Magistrate Judges Research Articles

Unaccountable Justice? The Decision Making of Magistrate Judges in the Federal District Courts

Modern federal district courts delegate vast decision-making powers throughout criminal and civil cases to magistrate judges—judicial actors that, unlike other federal judges, serve without an Article III political appointment. Through the lens of principal-agency theory, this study seeks to rectify the relative paucity of systematic work on these actors by using original filing and motion-level district court data to examine magistrates' decision making empirically. Our results support our expectations that magistrates are often constrained by the preferences of the district judges in and the institutional characteristics of their district while issuing reports and recommendations and serving as assigned judges by the consent of the parties.

Mandating Use of Predictive Coding in Electronic Discovery: An Ill‐Advised Judicial Intrusion

In twenty-first century civil litigation, discovery focuses on electronically stored information (“ESI”). Lawsuits may be won or lost because of incriminating electronic documents. While offices are moving toward less use of paper, the amount of ESI potentially discoverable in litigation has proliferated. Litigants in some cases may face the task of searching billions of electronic records for those documents that are responsive to discovery requests. That makes discovery a burdensome and expensive proposition. While production of documents may evoke images of young associates in dusty storerooms looking at thousands of individual paper documents stored in boxes or filing cabinets, discovery has changed with the burgeoning of ESI. Computers now do much of the work, culling from that vast body of ESI a smaller set of documents that may be responsive and relevant. For at least the past decade, most electronic discovery has been via keyword searching -a great improvement over oldfashioned manual review, but presenting its own problems. A newer generation of search technology is “predictive coding.” Despite advocates’ claims of improved accuracy and lower costs, attorneys have been slow to transition to predictive coding methods. Moreover, there has been a lack of precedent indicating that judges regard predictive coding as reliable and acceptable under the Federal Rules of Civil Procedure. Adjustment to advances in technology often come slowly, but good reasons may exist to proceed cautiously here, especially in lawsuits where large amounts of money or even the existence of a corporation may be at stake. Two cases, Da Silva Moore v. Publicis Groupe and Kleen Products, LLC v. Packaging Corporation of America, suddenly have brought predictive coding to the forefront in the spring of 2012. In these cases, federal magistrate judges have signaled approval of predictive coding and may be ready to mandate its use, rather than keyword searching methods, over parties’ objections. A state court in Virginia also ruled in April 2012, permitting the use of predictive coding over a party’s objection. These cases have attracted considerable attention, especially in law and technology blogs. This paper seeks to provide a detached, deeper, scholarly analysis, to provide guidance as other courts may grapple with this novel issue. After examining in greater detail these two types of technology, the facts and rulings of Da Silva Moore and Kleen Products, and the fundamental roles of the parties and the court in discovery, this paper will argue that judicial mandates of particular technologies for electronic discovery would be misguided because the parties may have legitimate, good faith concerns that lead them to prefer keyword searching rather than predictive coding and because judges do not have sufficient reasons to depart from the traditional judicial role to intervene in such decisions.

In the Absence of Scrutiny: Narratives of Probable Cause

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the “good faith” exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not find any indication of diminished scrutiny. What we do find, however, is a highly ritualized and formalistic process for the evaluation of warrants where calculations of probabilities are viewed through a legalistic rather than a pragmatic lens.

Hearing on Electronic Communications Privacy Act Reform and the Revolution in Location Based Technologies and Services

This testimony, presented at a congressional hearing entitled “Electronic Communications Privacy Act Reform and the Revolution in Location Based Technologies and Services,” discusses the role of magistrate judges in handling surveillance requests by law enforcement, summarizes reported cases dealing with cell phone tracking, and suggests possible reforms to ECPA. The task of finding the appropriate balance between privacy and law enforcement belongs first of all to the political branches of government. As a judicial officer, I do not presume to advocate for either side of that debate. That said, from a magistrate judge’s perspective, there are two systemic flaws in the current statutory scheme that ought not be preserved in the next: undue complexity and undue secrecy. Simplicity may not be entirely achievable in a statute dealing with complicated technology. Likewise, transparency is not practicable for every phase of a criminal investigation. But complexity and secrecy take hidden tolls in the form of diminished privacy protection, unchecked judicial (and executive) power, and loss of public confidence in the judicial system. The 21st century version of ECPA should recognize and avoid these dangers.

