I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part [...]]]> I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.

I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.

I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.

All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works.

I view this as an exercise in at least mid-level theory, rather than specifically teaching litigation skills. The only drafting I have my students do is an affidavit where the “in state” students draft an affidavit as the domicile of the “out of state” students. I don’t have or assign mock case files or share complaints, pleadings, motions, deposition transcripts, discovery requests, responses, etc., except when they happen to appear in the book I use (at the moment the Yeazell casebook). However I do recommend Joseph Glannon’s fine book if the students want to see examples of those sort of documents.

If Loyola ever goes back to a two semester format I will increase my coverage of personal jurisdiction and Erie. I certainly see the value in watching a line of cases unfold over time and training students in the close reading of cases from day one. But this is probably the one skill that is well covered in the first year curriculum.

I have several reasons for starting with the litigation process and making it the focus. First, I think it’s just cruel to make a 1L read Pennoyer v. Neff in their first week of law school. Second, if the Supreme Court can’t figure out anything but platitudes and results in the personal jurisdiction field, why should I expect any more from my students? Third, jurisdiction to do what to whom? Starting with the litigation process at least gives the students the chance to understand how a case unfolds before they have to tackle the more abstract questions about what court it is supposed to take place in and why. Fourth, there are plenty of opportunities to pursue personal jurisdiction, subject matter jurisdiction, and Erie in Federal Courts and other litigation courses, including one I teach.

Finally, maybe I am fooling myself, but I also think that I am giving my students a leg up in their other classes. Every case in every course (other than criminal law) is a civil procedure case that just happens to be about a particular area of the law like torts or contracts. If the students can better understand the litigation process early and deeply, I think they will be better equipped for the rest of their first year experience.

But hey, I am a reasonable kind of guy and realize that law professors approach their courses with all kinds of different objectives. Any well thought out plan probably provides the students with a worth while experience. I am sure most would also agree that emphasizing one aspect of the course because its more fun or interesting or easier for the professor probably isn’t the way to go.

By way of conclusion, let me throw out the following challenge. I am happy (or at least willing) to switch approaches, if at least one of the other professors out there reading this is. Next fall I will teach the course 60/40 personal jurisdiction, subject matter jurisdiction, and Erie if you do the reverse. Then we can meet in the following January in cyberland on Concurring Opinions or elsewhere to compare experiences.

I thought that I would use my last post to introduce a work-in-progress, titled Voting as Veto (forthcoming early next year in the Mich. L. Rev.). The article began long ago with a simple observation: When my wife and I (pre-baby) had to decide where to go out for dinner, I realized that I rarely had an affirmative preference for a particular restaurant or type of food on a given night. Instead, I found myself acting almost exclusively on what I call “negative [...]]]> It’s been great to guest blog at Concurring Opinions, but unfortunately for me, my stint here has come to a close. I’ve enjoyed it. Thanks to Dan Solove, Danielle Citron, and their colleagues for hosting me during the last couple months.

I thought that I would use my last post to introduce a work-in-progress, titled Voting as Veto (forthcoming early next year in the Mich. L. Rev.). The article began long ago with a simple observation: When my wife and I (pre-baby) had to decide where to go out for dinner, I realized that I rarely had an affirmative preference for a particular restaurant or type of food on a given night. Instead, I found myself acting almost exclusively on what I call “negative preferences,” or preferences against certain outcomes. I mainly preferred not to visit a particular restaurant or have a particular type of food on a given night. Besides the desire to reserve a veto against certain outcomes, I was reasonably indifferent most of the time about where to go otherwise. It struck me that this type of negative preference was probably common in more formal, less mundane contexts for voting that I study in my research. Although there are many forms of voting that implicitly account for negative preferences in various ways, I found very little in the legal and political science literature developing the notion of negative preferences, or systematically assessing a conception of voting as veto. Voting as Veto is my attempt at both.

