Federal Judges Research Articles

The Twenty-Fifth Anniversary of the Supreme Court's Summary Judgment Trilogy: Much Ado about Very Little

The twenty-fifth anniversary of the Supreme Court’s famous summary judgment trilogy in 1986 offers an opportunity to assess the impact of this trilogy on federal practice. This study sets out to answer a few relatively simple questions: are federal courts doing anything more than citing Celotex as the leading Rule 56 precedent, and if so, are they indeed following the analytical burden-shifting framework so carefully and elaborately set out by Justices Rehnquist and Brennan? A sub-textual inquiry was: do federal judges understand Celotex, any more than our largely confused and confounded first year law students? In addition, this study also researched the extent to which the trilogy’s second leg ― Anderson v. Liberty Lobby, Inc. ― has resulted in numerous trial-by-affidavit nightmares suggested by Justice Brennan in his dissent. The results of this study seem to suggest that in a surprising number of summary judgment cases, federal courts don’t even cite Celotex. If this were not shocking enough, in the remaining universe of decisions where courts do cite Celotex, some federal judges do not seem to acknowledge, understand, or apply the elaborate Celotex conceptual framework. The data also seem to suggest that in at least many cases, federal judges ― as they did pre-Celotex ― continue to decide summary judgment motions on a kind-of gestalt “tennis match” mode of analysis. The various FJC studies of post-trilogy summary judgment practice have demonstrated that the disposition rates (that is, favorable grants of summary judgment motions) have not increased in statistically significant ways in the aftermath of the trilogy. Along with the FJC studies, this very modest study further suggests that the trilogy’s central Celotex decision likewise has had small impact on the ways in which judges analyze and decide summary judgment motions. In addition, the Anderson decision’s core evidentiary holding has been replicated in exactly three other somewhat anomalous contexts, in the past 25 years ― clearly averting any substantial judicial crisis. Surveying these realities, it is difficult not to conclude that the Court’s summary judgment trilogy, along with its attendant hype, has been much ado about very little. Against this backdrop, practitioners who must file summary judgment motions may take some comfort in realizing that in most instances in federal court, at least, the lawyers need not overly fret over shifting burdens of production, persuasion, and proof, so long as the attorneys proffer something in the record for a judge to consider (except in those outlying federal courts that have chosen to dun attorneys who do not point to the specific evidence). And while some erudite judges on the federal bench may justifiably take pride in wending their way through a recitation and application of the Celotex standards, judges also may take comfort in knowing that they also largely will not be dunned by appellate courts for failure to recite or properly apply Celotex.