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).

Mediation windfalls: Value beyond settlement? The perspectives of Georgia magistrate court judges

AbstractThis study of magistrate judges investigates the perception that if mediation reaches impasse, parties who are not represented by counsel go into court less afraid, better able to articulate their case, more cognizant of their own and the other side's positions, and with an enhanced appreciation for the perspective of the other party because of the mediation experience.

Puzzles about Supply‐Side Explanations for Vanishing Trials: A New Look at Fundamentals

The recent sharp decline in the rate of federal trials has many potential explanations. In addition to changes in the demand for trials, some commentary suggests that a shortage in judicial resources and the press of the criminal docket have led to problems of supply, inducing litigants to turn to alternative dispute resolution or other means of resolving their cases. The increased number of federal magistrate judges provides a counterweight to many of these claims about judicial shortages. Nonetheless, we show that a puzzle remains. Federal districts vary in their trial rates, and the rate of trial is negatively correlated with the number of civil cases filed per judge, regardless of whether magistrate judges are included in the total. Moreover, that relationship persists even after controlling for the rate of criminal cases filed in the district. Thus, unless other differences across districts explain the persistent negative correlation, the supply of judicial resources remains a potential contributor to the low rate of trial in the federal system, reducing the willingness of litigants to persevere until trial in districts with heavy caseloads. Prospective studies of the perceptions of litigants are needed to understand how the users of the civil justice system interpret trial signals and decide whether to resolve their dispute at trial.

Article I Tribunals, Article III Courts, and the Judicial Power of the United States

TABLE OF CONTENTS INTRODUCTION I. LEADING ACCOUNTS OF ARTICLE III A. Problems with the Literal Account 1. Legislative Courts 2. Administrative Agencies 3. Executive Branch Administration of Laws B. The Court's Alternatives to Article III Literalism 1. Holding the Line with Categorical Constraints 2. Balancing Article III Values C. Scholarly Alternatives to Article III Literalism II. THE TEXTUAL FOUNDATION OF AN INFERIOR TRIBUNALS ACCOUNT A. Distinguishing Inferior Tribunals from Inferior Courts 1. Textual and Structural Support 2. Support in the Drafting History 3. Early Implementation B. Inferiority in Relation to a Unitary Supreme Court III. THE ELEMENTS OF AN INFERIOR TRIBUNALS ACCOUNT: LESSONS FROM INSTITUTIONAL HISTORY A. Inferior Tribunals for Matters Outside the Judicial Power 1. The Finality Principle (a) Finality and Public Benefit Claims (b) Finality and Advisory Opinions 2. Territorial Courts and the Absence of Federal Rights 3. The Traditional Boundaries Principle (a) Court-Martial Proceedings (b) Small Claims, Bankruptcy, and Mixed Functions B. Preserving the Inferiority of Article I Tribunals 1. Direct Appellate Review 2. Supervisory Power and the Common Law Writs 3. Common Law Collateral Attacks on Inferior Tribunals C. Murray's Lessee, Public Rights, and the Limits of Congressional Power 1. Murray's Lessee and Public Rights 2. The Curious Focus on Issues of State Law D. Public Benefits, Private Rights, and Administrative Agencies E. The Scope of Review Required by the Principle of Inferiority IV. APPLYING THE INFERIOR TRIBUNALS ACCOUNT A. Testing the Inferiority of Familiar Article I Tribunals 1. Territorial Courts 2. Courts-Martial 3. Military Commissions 4. Public Rights, Sovereign Immunity, and the Court of Federal Claims 5. Article I Judges in Article III Courts 6. Magistrate Judges 7. NAFTA and the Use of International Panels To Arbitrate Trade Disputes B. Applying the Inferiority Principle to Leading Cases 1. Northern Pipeline 2. CFTC v. Schor 3. Thomas v. Union Carbide 4. Article I Appellate Review CONCLUSION We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III appear to rule out reliance upon Article I altogether; Article III vests the judicial power of the United States in federal whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Yet Article I have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication demonstrates the need for an alternative to literalism, but none of the competitors resolves the problem. The balancing test currently preferred by the Supreme Court acknowledges some role for Article I but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory--the appellate review account--emphasizes the need for appellate review in constitutional as the key to legitimate Article I adjudication. While this theory offers greater coherence, it does not fit especially well with some features of our institutional history and it would seemingly authorize some arrangements that depart dramatically from current law. Professor Pfander develops a new inferior tribunals account. Building on the constitutional distinction between inferior tribunals (in Article I) and inferior courts (in Article III), he suggests a new textual foundation for Article I tribunals. …