In addition, I am currently working on a related essay that applies the insights of Voting as Veto to corporate shareholder voting, the subject of public attention in recent months. Unfortunately, I haven’t posted a draft of either piece on SSRN quite yet. Voting as Veto is further along and currently in the middle of the citechecking process, but as a result, it is in many pieces at the moment. However, I plan to post drafts as soon as I can, so please feel free to email me if you have any questions or comments. Thanks again.

Many of our readers might be interested in Post’s take on legal scholarship.

In the 1992 article Legal Scholarship and the Practice of Law (63 U. Colo. L. Rev. 616), Post discussed the “emergence within the past fifteen [...]]]> Yale announced today that Robert Post will succeed Harold Koh as Dean of its Law School. I am thrilled to hear the news. I read Post’s book Constitutional Domains: Democracy, Management, Community while I was in college, and it helped convince me to go to law school. During my recent visit at Yale, Post struck me as one of the most intellectually interesting and friendly faculty members. Virtually every student I talked to who worked with him described him as an outstanding mentor.

Many of our readers might be interested in Post’s take on legal scholarship.

In the 1992 article Legal Scholarship and the Practice of Law (63 U. Colo. L. Rev. 616), Post discussed the “emergence within the past fifteen years of ['external scholarship,'] a form of legal scholarship that is self-consciously external to the practice of law and that takes its bearings instead from traditional academic pursuits.” Such “external scholarship” resulted in new hiring practices at many law schools, which had a tendency to “hire entry-level professors with no experience in the actual practice of law, but with advanced degrees in nonlegal areas of scholarship.” Post was concerned that “Law schools have no historically established standards to measure achievement in the area of external scholarship.”

Post was responding to a number of movements in the legal academy. He worried that law professors “veer unstably between celebrating the rule of law and deconstructing it in the most advanced postmodern fashion:”

We are ripped apart by divergent currents of Critical Legal Studies, Hermeneutic Theory, clinical education, Doctrinalism, Law and Economics, Feminism, Critical Race Theory, Positivism, Law and Literature, or, most recently, anti-normativism. We are in danger of dissipating our coherence as a professional discipline.

Is there any way to bring unity to the profession? Post adumbrates a way forward in his response to Robert Weisberg’s essay in the same volume of the Colorado Law Review:


[Weisberg's] search lies in the grand tradition of progressive legal scholarship, which throughout most of this century has attempted to meet Brandeis’s 1916 challenge to assemble the “necessary knowledge of economic and social science” for the law “to meet contemporary economic and social demands.” Weisberg’s quest ultimately leads him to conclude that “the hope for . . . criminal law scholarship” must lie in “some combination of ethnography and social theory that is willing to see criminal law as well as crime as observable social data.”

[But b]ecause Weisberg is uncertain what he wants to achieve through criminal law, his writing lacks conviction about how to clarify or improve it. He remains stuck attempting to locate first principles, a scholarly position increasingly familiar to those who follow closely the contents of contemporary legal publications.

Post suggests that the legal academic enterprise requires a “firm sense of the internal purposes and function of the practice of law.” Without it, legal scholars may end up detached from the practice of law.

Along with Balkin and Levinson’s essay on Law and the Humanities, and Balkin’s work on Critical Legal Theory Today, Post’s work provides a very good opportunity for law professors to reflect on the balance between theory and practice, and advocacy and detachment. I am broadly sympathetic with Post’s position on the need for a distinctively legal take on society’s problems. Though the rise of the administrative state has necessitated a great deal of data gathering and external scholarship capable of making sense of it, the ultimate synthesis of various social scientific perspectives into judgment on particular cases and rules is a paradigmatically legal one. We can’t subcontract it out to economists or the “policy sciences,” lest we become “lost lawyers” (in the words of another dean of Yale Law).

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.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is [...]]]> There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.”  He writes:

What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30″ side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.

Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.

In The Concept of Law, H.L.A. Hart famously observed:

Whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture.

