Federal Trial Judges Research Articles

The Bureaucratic Takeover of Criminal Sentencing

Criminal sentencing in the federal courts was transformed by the Sentencing Reform Act of 1984, which launched a bureaucratic takeover of sentencing. It was an extraordinary transfer of authority from federal trial judges to the new United States Sentencing Commission, a centralized and essentially non-judicial bureaucracy. Liberals and conservatives in Congress joined to do this out of mistrust, for very different reasons, of federal judges. The Commission’s sentencing Guidelines - misnamed insofar as they were at least for a time compulsory - still loom powerfully over federal sentencing, with a distinct tilt toward severity. Although the Supreme Court in 2005 cut back the compulsory force of the Guidelines, the “gravitational pull” of the Guidelines is such that most federal sentences still conform to the Guidelines. Moreover, pressure to maintain or increase bureaucratic control over sentencing is likely to persist. This article explains how and why power over criminal sentencing was largely withdrawn from federal judges, and how this accelerated the trend toward more severe sentencing. When individual figures of authority, like judges, are mistrusted, there is a tendency to place or misplace faith in bureaucracy, with its real or imagined attributes of regularity, rationality, and impartiality. Those on the liberal or progressive Left who supported the Reform Act and the ensuing Guidelines regime might not have much reason to be pleased with the results. Those on the Right who supported the change in order to stiffen federal sentencing did, at least for a time, achieve their goal.

Academic Feeder Judges

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies: 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

Judicial Review of the Fairness and Reasonableness, as between Class Members, of Federal Class Action Settlements

Settlement is the most common way in which federal class actions are resolved in Australia. In order to safeguard the interests of absent class members the settlement or discontinuance of class actions must be judicially approved. A crucial component of this judicial scrutiny entails a determination of whether the settlement in question gives preferential treatment to some class members over others and, if so, whether there are strong reasons that justify the approval of the settlement agreement notwithstanding this differential treatment. Despite the conceptual and practical importance of this dimension of the judicial review of class action settlements, it has been largely ignored in the legal literature. The aim of this article is to address this lacuna by exploring the way in which federal trial judges have, over the last 25 years or so, evaluated the fairness and reasonableness, between the class members inter se, of federal class action settlements.

Polarization in American Politics: Does it Extend to the Federal District Court?

This article examines the question of whether there has been a pattern of increasing political polarization in decisions by federal district judges. The analysis employs the data set compiled by Robert Carp and Kenneth Manning that extends back to the 1930s. The results show that overall there has been increased polarization in the published decisions of federal trial judges, and that the overall trend largely reflects increasing conservatism by appointees of Republican presidents. However, this simple pattern breaks down as cases are disaggregated by subject matter, leaving a much murkier picture of change in decision patterns.

Wading into the Daubert Tide: Sargon Enterprises, Inc. v. University of Southern California

There are two competing approaches to determining the admissibility of expert testimony, including scientific evidence. Under the traditional, Frye approach, the question is whether the expert is relying on a theory or technique that is generally accepted in the relevant specialty fields. At one time that test was employed by the federal courts as well as 46 states. However, in 1993 in its celebrated Daubert decision, the Supreme Court construed the Federal Rules of Evidence as impliedly overturning Frye. The Court derived a new validation test from the text of Federal Rule 702. As of 2013, only a minority of courts continue to adhere to Frye while a majority of states have embraced some version of the Daubert standard. Although most states have adopted a version of the Daubert test, until recently the California Supreme Court continued to staunchly follow Frye. The California Supreme Court initially adopted the Frye test in 1976. In 1994, the year after the United States Supreme Court rendered Daubert, the California Supreme Court declined the invitation to abandon Frye. However, as more jurisdictions shifted to Daubert, in a growing number of cases advocates urged the California courts to modify their position and incorporate some elements of the Daubert approach into California jurisprudence. In November of 2012, the California Supreme Court handed down its decision in Sargon. Sargon certainly represents a step toward the Daubert approach. In Sargon, the court approvingly cited Daubert as well as the two later cases in the Daubert trilogy, Joiner and Kumho. Moreover, in its opinion the court followed many of the essential teachings of Daubert, Joiner, and Kumho. Most importantly, the substance of the analysis in Sargon is strikingly similar to the Supreme Court’s analysis in Joiner. In this light, some commentators are now declaring that California has joined the ranks of the Daubert jurisdictions. The purpose of this article is cautionary; the thesis of this article is that it is premature to proclaim that California is now a Daubert jurisdiction. To begin with, in footnote the Sargon court affirmed its commitment to Frye. Moreover, the facts in Sargon were so extreme that in future cases, attorneys will have a plausible argument for distinguishing Sargon. Finally, in Sargon the court emphasized that it was authorizing trial judges to conduct a carefully circumscribed inquiry. The court stopped well short of tasking trial judges to conduct the sort of probing inquiry that Daubert empowers federal trial judges to conduct under Federal Rule of Evidence 104(a). The California courts may have embarked on a gradual, incremental movement toward Daubert, but California is not there yet.

