So, while I cannot yet tell you who the most activist judge was in 2008 because I have only reviewed data from five circuits, I can share my preliminary results for a few higher profile judges, including the most recent nominee to the United States Supreme Court. Here are the activism scores based upon my preliminary data for some of the highest profile judges in the Second, [...]]]> In my last post, I gave some results based upon collective groupings of appellate judges. In this post, I want to focus on the performance of individual judges. The primary reason that I am working to create a relatively large dataset is to allow for individual judge assessments. That has not been possible with the existing appellate court databases.

So, while I cannot yet tell you who the most activist judge was in 2008 because I have only reviewed data from five circuits, I can share my preliminary results for a few higher profile judges, including the most recent nominee to the United States Supreme Court. Here are the activism scores based upon my preliminary data for some of the highest profile judges in the Second, Third, Fourth, Seventh, and Eighth Circuits ranked from most activist to least activist:

As noted in the chart, my average activism score is -10.40%. That means Judge Sotomayor, who is highlighted in green, is less activist than the average judge in my dataset. I have highlighted in red the other judges that were rumored to be on President Obama’s shortlist. As I have noted elsewhere, Judge Sotomayor is slightly more activist than average in criminal cases, perhaps owing to her extensive experience in that area of law. Although one of the primary attacks on Judge Sotomayor is her alleged judicial activism, I do not think such an attack is supported by her record in 2008. I would be interested in seeing any data which actually supports a charge of activism. Simply cherry picking a few cases over the long period she has been on the appellate judge or relying on sentences out of public statements gives almost no insight into Judge Sotomayor’s overall judging philosophy and technique. Further, such selective review of cases and speeches offers no information about how similarly situated judges have performed during the same period.

Outside of Judge Sotomayor, I wanted to highlight a couple other judges in my chart: Judges Posner, Easterbrook, and Wilkinson. Those three are notable because they have taken the unusual step of writing generally about judging and specifically about activism. Based upon my reading of their writings, I think all three judges perform as you might expect. I think a fair, but crude, assessment of Judge Posner’s perspective on how a judge should decide a case is: “if it’s broke, fix it.” We would expect that Judge Posner would not be particularly deferential to the opinions of others if he thinks that they are in error. Thus, we might expect the data to show, relatively, that Judge Posner is more activist. Judge Easterbrook has openly lamented the activism of judges. We might then expect him to be substantially less activist than an average judge. Judge Wilkinson has been perhaps the most aggressive judge in attacking judicial activism. He even vocally targeted the United States Supreme Court decision in Heller even though that opinion probably fits with his policy ideology. Judge Wilkinson, then, might be expected to be among the least activist judges. That all three judges fit with some of the information we have about each of them might indicate that the data I have collected is a valid indicator of an individual judge’s activism.

I should note that activism by judges is not inherently a negative quality. On the other extreme, a judge who is too deferential to other constitutional actors might not be adequately fulfilling his or her responsibilities under the Constitution. Such a judge may simply be acting as a rubber stamp by failing to exercise proper judgment. Further, since my measure is only relative between judges, I do not attempt to describe what the “ideal” amount of activism by a judge is. So, nothing here should be taken as a disparagement of a particular judge. My hope is simply to add more data to understanding judges and judicial behavior.

As I mentioned previously, this is an ongoing project so I welcome comments and suggestions. As this will be my last post, I wanted to thank Dan, Dave, and the rest of Concurring Opinions for having me here.

One of the most remarkable things I have found so far is that, although each of the circuits has a relatively consistent reversal rate, the activism scores vary by significant margins. The chart below shows the reversal rates and activism differentials for each of the five circuits that I have examined:

The activism scores are negative numbers with the higher numbers indicating a higher degree of activism. Thus, the 3rd Circuit is the most activist and the 4th Circuit is, by far, the least activist.

Of course, one thing that is always interesting to look at is which [...]]]> In my previous post, I finally got around to explaining my measure of judicial activism. In this post, I will give some of the results based upon my preliminary data.

One of the most remarkable things I have found so far is that, although each of the circuits has a relatively consistent reversal rate, the activism scores vary by significant margins. The chart below shows the reversal rates and activism differentials for each of the five circuits that I have examined:

The activism scores are negative numbers with the higher numbers indicating a higher degree of activism. Thus, the 3rd Circuit is the most activist and the 4th Circuit is, by far, the least activist.