In these cases, Hart posited that judges have discretion to decide the case either way.  The law simply has nothing to say.  Ronald Dworkin took issue with Hart’s claim that “hard cases” could not be decided by law.  In Taking Rights Seriously, Dworkin argued that “even when no settled rule disposes of the case, one party may nevertheless have a right to win.”  He contended that principles may “incline a decision one way, though not conclusively” and that “in most hard cases there are right answers to be hunted by reason and imagination.”

For a legal positivist following Hart, the 5 percent of cases (the “hard cases”) Obama is talking about have no legal answer.  Obama wants a justice who will decide them in a way he desires.  As Orin posits:

A substantial number of the close cases that reach the Supreme Court involve some sort of power dynamic — employer versus employee, plaintiff versus big company — and Obama wants the judge who will pick the side of the powerless.

For Hart, this is fine — in hard cases, judges are outside the law, so they can’t decide the case based on law.  For Dworkin, the hard cases would require that justices look to principles, and they would not be free to side with their political ideology.   Their empathy might make them inclined to find or interpret principles that favor the powerless, but cases would not be decided by pure ideology.  Orin’s post seems to be viewing Obama’s jurisprudence as legal positivism in the tradition of Hart.

There’s something missing from the Hart-Dworkin debate, which Orin alludes to in his post.  How readily will a justice recognize ambiguity?  Orin raises the concern that the empathetic judge will too readily find cases to be hard.  So instead of finding 5 percent of cases to be hard, an empathetic justice might find a greater precentage to be hard.

In an article I wrote long ago as a law student, I argued that Hart and Dworkin failed to adequately theorize how judges perceive whether a case is hard.  In order to apply rules and precedents, judges must determine whether a case fits, whether it is similar enough to other instances in which the case or the rule applies.  But no two cases are exactly alike.  I wrote:

The level of generality with which a judge perceives the facts of a case has a profound impact on how she interprets these facts. Interpreting the facts involves sifting out the trivial ones and locating the nuggets‑‑those facts which are critical to the decision that must be made. This interpretation is vital to how judges categorize cases, in how judges determine whether a case fits under an general proposition.

We perceive events and situations at varying levels of generality. At a high level of generality, we do not notice subtle differences, but at a more individuated level, we can observe the unique intricacies of each case. For example, we will not notice the differences between two snowflakes unless we examine them closely. As proximity increases, a judge will often become more aware of the imprecision of general legal propositions. For example, in Lorenzo v. Wirth, Judge Holmes, then a state court judge, held that a defendant should not be liable when a plaintiff fell into an open coal hole on the defendant’s property. Holmes declared: “A heap of coal on a sidewalk in Boston is an indication according to common experience that there very possibly may be a coal hole to receive it.” After reading Holmes’ opinion, this appears to be a rather easy case. However, Judge Knowlton, dissenting, supplies a critical fact that Holmes left out: the plaintiff had just come from Spain and had never seen coal put into a cellar through a coal hole. The introduction of more facts makes the case more unique, and thus more difficult to fit into general categories. Indeed almost any case, when viewed at a great distance, when depicted in the most general of terms, will present no difficulties for general legal propositions. As Judge Richard Posner wrote: “The more facts that are stated in an opinion, the easier it is for judges in subsequent cases to distinguish, narrow, confine, and otherwise diminish the scope and impact of the opinion.”

Perhaps the more empathetic judge is one who views cases at a closer level  than the non-empathetic judge.  The non-empathetic judge sees things at a  great level of generality.  The empathetic judge is more inclined to focus on the facts that make cases different and unique.  Empathetic judges are more inclined to put themselves in the litigants’ shoes rather than view the case abstractly and distantly.  Such proximity may incline a judge toward more compassion for litigants, but it need not necessarily do so.  Indeed, empathy in this sense need not be confined to liberal judges.  Justice O’Connor was one who was very inclined to focus on the facts and see cases as different.