The Judicial Bookshelf

The Judicial Bookshelf DONALD GRIER STEPHENSON JR. As Chief Justice John G. Roberts, Jr. administered the oath of office on the west front of the Capitol on January 21, 2013, the ceremonial and public beginning1 of the 44th President’s second term called to mind instances—some old—some more recent, when the Justices have been called upon to judge the validity of policies central to what an administration may have deemed essential for the common good. Judicial attempts to stabilize a sometimes roiling democratic republic through the measured application of reasoned constitutional principle through adjudication has long been part of American government, but they have hardly been free of controversy. Friction persists in part because of the question of whether the Court facilitates or impedes democratic government. It is a question that arises in turn from the funda­ mental distinction between the functions and the authority ofRepresentatives and Senators in Congress, on the one hand, and of federal judges, on the other. Legislators enjoy a legitimacy for their choices that flows from election. Through the franchise, the people confer authority upon them to make laws, to give effect to the wishes and values of those whom they represent. When legislators do not, voters may then withdraw that authority and bestow it upon others. Federal judges, however, enjoy a legitimacy conferred at best only indirectly by election, by way of presidential nomination and confirmation by the Senate. Full legitimacy for what they do flows from the Constitution, as interpreted in the context of deciding cases, where results are explained through opinions. Hence, persuasion by reason has long been an essential element of the American legal system—indeed an extra-constitutional ex­ pectation for appropriate exercise of “the judicial Power” granted by Article III. Certainly, for federal judges who are effec­ tively appointed for life and even for those state appellate judges who are subject to periodic electoral checks, the judiciary in America is not supposed to exercise truly independent political authority. Instead, the theory, advanced long ago by both Alexander Hamilton and John Marshall, is that the judge is only giving effect to the people’s will, as embodied in a statute or a constitutional provision. So a judge will say 262 JOURNAL OF SUPREME COURT HISTORY that the Constitution requires a particular outcome, not that the judge believes the outcome is necessarily desirable. Nor does a judge justify a decision by saying that recent public opinion polls support it. Legislators may typically explain their votes that way, but judges should not. This distinction of course does not mean that the values ofjudges have no impact on the outcomes ofcases. Any close observer of the Supreme Court knows that values have always had a lot to do with outcomes. One recalls, after all, Max Lerner’s observation that “judicial decisions are not babies brought by constitutional storks.”2 However, the distinction is important in understanding how the judge’s role differs from the legislator’s role. Success as a jurist consists accordingly in more than choosing the “right” result. The correct result should also be a convincingly reasoned result. Nonetheless, the question of whether the Court facilitates or impedes democratic government led Yale University political scientist Robert Dahl more than a halfcentury ago to suggest that the “political views on the Court are never for long out of line with the views dominant among the lawmaking ma­ jorities of the United States.”3 Instead of playing a counter-majoritarian role, at odds with the popular mood and perhaps reflecting the dead hand of the past, the Court soon reverts, according to this view, to a legitimiz­ ing role in which the Justices place the stamp of approval on policies that once may have been deemed constitutionally suspect or unacceptable. Yet such a pattern of persistent law­ making majorities, reflecting the views ofone major party or the other, has not truly existed in recent years. Party control has tended to switch back and forth with the President sometimes facing a divided government situation, where the opposition party controls Congress, and particularly critical for the Bench, the Senate and with it the machinery of judicial confirmations. Indeed, since 1985, party control ofthe...

Walking the Class Action Maze: Toward a More Functional Rule 23

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by fairness to absentees and due process, and (2) the problem of strategic abuse associated with frivolous and weak class action filings. Responding in large part to concerns about fairness, due process, and legitimacy, the Supreme Court has adopted a vague class "cohesion" requirement (Amchem), an interpretive principle tethering the class action to outdated precedent (Ortiz), and a strong indivisibility condition for (b)(2) certification (Wal-Mart). The problem is that none of these limitations is based on a clear understanding of what fairness to absentees requires or how the individual day-in-court right can be reconciled with representative litigation. As a result, the Court's decisions are poorly reasoned and its restrictions inadequately justified. The Advisory Committee should do what it can to correct these deficiencies, and this Article suggests a promising approach. Furthermore, in response to concerns about the strategic filing of frivolous and weak class action suits, federal judges have tightened the standard of proof for certification. But they have done so without general agreement on the normative stakes, and the result is a collection of inconsistent and relatively vague standards. The Advisory Committee should clarify the law in this area by specifying a standard of proof in the text of Rule 23 This Article suggests a useful framework for doing so. Finally, the Article briefly discusses some potential obstacles to Committee action, including the advisability of overruling recent Supreme Court decisions, potential constitutional problems, Rules Enabling Act constraints, transsubstantivity objections, and the ever-present risk of political controversy.

The Law and Policy of Judicial Retirement: An Empirical Study

Lifetime tenure maximizes judicial independence by shielding judges from political pressures but creates problems of its own. Judges with independence may implement their political preferences. Judges may remain in office after their abilities degrade with age. The U.S. federal system addresses these problems in an indirect way. When judges’ pensions vest, they receive full pay regardless of whether they work. This limits some of the harmful effects of judicial independence by encouraging judges to vacate their offices when they become old and by causing judges who find their work burdensome to leave office. We test the benefits and costs of this system for federal district judges. We find that the vesting system causes judges to retire as expected, that higher quality and wealthier judges are less sensitive to the financial incentives of the system, and that some judges appear to time retirement so that the president will appoint like-minded judges.