Roell v. Withrow, 123 S.Ct. 1696 (2003), and the Federal Magistrate Act of 1979

In an effort to ease the burden on the federal judiciary of mounting caseloads, the Federal Magistrate Act of 1979 authorizes magistrate judges to "conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when spe cially designated-by the district court" and when acting "[u]pon the consent of the par ties." 28 U.S.C. 636(c)(1) (1979). Since President Carter signed the act into law, mag istrate judges have been hearing more and more matters in the district courts. In fact, without the availability of magistrate judges to preside over a wide-ranging variety of proceedings, the federal judiciary would likely be overwhelmed. The use of magistrate judges is not limitless. Before a magistrate judge may pre side over a civil trial, both parties must affirmatively elect to forgo their right to have an Article III judge hear the matter. While the procedures for this consideration and accep tance are perceived as mere formalities, in Roell v. Withrow, 123 S.Ct. 1696 (2003), the Supreme Court was faced with a classic judicial dilemma in statutory interpretation and the enforcement of rules of procedure: mandating strict enforcement of a procedural rule that would give rise to an "unjust" result, or interpreting the intent of Congress in enact ing a statute to discount a "technical omission" and lead to the result Congress surely intended. Jon Withrow, a Texas state prisoner, brought an action under 42 U.S.C. 1983 against three members of the prison's medical staff (Roell, Reagan, and Garibay), alleg ing that they had deliberately disregarded his medical needs in violation of the Eighth Amendment. During a preliminary hearing the presiding magistrate judge told the par ties that they could have her rather than the district judge preside over the entire case. While Withrow agreed orally (and later in writing), the Texas attorney general's office stated that they would consider the option and respond in writing. Without waiting for the attorney general's response, the district judge referred the case to the magistrate judge for final disposition, pursuant to the Federal Magistrates Act. The referral included the caveat that "all defendants be given an opportunity to consent to the jurisdiction of the magistrate judge, " and that the referral order would be vacated if any of the defendants did not consent as required by 28 U.S.C. 636(c)(l). Defendant Reagan, who was represented by private counsel, gave written consent to the referral. Defendants Roell and Garibay, who were represented by the attorney general's office, did not respond to the referral.

Prostitution and (il)legal migration as possible hidden forms of trafficking in human beings: The analyses of the practice of the Magistrate Court in Belgrade

In this paper the author analyses all the cases from the 2002 practice of Magistrate Court in Belgrade, which relate to prostitution and illegal migration. The main aim of this paper is to show who are the women and men who are accused and punished for prostitution and illegal migration, as well as to argue that the part of them are in fact victims of trafficking in human beings. In conclusion, the author suggests the necessity for training of magistrate judges in order to be able to recognize victims of trafficking and, consequently, to be able to treat them as victims rather than as offenders.

