains a strong presumption of assigning each case only a single issue. So the Database does not add a First Amendment issue code to the coding of Schenck. (C) The issue codes are quite underinclusive and somewhat dated. For example, there are no codes for immunities, for sexual harassment, or for the dormant commerce clause. (D) Each of the approximately 260 issue codes is classified into one, and only one, of 13 “issue areas.” In some cases, the classification makes no sense. For example, in Markman v. Westview Instruments, Inc., the Court addressed the question of whether patent claims construction is a question for the judge or the jury; that is, whether there is a 7th Amendment jury right. The Database classifies Markman as a case about the right to a jury trial, but that code, which does not distinguish between civil and criminal jury rights, is located in the Criminal Procedure issue area. (E) The legal provision code does not identify cases or judge-made legal doctrines. It is limited to identifying statutes, constitutional provisions, and court rules. (F) The coding protocols provide that only legal provisions mentioned in a case’s syllabus should be identified. But the syllabus – a short summary of the case – is akin to headnotes. It is not officially part of the case, it is not written by the justices or their law clerks, and it cannot be cited by lawyers or judges. To some extent, misuses of the Database are likely due to differences in the ways that different disciplines (political science and law) use the same words. To some extent, misuses stem from scholars failing to evaluate their research design in light of the Database’s coding protocols, which are described in the Database’s Codebook. In my Article, I provide a series of examples of research project that fail to adequately take account of the Database’s limitations and that therefore produce results that may be inaccurate. To further explore the limitations of the Database and to experiment with more legally nuanced types of coding, I undertook a Recoding Project of a random sample of 10% of the cases from the last Rehnquist natural court. The details of the coding project are, of course, explained in the Article. Among other things, I redefined “issue” to mean legal issue, I expanded and rearranged the lists of issues and issue areas, I put no limit on the number of issues that could be coded per case, I redefined legal provision to include seminal cases and legal doctrines, and I identified legal provisions by looking at the opinions themselves, not just the syllabi. Some of the key findings of the Recoding Project include: (1) I identified an average of 3.7 issues and 2.4 issue areas per case, rather than the single issue and issue area per case identified in the Database. (2) I identified an average of 2.2 as many legal provisions per case as did the original Database. (3) A surprising number of legal provisions that I identified should have been identified in the Database because they were mentioned in the syllabi. (4) In both issue and legal provision coding, the “missing” codes – those that I identified but that the Database did not – disproportionately related to structural and jurisprudential issues, including procedure, the powers and operations of the federal and state governments, and the relationship between different branches of government. These and other findings have a variety of implications for researchers working with the Database. Chief among these is the importance of not drawing conclusions about the Supreme Court’s cases by looking at the numbers and types of issues, issue areas, and legal provisions coded. Researchers all too often rely on such information to draw conclusions about case complexity or about the number of issue “dimensions” in the cases. In other words, researchers sometimes point to the Database to justify their assumptions that most Supreme Court cases involve only a single issue. But as the Article demonstrates, this single-issue coding is -- or at least may well be -- an artifact of a coding protocol that presumes that each case should be assigned only a single issue, so such conclusions are circular. A second important implication is that the Database’s issues and issue areas do not accurately identify all cases involving particular legal issues and that not all cases with a particular issue or issue area code in fact involve the legal issues that a researcher might presume from the names of those codes.
Dave Hoffman over at Concurring Opinions wasn't the only blogger at CELS in Ithaca. Although he and I apparently went to different panels, like him, I thought the conference was excellent and the quality of the papers and discussion extremely high. Congratulations and thanks to all of the conference organizers.
One particularly interesting paper was, coincidentally (or not) co-authored by Dave Hoffman, and was previously blogged about here. The paper, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism by Dan Kahan, David Hoffman, and Donald Braman (forthcoming in Harvard Law Review), takes advantage of a unique experiment made possible by modern technology. In Scott v. Harris, the Supreme Court addressed whether summary judgment was appropriate in a claim of excessive force where a police officer rammed his car into the car of the fleeing suspect, who was rendred quadriplegic. The Court held that the use of deadly force was reasonable under the circumstances, given the risk that the car chase posed to the public. The Court rested its conclusion on the contents of a videotape, shot from the police car itself, that was entered into evidence and that the Court posted on its website. Interestingly, however, despite the fact that the Court said that no reasonable juror could find the use of force excessive, one Supreme Court justice -- Justice Stevens -- concluded otherwise.