Working Smarter, Not Harder: How Excellent Judges Manage Cases

In 2012, the American College of Trial Lawyers (“ACTL”) Task Force on Discovery and Civil Justice, the ACTL Judiciary Committee, ACTL Jury Committee, ACTL Special Problems in the Administration of Justice Committee, and IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, undertook a study on practices and methods for pretrial management of civil cases that might reduce cost and delays for litigants while saving judicial time and resources. This report is based on personal interviews with approximately 30 state and federal trial court judges, from diverse jurisdictions across the country, who were identified as being outstanding case managers and whose civil case management experience can serve as a model for others. Five general themes emerged from the interviews, with numerous specific practices and techniques discussed further in the report. Assess a case and its challenges at the outset. Use active and continuing judicial involvement when warranted to keep the parties and the case on track. There was strong consensus among the judges interviewed that becoming involved at the earliest stage of a case is critical. Some judges review cases as soon as they are assigned. Others hold off until the time of the initial case management or Rule 16 conference. Virtually all interviewed judges, however, agreed that a small expenditure of time at the very beginning of a case saves significantly more time as the case progresses. Convene an initial case management conference early in the life of the case. Discuss with the parties anticipated problems and issues, as well as deadlines for major case events. Initial conferences provide a valuable opportunity for judges to get a feel for the relative complexity of the case and the relationships among the parties and their counsel. By spending time in advance familiarizing themselves with the pleadings, judges can establish priorities for discovery. By obtaining input from counsel about the realistic timing for trial and for various pretrial events — such as amendment of pleadings, joinder of additional parties, discovery cutoffs, and expert disclosures — judges can establish a firm trial date and work backwards to set necessary pretrial deadlines that will assist in moving the case forward expeditiously. By limiting continuances to serious and unanticipated circumstances, judges can work toward meaningful and timely resolution in processing the case. Reduce and streamline motions practice to the extent appropriate and possible. Rule quickly on motions. The judges emphasized that motions practice drives cost and delay in the civil pretrial process. Many judges aim to resolve motions, especially discovery disputes, informally. This obviates the need for written submissions and focuses on oral presentations. The judges interviewed also overwhelmingly believe that prompt rulings on motions, including those announced from the bench, can dramatically expedite progress in cases, reduce litigants’ expenses, save judicial time and resources, and enhance ultimate resolution. Create a culture of collegiality and professionalism by being explicit and up front with lawyers about the court’s expectations, and then holding the participants to them. Interviewed judges universally recognized the importance of collegiality and professionalism among counsel. Most judges interviewed make their expectations of civility explicit during the initial discussions with counsel in the pretrial process. Explore settlement with the parties at an early stage and periodically throughout the pretrial process, where such conversations might benefit the parties and move the case toward resolution. Keeping the subject of settlement on the table expedites resolution, and periodically opening the topic for discussion may give lawyers the cover needed, with clients and opposing counsel, to avoid the appearance of negotiating from a position of weakness. The collective experience of these judges suggests several techniques that — used individually or together — can expedite resolution of cases with lower cost to litigants and courts. The ACTL and IAALS offer this report to share successful practices, and hope the report will spark further use of these and other practices to better serve litigants, lawyers, and the court. This report is primarily designed to provide civil trial court judges with proven techniques used by outstanding judges for more efficient pretrial case management. Nonetheless, trial lawyers may also choose to encourage adoption of these recommendations for use in cases they are handling, in order to decrease the delays and costs of today’s litigation.