Empathy is just one of the components Obama mentioned he was looking for in a justice.  As I’ve discussed in this post, empathy could have two meanings: (1) it could mean judges who decide the 5 percent of hard cases for the powerless.; or (2)  it could mean judges who find more cases to be hard than 5 percent.   The empathetic judge might exhibit a combination of (1) and (2) above or not.  They are different issues after all.

Ironically, empathy in the first sense would not be replacing law with politics as some critics may charge at least not from Hart’s perspective.  In hard cases, the law is silent.

In the second sense, is empathy more akin to lawlessness?  True, in a Hartian perspective, the judge who finds more cases to be hard will find more cases to be beyond the law.  But if those cases are indeed hard cases, then such a judge isn’t being lawless.  In fact, such a judge is being faithful to the law by not twisting it to fit cases it doesn’t fit.

Sadly, the issue gets perverted by the common critique that judges are being lawless or activist.  The issue is much more complicated, and it involves questions in jurisprudence that haven’t been adequately worked out.

Volume 56, Issue 4 (April 2009)

Articles

A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons (pdf)

James G. Dwyer

“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers (pdf)

Linda D. Jellum

Normative Methods for Lawyers (pdf)

Joseph William Singer

Comment

Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations (pdf)

S. Wesley Gorman

In addition to being the centennial of the Cubs’ last championship, 1908 also was the centennial of one of the game’s most infamous gaffes, by Fred “Bonehead’ Merkle. Some detailed history. On September 23 of that year, [...]]]> On Saturday night, Deven’s Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 20-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908. This century of losing has been blamed on everything from billy goats to black cats to twenty-something fans in head phones to the refusal to install lights at Wrigley Field. I want to suggest a new source: legal formalism.

In addition to being the centennial of the Cubs’ last championship, 1908 also was the centennial of one of the game’s most infamous gaffes, by Fred “Bonehead’ Merkle. Some detailed history. On September 23 of that year, the Giants and Cubs, tied for first place, played at New York’s Polo Grounds. Tied 1-1 with two outs and runners at first (Merkle, then a rookie first-baseman) and third, the Giants’ Al Bridwell singled, scoring the runner from third, and apparently winning the game.Giant fans immediately ran onto the field, a common practice in those days, both to celebrate and to head to the stadium exit in right field that was closest to the trains and streetcars home. To get out of the crowd, Merkle turned right and headed for the clubhouse, which was located behind centerfield (the Polo Grounds remains my favorite of the now-deceased ballparks), without touching second base. That left the force at second base in effect. Amid the chaos, Cubs second baseman Johnny Evers got a ball (no one knows for sure whether it was the actual ball that had been hit on the play and that fact never has been established; some stories have a Giants player throwing the actual batted ball into the stands) and tagged second base and umpire Hank O’Day called Merkle out on the force, which nullified the run and ended the inning. The game then was called because of darkness and declared a tie. The teams finished the season tied, so the tie game was replayed; the Cubs won 4-2, winning the pennant and then the World Series–their last.

And here we have legal formalism at work. O’Day’s call was correct under MLB rules. A run does not score if a trailing runner is forced out at another base for the third out of the inning. And there seems no dispute that Merkle did not touch second. On the other hand, the crowd had stormed the field, so Merkle’s decision to get off the field as quickly as possible is understandable. It was common in those days for fans to come onto the field and for players to head for safety, even without touching the base. The rule was not well-known and was not regularly (if ever) enforced in end-of-game situations. And, of course, we do not know whether the ball that Evers had when he tagged the base was the right ball. On the other hand, some accounts have Evers trying the same move a few weeks earlier on the same umpire–it did not work then because the umpire had not watched to see whether the runner touched second. But O’Day was on notice when it counted.

So how does karma work? One way would be to deny the Cubs the benefit of the “tainted” victory by having them lose the World Series. Another way would be to give the Cubs the benefit of the Series that year–and never letting them have it again. So, if you are an 8-year-old Chicagoan in 1908, which do your choose?