Of course, one thing that is always interesting to look at is which President’s appointees are the most activist. Here are the results I have so far:

This chart should be taken with a very large grain of salt. Although in some senses, I already have a large amount of data, in others I have very limited sample sizes. When I start analyzing data that uses the judge as a unit of measure, I only have 52 judges with adequate sample sizes. So, there are few representatives for some presidents. That is also why I am not including any regression analysis in these posts. I include this chart simply to show one of variables that I will explore in regards to activism. Other examples of variables I will examine include background experience (district court, private practice, prosecutor, law professor, etc.), conditions at the time of the appointment (election year, unified government, etc.), and other assorted factors (law school attended, activism in particular areas of law, ABA ratings, etc.).

As this project is still ongoing, I welcome any comments and/or suggestions. In my next, and probably last, post, I will give some information about some high profile judges including Judge Sotomayor.

Update: Based upon popular demand, I have changed the second graph to a bar chart.

Since judicial activism at its core is about substituting judgment of other constitutional actors, for federal appellate courts it makes the most sense to study where they do most of their work: reviewing the judgments of district courts. That ensures large sample sizes, wide coverage of different areas of law, and decisions that are still restrained so some non-activist baseline can be derived.

To that end, standards of review offer a powerful tool to understand judicial decision making at the federal appellate level. There are deferential (i.e. clear error) and non-deferential (i.e. de novo) reviews [...]]]> In my last post, I briefly described the major approaches to studying activism. In this post, I will outline my measure for the concept as well as the contours of my dataset.

Since judicial activism at its core is about substituting judgment of other constitutional actors, for federal appellate courts it makes the most sense to study where they do most of their work: reviewing the judgments of district courts. That ensures large sample sizes, wide coverage of different areas of law, and decisions that are still restrained so some non-activist baseline can be derived.

To that end, standards of review offer a powerful tool to understand judicial decision making at the federal appellate level. There are deferential (i.e. clear error) and non-deferential (i.e. de novo) reviews of district court judgments. As you can see from the chart below derived from my dataset, standards of review do affect reversal rates.

So, what can we learn from standards of review? I contend that by comparing a judge’s reversal rate in non-deferential cases with the reversal rate in deferential cases, we can effectively measure the concept of judicial activism. So, appellate judges are more “activist” when they reverse district court judgments under a deferential standard at a higher relative rate compared to reversals using a non-deferential standard. My exact measure (or activism “score”) for activism is reversal rate in non-deferential cases minus the reversal rate in deferential cases. This measure captures when a judge is not deferring to other constitutional actors when we would normally expect him or her to do so. 

The measure has the advantage of not being based upon the substantive outcome of the case. A judge can use either a deferential or non-deferential standard and still find for either party. Since we might think that activist judges are not keen to make clear that their decisions are actually activist, looking at substantive outcomes can be tricky as judges try to mask an appearance of activism. Since standards of review are usually non-controversial (in that the parties rarely dispute over which standard applies) formal rules, we might think that there will be less ability for judges to mask their activism. Ultimately, the failure to defer by a judge over time indicates a relative propensity for activism even if we cannot say for certain that any individual decision is activist. As will be clear in my next post, judges vary quite a bit in their deference under standards of review.

My dataset thus far includes all 2008 cases that used standard of review related words (except habeas and immigration cases) for five circuits: the 2nd, 3rd, 4th, 7th, and 8th. Eventually the dataset will include all eleven numbered circuits as well as the D.C. Circuit. The dataset covers 3,873 cases and 11,583 judicial votes. Each vote is coded for, among other things, standard of review, type of vote, and type of case. I have also integrated biographical information for each judge to determine if background or demographic characteristics are related to judicial activism.

In my next post, I will detail some of my results based upon my preliminary data.

The existing empirical scholarship is largely focused on two things: activism by the U.S. Supreme Court and judicial review of the other federal branches. While there is a lot of interesting work within those studies, I think the focus on Supreme Court review of other branches offers an extremely narrow view of judicial activism.

The Supreme Court is an unusual body in American courts. It is not subject to any higher review. The Justices are largely free to decide a case however they feel. As a result of the unrestrained nature of the Court, “activism” [...]]]> In my last post, I offered a new definition of judicial activism as applied to federal appellate judges. In this post, I will discuss some of the existing research on the subject.