The Golden Anniversary of the 'Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts': Mission Accomplished?

“Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts” is the title of the famous 1961 report prepared by a committee appointed by then Chief Justice Earl Warren. The Chief Justice tasked the committee to address two questions: (1) whether the state of the common law of Federal evidence was satisfactory; and (2) if not, whether the federal judiciary should adopt court rules codifying evidentiary doctrines. The committee critiqued the common law and urged the promulgation of court rules. The committee’s report eventually led to the adoption of the Federal Rules of Evidence in 1975. Fifty years have now elapsed since the committee submitted its report.The golden anniversary of the report is an opportune time to evaluate the impact of the Evidence rule making project. The first part of this essay reviews the objectives identified in the committee’s report and investigates whether, in the intervening half century, those objectives have been achieved. The essay concludes that in five different respects, the adoption of the Federal Rules of Evidence has made evidentiary doctrines more accessible to federal trial judges and litigators. Although gains have been realized in the past 50 years, the second part of the essay notes that there have been bumps in the road. Some of the problems are traceable to the shortsightedness of the committee and the later Advisory Committee. Other problems were caused by the committees’ political naivete. The essay concludes that to maximize the gains from rule making projects, future committees must take a longer view and proceed with greater political caution and sensitivity.

Excess and Access: Consensus on the American Civil Justice Landscape

This report highlights areas of substantial agreement among attorneys and judges as revealed in four recent studies. The following groups were surveyed: American College of Trial Lawyers; American Bar Association Section of Litigation; National Employment Lawyers Association; state and federal trial judges. Together, the survey results represent the opinions of approximately 6,800 legal professional nationwide. These opinions can be generalized to the larger groups from which they come, which collective membership numbering in the tens of thousands. The surveys asked general questions about the American civil justice process. Focusing on consistencies among the four populations suggests a plausible theory: cost inefficiencies in the civil justice process reduce court access, delay contributes to unnecessary cost, and discovery procedure is a key factor with respect to both cost and delay. The survey results provide a starting point for further research on such a theory and on how the process might be improved without affecting fairness.

Trial Bench Views: Findings from a National Survey on Civil Procedure

This publication sets forth the results of a survey of judges conducted in the spring of 2010 by the Institute for the Advancement of the American Legal at the University of Denver and Northwestern University School of Law's Searle Center on Law, Regulation and Economic Growth. The survey explored the opinions of a broad national sample of state and federal judges concerning the American civil justice process. This report provides a snapshot of collective judicial sentiment, focusing on some of the procedural reforms advanced in the Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (268 F.R.D. 407). The goal of this effort was to get a sense of whether there is support for these reforms within the trial-level judiciary, viewing the landscape from the highest possible vantage point. Survey respondents include 1,432 state trial judges and 293 federal trial judges (both Article III and magistrate judges).

Strategic Anticipation and the Hierarchy of Justice in U.S. District Courts

Does the hierarchical relationship between the district courts and the courts of appeals influence decision making at the trial level? Do these judges anticipate responses by appellate panels and condition their decisions based on these expectations? Using a sample of district court cases from 1925 to 1996 that were subsequently reviewed by the courts of appeals, and incorporating a strategic choice statistical framework, I discover that the district courts are constrained by the anticipated responses of the appeals courts. However, this conclusion is not apparent if one analyzes the data using traditional maximum likelihood methods. Only when empirical analyses specifically model underlying strategic relationships does one discover this constraint. If the federal trial judges anticipate a negative response on appeal, then they curtail their ideological influences (the magnitude of influence decreases by approximately one-half). This pattern remains consistent when one examines civil liberties and economic cases, but not for criminal cases. Thus, the hierarchical structure of the federal judiciary appears to exert a significant constraint on the district courts.

The Effects of Ideology on Federal Trial Judges' Decisions to Admit Scientific Expert Testimony

This article examines trial court rulings concerning the admissibility of scientific expert testimony. In Daubert v. Merrell Dow Pharmaceuticals (1993), the Supreme Court reaffirmed the trial judge's role as a “gatekeeper” and gave trial judges substantial discretion over their scrutiny of expert testimony. Because the external constraints on admissibility rulings are minimal, one might expect that if trial judges' ideology were to play some role in their decision making, it might do so here. To test this expectation, I perform a binomial logit analysis of federal district court Daubert rulings in tort cases from 1983 to 2003. I find substantial support for the claim that trial judges' ideology can predict decisions on admissibility. I find less support, however, for the claim that Daubert affected trial judges' willingness to admit such testimony, and no evidence that such decisions are affected by the prospect of reversal on appeal.

