Federal Judges Research Articles

Secret Law: The Politics of Appointments to the U.S. Foreign Intelligence Surveillance Court

ABSTRACTThis study investigates the politics of appointments to the United States Foreign Intelligence Surveillance Court, the court established under the 1978 Foreign Intelligence Surveillance Act (FISA) to review secret federal government requests for warrants related to national security investigations. Since the FISA Court's creation, its members have been appointed entirely at the discretion of the Chief Justice of the United States, who selects FISA Court judges from among the pool of existing U.S. District Court judges. Using data on the common space scores of the federal district judges appointed to the court, and the limited information available on the court's decisions, we explore the implications of this, both for the ideological makeup of the FISA Court's judges and for the oversight function they perform. The results suggest that the court has become decidedly more conservative in recent years, far more so than the district courts overall, with potentially serious implications for its ability to function as an effective check on the power of the executive branch.

How Federal Judges Contribute to Mass Incarceration and What They Can Do About It

Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum. This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.

The "Reformation of Administrative Law" Revisited

The archetype of the New Deal agency, exercising neutral, technocratic expertise, no longer tenable. As Richard Stewart (1975. Reformation of Administrative Law, 88 Harvard Law Review 1667–813) noted 35 years ago, administrative law is undergoing a fundamental transformation. Following Stewart, the modern explanation in legal scholarship of the transformation that federal judges came to the rescue of the administrative state, actively intervening in the regulatory process in order to preserve key values which had been threatened by an admixture of internal pathologies and external (read: political) threats. We argue that the traditional explanation neglects a central aspect of the major transformations in American regulatory politics during the past half century—the critical role of Congress and the President in the reformation of both the American regulatory state and administrative law. The traditional explanation in legal scholarship, that courts implemented values and agendas separate from legislative aims, and hence separate from politics, flawed because it neglects the larger transformations, beginning in the 1960s and continuing over the next two decades, in American national politics. During this period, a wide range of new constituencies arose, including the environmentalists, consumerists. The courts’ role in the reformation must be seen in this broader political transformation of the 1960s and 1970s rather than in a court-centric perspective in isolation from the rest of the political system. We illustrate our thesis with nuclear power regulation, which demonstrates the critical, joint roles of entrepreneurs in Congress and the courts.

Government Expropriation Increases Economic Growth and Racial Inequality: Evidence from Eminent Domain

Is it justified for states to appropriate private property rights? If so, should governments expropriate or regulate?We test three conventional views: insecure property rights cause underinvestment, moral hazard cause overinvestment, or public use cause economic growth.We embed these mechanisms in a model and measure them using the random assignment of U.S. federal court judges setting geographicallylocal precedent. For a half-century, racial minority Democrats were more likely to strike down government appropriations while Republican former federal prosecutors were more likely to uphold them. We find that pro-government physical takings precedent stimulated subsequent takings, expropriation of larger parcels, highway construction, and growth in construction, transportation, and government sectors as well as agriculture, retail, and financial sectors, overall economic growth, and property values. However, racial minorities were increasingly displaced, unemployed, and living in public housing, and the service sector declined. Pro-government regulatory takings precedent also spurred economic growth and property values, but did not increase displacement or racial inequality.

Interparty Judicial Appointments

Empirical studies of judges’ ideological voting call for a theory according to which the ideology of the judges can be measured. This article calls into question the assumption that undergirds the measure that currently dominates the legal, economic, and political science literature—the assumption that the ideology of a lower federal court judge is largely predicted by the ideologies of the nominating president and the relevant state's senators who are of the same political party as the president. The article relies on a natural experiment to examine this question empirically. Between 1977 and 1998, New York was represented in the Senate by one Democrat and one Republican who had an agreement to divide appointments to the district courts in the state: the senator who shared party affiliation with the president would be allocated three of every four appointments, while the “out‐of‐party” senator would be allocated the rest. The article employs a novel data set—consisting of all federal district judges appointed to the federal bench in New York during the time period in question, and the senator who recommended each nominee to the nominating president. If the dominant theory—that the party of the recommending senator affects judicial decision making—holds, then one would expect the theory's explanatory power to be at its apex where senators of different parties recommend judges at the same time to the same president. Yet, using median prison sentence length as a proxy for ideology in decision making, the empirical analysis finds no evidence that senatorial ideology has a statistically significant effect on district judge decision making. At the same time, it finds that, indeed, the nominating president's ideology does have a statistically significant effect. The findings are instead consistent with the minority view of lower federal court judges’ ideological leanings—that a lower federal court judge's ideology is in large part a function solely of the nominating president's ideology.