Gender and Difference Among Brazilian Lawyers and Judges: Public and Private Practice in the Global Periphery

This article examines the ways in which Brazilian lawyers and judges experience difference. It focuses on how gender and diversity intersect in identity formation among women and men in public and private practice in the state of São Paulo, Brazil. In attempting not to attach one fixed meaning to the concept of difference, the research works with Avtar Brah’s typology, which aids in detecting how difference is perceived and experienced by the interviewees. The results provide a look at the specificities of professional practice in the global periphery, comparing the gender composition of law firms and gender stratification within legal and judicial careers, as well as respective perceptions of exclusion and prejudice or inclusion and diversity. The field work collected data on public and private practice and interviewed twenty-four lawyers, eighteen state judges, and ten federal court judges (women and men) in the both the capital and smaller cities of the state of São Paulo.

The Sell effect: Involuntary medication treatment is a “clear and convincing” success.

The Supreme Court ruling Sell v. United States in 2003 (539 U.S. 166) set a new precedent by mandating federal judges function as decision makers on the issue of whether "nondangerous" incompetent defendants charged with federal crimes can be involuntarily medicated to restore their competency to stand trial. To provide data to inform future opinions by mental health professionals and decisions for judges involved in these matters, a retrospective record review of all incompetent defendants in the entire U.S. federal court system (N = 132) involuntarily treated under Sell over a 6-year period was conducted. Results indicated the majority (79%) of treated defendants suffering from a psychotic related illness were sufficiently improved to be rendered competent to stand trial, surpassing the "clear and convincing" standard established by federal appellate courts. High rates of treatment responsiveness were found across all diagnoses.

Judicial Integrity and Budget Cuts in the States: Is the Devil in the Details?

Judges and scholars have asserted that many state legislatures may threaten judicial integrity though severe budget cuts. Specifically, state court judges are facing difficult salary cuts as a result of current budget battles, which may be triggered in part by policy conflicts over the public interest between majoritarian legislatures and rights-oriented judges. While Article III of the U.S. Constitution protects federal judges' salaries from budget battles, state constitutional protections are varied, even nonexistent, in a significant number of states. We develop a correlational model of the factors correlated to state constitutional protections of state judges' salaries (N=50), as well as a path analysis of correlates to state spending on courts. We examine possible influences on state constitutional protections of judicial salaries and state spending on courts, such as indicators of state political ideology, socioeconomic condition of the states, and the state court system and conditions of the state judiciary. Our findings and discussion may be of further utility in predicting changes in state constitutional protections of judicial integrity.

Federalism and Mixity in the United States A Survey of Federal Judges Regarding Erie Courts and Louisiana's Civil Law

This article explores mixed jurisdiction dynamics in federal-state frameworks. In the United States, where federal and state courts co-exist side-by-side, plaintiffs will in many cases have the ability to forum shop and sue in federal or state court. The combination of jurisdictional overlaps and law selection rules in this duality frequently results in cross-overs, which means that a federal court or a state court does not hear and decide only dossiers concerning federal law or state law, respectively. One of the most important categories in this vein involves litigation between citizens from different states (diversity cases) before federal courts. In a series of landmark decisions (known as Erie and its progeny), the U.S. Supreme Court has elaborated sophisticated rules for federal diversity cases. Under Erie, federal courts presiding over diversity suits must apply state substantive law to state claims. State substantive law includes not only statutory law but also judge-made law. The article discusses potential imprints on Louisiana's civil law traditions in general and the Civil Code in particular when federal courts are called to apply and interpret local law under the Erie paradigm. In light of the general scarcity of data in this area, the author of the article conducted a survey of Article III judges deciding cases under Louisiana law. Unlike the article presenting the findings the survey itself is available online as a companion document.The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2330460

Should Federal Judges Belong to or Openly Support Organizations That Promote a Particular Ideology

Should Federal Judges Belong to or Openly Support Organizations That Promote a Particular Ideology