Scientific Evidence and Public Policy

This collection of papers, published in the American Journal of Public Health (Vol. 95, p. S1-S150, 2005) is the product of a symposium on Scientific Evidence and Public Policy convened March 2003 by the Project on Scientific Knowledge and Public Policy (SKAPP) in Coronado, California. In June 1993, the US Supreme Court ordered federal trial judges to become gatekeepers of scientific testimony. Under Daubert and two related rulings, trial judges are now required to evaluate whether any expert testimony is both relevant and reliable. What began as a well-intentioned attempt to improve the quality of evidentiary science has had troubling consequences. The symposium provided a forum for scientists, philosophers and science studies scholars to have a dialog with legal scholars and federal judges about Daubert's philosophical underpinnings and impacts, and on the use (and misuse) of science in the legal and regulatory arenas. The Coronado Conference papers provide an important assessment of Daubert. Science is more subtle and less rigid than Daubert characterizes it. Whether applied in the courts or by regulatory bodies, Daubert's demand for scientific certainty runs counter to the workings of science, as well as to the basic principle that policy decisions should be made with the best evidence currently available.

Theme and Variations: The Relationship between National Sentencing Standards and Local Conditions

jdge, Eastern District of New York One aspect of 1984 Sentencing Reform Act which has received too little attention is statute's impact on traditional processes by which federal courts implement national laws at local level. Federal trial judges are required to, as Judge Raggi reminds us in this Issue [see Concerns, Local Insights: Further Reasons for More Flexibility in Guideline Sentencing, 5 FSR No. 6, at p. 306], to reside in district in which they sit and regard it as an important part of their function to apply national standards in their locality. The federal system of appellate review tolerates a certain measure of latitude for differing interpretations of national laws, as judges in different parts of a circuit and in different circuits apply broad concepts to particular cases: Supreme Court does not resolve every inter-circuit conflict but regularly perm ksofjsifits circuit courts to resolve differences over time. The Sentencing Commission has, to date, been noticeably leery of permitting similar latitude to individual judges in interpreting guidelines. Apart from ? 5H1.6 which states that ties are not ordinarily relevant in determining whether to depart, Commission has not expressly ruled out deviations based on local community concerns. Nevertheless, commentary and policy statements have micromanaged interpretation by individual judges of factors relevant to sentencing and left little scope for variation from district to district. Congress gave a passing nod to this aspect of federalism, calling upon Commission to consider, infer alia, in establishing guidelines and policy statements the community view of gravity of offense ... and current incidence of offense in

A hybrid decision framework for evaluating psychometric evidence.

The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993) directed federal trial judges to preliminarily evaluate the scientific bases of proffered expert evidence. This article presents a decision flowchart for evaluating psychometric data, and attempts to operationalize existing evidentiary standards in hybrid (part science/part law) terms. The resulting framework should better assist courts and forensic experts to understand, evaluate, and apply scientific reasoning in determining the admissibility and probative value of psychometric evidence.

The Public Law Litigation Model and "Memphis v. Stotts"

On June 12, 1984, Supreme Court held in Memphis v. Stotts [104 S.Ct. 2576, 52 LW 4767 (1984)] that Title VII of Civil Rights Act of 1964 did not give federal trial courts authority to modify consent decrees requiring employers to institute class-wide, race-conscious hiring and promotion programs to block layoff of minority employees hired as result of such settlements of employment discrimination suits. The high court found that Section 703(h) of Title VII prohibited tampering in this manner with operation of a bona fide seniority system. The decision is of interest to public administrators for three reasons. First, decision greatly limits power of federal trial judges to prevent layoff of minority employees in order to maintain representation of minorities within an organization. Second, decision shows a conscious, but shortsighted effort by a number of Supreme Court justices to curb equity powers of federal judges to fashion raceconscious relief for class-wide victims of employment discrimination. It shows growing support on high court to put further limitations on public law litigation model as applied to employment discrimination remedies. Third, decision fuels debate over whether Title VII permits any type of class-wide race-conscious relief designed to remedy the present class-wide effects of past discrimination or to prevent similar discrimination in future. ' Title VII, decision implies, provides for remedial relief only for individual victims of employment discrimination. Under this interpretation of Title VII, Justice Department has begun an aggressive campaign to get cities, counties and states to seek modification of consent agreements and judicial orders requiring class-wide hiring or promotion of minorities. The Justice Department argues that these actions are necessary in light of Memphis v. Stotts decision. 2 Regardless of public perception that federal trial judges have imposed preferential hiring programs on countless public jurisdictions, many more employers have voluntarily made an effort to increase representation of minorities in their organizations or have entered into EEO binding consent decrees in order to end costly litigation.3 In fact, a large percentage of Title VII pattern or practice employment discrimination suits are settled prior to a final determination of guilt or innocence. It is principal thesis of this article that Mem* The Supreme Court's decision in Memphis v. Stotts prohibits a federal court from enjoining operation of a bonafide seniority system that results in layoff of minority fire fighters. The employees had been hired pursuant to a consent decree requiring Memphis Fire Department to increase significantly its hiring and promotion of minorities. Besides limiting equity powers of a court to modify a consent decree to stop minority layoffs threatening to set back an affirmative action program, decision indicates that Title VII may prohibit relief to actual victims of employment discrimination. This decision threatens to undermine strong public policy favoring settlement of employment discrimination complaints under Title VII.