The Misuse of Magistrate Judges in Federal Criminal Proceedings: A Look at the Non-ministerial Nature of Sentencings

The Constitution is the foundation of the American government and the American sys tem of justice. The role of the judiciary is to interpret the Constitution in such a way that its mandates are followed. From time to time courts have found it necessary to limit consensual, agreed-upon acts of litigants when such acts conflict with constitutional strictures. Such was the situation faced by the Fifth Circuit Court of Appeals in United States v. Johnston, 258 F.3d 361 (5th Cir. 2001), where the court had to consider whether, with the consent of both parties, the hearing and issuance of a final order by a federal magistrate in a habeas corpus proceeding stemming from a federal felony prosecution violated Article III of the Constitution. The facts surrounding the case are quite simple. Edward Johnston was convicted by a jury in the United States District Court for the Southern District of Texas of possession with intent to distribute several controlled substances and sentenced to 135 months in prison. Following the affirmance of his conviction and sentence on direct appeal, he filed a motion, pursuant to 28 U.S.C. 2255, to vacate, set aside, or correct his sentence. Both Johnston and the government consented to proceed before a magistrate judge, pur suant to 28 U.S.C. 636(c)(1), which provides that "upon the consent of the parties, a ... United States magistrate ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exer cise such jurisdiction by the district court or courts he serves." Following the magis trate's denial of the 2255 motion on the merits, Johnston appealed, raising the question of whether the magistrate judge was lawfully empowered to hear 2255 motions stem ming from a felony prosecution. The Fifth Circuit Court of Appeals vacated the magis trate's denial of the 2255 motion on the grounds that permitting a magistrate to rule on such motions in matters involving felony prosecutions violated Article III of the Constitution. United States v. Johnston, 258 F.3d 361 (5th Cir. 2001). In a well-reasoned opinion, Judge DeMoss adopted the two-step analysis set forth in United States v. Dees, 125 F.3d 261, 264 (5th Cir. 1997) for considering whether the parties consent to have a magistrate consider a 2255 petition was appropriate. As framed by the court, the questions that needed to be addressed were:

Inside the Judicial Mind

The quality of the judicial system depends upon the quality of decisions that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public understandably expects judges to avoid systematic errors. This expectation, however, might be unrealistic. Psychologists who study human judgment and choice have learned that people frequently fall prey to cognitive illusions that produce systematic errors in judgment. Even though judges are experienced, well-trained, and highly motivated decision makers, they might be vulnerable to cognitive illusions. We report the results of an empirical study designed to determine whether five common cognitive illusions (anchoring, framing, hindsight bias, inverse fallacy, and egocentric biases) would influence the decision-making processes of a sample of 167 federal magistrate judges. Although the judges in our study appeared somewhat less susceptible to two of these illusions (framing effects and the inverse fallacy) than lay decision makers, we found that each of the five illusions we tested had a significant impact on judicial decision making. Judges, it seems, are human. Like the rest of us, their judgment is affected by cognitive illusions that can produce systematic errors in judgment.

Judicial Policy Making and Habeas Corpus Reform

After Chief Justice William Rehnquist failed in his efforts to persuade Congress to reform habeas corpus procedures, a majority of justices on the Rehnquist Court used judicial decisions to reshape habeas procedures in a manner that made it more difficult for convicted offenders to have their cases successfully reviewed by federal judges. A purported justification for habeas corpus reform is to reduce the workload burden imposed by these cases on the federal district courts. A survey of U.S. magistrate judges, who bear primary responsibility for habeas cases in many district courts, reveals that judicially-initiated habeas reforms have not reduced workloads and, in fact, have increased the work required to process prisoners' petitions in many courts. Like judicial policy makers in other contexts, the Rehnquist Court justices failed to anticipate accurately the consequences of their habeas reform decisions, even though they were affecting policies within their own branch of government.