Is the Supreme Court rethinking the federal courts’ mission?

My latest piece for the New England Law Professors blog takes a look at the Supreme Court’s recent decision in Home Depot, Inc. v. Jackson, and asks whether the Court is quietly reevaluating the mission of the federal court system.

Give it a read, and while you’re there, check out the wonderful posts by my colleagues in areas as widespread as criminal law, immigration law, and constitutional law.

Want a lighter sentence? Wait for your birthday

That’s the bottom line of this fascinating study by Daniel Chen and Arnaud Philippe. The authors looked at more than four million sentencing decisions in France, and another 600,000 in the U.S. federal courts. They found that French sentences are 3% shorter, and U.S. federal sentences are 33% shorter in the day component, when the defendant is celebrating a birthday. (Month components were unaffected.) The authors also found that in the U.S. courts, significant birthday leniency exists only where the defendant and the judge share the same race.

I am always cautious about making too much of one study, but there certainly seems to be some basis for the authors’ conclusion that “social norms transmitted through rituals can perversely lead to unfair or incorrect decisions in important situations even when professional norms have been designed to mute them.”

Judicial elections in the #MeToo era

I am pleased to announce that my article, Judicial Recall and Retention in the #MeToo Era, has been published in the latest issue of Court Review. It is part of a symposium issue on the recall election of Judge Aaron Persky in California last June.

The article identifies strong similarities between the efforts to recall Judge Persky and later efforts to prevent the retention of Judge Michael Corey in Alaska and Justice Carol Corrigan in California. As I explain in the article, the parallels are troubling because recall elections and retention elections historically developed at different times and for different reasons. The utilization of recall tactics in retention elections is therefore a worrisome development.

Court Review is the official journal of the American Judges Association. I recommend the entire issue for anyone interested in the Persky saga and lessons that may be drawn from it.

New scholarship: Levy on Visiting Judges

Professor Marin Levy has posted a new article, Visiting Judges, on SSRN. It’s a very useful piece which describes the origins of the visiting judges program in the federal courts, and provides some insider perspective on the use of visitors on the federal courts of appeal (drawn from 35 interviews with appellate judges and staff).

One persistent theme in the judicial interviews is that visiting district judges benefit from learning about the appellate process and appellate culture. That makes good sense: a trial judge who better understands and appreciates how appellate panels think is more likely to structure a written opinion with appellate reviewers in mind. And many of the circuit courts in the study had formal programs that invited new district judges within the circuit to sit by designation in their first few years on the bench.

The appellate judges recognized that they, too, would benefit from sitting by designation more frequently on the district courts. Their circuits, however, had no meaningful tradition of doing so, and indeed, many of the appellate judges worried about their own competence on the trial bench.

But the benefits of trial experience for appellate judges are just as strong, if not stronger, than the benefits of appellate experience for trial judges. Appellate panels are routinely called upon to determine whether the trial court abused its discretion, or whether its assessments of witness credibility withstand scrutiny. Having to sit as a trial judge–to rule on evidentiary objections, instruct jurors, pore through records on summary judgment, sentence a defendant, or make quick decisions on motions for preliminary injunctions–would give appellate judges an essential perspective on the litigation trenches. (It’s worth noting that many judges interviewed stated that they had already served as trial judges or at least trial attorneys. But of course, that it not the case for all appellate judges, many of whom come from academia, state appellate courts, or some other non-trial practice.)

One might even imagine a formalized shadowing or training system, in which district and appellate judges take the time to show each other the ropes of their respective benches. Of course, such a program would require administrative planning and quite likely Congressional support and approval, but it would allow the benefits of experience to inure to both levels of the federal judiciary.

 

 

 

A more detailed (and glowing) look at Rosen’s biography of Taft

I have praised Jeffrey Rosen’s new biography of William Howard Taft on this blog before.  It is a lucidly framed and highly readable look into the life of the only man ever to serve as both President and Chief Justice.

My longer review of Rosen’s book has now been published on JOTWELL. Enjoy!

Burns on Taft as Chief Justice

When I began this blog in February 2017, I hoped that its growth would coincide with a renewed interest in the organizational nature of court systems, as well as a renewed appreciation for the history of court administration and management. Whether by coincidence or design, that wish has come true in at least one respect: a batch of new scholarship on Chief Justice William Howard Taft.

In addition to Jeffrey Rosen’s fine new biography of Taft and my own piece on Taft’s role in setting the stage for federal procedural rulemaking, this year has seen the publication of Kevin Burns’s lucid assessment of Taft’s chief justiceship in The Journal of Supreme Court History. Burns sets out the historical context of Taft’s time in the center chair, and beautifully illustrates Taft’s efforts to turn the federal court system into a truly centralized, autonomous branch of government. It’s a terrific introduction for those who are new to Taft’s legacy, and a useful reference for those already familiar with his career.

Burns adds his own take as well, arguing that many of Taft’s reforms were motivated by the explicit desire to increase court access for the poor. This was not merely a manifestation of the Progressive ethos of the 1920s: Burns argues that Taft understood access, in the form of faster and less expensive litigation, to help the courts as well as the litigants. More efficient case processing would lead to more confidence in the courts and less cynicism that the courts were simply the protectors of moneyed interests.

While I do not believe that access to courts was the sole–or even the primary–motivation for Taft’s reforms, the value of access was certainly consistent with his work, and Burns is right to bring it to light. Access also fits nicely with other values that motivated Taft’s administrative efforts, such as increasing the courts’ legitimacy, instilling respect for the Constitution and the rule of law, and securing greater internal control over the management of court resources. Burns’s piece is well worth the read.