Trial Court Judges Research Articles

Feedback and Learning: The Causal Effects of Reversals on Judicial Decision-Making

Abstract Do judges respond to reversals of their decisions? Using random assignment of cases across two stages of the criminal justice system in Norway and a novel dataset linking trial court decisions to reversals in appeals courts, we provide causal evidence on feedback effects in judicial decision-making. By exploiting differences in the tendencies of randomly assigned appeal panels to reverse trial court decisions, we show that trial court judges who receive a reversal of a sentence respond by updating the likelihood of imposing a prison sentence in the direction of the reversal in future cases. Consistent with a Bayesian learning model, we find that the responses are stronger for judges with weaker priors and for reversals corresponding to stronger signals. Our estimates, however, also indicate that judges overreact to reversals compared to Bayes’ rule.

COMPETÊNCIAS GERENCIAIS DO JUIZ: UM ESTUDO DE CASO EM UMA VARA DE ALTA PERFORMANCE

Abstract This article investigates the managerial competences that are most important for state trial court judges in the performance of their managerial tasks, and the relationship between these competences and management practice. This topic has not been fully explored in the scientific literature and the present study employed a qualitative approach supported by interviews, and document analysis. The research is a case study of the trial court of Espinosa City, of the Minas Gerais State Court, Brazil. The performance of this court is outstanding when compared with other similar trial courts. We interviewed 13 key actors in that judicial unit, including four judges, the court secretariat manager, five officials, a social worker, a prosecutor, and a lawyer. Each interview was conducted using a semi-structured interview schedule. The data was assessed using content analysis, with the support of ATLAS.ti and Iramuteq software. The results evidence eight judges’ managerial competencies and one resource (support team expansion). The competences are the following: People Management and Team Leadership, Judicial Proceedings Management, Communication, Systemic Vision, Innovative Action, Information Management, Technical Managerial Competence, and Outcomes-Oriented Management. These results and their relationship with court performance are herein discussed. A research agenda, managerial implications and improvements in the Judiciary’s management policies are also set out.

Compensatory justice to the victim of a crime and judicial practices in India: An empirical study

The Constitution of India guarantees that justice shall be delivered to all. The duty to ensure that justice delivery is accessible to all is entrusted to state bodies. The legislature is expected to ensure that the legal framework is there, the executive is expected to ensure that all infrastructural needs of the justice delivery system are in place, and the judiciary is expected to ensure that justice is delivered in their area. This paper deals with the issue of delivery of victim justice, with a special focus on compensatory mechanisms laid down under the Code of Criminal Procedure 1973. The Code empowers the courts to award compensation to the victim of a crime to ensure his/her rehabilitation. In light of the observations made by the Supreme Court of India that the trial court judges do not exercise their discretionary power under the relevant statutory provisions to award compensation to the victims of a crime, this paper explores the extent of such failure and the reasons behind it.

Does Judicial Selection Affect Judicial Performance? Evidence from a Natural Experiment

Abstract Do judges selected by merit review commissions perform better than elected judges or those directly appointed by elected officials? This is a central question in both the academic study of state judicial institutions and the policy discourse about how to reform them. To address it, we take advantage of the variation in the means of the selection for trial court judges within Arizona, a state comprised of appointed, elected, and merit-selected trial court judges. This unique context allows us to use an objective measure of judicial performance – the reversal rate of trial court cases appealed to Arizona’s state appellate courts – to evaluate judges by their means of selection. We gather an original dataset on 2919 cases heard by 176 judges, estimating multivariate models that control for characteristics of cases and of judges. Overall, we find that elected judges have a lower reversal rate than merit-selected judges. Our findings question the conventional wisdom in the state courts literature in favor of merit selection and against judicial elections, and encourage further work on the effects of judges’ means of selection beyond state supreme courts to include state appellate and trial courts.

Delegation at the U.S. Federal Appellate Courts: The Power to Remand As a Double-Edged Sword

We analyze the countervailing incentives that mid-level appellate judges face when deciding whether to remand a case back to the lower court. Although appellate courts' ability to remand cases can mitigate moral hazard problems, by restraining trial court judges, it may sometimes instead exacerbate such problems by enabling the mid-level appellate judges to circumvent the top-level court's preferences through delegation. Our empirical assessment reveals a `Subsequent Remand Effect': cases that are remanded by the Supreme Court to the appellate court are far more likely to be subsequently remanded again to the district court compared to other cases. We investigate whether this effect originates from legitimate case-relevant reasons or from moral hazard by exploiting variations in ideological distances between court levels. A supplementary text analysis is also implemented for robustness. We find that the size of the effect varies with the composition of ideologies, which seems consistent with moral hazard.

