Federal Trial Research Articles

U.S. District Court Judicial Diversity: The Impact of Race and Sex Composition on Sentencing Outcomes at the District Level

The demographic diversity of the federal bench has emerged as a salient issue for the American public. Although research has examined the impact of judges’ race and sex on various court outcomes, including sentencing, for several decades across different levels of courts, findings remain mixed. Race and sex diversity of the U.S. District Courts has increased in recent years, coinciding with the transition from mandatory to advisory sentencing guidelines. The current study examines the impact of changes in the race and sex composition of federal trial courts on district-level sentencing outcomes for different demographic groups of offenders. The findings provide evidence that the race and sex composition of the District Courts impacts sentencing outcomes in both expected and unexpected ways.

Saving Religion from Ballardhoo

This article examines the 1942 federal trial and convictions of Edna and Donald Ballard as an example of the way legal processes can create new types of religious criminals. Scholarship has tended to focus on the landmark US Supreme Court decision United States v. Ballard (1944), which contributed to an expansion of religious freedom protections to individuals and groups previously not considered for First Amendment protection. Through a close reading of the prosecution’s case against the leaders of the I AM Movement, we see the courtroom as an active space of subject formation at a critical time in the history of religious freedom in the United States. I argue that trials, such as this one, demonstrate how the expansion of First Amendment rights also results in the expansion of religious illegality.

The Coercive Trial Penalty

Defendants plead guilty when they are indeed guilty and the government can prove it. When investigation has produced sufficient evidence to constitute proof beyond a reasonable doubt, the burden is met. But when defendants must plead guilty before investigation is complete, serious due process concerns arise. The trial penalty pressures a defendant to agree to a plea bargain even if the factual basis is sparse. The higher the trial penalty is, the more likely defendants will plead guilty no matter the facts. Studies suggest that the weaker the evidence is, the higher the trial penalty will be. The author explains various methods of measuring the size of the trial penalty, showing that federal data can test the question effectively, and recommending that empirical examination determine the severity of the federal trial penalty at each procedural point of case processing. This can show whether Sentencing Guidelines section 3E1.1operates to apply coercive pressure when sentencing exposure increases sharply the longer the defendant takes to plead guilty. Punishing defendants more seriously the longer their cases proceed can chill investigation and force confessions even when the government’s case is weak. It is time to study timing so as to understand the size and impact of the trial penalty.

Medical Malpractice in Robotic Surgery: A Westlaw Database Analysis

INTRODUCTION: Malpractice claims involving robot-assisted surgical procedures have increased more than 250% in the past 7 years compared to the 7 years prior. We examined robotic surgery malpractice claims to identify trends in claimed liabilities, describe legal outcomes, and determine strategies to minimize future litigation. METHODS: The Westlaw legal database was queried retrospectively for US state and federal trials regarding robot-assisted surgical procedures from 2006 to 2013 and 2014 to 2021. Data abstracted from verdict reports included year, state, court type, defendant specialty, procedure performed, claimed injuries and liabilities, verdict, and damage amount awarded. RESULTS: Sixty-one cases across 25 states were identified, 16 cases between 2006 and 2013, and 45 from 2014 to 2021 (Fig. 1). Among those 45 cases, defendant verdicts predominated (n = 35, 77.8%), with only four plaintiff verdicts (8.9%) and six settlements (13.3%). Overall, 169 liabilities were claimed, most commonly negligent surgery (82.2%), misdiagnosis/failure to diagnose (46.7%), delayed treatment (35.6%), and lack of informed consent (31.1%). Thirteen cases resulted in indemnity payments (mean = $1,251,274), with damages ranging from $10,087 (infection and retained foreign body) to $5,008,922 (patient death). Hysterectomy (n = 19, 42.2%) was the most commonly litigated surgery, followed by prostatectomy (n = 5) and hernia repair (n = 4). The most litigated specialties were obstetrics/gynecology (48.9%), general surgery (28.9%), and urology (15.6%).CONCLUSION: Malpractice litigation in robot-assisted surgery is infrequent. As robotic procedures become more commonplace, surgeons must keep common liabilities in mind, as there are valuable and actionable lessons to be learned from these cases. Malpractice reform, continuing medical education activities, and improved informed consent protocols may help minimize future litigation.

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

Medical malpractice in robotic surgery: a Westlaw database analysis.