The June Surprises: Balls, Strikes, and the Fog of War

At first, few constitutional experts took seriously the argument that the Patient Protection and Affordable Care Act exceeded Congress's power under the commerce clause. The highly political opinions of two federal district judges - carefully chosen by challenging plaintiffs - of no particular distinction did not shake that confidence that the act was constitutional. This disdain for the challengers' arguments was only confirmed when the act was upheld by two highly respected conservative court of appeals judges in two separate circuits. But after the hostile, even mocking questioning of the government's advocate in the Supreme Court by the five Republican-appointed justices, the expectation was that the act would indeed be struck down on that ground. So it came as no surprise when the five opined the act did indeed exceed Congress's commerce clause power. But it came as a great surprise when Chief Justice John Roberts, joined by the four Democrat-appointed justices, ruled that the act could be sustained as an exercise of Congress's taxing power - a ground urged by the government almost as an afterthought. It was further surprising, even shocking, that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito not only wrote a joint opinion on the commerce clause virtually identical to that of their chief, but that in writing it they did not refer to or even acknowledge his opinion. Finally surprising was the fact that Justices Ruth Bader Ginsburg and Stephen Breyer joined the chief in holding that aspects of the act's Medicaid expansion were unconstitutional. This essay ponders and tries to unravel some of these puzzles.

Do expert agencies outperform generalist judges? Some preliminary evidence from the Federal Trade Commission

In the context of US antitrust law, many commentators have recently called for an expansion of the Federal Trade Commission’s (FTC’s) adjudicatory decision-making authority pursuant to Section 5 of the FTC Act, increased rulemaking, and carving out exceptions for the agency from increased burdens of production facing private plaintiffs. These claims are often expressly grounded in the assertion that expert agencies generate higher quality decisions than federal district court judges. We call this assertion the expertise hypothesis and attempt to test it. The relevant question is whether the expert inputs available to generalist federal district court judges translate to higher quality outputs and better performance than the Commission produces in its role as an adjudicatory decision-maker. While many appear to assume agencies have courts beat on this margin, to our knowledge, this oft-cited reason to increase the discretion of agencies and the deference afforded them by reviewing courts is void of empirical support. Contrary to the expertise hypothesis, we find evidence suggesting the Commission does not perform as well as generalist judges in its adjudicatory antitrust decision-making role. Furthermore, while the available evidence is more limited, there is no clear evidence the Commission adds significant incremental value to the administrative law judge decisions it reviews. In light of these findings, we conclude there is little empirical basis for the various proposals to expand agency authority and deference to agency decisions. More generally, our results highlight the need for research on the relationship between institutional design and agency expertise in the antitrust context.

Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts

In our continuing empirical study of religious liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. Holding other variables constant, the likelihood of success for non-Muslim claimants in religious free exercise claims was 38 percent, while the probability of success for Muslim claimants fell to 22 percent (with the disparity being even higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to receive accommodation that was enjoyed by claimants from other religious communities.Drawing on insights from legal studies, political science, and social and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society along with opposition to groups holding traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. As a new threat to religious liberty, the persistent uneasiness of many Americans about Muslims appears to have filtered into the attitudes of such well-educated and independent elites as federal judges.

Trial Bench Views: IAALS Report on Findings From a National Survey on Civil Procedure

In the spring of 2010, the Institute for the Advancement of the American Legal System (“IAALS”) collected survey data on the American civil justice system from state and federal judges throughout the United States, as part of a joint effort with Northwestern University School of Law’s Searle Center on Law, Regulation, and Economic Growth (“Searle Center”). This report sets forth the collective opinions of respondent judges, as they bear on civil reform proposals developed by IAALS and the American College of Trial Lawyers Task Force on Discovery and Civil Litigation (“ACTL Task Force”).