Judges, their associations, and politics: notes of a research agenda

The last decades have been marked by an increasingly significant presence of the judiciary, its institutions and procedures in the Brazilian republican life. Magistrates, particularly, have come to play increasingly prominent roles in society, being summoned to act on various fields by a citizenry that began to identify their intervention as crucial for expanding citizens’ rights. Despite an increasing number of studies on judges over the past few years, little attention has been devoted to understanding their associative life and the way judges engage in their different corporations. Focusing, particularly, on the Association of Brazilian Magistrates (AMB), the Association of Federal Judges of Brazil (Ajufe) and the National Association of Labor Court Judges (Anamatra), this article aims to analyze aspects of the associative life of magistrates, investigating both some aspects of their internal dynamics and elements related to the entry of such corporations into the Brazilian political scene. Keywords: Judiciary. Magistrates. Associations. Democracy.

Rational choice attitudinalism?

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.

Lee Epstein, William M. Landes, Richard A. Posner: The behavior of federal judges: a theoretical and empirical study of rational choice

Lee Epstein, William M. Landes, Richard A. Posner: The behavior of federal judges: a theoretical and empirical study of rational choice

Procedural Injustice and Emotions: An Experimental Investigation of the Role of Emotions in the Fair Process Effect

This Article introduces a novel approach for improving and innovating upon the civil justice system, referred to as human-centered civil justice design. The approach synthesizes two interdisciplinary strands: human-centered design thinking and dispute system design. To begin, human-centered civil justice designers empathize with intended beneficiaries and stakeholders, surveying them, observing them, and interviewing them, immersing themselves to uncover their needs and experiences. Civil justice designers embrace and identify the needs of diverse stakeholders and court users (e.g., parties, lawyers, and judges), determining their interests and goals before narrowing the needs to be addressed. These designers ideate and brainstorm a range of human-centered options before winnowing them based upon technological feasibility and financial viability. Throughout this process, prototypes are harnessed to develop insight from stakeholders about the causes, conditions, and nature of problems. These prototypes are empirically tested with pilots and randomized-control trials to explore the many intended and unintended system-wide effects of a proposed intervention. Human-centered civil justice reflects the reality that the civil justice system seeks to reconcile and promote diverse process values, including efficiency and affording members of the public the ability to participate and human dignity.Further, human-centered civil justice draws on psychological and behavioral science on how members of the public experience the civil justice system and encounters with court officials, including psychological science on procedural justice. Decades of research reveal that procedural justice powerfully influences compliance with legal decrees, cooperation with legal authorities, and engagement in other pro-social and democratic participation. In his 2015 year-end report, the Chief Justice called for a legal culture turn toward efficient justice. This is highly consequential for federal judges now serve largely as managerial judges who manage pending cases. There are few explicit norms or standards that dictate how federal judges should manage cases, and despite the power of managerial judges to sculpt the scope of litigation and influence settlement, this discretion is virtually unreviewable. Legal culture shapes how managerial judges think, feel, and behave. Fundamentally, the Chief Justice’s call for legal culture change aims to alter the beliefs, values, and discourses of managerial judges. Troublingly the Chief Justice elaborated a monist theory of value, exalting the value of efficiency — reducing discovery costs and delays in civil justice — while procedural justice and the many process values that the federal civil justice system serves. In marked contrast, human-centered managerial judging would encourage federal judges to infuse their managerial practices beneficially with procedural justice to promote favorable experiences. By promoting these experiences, human-centered managerial judging advances the plural process aims that the federal civil justice system seeks to achieve. Rather than wishing tension between values away, human-centered managerial judging seeks to reconcile tension between efficient justice and procedural justice. Acknowledging this tension leads to precision. The Article then draws on the findings of the experiment and discusses human-centered civil justice design and rulemaking. Human-centered rulemaking would seek to infuse the rulemaking process with a human-centered ethos and a vision in which diverse stakeholders and court users experience the civil justice system as truly just. In this regard, formal and informal practices that grant the public procedural justice powerfully shape whether civil justice is perceived as fair and legitimate. When engaging in civil justice design, courts should empathize with court users and innovate solutions that meet the public’s need for a civil justice system experienced as just.Finally, human-centered civil justice design can also lead to innovations that address a pressing problem: access-to-justice in the United States. Human-centered access-to-justice innovations hold promise to serve the millions of low-income and middle-income Americans who face unmet legal needs that threaten their shelter, food, livelihood, physical safety, and their care of dependents.

