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.”
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.
The Institute for the Advancement of the American Legal System (IAALS) has released a new report entitled Recommendations for Judicial Discipline Systems. Authored by University of Arizona law professor Keith Swisher and Brookings Fellow Russell Wheeler, it is a careful and sober analysis of existing judicial discipline systems, with recommendations for improving the process in a way that protects judicial independence and integrity as well as public expectations about efficiency, fairness, and transparency.
Cribbing from the Preface:
Effective judicial discipline is an important part of a trusted and trustworthy court system. The public must know that judicial ethics and violations of the Code of Judicial Conduct are taken seriously. Absent that assurance, the system appears self-serving, protectionist, and even potentially corrupt. And it is not just the reality of the existence of effective systems that matters; it is also the appearance. A wholly effective system with no transparency and no public confidence will not suffice.
To explore the functioning of judicial conduct commissions, in March 2018, IAALS convened a 21-person group of commissioners, commission staff, judges, lawyers, and scholars (identified in Appendix A). They, along with IAALS Executive Director Rebecca Kourlis and a small number of IAALS staff, worked through the agenda in Appendix B. This Report draws on that Convening.
Longtime readers of this blog know how much I have come to respect William Howard Taft as a Chief Justice: his tireless efforts to modernize and autonomize the federal judiciary transformed the Third Branch forever. Now, Jeffrey Rosen has written a short and masterful book on Taft, ostensibly focused on Taft’s Presidency, but delightfully cognizant of Taft’s lifelong judicial temperament and ambitions.
I shall have much more to say about Rosen’s book soon, but in the meantime I was delighted to see him blogging at the Volokh Conspiracy last week. The subject: what would William Howard Taft do about the political challenges of our day? The final installment, on Taft’s approach to judicial independence in the face of persistent populist attacks by prominent politicians (sound familiar?) is here.
The University of California, Berkeley has launched a new Judicial Institute to explore the personal and professional issues that judges face. The Institute will be run by the Hon. Jeremy Fogel, U.S. District Judge for the Northern District of California, and for seven years the head of the Federal Judicial Center.
This is an exciting project, and landing Judge Fogel is a major coup. I’ll look forward to following the Institute’s work in the coming months and years.
The Federal Judicial Center, the research arm of the federal courts, turned 50 yesterday.
The FJC is well-known but probably underappreciated. It allows the court system to investigate its own operations — from the ways procedural rules are employed to the manner in which cases are allocated. Its seminal work on weighted caseloads, court productivity, and the frequency and nature of motions to dismiss and motions for summary judgment (among many other things) have helped the court system understand and adapt its procedures to promote efficiency and cost-effectiveness. In addition, having a top-notch research institution in-house allows the courts to investigate issues of interest without having to rely on external sources.
If you have not explored the FJC’s research library, it’s worth a careful look. It is indispensable for those who study the federal courts, or simply want to know more about their operations.
Happy birthday and congratulations!
New England Law | Boston is pleased to host the New England Regional Junior Faculty Scholarship Workshop on Friday, February 2, 2018.
The workshop will bring together junior law school faculty to present works in progress. The workshop is timed to allow participants to incorporate feedback before the spring article submission cycle, but papers and “ideas in progress” are welcome at any stage of completion. New England Law | Boston will provide a light breakfast and lunch to attendees. There is no fee for attending the workshop, but participants will be responsible for their own travel expenses.
The workshop is open to all non-tenured faculty (including fellows and VAPs) at any law school in the United States and Canada. Each participant will be asked to present his or her own paper or project and to serve as a primary discussant on another attendee’s paper or project. To ensure an atmosphere conducive to lively discussion and constructive feedback, space is limited to twenty participants. Papers are welcome on any law-related topic, and the conference organizers will strive to group related topics together.
To participate in the workshop, please send an e-mail to Jordy Singer (firstname.lastname@example.org) by Tuesday, January 16, 2018. In the e-mail, please indicate the title of your paper or work in progress, and include a short abstract. Any questions about the conference can be directed to Jordy Singer at the address above.
The workshop will alternate locations every year in collaboration with the faculty at Albany Law School.