Malpractice claims involving robot-assisted surgical procedures have increased more than 250% in the past 7 years compared to the seven years prior. We examined robotic surgery malpractice claims to identify trends in claimed liabilities, describe legal outcomes, and determine strategies to minimize future litigation. The Westlaw legal database was queried retrospectively for U.S. state and federal trials regarding robot-assisted surgical procedures from 2006 to 2013 and 2014 to 2021. Data abstracted from verdict reports included year, state, court type, defendant specialty, procedure performed, claimed injuries and liabilities, verdict, and damage amount awarded. Sixty-one cases across 25 states were identified, 16 cases between 2006 and 2013, and 45 from 2014 to 2021. Among those 45 cases, defendant verdicts predominated (n = 35, 77.8%), with only four plaintiff verdicts (8.9%) and six settlements (13.3%). Overall, 169 liabilities were claimed, most commonly negligent surgery (82.2%), misdiagnosis/failure to diagnose (46.7%), delayed treatment (35.6%), and lack of informed consent (31.1%). Thirteen cases resulted in indemnity payments (mean = $1,251,274), with damages ranging from $10,087 (infection and retained foreign body) to $5,008,922 (patient death). Hysterectomy (n = 19, 42.2%) was the most commonly litigated surgery, followed by prostatectomy (n = 5) and hernia repair (n = 4). The most litigated specialties were obstetrics/gynecology (48.9%), general surgery (28.9%), and urology (15.6%). Malpractice litigation in robot-assisted surgery is infrequent. As robotic procedures become more commonplace, surgeons must keep common liabilities in mind, as there are valuable and actionable lessons to be learned from these cases. Malpractice reform, continuing medical education activities, and improved informed consent protocols may help minimize future litigation.Supplementary InformationThe online version contains supplementary material available at 10.1007/s11701-022-01417-6.

Results Reporting and Early Termination of Childhood Obesity Trials Registered on ClinicalTrials.gov.

ObjectiveChildhood obesity is one of the most severe challenges of public health in the twenty-first century and may increase the risk of various physical and psychological diseases in adulthood. The prevalence and predictors of unreported results and premature termination in pediatric obesity research are not clear. We aimed to characterize childhood obesity trials registered on ClinicalTrials.gov and identify features associated with early termination and lack of results reporting.MethodsRecords were downloaded and screened for all childhood obesity trials from the inception of ClinicalTrials.gov to July 29, 2021. We performed descriptive analyses of characteristics, Cox regression for early termination, and logistic regression for lack of results reporting.ResultsWe identified 1,312 trials registered at ClinicalTrials.gov. Among clinicalTrials.gov registered childhood obesity-related intervention trials, trial unreported results were 88.5 and 4.3% of trials were prematurely terminated. Additionally, the factors that reduced the risk of unreported outcomes were US-registered clinical studies and drug intervention trials. Factors associated with a reduced risk of early termination are National Institutes of Health (NIH) or other federal agency funding and large trials.ConclusionThe problem of unreported results in clinical trials of childhood obesity is serious. Therefore, timely bulletin of the results and reasons for termination remain urgent aims for childhood obesity trials.

Endogenous and Dangerous

Empirical studies show that courts frequently cite cases that the parties did not cite during briefing and oral arguments—‘endogenous’ cases. This article shows the cognitive and rational dangers of endogenous cases and presents an empirical study of their use. I contend that judges should avoid using endogenous cases in their reasoning and opinions. This article’s first significant contribution is to provide the first exhaustive treatment in the American legal literature of the rational bases upon which defeasible legal deductions and legal analogies may be built and the critical questions or defeaters that can weaken or bring them down. As far as we know, Aristotle was the first Westerner to formalize logic, about 2,500 years ago. He recognized immediately, however, that the valid deductive forms of reasoning he described do not take us far in reasoning about human affairs. Contemporary law scholars nevertheless talk about rule-based and deductive reasoning as if it exists in the law. But all legal arguments, even apparently deductive ones, are subject to defeat by counterargument—they are ‘defeasible.’ This article shows that legal analogies are in a sense more defeasible, and thus more complex, than legal deductions, and it suggests that legal policy arguments are more defeasible still. But what happens when judges build these arguments around cases that the parties have not cited—endogenous cases? Studies suggest that judges do so about half the time. The theory of defeasible arguments suggests judges should be reluctant to do so, and they should be most reluctant to do so with legal analogies and policy arguments. But until now, no study has examined how judges use endogenous cases. This article’s second significant contribution is an empirical study of cases judges cited in a random sample of federal district court opinions, identifying where they found them and how they used them. It also identifies a hierarchy of badness among endogenous case uses, warning judges away from the most dangerous. It concludes that judges should avoid endogenous cases or, at a minimum, permit the parties to argue the cases before their application. Though the opinions studied here were from federal trial courts, the principles extend to any tribunal that uses opinions from previous cases to guide its decision-making.