The existing empirical scholarship is largely focused on two things: activism by the U.S. Supreme Court and judicial review of the other federal branches. While there is a lot of interesting work within those studies, I think the focus on Supreme Court review of other branches offers an extremely narrow view of judicial activism.

The Supreme Court is an unusual body in American courts. It is not subject to any higher review. The Justices are largely free to decide a case however they feel. As a result of the unrestrained nature of the Court, “activism” is a hard concept to measure. There is difficulty in finding a baseline against which to measure the Justices. A Justice who is an outlier on one Court might have regularly been in the majority during a different era.  The problem of measuring activism is compounded by the Court’s very small docket. Because there are so few cases, the sample sizes are not large. Further, because the docket is self-selected, the cases are not random and are concentrated in just a few areas of law.

Studying federal appellate courts is more informative because the courts are restrained and are responsible for defining much more of federal law and other issues in federal courts. As the Supreme Court’s docket as shrunk, the Courts of Appeals have increased in importance. Further, as is the case with Sotomayor, studying appellate judges can give you more information about a Justice before they join the Court rather than waiting until someone has life tenure and is unreviewable. Because federal appellate courts are limited by the decisions of other panels, en banc review, and U.S. Supreme Court law and review, it is much easier to establish a baseline against which to measure activism.

The emphasis on inter-branch relations in activism is also problematic. Again, there are very small sample sizes since only rarely do courts review the constitutionality of legislation or other branch actions. There is also a problem in deciding which acts of judicial review are “really” activist. Not all Court actions striking down legislation are created equal. The focus on inter-branch review is particularly problematic for federal appellate courts since those cases are an incredibly small percentage of the overall docket.

As a result, to better appreciate and understand the concept of judicial activism, I believe it is helpful to move beyond the Supreme Court and to consider actions by the courts other review of other branches. 

In my next post, I’ll describe my measure and my existing dataset.

One of my the things I like most about [...]]]> During the week, one can watch an incredible number of crime-themed television shows. Just on the major networks during prime time, a coach potato with a DVR can view Law & Order, Law & Order: SVU, CSI, CSI: Miami, CSI: NY, Without a Trace, NCIS, The Mentalist, Fringe, Criminal Minds, Life on Mars, Lie to Me, Bones, Numb3rs, Cold Case, Cops, and America’s Most Wanted. There are also highly rated cable shows like The Closer and Monk. Not too long ago, the greatest crime show of them all, The Wire, ended. A decent number of these shows are watched by law students on a regular basis. There are also scores of crime-related movies that students have viewed.

One of my the things I like most about teaching Criminal Law and Criminal Procedure is that students often come into the class filled with opinions and “knowledge” about the two subjects from popular culture. That background makes for very lively discussions and even students who have no interest in criminal law often have strong opinions about the subject. I can also tap into that knowledge base by using television and movie examples, including using movie clips during class. However, the downside of all of that cultural baggage is that I often have to account for all of the bits of misinformation that my students might have.

Lately, I have been wondering if the problems associated with that misinformation have been growing. Once upon a time, the show Law & Order cited real New York cases and discussed legal issues in a way that was at least connected to reality. Perhaps based upon those fond memories, I still have the show on my DVR schedule despite the fact that it has taken a turn for the worse in recent years. The same week that I was teaching the first day of mens rea, I sat down to watch a few Law & Order episodes that I had recorded. In one episode, the defense made a bizarre suppression motion which was granted. After the suppression motion was granted, the defense moved for dismissal on the grounds that there was no remaining evidence of motive. Astoundingly, the motion was granted with prejudice. So, as I am going to teach my class that motive is not an element of the crime and that motive is different than mens rea, television is sending a very different message.

I’m not hoping for something even close to approximating perfection in terms of legal accuracy from television. However, I wonder if these shows are even employing lawyers as consultants anymore. The way criminal law is being portrayed is often so far removed from reality that I cannot even guess at what strange ideas my students are hearing. I’m guessing this phenomenon is unique to criminal law, but I’d be interested to hear if teachers in other areas have similar problems. And I’m curious to see if other professors teaching Criminal Law and Criminal Procedure have observed any increase in legal inaccuracies in popular culture or among their students.