Judging Responsibility, Responsible Judging

This essay, published in the Twentieth Annual Clifford Symposium, sketches two ways in which Judge Jack Weinstein’s judicial performance raises issues of responsibility. First, it considers how he has deployed responsibility concepts that are central to tort law. Unsurprisingly, it concludes that, in his efforts to do “equity” through mass tort litigation, he has stretched these concepts quite far. This conclusion raises a second set of questions about responsibility — namely, questions about the role responsibilities of federal district court judges. As to these, the essay contends that Judge Weinstein’s tort decisions are consistent with a familiar and plausible account of judicial decision-making. It also notes ways in which he has been especially responsible in his handling of claims and claimants.

<i>NLRB v. Noel Canning</i> Tests the Limits of Judicial Memory

The Supreme Court’s 2014 NLRB v. Noel Canning ruling, which was ostensibly based on “historic practice,” has passed its first anniversary. The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed. The practical effects of the revocations of Barack Obama’s 2012 NLRB recess appointments continue to impact. However, Noel Canning’s additional revocations of Lyndon Johnson’s 1964 judicial recess appoint civil-rights legends Leon Higginbotham, Spottswood Robinson and David Rabinovtiz have gone unnoticed. The three historic judicial commissions, signed by President Johnson during an eight day intersession recess of the 88th Senate, were “rendered illegitimate” for failing the majority’s “presumptive 10-day” recess test. The eight day intercession recess was judged 48 hours too short by Steven Breyer. Just as the NLRB’s “invalid board members” issued an “invalid” order to the Noel Canning Company, so too these three “invalid” judges issued many invalid decisions, orders, and judgments while sitting illegally on the federal bench. The ruling forever tarnished the historic judicial legacies of Leon Higginbotham, Spottswood Robinson, and David Rabinovitz. (Higginbotham and Robinson were subsequently confirmed to tenured posts but Rabinovitz was obstructed in the Senate by Mississippi’s James Eastland and North Carolina’s Sam Ervin. Breyer thus says Rabinovtiz was never a judge.) This Essay briefly introduces each of these three remarkable civil rights advocates. The Essay frames the historic context of LBJ’s January 1964 recess appointment actions. Six weeks after John Kennedy’s murder, President Johnson sent a strong message that his presidency would be committed to civil rights. The Essay includes links to taped recordings of relevant LBJ Oval Office telephone conversations. A ‘presumptive’ explanation is offered as to why, before this work, no reporting or analysis had referenced the judgeship revocations. Steven Breyer’s majority opinion carefully masked this Noel Canning consequence by dismissing certain unnamed illegitimate appointments as “anomalies.” The furtive revocations serve to draw attention to a broader concern about the Noel Canning ruling. After emphasizing that that “[t]here is a great deal of history to consider here,” Justice Breyer carefully avoided even one mention of a recess appointed judge. There have been over 300 recess commissioned judges, including 15 Supreme Court Justices. Justice Breyer was also careful to avoid acknowledging the rich history of presidential employment of recess appointments to transform the judiciary. Such transformative appointments have included Augustus Hand, William Brennan, Earl Warren, Irving Ben Cooper, William Hastie, David Bazelon, Thurgood Marshall, Griffin Bell, and Skelly Wright. As this author argued to the high court in an amicus brief supporting the Obama appointments and in the first work in this series (a 2014 Cardozo Law Review denovo article), Presidents have often used the alternative appointment method to force integration (racial, religious and gender) of the federal judiciary – against reactionary forces in the Senate and on the federal bench. The first female federal judges, the first black federal judges, the first Jewish federal judges all rose to the bench by recess commission. Leon Higginbotham, David Rabinovtiz, and Spottswood Robinson’s recess appointments – now declared “illegitimate” – are just three examples.Adapting the prose of Milan Kundera, the Essay suggests that the majority purposely evaded “the struggle of memory against forgetting.” Noel Canning was indeed about historic practice – old-style airbrushing of history made impossible by our digital age. The Justices sought to avoid the conflict-of-interest patent in the judicial review of the alternative appointment process by which Presidents have forced transformation and integration of the judiciary. The Supreme Court was determined to answer the political question. Noel Canning significantly shifted the balance of power between the executive and legislative branches in order to give the Justices the last word in democracy’s discourse. The result was replacement of a textual commitment of presidential appointment discretion with Steven Breyer’s vague and unworkable recess rule. Again turning to Milan Kundera, the Essay considers the paradox inherent the progressive academy’s “excess of intelligence” in Noel Canning commentary that attempts to “justify the rule of non-thought.”

