Judicial Credibility

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge—here, as a “Bush judge” or “Clinton judge”—can influence the credibility of judicial review in the public mind

Coordinating Injunctions

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do. This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then proposes a solution: When faced with a possible clash of injunctions, each district judge should issue or stay her intended relief in accordance with the real-world outcome she thinks the majority of district judges would choose. Following such a shared convention, judges with diverse views will have a better chance of avoiding a clash because their estimates of the majority view are probably more similar than their individual views. And a stay would not signify abandoning a judge’s own views (which are still fully aired in her written opinion) but would instead reflect an awareness that other judges’ views may differ – akin to the existing practice of a stay pending appeal. Notable complications are addressed, including the first-mover advantage of the earliest judge to act; the role of the appeals courts; the possibility of circuit splits; and how such a shared convention might break down

Lightened Scrutiny

The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many cases in the federal courts. At risk, it is said, are cherished and important process values. Often left unsaid is a further possibility: that not only process, but also the outcomes of cases, might be at stake. This Article advances the conversation by illustrating how judicial overload might entail sacrifices of first-order importance. I present here empirical evidence suggesting a causal link between judicial burdens and the outcomes of appeals. Starting in 2002, a surge of cases from a single federal agency flooded into the circuit courts. Two circuits bore the brunt, with their caseloads jumping more than forty percent. The other circuits were barely touched, by comparison. To sort cause from effect, I focus on outcomes not in the surging agency cases, but instead in a separate category: civil appeals. The two circuits flooded with agency cases began to overrule district court decisions less often – in the civil cases. This evidence of evolving deference raises the possibility of silent splits : divergences among the circuits in their levels of appellate scrutiny, due not to articulated disagreements but to variation in caseloads

Law\u27s Halo and the Moral Machine

How will we assess the morality of decisions made by artificial intelli­gence – and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law

Concurrent Damages

Imagine that a hacker is working for a university official secretly spying on faculty members – say, to find out who has been leaking information to the press about internal disciplinary matters. The injuries to a given victim of the hacking might follow a classic learning curve: The first few intrusions into her e-mail account reveal a storehouse of personal secrets, but further break-ins yield less and less new information. One might say there is diminishing marginal harm. There is no such leveling off, however, in the compensation that would be awarded to that victim. The electronic privacy law that bars such hacking provides for statutory damages of a given amount per violation, and each unauthorized intrusion is considered a separate count. Thus every break-in increases the award by the same amount. The statutory damages add up linearly, even when the actual harms do not

Surprisingly Punitive Damages

Damages can add up to super-punitive amounts in unintended ways. To take a textbook example: The Defendant has caused an industrial accident or other mass tort. Plaintiff 1 sues, winning punitive damages based on the reprehensibility of that original act. Plaintiff 2 also sues – and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth. If each of these punitive awards is directed at the same general badness of that original act, then these punishments are redundant. When such redundancy occurs, even damages that are meant to be punitive can reach surprisingly punitive levels. This Essay addresses two distinct ways in which unexpectedly excessive damages may arise. The first and more straightforward problem is redundant punitive damages, as in the scenario above. The second and more subtle problem is what we might call the hyperenforcement of statutory damages: when successful enforcement in fact occurs more frequently than is implicitly assumed in the statutory scheme (with awards preset at super-compensatory levels to make up for some expected degree of under-enforcement). The result there is that damages not meant to be punitive can nonetheless stack up to punishing effect, most famously when thousands or millions of claims are aggregated. Both problems are classic concerns that have defied tidy resolution despite decades of anxious recognition by courts and commentators