Social Media, Venue and the Right to a Fair Trial

Judicial failure to recognize social media’s influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant’s change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant’s motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants’ introduction of negative social media in support of their claims, these same courts have yet to include social media in their evaluation of pretrial publicity bias. But social media is media, and as this article demonstrates, trial court judges faced with deciding change of venue motions have a constitutional obligation to include social media in their evaluations. The collective refusal to treat social media the same as biased television, radio, or print media, suggests an erroneous assumption on the part of lower courts that social media is somehow different. This article identifies three reasons as justification for dismissing social media: social media is too recent a medium to fully understand and analyze, social media is not a legitimate news source, and social media is opinion based. Application of pretrial social media publicity to long-standing Supreme Court change of venue doctrine, coupled with its exploration of scientific and social research on social media influence, debunk these lower court rationalizations. This article demonstrates that the reluctance of courts to consider social media evidence when deciding whether to grant a motion for a change of venue is a violation of any defendant’s Sixth Amendment right to a fair trial. On a larger scale, the article demands that courts embrace our new reality. Social media intersects with criminal justice, and our daily lives, in ways that demand judicial recognition.

After the Hammer: Six Years of Meads v. Meads

This article addresses the phenomenon of Organized Pseudolegal Commercial Arguments (OPCA) through a retrospective investigation of Meads v. Meads. The author begins by discussing whether Meads has met its objectives, and then proceeds with an analysis of the response to the Meads decision by various audiences, including courts, academics, the OPCA community, and the public. Then, the author examines Meads as a unique type of judgment that incorporates court knowledge as its foundation, allowing Meads, in part, to offer guidance to trial court judges. Finally, the author comments on the insight offered by Meads into the day-to-day realities faced by trial courts as they interact with self-represented individuals.

How Do Discover Bank Debtors Fare in Trial Courts? An Empirical Investigation of Credit Card Collection Litigation in Texas

This research report is the second in a series of empirical studies of sets of 100 cookie-cutter collection cases filed by the same original creditor. The first such pilot study looked a consumer credit card actions filed by Wells Fargo Bank, N.A. (WFBNA) in Harris County district courts in 2017. This study examines a sample of like size consisting of credit card collection cases filed by Discover Bank in 2014 in the same local court system, using a different law firm. FREQUENCY DISTRIBUTION OF CASE OUTCOMES For the Discover Bank credit card cases in this study, the breakdown by disposition type was as follows: Dismissal on Plaintiff’s Motion or Nonsuit: 39% Default Judgment for Plaintiff: 24% Dismissal for Want of Prosecution: 21% Agreed Judgment for Plaintiff: 10% Summary Judgment for Plaintiff: 3% Bench Trial Judgment for Plaintiff: 2% Bench Trial Judgment for Defendant: 1% Only in one case did the defendant win at a trial. This represents 1% of the entire sample, but would look better relative to contested cases only. In two other cases that went to trial and were won by the Plaintiff, the judge noted on the Bank’s proposed judgment that the defendant did not appear. DEFENDANTS WITH AND WITHOUT ATTORNEY As for representation status, consumer defendants had an attorney of record in 9% of the cases. Several of the pro se defendants indicated in their written answer that they had signed up with a debt settlement company (Freedom Debt Relief), but that organization did not provide them with an attorney. Of the few cases in which the defendant was represented by counsel, three resulted in agreed judgments, another three resulted in dismissals on the Bank’s motion. One was taken to trial and ended in a take-nothing judgment in the Defendant’s favor. In two other cases that went to trial, the Bank won. The number of cases that were actually tried, and the number of cases with counsel, is too small to reach definitive conclusions regarding the role of litigation performance, but the data is not inconsistent with the proposition that attorney representation can make a difference in garden-variety consumer collection cases. All of the default judgments could have been avoided had the defendant filed at least a general denial answer as authorized by the Texas Rules of Civil Procedure, which could have be done without an attorney by using a form, or by filing a narrative letter-type answer. This could, at the minimum, have given the Defendants a temporary reprieve, and more time to come up with money for a settlement/payment plan. RESOLUTIONS BY SETTLEMENT In contrast to the findings of the first study in the series, a number of Discover Bank cases contained documents that reveal the terms of settlements (so-called Rule 11 Agreements) and were generally filed in conjunction with agreed judgments. Discover Bank collection cases thus provide more information on settlement outcomes than is true of Wells Fargo cases. This category of information is not comprehensive, however, because a case may settle for a one-time lump sum payment, followed by a dismissal with prejudice on the Plaintiff’s motion. If the settlement has already been consummated, there is no need to recite the settlement terms in a court filing because they can no longer be breached. A dismissal with prejudice will do under such circumstances. LIMITED DISCRETIONARY ROLE OF TRIAL COURTS Because of the prevalence settlement, voluntary dismissal, or dismissal for want of prosecution (DWOP), the role of trial court judges in an adjudicatory capacity is limited to a very small proportion of the caseload.

Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making

Although the influence of gender ideology on lay decision-making has been established, it is not known to what extent expertise may mitigate gendered biases and improve decision-making quality. In a set of controlled experiments, trial court judges and laypeople evaluated a hypothetical child custody case and a hypothetical employment discrimination case. The role of expertise was tested in two ways: by comparing judges’ and laypeople’s decision-making and by examining relative differences in expertise among judges. Judges were no less influenced by litigant gender and by their own gender ideology than the lay sample. Judges with greater subject-matter expertise were also no less influenced by gender ideology than other judges. In some cases, expertise was associated with greater, not less, bias. The results of this study suggest that expertise does not attenuate gendered biases in legal decision-making.

Specialized Trial Courts in Patent Litigation: A Review of the Patent Pilot Program's Impact on Appellate Reversal Rates at the Five-Year Mark

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent law pilot program differ from those before non-pilot judges. I find that the types of cases heard before pilot judges differ. Pilot judges are less likely to rule in favor of the patentee and they are more likely to take cases to trial. Pilot judges also make different kinds of “mistakes” than non-pilot judges. Of the near three-hundred cases where the Federal Circuit rules on the substantive patent law issues on appeal, my results indicate that even controlling for other factors, judges that are part of the pilot program are not less likely to be overturned on appeal by the Federal Circuit. After discussing the empirical results, the Article proposes suggestions for reform. Patent law is unique in that it is one of the only areas of law where Congress delegates policymaking to the courts. The current piecemeal approach to patent reform by changing institutions in isolation to solve specific problems is misplaced. Multi-institutional reform of the patent system — focused on giving policymaking power to the bureaucracy to allow for less biased and more expert decision making — is needed in order to properly position courts as interpreters of the law rather than as being the vehicle primarily responsible for fashioning policy on an ad hoc basis.

Intelligence to Evidence in Civil and Criminal Proceedings: Response to August Consultation Paper

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor third party rule - something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the closed material proceeding (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.

Wild Flowers in the Swamp: Local Rules and Family Law

Family law reform is stuck in a rut. Reformers have criticized family law’s open-ended standards for decades and have uniformly sought to make those standards more rule-like by imposing top-down rules to cabin trial court judges’ discretion. That reform strategy failed 35 years ago, it failed 25 years ago, it failed 15 years ago, and it will fail today. This Article explores a bottom-up solution. Just as local judges routinely adopt local procedural rules, they should also be empowered to adopt substantive rules of thumb to guide their individual discretion in family law matters. This reform can accomplish what reformers have long failed to achieve: to cabin the discretion of individual judges and to bolster the democratic legitimacy of their decisions. Collective rules of thumb also create two novel dialogic benefits. They provide the first clear opportunity for local citizens to communicate to local judges about the content of local values. This is especially important when mostly heterosexual, white, wealthy judges are increasingly out of touch with minority family forms. In addition to giving a voice to local citizens, collective rules of thumb provide judges with a powerful new signaling device to communicate with appellate courts and legislatures. Whatever judges may say, they speak with much more force when they speak as a group. The vision of local power that this Article defends has implications that extend far beyond family law as well. Most notably, its novel focus on rules of thumb forces revisions to existing accounts of “rules against rulification,” and its account of citizen–judge dialogue offers insights into recent theoretical work on the proper scope of local judicial power.