Rational Choice Attitudinalism? A Review of Epstein, Landes and Posner's <i>The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice</i>

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.

Patents and Perverts

This project reveals the power of gender and sexuality norms in the deep discourse of pivotal American case law on design patents. In Part 1 (Summer 2015), I show that late nineteenth-century cultural developments in the urban Northeast gave rise to a stigma surrounding the ornamental and decorative works under the then-exclusive legal purview of design-patent protection. Among the politically dominant segments of American society, the creation, appreciation, and consumption of design its own sake grew increasingly intertwined with notions of decadence, effeminacy, and sexual deviance. In Part 2 (forthcoming Feb. 2016), I will examine influential design-patent decisions from the 1870s through the 1930s against this cultural backdrop. My close reading of these decisions will demonstrate that federal judges, particularly in leading cases decided by the Second Circuit, increasingly used design-patent disputes as a vehicle for the performance and endorsement of prevailing gender norms. The resulting doctrine relegated design patents to near-total irrelevance as a viable form of intellectual property protection for a large and crucial portion of the Twentieth Century. [In a forthcoming monograph, Patents and Perverts: The Hidden Moral Agenda of American Design Law (Cambridge University Press forthcoming 2017), I will examine doctrinal distortions in U.S. copyright and trademark law that resulted from the judiciary's marginalization of design patents. Some of these distortions, including the perpetually problematic doctrines of conceptual separability and aesthetic functionality, persist to this day -- even as an array of jurisprudential, social, and economic factors have facilitated the reemergence of design patents as a viable form of IP protection.]

The Impact of the Threat of Terrorism on U.S. District Court Decisions During Wartime

ABSTRACTFederal courts are key actors in the U.S. government’s fight against terrorism because they adjudicate cases based on the USA PATRIOT Act, and accordingly make national security policy. We examine the extent that the terror threat influences judicial decisions in a dataset of 111 USA PATRIOT Act cases decided in the U.S. District Courts from 2001 through 2013, while controlling for other judicial decision-making variables. The results demonstrate that when a case involves a heightened terror threat, federal judges are more likely to defer to the government. Some key control variables are also significant.

The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law

This Article is about two things: law in United States and Chief Justice John Roberts’s judicial philosophy. How do two relate? Quite nicely, actually. First, Chief Justice Roberts has penned majority opinions in landmark cases directly addressing important law issues. Second, cases involving law serve as an excellent window into a Justice’s judicial philosophy. Consider Chief Justice Roberts’s concluding paragraph in Medellin v. Texas, a watershed case in which Court held that judgments of International Court of Justice (ICJ) are generally not enforceable in United States courts: In sum, while ICJ’s judgment in Avena creates an law obligation on part of United States, it does not of its own force constitute binding federal law that pre-empts state restrictions... Nothing in text, background, negotiating and drafting history, or practice among signatory nations suggests that President or Senate intended improbable result of giving judgments of an tribunal a higher status than that enjoyed by many of our most fundamental constitutional protections. Federalism, separation of powers, treaty interpretation, U.S. sovereignty — all issues touched on in just two sentences. Moreover, as law expands from governing only relations between States to touching every area within jurisdiction of several states, status of law in United States has come under increasing scrutiny. No longer is it uncontroversial to say that international law is part of our Indeed, liberal and conservative justices routinely split over cases involving law. Part Two of this Article will provide an overview of five law issues in United States ((1) presumption against extraterritoriality; (2) human rights litigation in United States federal courts; (3) doctrine of self-executing treaties; (4) scope of treaty power; and (5) customary law as federal common law) and then provide an update on current status of these issues under Chief Justice Roberts. Part Three draws conclusions about Chief Justice Roberts’s judicial philosophy based on cases discussed and ultimately concludes that Chief Justice is a prudentialist, a judge who holds fast to the conviction that federal judges must cultivate virtues of modesty and humility, staying true to their constitutional duty to interpret law while fending off whenever possible temptation to intrude upon proper provinces of other public and private institutions.