So far, only the Seventh, Eighth, Tenth, and Eleventh Circuits have considered defendant [...]]]> The Adam Walsh Child Protection and Safety Act (AWA), enacted in 2006, created a new federal crime of “Failure to register.” Section 18 U.S.C. 2250 allows for prosecution of sex offenders who do not register as required by the Sex Offender Registration and Notification Act (SORNA) which is part of the AWA. Importantly, for a prosecution to occur under 18 U.S.C. 2250(a)(2)(B), the government must show that an offender “travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country.” I have argued that this jurisdictional limitation is inadequate to support Commerce Clause authority for 2250(a) prosecutions. To date, seven district courts have agreed with me on that argument.

So far, only the Seventh, Eighth, Tenth, and Eleventh Circuits have considered defendant arguments related to the Commerce Clause and each has rejected the defendant’s position. As a result of this circuit consistency, the Commerce Clause challenge to SORNA seems like an unlikely candidate for a certiorari grant by the U.S. Supreme Court. There are, however, important inconsistencies among the opinions due, in part, to the mess the Court has created in the aftermath of Gonzales v. Raich.

After United States v. Lopez, there are three permissible categories for regulation of interstate commerce under the Commerce Clause: 1) “the use of the channels of interstate commerce”; 2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and 3) “activities that substantially affect interstate commerce.” Lopez, United States v. Morrison, and Raich all pertained to the third category of interstate commerce.

The Eighth Circuit has twice addressed the issue (with slightly different challenges). In the first case, United States v. May, the court found that the statute could be supported under the first two categories without much explanation. When the Eighth Circuit revisited the issue with a slightly different twist, in United States v. Howell, the court didn’t make a first or second category finding and instead adopted the rationale that portions of SORNA served “a legitimate end under the commerce clause.” The Tenth Circuit, in United States v. Lawrance, primarily focused on a first category classification. However, the opinion is baffling since it relied on the Court’s 1964 decision in Heart of Atlanta Motel v. United States noting that Congress has the authority, “to keep the channels of interstate commerce free from immoral and injurious uses.” Citing a pre-Lopez case for a proposition that cannot possibly be reconciled with Lopez or Morrison seems odd, to say the least. The Eleventh Circuit just issued its opinion in United States v. Ambert, again relying on the first and second categories. However, that opinion is riddled with problems including a failure to even cite Morrison, a decision which seems especially relevant given that the statute at issue in that case was also designed to combat sexual violence. The Seventh Circuit’s holding is least informative as Judge Posner, in United States v. Dixon, disposed of the Commerce Clause argument in two sentences with no references to the Lopez categories.

The reliance on the first two categories might seem odd since some commentators thought the federalism revolution of the Rehnquist court ended when the court adopted an expansive view of the third category in Raich. Nonetheless, the circuit courts are selectively applying third category ideas (like jurisdictional limits) to first and second category classifications while ignoring contrary third category ideas (like the lack of congressional findings).

However, the failure to confront the third category highlights another problem with the varied reasoning of the circuit courts. How can courts reconcile the outcomes in Lopez and Morrison with their new interpretations of the first and second categories? After all, the facial challenge in Lopez should have failed because it could be shown that some defendants might have traveled in interstate commerce whether or not the gun near a school had a substantial effect on interstate commerce. Similarly, the VAWA tort action should have been upheld because some civil defendants would have surely traveled between states.

The notion that everyone who travels between states is subject to federal jurisdiction is at odds with our system of federalism. The facts of Ambert make clear the broad reach of SORNA. In that case, the defendant took a two-day trip from Florida to California which did not require a change in registration and was wholly unrelated to the defendant’s failure to register. Nonetheless, the vacation provided sufficient basis for federal jurisdiction. Whether one agrees or disagrees with my substantive argument regarding that issue, the Court should step in to clean up its mess even absent a clear circuit split. Each of the circuits has reached the same result regarding these Commerce Clause challenges. However, the underlying methods are so varied and muddled such that it is clear that the Court has not offered clear guidance how to resolve these cases. The Court should issue certiorari in one of these cases to explain: 1) the continuing relevance of Morrison and Lopez after Raich; 2) how broad the first two Lopez categories are; and 3) if broad definitions of the first two categories can be reconciled with Morrison and Lopez. While there is no classic circuit split, the varied methodologies of the circuit courts have created the same uncertainty of law that are associated with such splits.

For those interested, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is having hearings today regarding SORNA and the AWA. You can listen along here.

Cross Posted at Sex Crimes.

