Author: Corey Yung

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In Praise of Complexity

Earlier this month, right here on this very blog, Dave Hoffman pontificated about two of my favorite subjects: empirical legal studies and baseball. Primarily, Dave wondered about whether empirical legal research was facing might face the same problem as sabermatic baseball analysis: inaccessible complexity. I won’t rehash his argument because he did a very good job of explaining it in the original post. Although I completely agree with his conclusion that empirical legal studies should seek to be more accessible (which I always note at the end of my introduction of my empirical work), I disagree with his contention that empirical legal studies are facing might face widespread incomprehensibility due to growing complexity. Because I think it is a helpful analogy, I’ll borrow Dave’s example of advanced statistics in baseball. Read More

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What is “Practical” Scholarship?

Due to a public comment by the Chief Justice and as a side issue in the ongoing ScamProf debacle, the criticism that legal scholarship in law reviews is worthless to real lawyers has reemerged with a vengeance. As someone who enjoys doctrinal, empirical, theoretical, and completely esoteric scholarship, I’ve struggled to figure out why people in these discussions essentially equivocate doctrinal with practical. Why would Chief Justice Roberts think that a doctrinal article in a law review which might be out of date by the time he reads it is better suited to persuade him than the extensive briefing in the case he is reviewing? For Supreme Court Justices, who have party and amicus briefs so numerous that they don’t read them all, it seems strange to want law reviews to become redundant with other materials that they don’t bother to review.

For lower federal courts, the situation is a bit different. There, I think a strong case can be made that doctrinal scholarship can play a substantial role. Yet, when I have looked through cases that cite law reviews, it seems like the propositions cited are rarely doctrinal in nature. As someone who reads more federal cases for my scholarship than any sane person should, it seems as though law reviews are most often cited for propositions other than legal argument. At least if citations are a good proxy for the utility of law reviews for courts, it appears like the far more used portions of law reviews concern factual, empirical, or historical claims. Even broad theories of law seem to receive more attention than strict doctrinal points. Of course, no one has really studied this issue to confirm my impressions, but, to me, law reviews are most “practical” when they fill a niche distinguishable from other forms of legal writing. Why would anyone want a law review to simply become a legal brief (even one that was more even-handed than the average party brief)? I think many of these complaints about legal scholarship are simple railings against academia, but when they are made by people like Chief Justice Roberts they take on special significance. Although the Chief might not read law reviews in their current form, I hope for the sake of scholarship that he doesn’t get his wish to make them “practical” as he understands the concept.

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Panel Effects and the Independent Vote Assumption

For people interested in judicial decision-making, one of the most interesting findings in the last decade was the evidence that judges on panels do not make decisions independent of one another. In fact, the political ideology of co-panelists has a strong connection to how an individual judge will vote in many cases. These “panel effects” are now well-known among scholars who are not regular readers of empirical work regarding the courts. However, the details, magnitude, and explanation for these panel effects are still disputed and ambiguous.

The so-called “whistleblower” panel effect occurs when a judge wants to draw attention to the actions of co-panelists that might be acting in an ideological extreme manner. In contrast, strategic incentives often point in a different direction because dissents rarely serve any function at the federal appellate level when en banc panels are infrequent and Supreme Court review even less likely. There are also strong incentives toward consensus among judges in the same circuits because of the limited value of dissents and the upsides to collegiality among judges that will serve on panels hundreds of times together. To these theories of panel decision-making, I wanted to share one of my recent findings. Read More

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From the Ivory Tower to the Courts

It has been conventional wisdom for some time that the legal academy has become increasingly disconnected from the practice of law. And because of this, law reviews are said to be of little use to attorneys and judges. A recent piece in the California Lawyer by a law professor and former law school dean has received some attention for making these claims in the strongest terms. From the article:

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite—or perhaps because of—the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley’s alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

As Adam Liptak of the New York Times observed a few years ago, “Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions—which is to say the practice of law—is beneath them.”

I’m not quite sure the method that the author used to identify just six citations to law reviews, but I performed a quick and dirty Lexis search and turned up far more. The bigger question, though, is whether the author is right that judges are not reading law reviews. A new article by David Schwartz and Lee Petherbridge indicates that, at least for the federal appellate courts, the conventional wisdom seems to be flat wrong. In fact, according to their study, law review citations have increased dramatically in the last twenty years (even when accounting for the increased number of journals). I couldn’t cut and paste the tables and graphs from the article, but the results regarding the proportion of court opinions that cite law reviews are clear.