The Summary Jury Solution -- Restoring the Seventh Amendment's Constitutional Checks and Balances Protection to the Summary Judgment Procedure in Federal Court

The strength of the United States Constitution lies not only in its delegation of powers to separate branches of the government, but also in its creation of a system of checks and balances that protects the citizens from any one branch of government’s ability to intrude on individual rights. However, with regard to the seventh amendment, this hallowed system of checks and balances has been eviscerated by the use of the summary judgment procedure in federal court.The seventh amendment to the United States Constitution requires that the right to a jury trial in civil lawsuits “shall be preserved”. It states:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.Despite the clear and unequivocal language preserving the right to jury trial, this right has been significantly diminished by the summary judgment procedure in federal court.The summary judgment procedure allows a federal trial judge to eliminate a jury trial in a civil lawsuit. Instead of a jury trial, the federal trial judge renders judgment by concluding that a reasonable jury would only rule consistent with the judge’s ruling, and therefore, no jury trial is necessary. This summary judgment process is frequently used in federal court and has been the source of vehement ridicule among legal scholars. Most legal scholars that have addressed this issue take the position that the summary judgment process is an unconstitutional violation of the seventh amendment. The United States Supreme Court, however, has held that the summary judgment procedure is not an unconstitutional violation of the seventh amendment.This article takes the position that the seventh amendment requires an inherent checks and balances system that is eviscerated by the summary judgment procedure. This is due in large part to the fact that the very branch of government that violates the seventh amendment’s checks and balances system is the same branch of government that the seventh amendment was designed to check and balance. Plainly stated, the seventh amendment intended that the requirement of a jury trial would allow members of the local community, jurors, to be a check and balance against the power of federal district judges. It is this nullification of the checks and balances system by the federal district court judges that produces the greatest harm to our constitutional structure.Protecting the checks and balances required by the seventh amendment does not require a decree that the summary judgment process is unconstitutional. But it does require creating a process by which the local community is allowed to fulfill its role as a check and balance against federal district court judges. In order to restore the seventh amendment protections to civil trials, the local community must be allowed to participate in the summary judgment process.The solution is to restore the check and balance by adding a civil jury review of a judge’s order granting summary judgment. The civil jury review of the judge’s summary judgment order could be accomplished in a similar procedure to the grand jury used in criminal cases. It could be called a Summary Jury and it could occur during any criminal or civil jury term. The review process could occur by allowing the plaintiff and defendant attorneys an opportunity to orally argue to the jury their positions as to whether the federal judge’s decision granting summary judgment should be upheld. The summary jury would then render a unanimous verdict in support of the decision, which would uphold the decision. Anything less than a unanimous verdict in support of the decision would be a reversal of the court’s summary judgment decision.If this process were employed, it would restore the checks and balances to the seventh amendment, while allowing for a procedure for the court to single out and address frivolous lawsuits. It would wrest from the judiciary the unfettered right to deny the community the opportunity to not only to serve on a jury, but to attend and participate in the process as members of the community.The only way to protect the seventh amendment is to create in the summary judgment process, the checks and balances required by the seventh amendment. The citizens of the community must be allowed to serve on a jury in some capacity during the summary judgment process, and to perform the constitutional function of acting as a check and balance on the federal district court judges in a civil trial.

Answer to Questions for the Record Submitted to Professor Patricia W. Moore Following the Hearing on 'The State of Class Actions Ten Years after the Enactment of the Class Action Fairness Act'