Taking advantage of the now publicly available videotape, the paper's authors showed the video to 1350 Americans. As they explain, "a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities." So individuals who tend to see the world hierarchically (demographically more likely to be white, male, and from the South or West), were more likely to agree with the Court majority than were individuals who take a more egalitarian perspective (demographically more likely to be nonwhite, female, and from the Northeast).
Normatively, these observations suggest that judges should, at a minimum, be cautious about the claims they make about what a "reasonable juror" could conclude. (Indeed, as the discussant, Neal Feigenson, pointed out, even if all members of the jury were completely average across all of the dimensions identified by the authors, there would still be a significant probability that at least one juror would believe that the police used excessive force. ) Assuming that one's own views are the only reasonable views, which is essentially what the majority did, "invested [the Court's] decision with culturally partisan overtones that detracted from the decision's legitimacy." As the authors point out, when different sorts of people have predictably different perspectives, deliberation is particularly appropriate.
This project suggests an interesting take on whether the standard for judgment as a matter of law -- which is, the Court has emphasized, the same is the standard for summary judgment -- should be different. Perhaps once a jury has in fact heard all the evidence, it should be allowed to render a verdict, and the fact of that verdict should help to inform the judge's ruling on the JML motion. This comes up often in employment cases, where JML is often sought -- and apparently disproportionately granted -- by employer-defendants. (See here and here for more of my thoughts on courts' overzealousness in granting summary judgment and judgment as a matter of law in employment cases.)
An article recently posted on SSRN provides some interesting data about how employers and employees fare when arbitrators’ decisions are reviewed in court. In Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitration: An Empirical Analysis, Michael Leroy argues that the possibility of such review – especially when the arbitration clause provides for de novo review, as many do – creates a systematic advantage for employers. Leroy documents a growing number of bases on which courts (particularly state courts) vacate arbitration awards, providing more opportunities for successful challenges to arbitrators’ decisions. Perhaps most importantly, however, Leroy measures the rate of reversal of arbitrators’ decisions. Out of a dataset of 267 separate arbitration decisions, Leroy found that federal courts are routinely extremely deferential to arbitrators’ decisions, upholding decisions for both employers and employees at similar and extremely high rates. As a general matter federal courts upheld awards for employees at a rate of 85% and for employers at about 92%. In state courts, however, the picture is more complex. There were larger differences between trial courts and appellate courts, for one thing, but more striking is the difference in upholding the awards for employers as opposed to awards for employees, particularly at the appellate level. State trial courts and appellate courts both upheld awards in favor of employers at a rate of about 87%. But for awards for employees, trial courts upheld them 77.6% of the time, while appellate courts upheld only 56.4% of such awards. The significantly higher rates of vacatur of employee awards in state courts, Leroy argues, creates a moral hazard for employers. Their incentives are to require employees to sign arbitration agreements that allow for expansive review in state court. If the employer wins in the arbitration, its chances of prevailing under court review remain quite high. On the other hand, if the employer loses in the arbitration, the generous review offered by state courts essentially gives it a second bite at the apple. As a result, Leroy argues, employers may have less incentive to curtail legally risky behavior because they are less likely to have to pay for the consequences if sued. This article, while quite different in its focus, is reminiscent of the findings of two articles examining differential appellate court treatment of plaintiffs versus defendants. In Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, a 2oo2 article in the University of Illinois Law Review, Theodore Eisenberg and Kevin Clermont found that in federal civil rights employment cases that terminated between 1988 and 1997, defendants who appealed trial losses prevailed on appeal 44% of the time. In other words, where a defendant appealed a verdict, generally entitled to enormous deference, there was an almost even chance that the appellate court would reverse. In contrast, an employment plaintiff who appealed from a pro-defendant verdict had only a 6% chance of prevailing. As a point of comparison, the overall reversal rate from all civil trials was 18%. In a more recent follow-up (blogged about here), Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal by Theodore Eisenberg and Michael Heise, examined the outcomes of more than 8000 trials and about 550 appeals from 46 large counties. They found that in general, plaintiffs fare worse on appeal than defendants and that the appellate courts are more deferential to bench verdicts than jury verdicts. Consistent with the first Plaintiphobia article and with Leroy’s findings, the plaintiff/defendant disparity was very stark in the context of employment cases – with 61.5% of verdicts for plaintiffs reversed and 38.5% of the verdicts for defendants reversed. (Both of these reversal rates are higher than the overall numbers across all case types – 41.5% of verdicts for plaintiffs reversed and 21.5% of verdicts for defendants.) All three articles discuss possible reasons for the observed disparities between plaintiffs and defendants. The Plaintiphobia articles do not find strong evidence to support selection effects, and conclude that their findings are consistent with attitudinal effects – specifically that appellate judges believe (possibly erroneously) that juries are biased towards plaintiffs. Leroy attributes the disparities at least in part to the expansion of bases for reversal of an arbitration award – a doctrinal development. Moreover, there is the possibility of a snowballing effect on doctrine – the more pro-employer cases that are decided, the more pro-employer the law becomes. At minimum, however, these articles collectively raise questions about whether the appellate playing field is level for employers and employees.