By the way, I have been looking at current Major League Baseball rules (Download 04_starting_ending_game.pdf) and it appears the result would be the same under current rules. Rule 4.09(a) addresses this situation and requires that all runners touch the next base. Rule 4.09(b) provides that in a walk-off situation (run scoring in the last half of the final inning), the runner on third must touch home and the batter must touch first, with no mention of any other runners. But that rule is limited only to plays with the bases full which force the runner on third to advance–not the situation in 1908, because the runner on third was not forced to come home. A comment creates an exception when fans rush the field and prevent either from touching the necessary base, with the bases awarded because of fan interference. But that comment is limited only to Rule 4.09(b), which, again, does not cover the 1908 situation. Am I reading the rule correctly?

Or maybe umpires impose flexibility as a matter of their own discretion. In 1976, the Yankees won the ALCS when Chris Chambliss hit a home run to lead-off the ninth inning. Thousands of fans descended on the field to celebrate, pull up grass, and (I have read) try to steal pieces of padding off the outfield fence) as Chambliss tried to get around the bases; he eventually gave up and ran for the safety of the clubhouse. Later, after the field had been cleared, the umpires pulled Chambliss out of the clubhouse and had him touch home plate. Formalist, to be sure. Call this a mix of formalism and pragmatism–make sure the batter touches the bases, but allow him to get out of the madness of the moment without penalty.

A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.

This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental [...]]]> Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.

A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.

This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.

This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).

Similarities include the judicial roster. Cardozo is again firmly in the lead, now with Posner second by a good margin. These are followed by Mock, Traynor and Hand. (For now, we’re setting aside Supreme Court justices whose opinions on constitutional torts (privacy, defamation) play starring roles in some torts casebooks.)

Differences appear in other data points. Cardozo has an aggregate of 10 opinions reproduced in the Torts casebooks whereas Posner has an aggregate of 25 opinions reproduced. All but 1 of Cardozo’s appearing opinions appear in multiple books and most are reproduced in more than a third of the casebooks. In contrast, more than half of Posner’s appearing opinions appear in only 1 book and only 2 appear in more than half the books.

According to the collective Torts casebook editors, there is clearly a Cardozo canon; no consensus appears concerning any Posner canon. These editors know that including Cardozo’s contributions is vital and overwhelmingly agree on which of his contributions are most vital; editors also appear to believe that including Posner’s contributions is vital, but show very limited consensus on which those should be.

Other preliminary discoveries of interest are that the roster of leading Torts judges, measured by casebook impact, is dominated by judges from the state courts of California and New York (along with federal judges sitting in New York, especially Hand). The Contracts results also featured many California and New York state judges but also included judges from Connecticut and Massachusetts. Since Posner is a federal judge sitting in Chicago, these points underscore how significant Posner’s emerging dominance in the Contracts and Torts casebooks is. A goal of this new article is to continue to look into why this is so and what it may mean.

“You don’t usually find scientists, economists and lawyers talking together about the same topic,” Hadfield said. “I think people will find that we can [...]]]> I’m in LA for the next few days, at the Law, Economics and Neuroscience Conference: Implications for Innovation, sponsored by The Southern California Innovation Project, Theoretical Research in Neuroeconomic Decision-making (TREND) and The Center for Communication Law & Policy. As the press-release says, the idea is to bring together neuroscience researchers, economists, and ordinary law professors and see if the whole is greater than the sum of their parts.

[Gillian] Hadfield [who is organizing the conference on the law side] hopes the symposium will lead to more collaboration among scholars who may appear to have very different goals and backgrounds.

“You don’t usually find scientists, economists and lawyers talking together about the same topic,” Hadfield said. “I think people will find that we can enrich the research agenda of all these disciplines with this kind of cross pollination.”

I hope to blog the conference, or at least my parts in in, over the next few days. I’ll be commenting on Mat McCubbins’ co-authored paper, The Effect of Institutions on Behavior and Brain Activity: Insights from EEGs and Timed-Response Experiments. In the paper, on Boudreau, Coulson, and McCubbins found that identical cooperative behavior in a trust game seems to arise from distinct neurological mechanisms, depending on whether trust in others arose from incentives or penalties. After the session tomorrow I’ll post some of my comments, which intend to connect this paper to the large law review literature on trust.