This is Professor Moore’s response to questions for record submitted to her after hearing before Committee on Judiciary, Subcommittee on Constitution and Civil Justice, U.S. House of Representatives, on State of Class Actions Ten Years After Enactment of Class Action Fairness Act on February 27, 2015. The questions submitted to her asked whether, when determining requirements of class certification, Congress should limit a class to those individuals with same or similar or those individuals whose damages or injuries have been sustained due to the same or similar proximate cause or the same product or activity.The response begins by noting that wording of questions appeared designed to eliminate what majority witnesses at hearing termed no-injury class The response argues that term no-injury class action is a recently-invented term without roots in law of class actions, and that term is misleading when applied indiscriminately to all class actions. The substantive law, whether federal or state, determines when a person is injured, and majority witnesses’ assertion that certain class members have suffered no injury contravenes governing substantive law.The response then more specifically addresses suggested language in questions submitted. The suggested limitations, if passed by Congress, would restrict class actions. First, it is unclear how broad-brush language would be applied to class for injunctive relief, such as civil rights cases. Second, language sounds like existing law, but those seeking to eliminate so-called no-injury class actions intend that language should be interpreted in a new and more radical way so to make it much more difficult to obtain class certification than under existing law. Third, language would in essence require a class, at certification, to include only class members who could prove their case on merits. That would constitute an impermissible fail-safe class allowing any class member who did not prove her case on merits to escape being bound by class judgment. Fourth, existing certification requirements of commonality, typicality, and predominance provide sufficient tools for federal judges to rigorously apply standards to unique factual situations.The response also notes that Civil Rules Advisory Committee is currently considering numerous changes to Rule 23, so that legislation is premature. Finally, response calls for Congress to require public release of data on federal class actions.

Resource Constraints and the Criminal Justice System: Evidence from Judicial Vacancies

Ten percent of federal judgeships are currently vacant, yet little is known on the impact of these vacancies on criminal justice outcomes. Using judge deaths and pension eligibility as instruments for vacancies, I find that prosecutors dismiss more cases during vacancies. Prosecuted defendants are more likely to plead guilty and less likely to be incarcerated during vacancies, with defendants who are detained pretrial more likely to be incarcerated. The current rate of vacancies has resulted in 1,000 fewer prison inmates annually compared to a fully-staffed court system, a 1.5 percent decrease.

The Implications of Salary for the Quality of Nominations to the Federal District Courts, 1964–2012

Many have expressed concern over the working conditions of federal district court judges who face comparatively low salaries in contrast to those in peer professions. As a means of enticing new judges of the highest quality, Chief Justices Rehnquist and Roberts have urged Congress and the president to increase judicial pay. However, scholars have not conducted a systematic, empirical investigation of whether higher salaries do, in fact, attract better prospective judges. We turn our attention to this issue. We first develop an exhaustive dataset of ABA ratings for over 1,800 nominees to the federal district courts from 1964 to 2012. We next model the effects of salary on the quality of nominations and confirmations. We find that salary is an important determinant of both the quality of candidates nominated and those confirmed to the federal bench. Our findings have critical implications for public policy, as our results confirm the need for better pay for federal judges.

Machine Learning Forecasts of Risk to Inform Sentencing Decisions

When threats to public safety are a factor in sentencingdecisions, forecasts of ‘‘future dangerousness’’ are neces-sarily being made. Sometimes the forecasts are effectivelymandatory. Federal judges, for example, are required toassess risk in every case. Under 18 U.S.C. § 3553(a)(2)(C),‘‘[t]he court, in determining the particular sentence to beimposed, shall consider...(2) the need for the sentenceimposed...(C) to protect the public from further crimes ofthe defendant...’’ A judge must look into the future,determine the likelihood and seriousness of criminalbehavior, and within certain bounds, sentence to minimizethe harm that could result.Ideally, the forecasts should be highly accurate. Theyalso should be derived from procedures that are practical,transparent, and sensitive to the consequences of forecast-ing errors. However, there is usually no compelling guid-ance on precisely how these goals can best be achieved.Subjective judgment, sometimes called ‘‘clinical judg-ment,’’ is an approach that relies on intuition guided byexperience. As discussed below, the resulting risk assess-ments are often wildly inaccurate and their rationale opa-que. ‘‘Actuarial’’ methods depend on data that allow one tolink ‘‘risk factors’’ to various outcomes of interest. Theassociations found can then be used to forecast those out-comes when they are not known. Over the past severaldecades, regression statistical procedures have dominatedthe actuarial determination of empirically based risk fac-tors. By and large, this enterprise has been a success. Butthe increasing availability of very large datasets coupledwith new data analysis tools promise dramatically bettersuccess in the future. Machine learning will be a dominantstatistical driver.There is now a substantial and compelling literature instatistics and computer science showing that machinelearning statistical procedures will forecast at least asaccurately, and typically more accurately, than olderapproaches commonly derived from various forms ofregression analysis.