Career Development Considerations for Academic Physician Mentees and Mentors in the Time of COVID-19: Jump in or Just Dip a Toe?

The COVID-19 pandemic has disrupted medical research, pushing mentors and mentees to decide if COVID-19 research would be germane to the early career investigator's developing research portfolio. With COVID-19 halting hundreds of federal trials involving non-COVID-19 research, mentors and mentees must also consider the broader moral calling of contributing to COVID-19 research. At the time of writing, the National Institutes of Health had responded to the pandemic with significant funding for COVID-19 research. However, because this pandemic is a new phenomenon, few mentors have expertise in the disease and relevant established resources. As a result, many mentors are unable to provide insight on COVID-19 research to early career investigators considering a pivot toward research related to this disease. The authors suggest 4 ways for mentees and mentors to respond to the changes the pandemic has brought to research funding and opportunities: (1) include COVID-19 research in existing portfolios to diversify intellectual opportunities and reduce funding risks; (2) negotiate the mentor-mentee relationship and roles and expectations early in project discussions-considering, as relevant, the disproportionate burden of home responsibilities often borne by early career faculty members who are women and/or from a minority group; (3) address any mentor limitations in content expertise; and (4) if the decision is to pivot to COVID-19 research, select projects with implications generalizable beyond this pandemic to other infectious outbreaks or to the redesign of health care delivery. Mentors and mentees must weigh the relevance of COVID-19 research projects to the postpandemic world and the amount of available funding against the developing interests of early career investigators. Academic medical centers nationwide must enable seasoned and early career researchers to contribute meaningfully to COVID-19 and non-COVID-19 research.

Adjudication Forums, Specialization, and Case Duration: Evidence from Brazilian Federal Courts

Exploring a large-scale case-level dataset from Brazilian federal courts, we offer empirical insight into the implications of the organizational structure and jurisdictional specialization of in-court adjudication forums for case duration, a measure of tribunal efficacy. Federal trial courts in Brazil are organized into offices, with each office further divided into a titled and a substitute judgeship. Random case assignment between judgeships within the offices and between same-jurisdiction offices within the courts facilitates the estimation of causal effects of different adjudicatory forums on case duration. Titled judgeships on average exhibit a modest efficacy advantage over substitute judgeships, although substitute judgeships are more efficacious than titled judgeships in some of the court offices. Case duration differences between same-jurisdiction offices can be considerable, an indication of inequities in recourse to justice. Estimates exploiting variation in court offices' jurisdictional specialization suggest that office specialization reduces case duration only if offices are either specialized with respect to procedure or fully specialized with respect to issue, or both. Partial specialization in issue does not exhibit an effect on case duration. Because specialization of in-court adjudication forums is a common organizational feature of many justice systems worldwide, our findings are relevant beyond Brazilian borders.

The Decision-Making Ideology of Federal Judges Appointed by President Trump

What is the ideological direction of the judges appointed by President Donald Trump during his first four years in office? To answer this question we analyzed 395 U.S. district court decisions handed down by 87 judges appointed to the federal trial court bench by President Trump. These decisions were studied along with over 117,000 opinions by over 2,400 judges published in the Federal Supplement from 1932 through 2020. We find that judges appointed by Trump are significantly more conservative than judges appointed by other Republican presidents in recent decades. In particular, the Trump judges are much more conservative in the areas of civil liberties/rights and labor/economic regulation than judges appointed by any previous Republican or Democrat dating back to JFK.

US EPA won’t appeal ruling against science advisers policy

The US Environmental Protection Agency says it won’t appeal a court ruling invalidating its controversial policy banning recipients of EPA grants from serving as agency science advisers. The court’s decision does not affect the current makeup of advisory panels, and the agency hints that it may try another means to continue to exclude grant recipients from those panels. A federal trial court in New York struck down the policy in April, saying the agency failed to follow required federal procedure when it adopted the policy in 2017. The court found the agency had provided no evidence that grant recipients who had served on advisory committees in recent decades were biased. But the EPA says the court’s reasoning empowers the agency to issue a blanket prohibition against grant recipients from serving as science advisers if it issues a formal regulation that garners concurrence from the federal Office of Government Ethics. That

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.