1. Have a tough time memorizing things? Check out this software program by Piotr Wozniak (which I’m definitely [...]]]> As the semester draws to a close, I’ll be adding a couple features to my blogging here. First, there’s always a big pile of stuff each week I’d like to blog on, but don’t get around to. So I’ll just post links to the articles, ala Tyler Cowen. Second, I’ll be trying to do a series on art & politics this season. Having lamented the press repeatedly, I think I owe it to readers to comment on people who are thinking more creatively about the political scene. . . including Kenneth Tin-Kin Hung, Timothy Donnelly, MIA, and Paul Chan. Without further adieu:

1. Have a tough time memorizing things? Check out this software program by Piotr Wozniak (which I’m definitely consulting if I try to re-learn Spanish).

2. Patrick S. O’Donnell both comments incisively on the food crisis and rounds up posts from around the blawgosphere. O’Donnell and Paul Horwitz have an interesting discussion on sustainability here. My own take would begin by comparing an article on the new living standards of very poor persons, and one on a “Club Med for Dogs.”

3. China’s new weapon: Low executive pay. Over to you, Todd Henderson.

4. Yale U. Press leads the way in opening access to books on internet topics. [Full disclosure: they do advertise here.]

Have a great weekend.

A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture [...]]]> Readers of Larry Solum’s Legal Theory Blog might have noticed yesterday abstracts for several new papers from heavy hitters in the legal academy. My favorite of these April 1 abstracts was the Cass Sunstein-Adrian Vermeule paper on “Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors.” “Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.” Download that while it’s hot!

A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture for tots. All you need is the right hypothetical.

And yet, I think Larry Solum is right that torture for tots is a proposal that most will view as a joke. Indeed, it’s a prospect that might help test the claim that we torture when, and if, and only if, necessity demands it. In a seminar discussion a few months ago, I suggested that contemporary support for torture might be driven by a presumption that those who are tortured deserve to be treated thus. Some of those present resisted this characterization, claiming that the arguments were based strictly on necessity, so I offered a hypothetical in which the only way to find the location of the ticking bomb is to torture the terrorist’s innocent young child. As I recall, none of my fellow seminar attendees wanted to defend torture under those circumstances.

A previously unreleased torture memo penned by John Yoo became available yesterday. Marty Lederman links to Part 1 and Part 2 and discusses the memo. David Luban addresses torture for tots, and other weaknesses of ticking bomb arguments, in a new paper available here. And in “Professors Strangelove,” available here, I offer some thoughts on torture, national security tough talk, and one of my favorite movies.

UPDATE: My soon-to-be colleague Frank Pasquale points out this Salon piece, which includes a link to a fascinating Youtube clip on the question of torturing children.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click [...]]]> Over the weekend, the Association for the Study of Law, Culture, and the Humanities held their annual conference at Boalt Hall. This podcast episode is a recording of a roundtable discussion on justice and insturmentalism in private law, which was organized for the conference by Jeff Lipshaw. The participants include Pete Alces (William & Mary), Robin Kar (Loyola LA), Alan Calnan (Southwestern), and Nate Oman (that’s me). The discussion focuses on the philosophy of tort law and contract law, with Pete sounding a skeptical note using evolutionary biology. Enjoy!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Definitional originalism is usually argued for by analogizing the [...]]]> One of the attractive features of originalism, I think, derives from the belief that sentences simply mean what they originally meant, either to the speaker or to the audience. This is a definitional argument: the definition of “to mean” is “what was originally meant,” and thus, by definition, if the Constitution does not mean what it originally meant it does not mean anything at all (in the same way that the set of all square circles is an empty set). I think this argument is mistaken. I think there are other sorts of sentences out there that have legitimate meanings that are not those necessarily assigned by either speakers or audiences (actual or potential) at the time.

