Whither The Great Appellate Judge?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Dan Cole says:

    I can think of a couple of very influential judicial opinions penned by Judge Posner: (1) his concurrence in the Chicago rent-control case and (2) his opinion in the bed-bug case, which virtually overruled the Supreme Court’s ruling in State Farm.

  2. Chad Oldfather says:

    I would think increased caseloads have a lot to do with it as well. In 1974 – Friendly’s last year on the bench – the total caseload of the federal appellate courts was somewhere in the range of 11,000 cases, which was itself more than double the caseload from 1960 (when caseloads really started to expand). Over the most recent five years it’s been closer to 55,000 cases. The growth in the judiciary has been much more modest, so judges simply have less time to devote to their cases, and must rely to a much greater extent on their clerks.

  3. Jim Maloney says:

    As an aside to this discussion, but one perhaps worth sharing here, I learned only today of “Judge Learned Hand’s promise that he would never vote to convene an en banc court.” The foregoing quote is taken from a dissent from a denial of en banc rehearing in United States v. Taylor written by Judge Cabranes, which appeared on the Second Circuit’s website this morning. (The vote on the en banc rehearing was 7-6, as close as it gets.) Is there perhaps a correlation between Judge Hand’s position on this issue and his status as a jurist? Something along the lines, perhaps, of a sense that any review of a Circuit Court Panel’s opinion ought to come from the highest Court?

  4. Howard Wasserman says:

    1) Might cert. practices have something to do with it? Despite the smaller caseloads, SCOTUS tends to resolve most major constitutional issues (the ones that catch everyone’s attention), so there are fewer appellate court decisions that remain the last word on an issue?
    2) Might it vary by area? I’m sure some Ad Law experts could identify a DC Circuit judge whose influence in that field is akin to that of Hand or Friendly.