Judges’ views on evidence of genetic contributions to mental disorders in court

This preliminary analysis assesses how judges view the use of behavioral genetics evidence on genetic influences to mental disorders in court. Twenty-one semi-structured interviews, analyzed using constant comparative analysis, were conducted with California trial court judges. Most judges reported the beneficial effects of this evidence being presented in court, particularly as a mitigating factor for sentencing. Yet some judges viewed it as an aggravating factor and expressed concerns about genetic privacy. Judges described initial reactions to being potentially presented with evidence on genetic influences to mental disorders as apprehension, curiosity, and sympathy. Judges also reported putting significant trust in experts on these issues. Findings suggest some judges are skeptical of this evidence, but largely open to its presentation. Sympathetic reactions may result in mitigating attitudes of some judges. As judges significantly trust experts, some judges could also be overly trusting of genetic evidence and expert opinion on these issues.

A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers

An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.

The Judge, the Politician, and the Press: Newspaper Coverage and Criminal Sentencing across Electoral Systems

We study how media environments interact with political institutions that structure the accountability of public officials. Specifically, we quantify media influence on the behavior of US state court judges. We analyze around 1.5 million criminal sentencing decisions from 1986 to 2006 and new data on the newspaper coverage of 9,828 trial court judges. Since newspaper coverage is endogenous, we use the match between newspaper markets and judicial districts to identify effects. We find that newspaper coverage significantly increases sentence length by nonpartisan elected judges for violent crimes. For partisan elected and appointed judges, there are no significant effects. (JEL D72, H76, K41, L82)

Opinion Writing in the Federal District Courts

American trial court judges’ roles and behavior vary greatly from their appellate court brethren. One such area of difference has to do with opinion writing behavior, an area where trial judges hold a great deal of discretion in determining whether to write an opinion and, if they do, how long the opinion should be. To examine what factors determine opinion writing behavior among district court judges, this study relies on analyses of an original dataset of civil cases that terminated in eighteen federal district courts from 2000 to 2006. The results indicate that legal, hierarchical, and institutional features are critical in motivating opinion writing and opinion length and that personal factors have very limited effects. The fruits of this exercise have important implications for how we view and model the behavior of trial court judges in the future.

The Hierarchical Influence of Courts of Appeals on District Courts

AbstractWhat factors explain when federal trial court judges will be influenced and constrained by their direct superiors in the judicial hierarchy? To empirically test this hierarchical relationship, this study utilizes an original database of cases terminated in 29 federal district courts from 2000 to 2004 and a research design that naturally incorporates hierarchical interactions through a focus on cases that were appealed to the U.S. courts of appeal and later reversed and remanded. After controlling for litigant, judge, political, and case characteristics, the results indicate that the likelihood of a district court case having an altered outcome after circuit court intervention is greatly affected by the content and context of the supervising circuit panel’s opinion. These results have implications for the function and constraining ability of the judicial hierarchy and provide new insight into how judging significantly differs by court level.

Specialized Trial Courts: Concentrating Expertise on Fact

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court to which the Federal Circuit would feel compelled to defer on questions of fact. It also discusses how such a court would be designed, focusing on the manner in which trial court judges could use the court-appointed advisors to evaluate competing factual claims.

Preferences and Incentives of Appointed and Elected Public Officials: Evidence from State Trial Court Judges

We study how two selection systems for public officials, appointment and election, affect policy outcomes, focusing on state court judges and their criminal sentencing decisions. First, under appointment, policy congruence with voter preferences is attained through selecting judges with homogeneous preferences. In contrast, under election, judges face strong reelection incentives, while selection on preferences is weak. Second, the effectiveness of election in attaining policy congruence critically depends on payoffs from the job, which implies that the effectiveness of election may vary substantially across public offices. Third, reelection incentives may discourage judges with significant human capital from holding office. (JEL D72, K41)

Probability, Confidence, and Matsushita: The Misunderstood Summary Judgment Revolution

This article offers a reinterpretation of the Supreme Court’s seminal decision in Matsushita Electric Industrial Co. v. Zenith Radio Corporation. Although the Matsushita decision is often credited for ushering in a new era of summary judgment by shifting power from the jury to trial court judges, this conclusion is based on an erroneous understanding of the case. In reality, Matsushita is a narrow decision that does not alter the relationship between judge and jury. Appreciating the true import of Matsushita is possible only by delineating between the concepts of probability and confidence. The Supreme Court’s decision in Matsushita is usually understood as having been decided according to a probability analysis, but the best interpretation of the case is that it was decided pursuant to a confidence analysis. Recognizing the true basis of the Matsushita decision dispels the popular belief that Matsushita requires an aggressive use of summary judgment by trial judges. In addition, properly understanding Matsushita is the key to comprehending the pleading requirement of “plausibility,” introduced by the Supreme Court in Bell Atlantic v. Twombly.