Meaningful Information, Meaningful Retention

Jordan M. Singer reflects on the uncertain future of judicial retention elections, in response to Todd E. Pettys\u27s Judicial Retention Elections, the Rule of Law, and the Rhetorical Weaknesses of Consequentialism, 60 Buff. L. Rev. 69

Gossiping About Judges

Gossip about judges is an essential source of information to civil litigators. Hearing third party assessments of a judge’s personality, demeanor, intelligence, curiosity, and openness to new interpretations of the law can substantially affect a lawyer’s strategic decisions during the course of litigation, and sometimes whether litigation occurs at all. Yet gossip about judges rarely merits mention and has evaded serious study. This Article brings attorney gossip about judges out into the open, identifying its strategic benefits and drawbacks and explaining how attorneys use gossip (and other secondhand information on judges) to anticipate the likely outcome of judicial decisions. It further explains how common attorney practices in modern civil litigation unintentionally compromise the accuracy and reliability of gossip about judges and offers some thoughts on restoring the full value of this little discussed resource

Judicial Recall and Retention in the #MeToo Era

The voter recall of California judge Aaron Persky in June 2018 was a watershed cultural moment. For the first time in more than forty years, a sitting judge had been removed from the bench, by the local citizenry, in a special election. The recall—instigated in reaction to Judge Persky’s lenient sentence for a defendant convicted of three counts of sexual assault—was hailed as a major political victory for the #MeToo movement, and a sign of an emerging consensus that soft treatment of sex offenders within the justice system is no longer acceptable. Any questions about the sustainability of the moment were answered five months later, when Alaska voters removed another experienced trial judge, Michael Corey, on similar grounds. Like Judge Persky, Judge Corey drew national attention after granting a light sentence to a sexual offender. As was true with Judge Persky, the sentence stirred widespread dismay and local protest. And as they had with Judge Persky, political activists rapidly organized to remove Judge Corey from the bench, arguing that his actions constituted a dereliction of judicial duty. The campaigns in California and Alaska employed similar messaging and similar methods of outreach. And both campaigns saw the judge’s removal as merely the first step of a larger political movement to change existing law and social attitudes about sexual assault

The Federal Courts’ Rulemaking Buffer

Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges

Bigger Isn’t Always Better: An Analysis of Court Efficiency Using Hierarchical Linear Modeling

One important measure of trial court efficiency is overall case length—that is, the elapsed time from a case’s initial filing to its final disposition. Using a large, recent dataset from nearly 7000 federal civil cases, we find that two variables are particularly useful in predicting overall case length: the total number of attorneys filing an appearance in the case, and the number of authorized judgeships for a given district court. Further, we find a significant and surprising interaction between these two variables, indicating that smaller courts are more efficient than larger courts at processing civil cases when more than three attorneys appear in a case, but that the opposite holds true when three attorneys or fewer appear in a case

Bench Presence: Toward a More Complete Model of Federal District Court Productivity

This Article considers what it means for a federal district court to be productive, and how such productivity might be assessed. Previous studies have focused almost exclusively on the speed of case processing, equating a court\u27s productivity (explicitly or implicitly) with the court\u27s rate of docket clearance or a case\u27s average time from filing to disposition. This thin definition of productivity, however, is not consistent with either classical economic understandings of the term or common public expectations of the courts. In particular, analyzing the speed or efficiency of a court says nothing about whether the parties or the public view the adjudicative process as accurate, fair, transparent, and dignified. We seek to bridge the disconnect between existing measures of court productivity and real-world expectations of the district courts by offering a more robust model of district court productivity that explicitly incorporates measures of accuracy and procedural fairness. We then introduce a new metric for procedural fairness called bench presence. Bench presence is a measure of the time that a district judge spends on the bench, presiding over the adjudication of issues in a public forum. Bench presence provides a rough but meaningful proxy for many components of procedural fairness, by quantitatively capturing the degree to which parties and the public are directly exposed to the judge\u27s practices and procedural safeguards. It also refocuses the discussion of court productivity on the core role of the district judge: presiding over trials and open hearings

Measuring Bench Presence: Federal District Judges in the Courtroom, 2008-2012

In a companion piece, the authors argued for a more comprehensive model of federal district court productivity that included, among other things, a measure of each court\u27s capacity and commitment to provide procedural fairness to litigants. The authors further proposed a new procedural fairness metric called bench presence, a measure of the time that district judges spend adjudicating issues in an open forum. This Article examines real-world bench presence data from the Administrative Office of the United States Courts. On the surface, the numbers are disappointing for those who view courtroom time as integral to procedural fairness protections. Specifically, the data reveal a decline in total courtroom hours in more than two-thirds of the federal district courts between FY 2008 and FY 2012, and an overall national decline in total courtroom hours of more than eight percent during that same period. But there is encouraging news in the data as well. Strong levels of bench presence are not restricted to courts of a particular size, circuit, or docket composition, suggesting that there are no persistent structural barriers to any district court increasing the amount of time that its judges spend in the courtroom. In addition, there is only a weak correlation between a district court\u27s average courtroom hours per judge and its average time to case disposition, indicating that district courts need not choose between efficiency and procedural fairness in addressing their caseloads. Based on these findings, the authors urge judges to increase courtroom hours in their own districts, and invite scholars and court administrators to further investigate the potential of the bench presence metric