Update: It's worth noting that the two Plaintiphobia papers analyze appeals in all different kinds of cases, not limited to employment cases.
In this morning's Chicago Tribune, Jerold Solovy, the chairman emeritus of Jenner & Block, argues for an increase in federal judicial salaries. He offers the common comparison of current judicial salaries to judicial salaries in 1969. He also includes the following comparison: "Law school professors and deans make about twice as much as federal judges." District court judges make $169,300. This would put salaries for law school professors at about $338,600. Setting aside the deans, I assume some law school professors make this much, but why would he think law school professors in general make this much?
According to the 2007-2008 SALT survey of law school salaries (response rate=48%), the lowest median salary for full professors at a law school is $88,626 (District of Columbia Law School) and the highest is $206,000 (University of Michigan Law School). For assistant and associate professors, the median salaries are of course lower. So where is Solovy getting his estimate?
I would guess this salary estimate comes from Chief Justice Roberts' 2006 Year-End Report on the Federal Judiciary, which Solovy quotes at one point, but some important qualifications got lost in the paraphrasing of the salary comparison. The Year-End Report said, "Today, federal district judges are paid substantially less than--about half--what the deans and senior law professors at top schools are paid." (p. 2)
That's "senior law professors at top schools," not law school professors generally.
UPDATE: An op-ed in the Wall Street Journal by Paul Volcker prompted a similar question about the $330,000 law professors last year. Volcker said, "Today, at $165,200, district judge salaries fall more than 50% below what many law school deans or their top professors make." Paul Caron responded here. It's like a game of telephone, taking us from "deans and senior law professors at top schools" (Roberts) to "many law school deans or their top professors" (Volcker) to "[l]aw school professors and deans" (Solovy).
Randy Barnett argued in Friday's Wall Street Journal* that
District of Columbia v. Heller teaches the importance of interpretive philosophy or method in judicial decision-making and the importance of selecting judges who have the right interpretive
Justice Scalia's opinion is the finest example of what is
now called "original public meaning" jurisprudence ever adopted by the Supreme
Court. . . . So what larger lessons does Heller
teach? First, the differing methods
of interpretation employed by the majority and the dissent demonstrate why
appointments to the Supreme Court are so important. In the future, we should be
vetting Supreme Court nominees to see if they understand how Justice Scalia
reasoned in Heller and if they are
committed to doing the same.
The problem is that Heller can just as easily be used for
the opposite teaching, that interpretive philosophy doesn't matter. As Barnett
is arguing that method
matters, Segal and Spaeth are surely still arguing that it doesn't. In Heller the five justices generally thought to
have policy views somewhere to the right of center voted to strike down a
highly restrictive ban on handguns. The four justices generally thought to have policy
views somewhere to the left of center voted to uphold it. In other words, all the
justices (maybe) just voted their policy preferences.
