A Winner’s Curse?: Promotions from the Lower Federal Courts

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of judicial performance, that competence seems to matter in promotions in that the least competent judges do not get elevated. But the judges who score the highest on our competence measures also do not get elevated. So, while there is no loser’s reward, there may be something of a winner’s curse, where those with the highest levels of competence hurt their chances of elevation

Law Review Publishing: Thoughts on Mass Submissions, Expedited Review, and Potential Reform

The current law review publishing system—in particular, mass submissions and expedited review—works well for prestige-driven professors; however, it places a tremendous burden on the editors of journals lower in the hierarchy. This problem is exacerbated by several professorial tactics including, most significantly, submitting articles to journals from which the professor would never accept an offer—not even when he or she fails to receive a “better” offer through the expedite process. This Essay discusses a potential fix: the eight-hour offer window. If a journal were to adopt a formal policy of holding its publication offers open for only eight hours, professors would, in theory, be unable to use the offer in the expedite process. Therefore, professors would not submit their articles to this journal unless and until they were serious about publishing in it. Unfortunately, what is good in theory does not always work in practice. This Essay discusses how professors would modify their existing tactics—tactics which currently include misrepresenting the terms of an offer in the expedite process—in order to defeat this attempted reform. The Essay also explores specific ways that a journal could overcome these tactics and implement meaningful reform despite the professoriate’s desire to protect the status quo

The Obama Administration and the Press: Leak Investigations and Surveillance in Post-9/11 America

U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists

More than Decisions: Reviews of American Law Reports in the Pre-West Era

In the early nineteenth century, both general literary periodicals and the first American legal journals often featured reviews of new volumes of U.S. Supreme Court and state court opinions, suggesting their importance not only to lawyers seeking the latest cases, but to members of the public. The reviews contributed to public discourse through comments on issues raised in the cases and the quality of the reporting, and were valued as forums for commentary on the law and its role in American society, particularly during debates on codification and the future of the common law in the 1820s. James Kent saw the reports as worthy of study by scholars of taste and literature, or to be read for their drama and displays of great feeling. By the 1840s fewer lengthy reviews of reports were published in the journals, but shorter reviews continued in the years prior to and after the Civil War; they largely disappeared with the emergence of West’s National Reporter System and other privately published reporters in the 1880s. This paper examines role and influences of the reviews in earlier decades of the century