So, why is the conventional wisdom so completely wrong on this point? Maybe citations are clerk driven. Or it could be that judges are misremembering the golden age of law reviews. I want to offer a different explanation, though. Judges and commentators have argued that because law review articles are rarely concerned with legal doctrine, they are of no use to those practicing law and judging cases. I think there is a strong argument that it is precisely because law reviews are unconcerned with doctrine, they are much more valuable to judges and are cited as a result. Articles that merely outline, discuss, or analyze doctrinal areas do little to advance the judge’s knowledge beyond what he or she could establish alone. Instead, it is the broader theoretical points and empirical studies that are outside of a judge’s metaphorical wheelhouse. Just as judges will not allow an expert on law to testify, it makes little sense for law reviews to inform judges about topics which they are comfortable. Instead, like the expert on ballistics evidence or biological sciences, law reviews that are increasingly removed from “law” actually educate judges where they are weakest. And, as a result, law reviews are increasingly being cited by the very judges who proclaim their uselessness.

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The Federalism Revolution Did Not Take Place

In 1991, Jean Baudrillard provocatively titled a collection of essays as The Gulf War Did Not Take Place. In the book, Baudrillard did not embrace some bizarre conspiracy theory that the Gulf War was staged like many have contended about the Apollo moon landing. Instead, Baudrillard argued that the invasion of Iraq was not a “war” in any meaningful sense of the word. Although the media treated the run up to the conflict as the beginning of a possible global conflagration, the outcome was preordained. I remember the repeated statement that Iraq had the fourth largest army in the world as a particularly odd statement of propaganda. The death and environmental damage were real, but, to Baudrillard, the non-event could not be termed a “war.”

Baudrillard’s view of the Gulf War is perhaps more applicable to the so-called “federalism revolution” that was led by Justice Rehnquist. As a result of the Court’s opinions in Lopez and Morrison, many legal scholars felt that the Commerce Clause was seemingly reinvigorated as a means of limiting federal power. As hundreds of law reviews embraced the revolutionary narrative, the popular press joined them. To many, the revolution came to a screeching halt with the Court’s ruling in Raich. However, it was still possible to reconcile the doctrine in Raich (as a logical extension of Wickard v. Filburn) with Lopez and Morrison. Whereas marijuana was an economic good, sexual violence and guns were not (although the tension with Lopez was clear). However, with the Court’s recent decision in United States v. Comstock, the legacy of Justice Rehnquist in regards to the Commerce Clause seems to have vanished. Read More

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Judicial Conservatism, Liberalism, Activism, Restraint, and Everything in Between

While this is my last planned post on the subject, I continue to welcome comments and suggestions about my attempt to measure judicial ideology. My goal in both my posts here and overall project has been to push forward the effort to better understand the process of judging and the outcomes of judicial decision-making. Judge Richard Posner’s detailed and extremely valuable account of judging in How Judges Think offers one of the most interesting looks into judicial decision-making. However, there has been limited empirical research into the various models of judging like those described by Judge Posner as applied in the real world. Frank Cross has been one of the few that has rigorously tested whether the major models of judging describe judicial behavior for judges at the federal appellate level. There is still an immense amount of work to be done in this area.

Thus far, I have created measures of judicial activism and ideology. I’m currently working on projects to assess the traits of judicial partisanship and independence. My goal is not to just create a typology of judges based upon those measures, but to really have an objective grasp of the differing ways judges in our federal system are reviewing cases. Since I have results based upon my first two measures, I thought it would be worthwhile to consider the Activism and Ideology Scores of a handful of judges.

Judge Circuit Activism Score (Mean = 56.0) Ideology Score (Midpoint = 0)
Deborah L. Cook 6 74.0 77.2
Diarmuid F. O’Scannlain 9 57.1 59.7
Frank H. Easterbrook 7 33.6 55.8
Edith H. Jones 5 68.6 22.0
Richard A. Posner 7 68.3 -9.9
Jerome A. Holmes 10 89.6 -9.7
Ann C. Williams 7 64.1 -31.5
Diane P. Wood 7 44.7 -37.2
Sonia Sotomayor 2 51.8 -40.1
Gilbert S. Merritt, Jr. 6 25.2 -52.4
Kim M. Wardlaw 9 92.7 -63.3

Read More

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Which President Appointed Judicial Ideologues?