Definitional originalism is usually argued for by analogizing the Constitution’s sentences to ordinary English sentences spoken in a quotidian context. For example, suppose you’re given a map with instructions written on it by a pirate telling you how to find his treasure. (OK, that may not be quotidian, but you could easily change the hypo to make it so: say it’s a grocery list.) If you want to find the treasure, you need to know what the words would have meant to the pirate’s likely audience. Fail to do that, and you fail to find the treasure.

Of course, if you really want to find the treasure, you need to know what the pirate actually intended, not just how audiences at the time would likely have interpreted the words. This is the point made by Stanley Fish recently in the Cardozo Law Review: the marks and sounds that ordinarily connote meaning are not “communications” at all unless and until they are communicating an intelligent being’s intended message. This, of course, is the old, disreputable “original intent originalism.” Fish argues, however, that whatever the practical difficulties it may pose, interpretation simply is the search for original intent. For example, if one knows that an alarm bell in a building is being rung by a monkey, it doesn’t mean “fire;” it means nothing at all. To paraphrase Hilary Putnam, Fish’s theory is that meanings just are in the head. And for the treasure map, it appears Fish is correct, at least if you want the treasure.

The problem with definitional arguments is that there is no good way to argue for them. If one’s interlocutors don’t buy the premise, then there is little to do but repeat it, perhaps while jumping up and down and waving one’s arms around. And it is particularly difficult if the proposed definition doesn’t cover the universe of possibilities.

So it is with Fish’s argument. If Fish were correct–that the only possible interpretation of a sentence is the one intended by the speaker–then once one receives definitive proof of what was intended, that should end all arguments as to what the sentence meant. But of course that’s ridiculous. People have long, drawn-out, and perfectly reasonable arguments all the time of the form: “That may have been what you intended, but that’s not what you said!” In other words, the sentence you spoke has a meaning other than what you intended, and I’m justified in interpreting it that way regardless of what you may have meant. This debate is over whether speaker’s meaning coincides with sentence meaning–the meaning a reasonable contemporary listener would place on it–and if not, which takes precedence. As near as I can tell from his article, Fish’s argument would make all such disputes meaningless babble. That’s a problem for Fish.

Most originalists now subscribe to the theory that what Constitutional sentences mean–what they should be interpreted to mean–is what they mean in this latter sense: the meaning that reasonable contemporary listeners would have assigned to the sentences. That is, most originalists now place Constitutional sentences in the same category as ordinary conversational sentences or correspondence, rather than the categories that would work best for Fish: codes, treasure maps, instructions. If the Constitution were a conversation or a speech (but not a treasure map), then focusing on original public meaning would be a perfectly plausible way to go about interpreting it.

However, original public meaning originalists (such as the New Originalists) face a Fish-like difficulty. Namely, there are still more categories of sentences, and the Constitution falls outside the domain where original public meaning holds sway. The Constitution is not a conversation or a speech or a treasure map. It is not even just a statute, as Jack Balkin implies in arguing that original meaning controls constitutional interpretation because it controls statutory interpretation. Rather, the Constitution is a declaration, by “We the People,” of the most fundamental principles of the government of our society. It is something more akin to a ritualistic affirmation, a cultural declaration of faith, along the lines of a religious ceremony or a pledge such as the Pledge of Allegiance.

And that puts the Constitution in a different class of communications than mere conversations, messages, instructions, and treasure maps. An affirmation, used as a ceremonial induction into a particular group or community, is continually being re-spoken as new members join. The meaning of the affirmation at any given time is thus the meaning ascribed to it by the relevant community at that time, not at the time it was first written. Take, for example, the responses required of Catholics at Confirmation:

Bishop: Do you reject Satan and all his works and all his empty promises?

Candidates: I do.

Bishop: Do you believe in God the Father almighty, creator of heaven and earth?

Candidates: I do.

Bishop: Do you believe in Jesus Christ, his only Son, or Lord, who was born of the Virgin Mary, was crucified, died, and was buried, rose from the dead, and is now seated at the right hand of the Father?