One of the leaders of my subject-specific breakout sessions cautioned us new academics against ever sharing drafts of scholarship with any members of the senior faculty at our respective schools. This [...]]]> Before I started my career as a legal academic, I, as I expect a lot of new professors do, went to the AALS New Law Teachers Workshop. I definitely recommend going there as I learned a lot from more experienced academics. Some of what I learned seemed trivial, but was very important (i.e., how much reading you should assign per class). Other advice has really made me a better scholar (i.e, when you are angry or riled up about something, start writing). There was one piece of advice, however, that left me a little baffled.

One of the leaders of my subject-specific breakout sessions cautioned us new academics against ever sharing drafts of scholarship with any members of the senior faculty at our respective schools. This meant that we shouldn’t ever show written drafts to tenured professors and we definitely should not present works-in-progress to faculty. The chief reasons for the warning were that only bad things could emerge from faculty seeing your work before it was in a polished state. Primarily, your fellow faculty would form an image in their minds based upon the flaws in early editions of your work and that impression would not dissipate upon completion of your writing. I was flabbergasted by the advice. As someone who had published a couple of things before being hired, one of the things I was most looking forward to was having senior people actually read my work. As a practitioner, it had been almost impossible to get anyone to seriously scrutinize my writing.

So, when I heard this cautionary advice, it went against my strong intuitions about academia. I have to admit that so far I have completely ignored it. Last week, I just gave my second works-in-progress presentation which was open to the entire faculty at my school. That presentation concerned an early-stage empirical project that represents a new direction in my scholarship. Because it was based upon early data and was in an area which is outside of my normal area of expertise, the dangers should have been highest. However, as has been the case with all of my interactions with my faculty, I found the response to be incredibly supportive and helpful. Afterward, I scheduled yet another presentation for later this semester on another article that is still in progress.

Now that academics often post very early works on SSRN, the fears of my section leader seem even more strange to me. Am I missing something? Or are some law school environments more dangerous for junior scholars? Should this note of caution continue to be propagated or is it a relic of a different era?

Doug Berman, at Sentencing Law & Policy, recently called for more people in the criminal justice world to take up blogging. Specifically, he explained that issue-focused, niche blogs serve the valuable function of expanding the debate about important topics. I have been a blogger for over two years in a very tiny niche: sex crimes. There are definitely positives and negatives to being a single-topic blogger.

For me, the negatives have not been too pronounced, but they do come up from time to time. A niche blog audience tends to be narrower and there are less regular [...]]]> I want to thank Dan and the rest of the Concurring Opinions bloggers for having me. I figured I would start by posting about something close to home for me.

Doug Berman, at Sentencing Law & Policy, recently called for more people in the criminal justice world to take up blogging. Specifically, he explained that issue-focused, niche blogs serve the valuable function of expanding the debate about important topics. I have been a blogger for over two years in a very tiny niche: sex crimes. There are definitely positives and negatives to being a single-topic blogger.

For me, the negatives have not been too pronounced, but they do come up from time to time. A niche blog audience tends to be narrower and there are less regular readers. Instead, narrow-focus blogs are consulted more often when a hot topic intersects with the blog’s subject matter. Rick Hasen’s Election Law Blog is a good example of that trend as his traffic patterns substantially change during election season. That means that the niche blogger has to a lot more work during the off-peak times to draw attention to the blog. I am not one who revels in promoting my blog so that has been the toughest thing for me. The other significant negative is there are times when I see a post around the web unrelated to sex crimes to which I really want to respond, but I cannot justify it on my blog.

The positives have, so far, outweighed the negatives for me. Most importantly, the people who read my blog, regularly or irregularly, tend have much higher interest levels about the topics on which I blog. I would guess, for that reason, I get a much higher volume of email from blog readers than I would on a general topic blog. That has allowed me to get to know a lot of people with different perspectives about sex crime laws. Since that has been the primary focus of my scholarship, the reader feedback has served me well in enhancing my scholarly work. I also think there is tremendous value in the disciplinary nature of niche blogging. My blog forces me to read and think about the issues which interest me on a daily basis. While I think there are times when every blogger wonders if blogging is trading off with more productive activity, I think the net effect for me has been to increase my overall work rate.

So, I would extend Berman’s call for more single-issue bloggers beyond the criminal justice area. While I enjoy a lot of group and general interest blogs, there is an important place in the legal blogosphere for niche blogs.

Cross-posted at Sex Crimes.