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.

New research on the organizational role of court rulemaking

Flickr_-_USCapitol_-_Thurgood_Marshall_Federal_Judiciary_Building

I am delighted to announce that my new article, The Federal Courts’ Rulemaking Buffer, is now available on SSRNPlease download it early and often!

The article arose in response to two perplexing questions about the federal court system’s civil rulemaking process. First, why do the courts engage in rulemaking at all? The courts pride themselves on being highly efficient and countermajoritarian, but rulemaking is time-consuming, quasi-democratic, and policy-driven. Making rules by committee, then, seems particularly unsuited to the work of the judicial branch.

Second, why have the courts made the rulemaking process more complicated over time? Initially, the entire work of formulating and amending rules was assigned to a single committee. Today, the rulemaking process must navigate at least five levels of the court system hierarchy, with additional opportunities for public and special interest input. As a result, amending a single rule often taken three to five years.

So what gives? Why would the courts embrace a task outside of their expertise, and then make it more and more complex?

The article offers an explanation to both questions that is grounded in organizational theory. I explain that the court system initially developed the rulemaking process as a buffer, to protect its core work from the instability of its larger environment. The power to make procedural rules gives allows the court system to respond to a drop in resources, or a surge in cases, without the entire judicial process grinding to a halt. But the rulemaking process also requires external legitimacy to function, and when that legitimacy has been challenged from time to time, the courts have responded by making the process more open, complex, and transparent.

The article touches on many of themes of this blog, including the federal court system’s resource dependence, neoinstitutional theory, and the influential role of other organizations (such as executive agencies, the ABA, and Congress) in altering court-centered rulemaking over time. And it features appearances from William Howard Taft, Earl Warren, Warren Burger, Roscoe Pound, Tom Clark, and others.

The article will be formally published in the William & Mary Law Review later this year. I welcome any thoughts from readers, privately or in the comments.

Pictured: Thurgood Marshall Federal Judiciary Building

Nash on judicial laterals

Jonathan Remy Nash (Emory) has posted his new article, Judicial Laterals, on SSRN.  It is a short and interesting empirical study of “lateral” moves by sitting judges, either from a state court to the federal bench, or vice versa.

Nash’s data set confirms many intuitions about such lateral moves. Unsurprisingly, a move from state court to federal court is overwhelmingly more common than a move from federal to state. Judges do occasionally leave the federal bench to join a state court, but almost always to “step up” within the court hierarchy (by moving, for example, from a federal district court to a state supreme court). Nash also examined connections between lateral decisions and factors such as the professionalism of the state court, the length of the judicial term on a state court, and the expected judicial salary.

The study was understandably limited to moves from one judicial position to another. But at some point it would also be very interesting to explore judges who leave the bench entirely for other legal (or law-related) jobs. We are accustomed to thinking about a judgeship as a capstone of a legal career, but there is no shortage of judges who leave before their terms are up to seek a different opportunity outside the courts. In recent years, for example, both state and federal judges have resigned their seats to take appointed political positions, run for elected office, enter academia, create think tanks, or even join the private sector.

The systemic explanations for these moves might well be complex and varied. State judges might be motivated in part by mandatory retirement ages, looming reelection or retention campaigns, higher salaries, better quality of life, or restlessness to try something new. Federal judges, with lifetime job security, are giving up something more. What motivates the change for them?

Perhaps some day we will be able to dive more deeply into that question. In the meantime, I commend Professor Nash’s piece to the reader.

Macfarlane on Posner on pro se litigants

Katherine Macfarlane (Idaho) has posted her new article, Pro Se Prisoners’ Posner Problem (Missouri Law Review, forthcoming), on SSRN. It is a review of Judge Posner’s recent self-published book, Reforming the Federal Judiciary.  Cribbing from the abstract:

This book review … is focused on what Posner deemed the book’s “most important theme”—“the need for better treatment by the federal courts of pro se litigants.” His staff attorney proposals offer the most reform potential. This review examines the assumptions underlying Posner’s desire to assist pro se litigants, including the conclusions that pro se litigants are: “very often poorly educated and/or of limited intelligence”; “ignorant of the subtleties of the law”; and “basically fairly normal people who because of bad luck, psychological problems, poor judgment, lack of family support, or other internal or environmental misfortunes, simply have great difficulty living a law-abiding life.” In examining Posner’s newfound empathy for the pro se, this review will argue that empathy is a poor proxy for meaningful institutional change, concluding that though Posner has identified unjustifiable structural inequality, he has stopped short of fixing it. If pro se litigants deserve equal treatment, then eliminate all staff attorney programs. Assign pro se cases directly to judges’ chambers, make staff attorneys law clerks, and allow the new law clerks to work directly with jurists like Richard Posner.

Macfarlane’s review lucidly points out the strengths and weaknesses of Posner’s discussion of the treatment of pro se litigants — and there are indeed many strengths and weaknesses.  The review is a good, short read for those who want a summary of Posner’s arguments — and a clear-eyed analysis of the argument’s shortcomings.