Candidates: I do.

Bishop: Do you believe in the Holy Spirit, the Lord, the giver of life, who came upon the apostles at Pentecost and today is given to you sacramentally in confirmation?

Candidates: I do.

Bishop: Do you believe in the holy catholic church, the communion of saints, the forgiveness of sins, the resurrection of the body, and life everlasting?

Candidates: I do.

This text is derived from the Nicene Creed, first set down in 325. Suppose at that time the people writing, reading, or speaking the Nicene Creed in 325 all had a different view from Catholics today of what the Holy Spirit was. It would make no sense to say that that understanding governs the Confirmation oath today, and that this is true due to the fact that the creed was written down. Surely what governs the meaning of the Confirmation oath today is what Catholics (as a group) today would understand it to mean, even though Catholics today are not the original drafters of the text.

The Constitution is a foundational set of rules and principles that defines the United States, just as the Confirmation oath is a foundational set of beliefs that defines the Catholic community. Of course, most people do not read the Constitution out loud and swear to uphold it — some government officials do, but not most ordinary citizens. But I don’t believe that changes the character of the document. Whether or not each individual citizen swears to uphold the Constitution, reads it aloud, or even reads it silently, by and large Americans understand its special importance in American political and legal culture and its significance in defining the United States as a nation. As Balkin himself has written, albeit in the course of making a different argument, “[e]ach generation must figure out what the Constitution’s promises mean for themselves.” They must figure it out for themselves because each generation adopts it anew, as each generation of Catholics affirms the content of the Nicene Creed anew.

In the course of adopting it anew, there is some opportunity for slippage in the meaning that is being passed from the prior generation. Over time, that meaning can come to nullify a clause entirely or change its meaning to the opposite of how the text was originally read. But, contrary to the standard objection of originalists (and the occasional practice of non-originalist judges), that change can’t happen overnight, without mass participation. One cannot validly affirm one’s own private Confirmation oath. There must be a community change, not a solipsistic event.

It might be thought that, whatever its merits as a description of community ideology, basing the interpretation of the document on the theory that it is agreed to anew every generation would compel the adoption of a similar basis for legitimacy. That is, reading the Constitution as continually reaffirmed requires basing its legitimacy as a binding document on that reaffirmation. And, as Randy Barnett argues, the Constitution’s modern legitimacy cannot be based on meaningful consent of the governed. Modern citizens are not given a choice whether to agree to the Constitution or not, except the Hobson’s choice of voluntary exile. Barnett argues that the only other option is to base the Constitution’s legitimacy on the written text that was originally ratified plus a very constrained ability to construe vague phrases in a way that does not contradict or nullify the text.

But I don’t think I’m committed to making that connection. I don’t think the mere fact that affirmations are sometimes voluntarily entered into means that their legitimacy necessarily derives from consent. Many, perhaps most, religious adherents would not view membership in their church as something that is truly optional. Leaving the church might be as much of a Hobson’s choice as moving to Canada. And yet one cannot be a Catholic and not take the Confirmation oath. Nevertheless, Confirmation is an important ceremony, so important it gets its own sacrament. It is a moment in which members pledge their fealty to a set of beliefs that defines the community. It gains its legitimacy, not from unfettered choice, but from the fact that the entire rest of the community one is formally joining has done the same thing.

Similarly, societal rules do not in general gain their legitimacy from consent. To take a trivial example, the rule that one must form a straight line to buy tickets at a ticket window has not been formally agreed to by anyone. No one asked me if I would prefer that Americans adopt the Beijing practice of forming a semi-circular scrum around the ticket window, which equitably rewards those who are in more of a hurry at the expense of those who have more time. (I’m curious how this will play out at the Olympic events this summer.) Nevertheless, I’m bound by that rule, simply from the fact that I’m an American in the United States. Each generation is similarly bound by the Constitution, as that document and its meaning is adopted by the community as a whole.