Author: Corey Yung


Applying My Measure of Judicial Activism

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.


Measuring Judicial Activism by Federal Appellate Judges

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.


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Studying Judicial Activism by Federal Appellate Judges

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.

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Defining Judicial Activism by Federal Appellate Judges

First off, I wanted to thank Dan and the rest of the Concurring Opinions bloggers for having me back so soon. My last stint was cut a bit short by some unexpected family issues. As it turns out the subject I wanted to blog about then, judicial activism by federal appellate judges, is more timely now because of the Sotomayor nomination. She is already being attacked as an activist judge as a basis for rejecting her nomination (even if those attacks are just part of some inevitable game we play). For some time, I have been working on a project that attempts to provide an effective measure of judicial activism by federal appellate judges like Sotomayor. Over the next few posts, I will explain my measure and show some preliminary results. However, I need to do a bit of work defining the concept first.

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When Does Ordinary Law Enforcement Become a “War on Crime?”

In 1971, Richard Nixon declared the War on Drugs in America. However, the laws enabling that criminal war had been enacted years before Nixon’s speech officially recognized the new conflict. By 1968, Lyndon Johnson had established the Bureau of Narcotics and Dangerous Drugs (the predecessor organization to the Drug Enforcement Agency) to lead the charge against domestic drug use and distribution. The next year, efforts to limit drug smuggling along the Mexican border culminated in Operation Intercept which nearly closed the border entirely. When Nixon took over the Presidency, he signed into law the Comprehensive Drug Abuse Prevention and Control Act which established the categorization system for regulating narcotics. Perhaps the clearest sign that something was afoot even before Nixon’s speech was that the anti-drug-war group, The National Organization for the Reform of Marijuana Laws (“NORML”), was founded to counter the shifting policy priorities of the criminal justice system. By the time of the official declaration, the War on Drugs was already underway.

So, when did the “war” actually start? In an era when foreign wars are not even truly “declared” anymore, perhaps it is not surprising to think that a criminal war might be underway without a specific statement from the federal government. In a paper I have been working on for a while that I will be presenting at the Law & Society Conference, I contend that a criminal war on sex offenders may have already begun. We are, thus, in a period like that in the late 60′s and early 70′s wherein the conflict has started even if the government has not yet acknowledged it.

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Early Returns on Entry-Level Hiring

I was perusing through Solum’s entry-level-hiring list for this year. I was struck by the number of candidates that had either advanced degrees besides a J.D. or experience at a law school through a fellowship or visiting professor program. For the past few years, observers have noted that the entry path for law professor jobs was moving in those directions. However, the early results this year really underscore the incredible degree to which the market has shifted. The new survey reporting method being used at Legal Theory has a few kinks so the brief biography for a few reported candidates is incomplete. In some cases, I was able to find some more information with a quick Google search. However, my numbers below might be off in a few instances. By my count, there are:

95 total hires with adequate information

14 PhD’s

5 SJD’s

14 MA’s

15 LLM’s

58 hires who were VAP’s or fellows at a law school

15 hires with neither an advanced degree besides a J.D. nor teaching experience at a law school

I was most astounded that there were only 15 of the 95 hires so far were “naked” J.D. candidates (and one of those was a former U.S. Supreme Court clerk). Notably, that percentage roughly matches last year’s rate of “naked” J.D. hiring.

I wonder if, now that the entry-level hiring preferences of law schools seem clearly established, there might be some significant effects in the hiring process. The consequences of such information might start showing up in future AALS FAR candidate lists. It is my impression from reading the last two years of FAR packets, the majority of candidates are of the “naked” J.D. type. In the future, such J.D. candidates might recognize that their odds are long and either abandon their quests to become academics or apply to the various fellowship programs without ever going on the market for entry-level hiring. Before I was on the market (as a “naked” J.D.), I read every piece of advice around the Web about how to become a law professor (and there are a lot of great resources). However, with these new hiring patterns, those guides are largely out of date and many future candidates will surely recognize that the path to becoming a legal academic is quickly changing.

From the perspective of hiring law schools, I wonder if there is a substantial arbitrage opportunity for hiring “naked” J.D. candidates. With the incredible proliferation of VAP and fellowship programs, their aggregate ability to serve as proxies for ability and/or potential has probably diminished. For one-year VAP programs in particular, the amount of information available to hiring law schools is almost nil. The candidate submits their CV through FAR before he or she even begins the VAP. The opportunity for writing has, thus, not emerged. And faculty members at the visiting school are unlikely to offer any significant insight to the candidates. Hiring these “naked” J.D.’s to a tenure-track position as an alternative to a VAP might be a potential market opportunity for some schools. It’s unclear based upon Solum’s information how many of the hired candidates have visited at a school for more than one year. However, even compared to some two-year VAP candidates, a “naked” J.D. with publications might be undervalued in today’s market. Just as the Oakland A’s went from exploiting the undervaluing of the players with limited athleticism and plate patience to players with other, potentially undervalued skills, forward-looking Moneylaw law schools might see that the market has shifted too far against the “naked” J.D.


Prime Time is Crime Time

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.


When is Circuit Agreement Really a Circuit Split?

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.

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Hiding Your Scholarship

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?


Niche Blogging

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.