On the Importance of Public Opinion

© 2012 by the American Academy of Arts & Sciences LEE EPSTEIN, a Fellow of the American Academy since 2006, is the Provost Professor of Law & Political Science and the Rader Family Trustee Chair in Law at the University of Southern California. She is the author, coauthor, or editor of 1⁄2fteen books, including Constitutional Law for a Changing America, 7th ed. (with Thomas G. Walker, 2011) and Advice and Consent: The Politics of Judicial Appointments (with Jeffrey A. Segal, 2005). Her current book project, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (with William M. Landes and Richard A. Posner), will be published in late 2012. “The president’s job approval rating is up”; “50 percent of Americans believe that their taxes will increase in the next year”; “The incumbent senator is the projected winner by a 2-1 margin.” This is how most of us follow and understand public opinion: through survey and election results that seem to be everywhere. But there is much more to public opinion than a percentage or an outcome reported in a headline, posted on a website, or tweeted, emailed, or texted. The authors in this issue speak to the “much more.” How do we learn about public opinion, and what does it tell us? These are the questions considered in our 1⁄2rst four essays. D. James Greiner and Kevin Quinn begin the volume with a fascinating glimpse into the world of polling, especially exit polls. Greiner, an expert on voting rights, and Quinn, a political scientist with expertise in statistical methodology, are uniquely poised commentators. The two have conducted exit polls of their own–but that may be damning with faint praise. After the debacle in Florida with the 2000 presidential election, many of us are skeptical of exit polls. Greiner and Quinn share our skepticism, suggesting that exit polls “are most prone to fail when we most want them to work”–that is, in close elections. But this is not their only concern. In a day and age when conventional (telephone) and more au courant (Internet) polling techniques can provide vast amounts of information far more cheaply, Greiner and Quinn question whether exit polls will and should survive.

Reconceptualizing Federal Courts in the War on Terror

Since 9/11, the United States has created a framework that allows for indefinite detention under the law of war and prosecution in military commissions as alternatives to charging terrorism suspects in federal court. These alternatives have affected how federal courts are represented and perceived. Proponents of using federal courts, for example, increasingly emphasize their toughness as a way of demonstrating their continued viability as a forum for terrorism prosecutions. At the same time, federal courts are criticized for risking disclosure of classified or other sensitive information, infringing on executive prerogatives, and undermining military and intelligence operations. These criticisms have not only helped legitimize military alternatives to federal criminal prosecution for the long-term incapacitation of terrorism suspects; they have also supplied justifications for denying civil litigants - particularly, victims of torture, arbitrary detention, and other forms of mistreatment - a judicial remedy and for dismissing legal challenges to controversial government programs under various justiciability doctrines. This Article explores how Guantanamo and the war on terror more generally have altered the perception and operation of federal courts. Part I describes the growth after 9/11 of a new type of military detention system that provides an alternative to Article III-court prosecutions of terrorism suspects. Part II examines how this parallel military detention system has affected the way federal courts are defined and represented as a forum for terrorism prosecutions. Part III looks at federal courts from the perspective of their role in providing a forum for plaintiffs seeking redress for torture, unlawful detention, and related abuses. It describes how many of the same reasons cited in opposition of federal criminal prosecution of terrorism suspects are invoked - often by federal judges themselves - to prevent federal court adjudication of civil damages litigation arising out of government misconduct during counterterrorism operations. Part IV examines federal courts from another vantage point, describing their engagement with the new, post-9/11 military detention system through the exercise of habeas corpus jurisdiction. Here, federal courts have performed two, inter-related functions: first, articulating general rules and principles to govern military detention and trial, and second, acting as quasi national security courts by reviewing the validity of individual prisoners’ military confinement. While federal courts have imposed some constraints on the government’s ability to hold terrorism suspects outside the criminal justice system, they have largely accommodated the new forms of military detention that emerged after 9/11 under the rubric of the war on terrorism and have shown considerable deference to the government’s allegations in individual cases.

In Good Conscience: Expressions of Judicial Conscience in Federal Appellate Opinions

This article explores judicial references to what judges may or may not do, in their own words “in good conscience.” It assesses the most common situations in which federal appellate judges use this term and it discusses the propriety of different uses and placements of those expressions of conscientious commitments that play into judicial decisionmaking. It distinguishes between expressions of primarily institutional conscience (that is, the commitment to certain institutional values, responsibilities, or limitations on what the judge may do) and expressions of primarily personal conscience (that is, the commitment to the individual values or beliefs of the judge who expresses the matter of conscience). Having explored these categories of expressions, and the muddy middle ground between them, the article discusses questions of the legitimacy of conscience as an input to judicial decisionmaking and as a matter for open expression.