Based on a broader evaluation of his public statements and judicial decisons, Professor Barnett offers support
for the view that method doesn't really matter to Scalia:
I would conclude from his Taft Lecture and his behavior on
the Court that Justice Scalia is simply not an originalist. Whatever virtues he
attributes to originalism, he leaves himself not one but three different routes
by which to escape adhering to the original meaning of the text. These are more
than enough to allow him, or any judge, to reach any result he wishes. Where
originalism gives him the results he wants, he can embrace originalism. Where
it does not, he can embrace precedent that will. Where friendly precedent is
unavailing, he can assert the nonjusticiability of clauses that yield results
to which he is opposed. And where all else fails, he can simply punt, perhaps
citing the history of traditionally-accepted practices of which he approves.
One case doesn't tell us whether the justices generally
vote against their policy preferences when their interpretive methods dictate contrary outcomes, but if we were to select one case as an example that method matters, Heller is not the one.
*If the link to the Wall Street Journal's website ceases to work, Professor
Barnett's piece is reprinted on Cato's website.
After a review of the empirical literature of punitive damages, including the relationship between punitive and compensatory awards, the Court concluded that the real issue it confronted was the "stark unpredictability of punitive awards." The Court continues, "We are aware of no scholarly work pointing to
consistency across punitive awards in cases involving similar claims and
circumstances." There are, however, studies based upon mock juries; the Court dismissed them because they were funded in part by Exxon. See footnote 17.
[I am familiar with many of the authors and studies cited in footnote 17and it] is really top notch work.
So I find this footnote troubling. There will be cases (including
election law cases) in which there are no extant studies on an
empirical question at the heart of a case. At that point, it makes
sense for litigants to fund such research. Indeed, when such research
appears in an expert report subject to cross-examination, I assume the
Court has no problem relying upon the evidence. So why should it be
different when a litigant funds the research, particularly if the
research has gone through peer review and of course if the funding
source is disclosed so that the opposing side may probe for bias?
Our library just received the Spring 2007 issue of Constitutional Commentary, which contains a Symposium on The Rehnquist Court in Empirical and Statistical Perspective. Among other pieces are an article co-authored by ELSBlog editors Jason Czarnezki and Bill Ford, along with Lori Ringhand, entitled An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court, and Warren Court Precedents in the Rehnquist Court by Frank Cross (another ELSBlog editor), Thomas Smith, and Antonio Tomarchio. Other articles include (1) When the Court Has a Party, How Many "Friends" Show Up? A Note on the Statistical Distribution of Amicus Brief Filings by Daniel Farber; (2) The Rhetoric of Restraint and the Ideology of Activism, by Stefanie Lindquist, Joseph Smith, and Frank Cross;(3) Judicial Activism: An Empirical Examinoation of Voting Behavior on the Rehnquist Natural Court, by Lori Ringhand; (4) The Most Dangerous Justice Rides into the Sunset, by Paul Edelman and Jim Chen; and (5) The Aggregate Harmony Metric and a Statistical and Visual Contextualization of the Rehnquist Court; 50 Years of Data, by Peter Hook.
The Chicago Appleseed Fund for Justice recently released “A Report on Chicago’s
Felony Courts.” It’s a lengthy report at 123 pages – I just skimmed it – and it
clearly provides an extensive look at Chicago’s
felony courts, relying in part on interviews and/or surveys of judges,
prosecutors, public defenders, private attorneys, victims, and defendants. (The
Chicago Police Department didn’t respond to requests to participate.) The
researchers also relied on 160 hours of courtroom observation conducted by law
students. Oddly, three law students didn’t bother to turn over their materials
after doing the observations. (See footnote 9.)
I didn’t see the actual surveys, interview schedules, or
court observation forms anywhere in the report or on the website. I would like
to see these materials made available somewhere, if they are not already.
The general findings in the report do not sound surprising. For example, the
legislature criminalizes more and more behavior without sufficient attention to
the costs; there is a problem with patronage jobs in staffing the courts (patronage
and the drug war is overburdening the courts (“The courtrooms hear more than 28,000
cases per year, half of which are non-violent,
drug-related charges.” (p. 6) (my emphasis)). These and other findings come
with specific recommendations.
The report is here. Coverage in the Chicago Tribune is here.