Moving away from the findings regarding individual judges in my two prior posts, I thought I would talk about some of my aggregate findings. In particular, one question that often arises in discussions of the federal judiciary is: which President(s) appointed the most ideological judges. Conventional wisdom has been that President Reagan appointed particularly conservative judges. Some also have argued that President George W. Bush appointed ideologues to the federal bench. Based upon my study, the judges appointed by President Reagan do appear to be especially ideological. However, the data did not support a similar finding as to those appointed by President George W. Bush. The figure below indicates the net Ideology Scores for the six most recent Presidents before President Obama for all of the judges in the dataset.Outside of the judges appointed by President Reagan, there is remarkable symmetry among those appointed by the Presidents after President Nixon. There is one important caveat to the above findings, however. The older appointments represent a non-random sample of judges appointed by Presidents Ford, Carter, H.W. Bush, and Reagan. For those Presidents, there have been a large number of retirements. It might be that the judges who remain on the bench today do not adequately represent the entire class of appointees by those Presidents. Regardless, it is interesting to see that other than President Reagan’s appointments, the current Courts of Appeals appear to have been stacked to roughly the same ideological degree by the various Presidents.

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Government Experience and Judicial Liberalism

In my last post, I explored the result that there is a correlation between judicial liberalism and a higher ranking of the law school attended by a judge. My Judge Database also included a variety of other biographic and demographic information about the judges. Most of those background factors had no statistical relationship with the Ideology Scores. However, one that did show a connection was prior government experience (excluding judicial experience) before nomination. Based upon my research, if a judge had executive or legislative experience at the state or federal level prior to appointment, he or she was much more likely to be politically liberal. Again, as with law school ranking, the effect was true for both Republican and Democratic appointees.This result may not seem particularly surprising if liberalism is associated with a pro-government view and conservatives are relatively anti-government. Interestingly, however, experience in the private sector did not show a statistically significant correlation with judicial ideology. Based upon the findings described in this post and the previous one, Republican Presidents might want to be cautious when appointing judges from highly-ranked schools and who have prior government experience. Similarly, Democratic Presidents might want to take a second look at potential nominees from lower-ranked schools with only private sector experience. Of course, none of this proves a causative relationship, but the differences in the populations of judges are striking.

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Law School Rankings and Judicial Liberalism

A common attack on elite law schools is that they are filled with with a bunch of loony liberals who hope to indoctrinate their law students with their left-wing beliefs. To my surprise, for federal appellate judges, there seems to be a kernel of truth to that belief.  The Ideology Scores of the 138 judges with sufficient sample size that I studied had a statistically significant relationship with the ranking of the law school attended according to the US News and World Report Rankings from 2010. While the flaws in the USNWR rankings are well-documented, they are simply the only ranking available for all of the law schools in my sample. The figure below indicates that for each ten ranks lower in USNWR, a judge’s Ideology Score increased in a conservative direction by 27.9 points (on a scale of -100 to 100). Read More

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Judging the Measures of Judges

In my last post, I discussed the measure I have proposed in my article for the judicial ideologies of federal appellate and district judges. That leads to the question: how do we know if my measure is “good?” Anyone can make up a bunch of numbers and formulas and declare their measure to be better than existing ones. How can it be said with any certainty that one measure of ideology is quantitatively or qualitatively better than another? That is one of the trickier questions in empirical legal studies of federal courts.

Consider the very interesting and valuable studyby Michael Heise and Gregory Sisk of judicial ideology in religious liberty cases published in the Northwestern University Law Review a few years ago. The study found, consistent with prior research, that ideology had a modest correlation with outcomes in religious liberty cases. How was ideology measured? Using Common Space Scores. What if the Common Space Scores were actually a poor measure of judicial ideology and votes in religious liberty cases were actually a “better” indicator of a judge’s ideology?  How would we know? Heise and Sisk chose to use Common Space Scores even while noting in detail the potential problems with the Scores. Of course, Heise and Sisk did so in part because they framed their study as part of a response to the firestorm created by an article by Lee Epstein and Gary King attacking empirical legal studies by legal academics. The types of inferences that can be drawn from the Heise and Sisk study would change dramatically if Common Space Scores were not strong indicators of judicial ideology. Read More