US courts of appeals and state supreme court responses to Arizona v. Gant: a study in judicial impact

This paper presents the results of a judicial impact study of the 2009 Supreme Court decision in Arizona v. Gant, which modified the rules police have to follow when conducting vehicle searches incident to arrest. Following up on an earlier study, this research draws on principal-agent theory to consider the differences between the responses of US courts of appeals panels to Gant with decisions of state supreme courts and attempts to understand why defendants win on Gant issues 44% of the time in state supreme courts, compared with 15% of the time in the US courts of appeals. A detailed content analysis of the opinions in 102 appellate courts decisions in which Gant could have potentially served as a controlling precedent revealed an interesting set of differences between state and federal courts. Federal judges were more likely than state supreme court justices to actively seek alternative rationales that allowed them to avoid the exclusionary rule.

Judicial Wisdom: An Introductory Empirical Account and Research Agenda

We present the first empirical analysis of “judicial wisdom”: what it means to be a “wise judge.” We surveyed 40 federal judges; half listed characteristics of a “wise” judge and, to compare, half listed characteristics of an “excellent” judge. The factor models of judicial wisdom and of judicial excellence demonstrate the two concepts’ distinct nature. Judicial wisdom seems comprised of three traditional wisdom factors and one factor specific to the judicial role. We discuss the substantive models of judicial “wisdom” and “excellence,” and legal and policy implications, including the possibility of teaching judicial wisdom. We also raise directions for future research.

From Being One L to Teaching One L

When I applied to law school, I knew next-to-nothing about law school. I really walked into it blind - I would say legally blond, but I am brunette. I had no friends or family members who were attorneys. The only political science class I had ever taken was in high school - and I distinctly remember mistakenly writing on an exam that Thomas Jefferson, and not James Madison, wrote the Constitution. I didn't know what a tort was. I had no idea what the Socratic Method was. I didn’t know what Law Review was. I didn’t know what “clerking” was. At orientation there were thirteen tables, to represent each Circuit Court of Appeals. I didn’t know what a 'Circuit' was.When I started briefing cases, I would always take note to write down the Judge's name. Though, I did find one oddity: all of the Judges had a first initial of 'J.' 'Such a coincidence,' I wondered. And what about 'C.J.' I wondered? Curious initials for a Judge. It took me a solid month before I realized the 'J' stood for Judge. Even then, when several names were listed, followed by J.J. after the last Judge, I figured that meant 'Junior Judge' and they were listed in order of seniority, with the newest Judge last. I had never read or heard of Scott Turow’s classic, One L. For that matter, I didn’t even know what One L meant. During orientation, someone asked if I was a 1L. I gazed back, and inquired what that was? A mere six years after I stepped into my first law school class as a bewildered evening student, I have clerked for two federal judges (after sending out 1,600 applications), published a bunch of law review articles (the first of which was dedicated to James Madison), and am an avowed Supreme Court nerd. In hindsight, I know that the uncertainty, chaos, and confusion that is One L is hardly limited to the first year of law school. 2L, 3L, and beyond present greater challenges and tests, that are much tougher than contracts and torts. Indeed, One L is not only preparation for, but truly a metaphor for everything that attorneys have gone through, and everything we will go through. Such poignancy is what makes Turow’s writing, and our own memories, so everlasting. With these experiences, in the fall of 2012, I will begin teaching a whole new wave of One Ls as a law professor at South Texas College of Law. Having gone from clueless to obsessed, it is perhaps fitting, or maybe ironic, that I was invited to contribute to this worthy collection to talk about my experiences, from being a One L to teaching One Ls.