By a 9 to 1 vote, the New York State Commission on Judicial Conduct recently removed Judge Robert Restaino from his position as a judge of the Niagara Falls City Court. According to the commission:
“In an egregious and unprecedented abuse of judicial power,
respondent committed 46 defendants into police custody in a bizarre,
unsuccessful effort to discover the owner of a ringing cell phone in the
courtroom. In doing so, he inexplicably
persisted in his conduct over some two hours, questioning the defendants
individually about the phone before committing them into custody, and ignoring
the pleas of numerous defendants who protested that his conduct was unfair and
pleaded that he reconsider. Respondent’s
conduct, which resulted in the unjustified detention of the defendants for
several hours and the incarceration of 14 defendants in the County Jail,
caused irreparable damage to public confidence in the fair and proper
administration of justice in his court.”
The commission’s decision is dated November 13, 2007, but the press is only now reporting the story. The commission’s decision, which includes both a concurrence and a dissent, is here.
James Brudney of the Ohio State University Moritz College of Law and Corey Ditslear of the University of North Texas political science department, have posted a new piece on SSRN. Entitled Liberal Justices' Reliance on
Legislative History: Principle, Strategy, and the Scalia Effect, it addresses the question of whether legislative history is used ideologically, in particular by the liberal justices. The abstract follows:
This article conducts an in-depth examination of Supreme Court Justices'
reliance on legislative history during the Burger, Rehnquist, and early Roberts
eras. In doing so, it makes two important contributions to current statutory
interpretation debates. First, the article presents a powerful case against the conventional wisdom
that legislative history is a "politicized" resource, invoked opportunistically
by federal judges. The premise that judges regularly rely on legislative history
to promote their preferred policy positions - if true - should find ample
support in the majority opinions of liberal Supreme Court Justices construing
liberal (pro-employee) labor and civil rights statutes. By analyzing all
320-plus majority opinions in workplace law authored by eight liberal Justices
from 1969-2006, the authors establish that legislative history reliance is
actually associated with a constraining set of results. When these eight
liberals use legislative history as part of their majority reasoning, they do so
to justify a higher proportion of their pro-employer outcomes than their
pro-employee decisions. The authors then review individual majority opinions to
demonstrate how this surprising pattern of reliance is based on neutral
doctrinal considerations. Liberal Justices use legislative history to illuminate
the existence and contours of complex statutory bargains that often favor
conservative or pro-employer positions. The authors consider alternative
explanations, premised on the institutional factor of who assigns majority
opinions and also the instrumental possibility that liberals withhold use of
legislative history in "minor" cases to enhance its value in more important
decisions. They conclude, however, that Justices Brennan, Marshall, Souter,
Stevens, and others are willing to follow so frequently a legislative history
trail leading away from their presumed ideological preferences mainly because
they have invoked this interpretive resource in principled fashion. The article's second major contribution is to identify and analyze the Scalia
Effect that has arisen with respect to liberal Justices' use of legislative
history since 1986. In the face of Justice Scalia's fervently expressed
opposition to legislative history, liberal Justices have opted not to rely on
that resource in a series of pro-employer majorities that Scalia joins. One
result of the liberals' strategic restraint is to make their use of legislative
history in remaining (mostly pro-employee) majority opinions appear more
ideological than was true before Scalia joined the Court. The authors also show
that liberal justices have special reasons for acting strategically in this
regard. When liberals rely on legislative history, Justice Scalia is
significantly less likely to join their majority opinions even when he votes on
their side; he also is significantly less likely to vote for the majority result
when these liberals rely on legislative history than when they do not.
Intriguingly, Justice Scalia's strong resistance to legislative history usage
does not extend to majorities authored by his conservative colleagues. Scalia
seems prepared to give these conservative colleagues a free ride: he is every
bit as likely to join their majorities, or vote for their results, when they
rely on legislative history as when they do not.
(Hat tip to Rick Hasen's legislation listserv.)
The authors' discussion of the "Scalia effect" reminds me of a moment in Cass Sunstein's Elements class in my first year of law school. Beware of what conclusions you draw from observations, he said. Back in the 1960s, for example, many country clubs issued new rules requiring men to wear coats and ties. But this was not because there was a move towards more formality. Rather it was the opposite. Social norms were moving away from formality and the clubs that wanted to preserve the old norms found it necessary, for the first time, to explicitly state them. Not quite analogous to the Scalia effect discussion, but both are an important reminder of the hazards of inferring causation.