Snap Removal: Concept; Cause; Cacophony; and Cure

So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility. Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending claims in an inconvenient or hostile forum – such removals are barred so long as resident defendants are properly joined “and served.” Defendants preferring the federal forum have invested significant resources monitoring state trial dockets in order to race to remove before service on forum defendants can be effectuated. Where such snap removal is permitted, defendants, both in-state and outsider are allowed to select their preferred forum – an outcome in derogation of the history, purpose, and logic of permitting removal. This clever strategy of defense counsel is facilitated and accelerated by electronic docket monitoring and sometimes (as in the Third Circuit case) attorney trickery amounting to deceit. The recent federal appellate decisions are regrettable both in taking the wrong fork of the metaphorical road regarding snap removal and in shifting the trial court landscape from one of resistance to snap removal to one of toleration. Disturbingly, the appellate decisions (without recorded dissent) analyzed the issue through the simplistic lens of textual literalism with narry a nod to the history, purpose, and public policy of federal removal law. In doing so, the Circuit panels not only reached a problematic result but also displayed an impoverished interpretative methodology. Corrective action by Congress can put a stop to these mistaken results in a manner that vindicates the intent and purpose of the 1948 Congress that added the service requirement and that adequately protects the interests of both plaintiffs and defendants. We outline and assess the most prominent suggestions for fixing the snap removal problem, including our own preferred solution.

The Certificate of Division and the Early Supreme Court

The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today. As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.

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)).

A State of Statelessness: The Indeterminate Domesticity of Federally Chartered Corporations

Although federally- and state- chartered corporations function similarly, federal law privileges the former in at least one significant respect: their access to this nation’s federal courts. Pursuant to the language now codified in Section 1332 of the twenty-eighth title of the United States Code (“Code”), as amended and construed over the last century, any state-chartered corporation may claim citizenship in the state of its formal incorporation or within whose borders its principal place of business lies. So long as any and all its adversaries claim no citizenship in any such state(s) and “the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” the miscellany of citizenship necessary to engender a federal court’s diversity jurisdiction exists as a matter of law. In such cases, a state-chartered corporation can sue in any federal trial court, or remove an already pending one from state court to its federal counterpart, in accordance with the procedures specified in the Code. In contrast, as a result of two centuries of judicial and legislative emendation, federal common law classifies federally chartered corporations as national citizens, not “citizen[s] of any state.” With the exclusion of nationally chartered banks, these entities’ statelessness generally nullifies their ability to invoke the courts’ diversity jurisdiction with the same aplomb as their state counterparts. Only one non-statutory exception, as determined by utilization of a complex multifactor test, has survived centuries’ worth of juridical and legislative culling. To this law’s explication, this article dedicates itself. Final pre-publication copy attached. Official copy may be reprinted from Banking & Financial Services Policy Report, with permission of Wolters Kluwer. Copyright © 2020. Further use without the permission of Wolters Kluwer is prohibited. For further information about this publication, please contact at WKLBpermissions@wolterskluwer.com or 212-771-0619.

Contracting for Confidential Discovery

One way that courts have adapted to the age of the internet is to provide nearly instant online access to their dockets. But many important filings remain shielded from public view as courts regularly issue stipulated protective orders at the request of the parties. And, while the costs and benefits of confidential discovery have been extensively discussed in the academic literature, several important contextual developments — including the continuing growth of electronically stored information — prompt a reexamination. Additionally, easily searchable federal dockets now provide a window into what is happening in actual practice. Taking up this task, Contracting for Confidential Discovery examines how federal trial courts dealt with 100 proposed stipulated protective orders in January 2018. A key finding is that courts are regularly entering orders overly favoring secrecy in a manner that is inconsistent with the governing jurisprudence and consensus theory. The Article proposes several doctrinal and policy interventions to rectify the most problematic common mistakes: (1) an overreliance on boilerplate language and (2) the conflation of the relatively low standard for keeping unfiled discovery confidential with the much higher bar for filing materials under seal.

New Scholarship

New Scholarship

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.