Quantitative studies of judging are hot right now, but much of this work suffers from a distorting slant. A critique of the field can be found here. The main positive contribution of the article is the articulation of a realistic understanding of what the rule of law requires of judges.
Any chance of tickling more of a summary out of you?
ReplyDeleteRobert,
ReplyDeleteBrian gave you a link to a page with an abstract and a link to the downloadable paper. How much more info do you want? :)
::raspberries::
ReplyDeletePat,
You and I will click through. But if Professor Tamanaha included even just the abstract inline the fur would start flying faster. I'm just sayin'.
One of the hottest areas of legal scholarship today involves quantitative studies of judging. This article will attempt to shift the current orientation of this work by making two basic points. The first point is that the field was born in a collection of false beliefs and misunderstandings about the formalists and the realists which has distorted how political scientists have modeled judging and how they have designed and interpreted their studies. Rather than conduct an open inquiry into the nature of judging, political scientists set out to debunk formalism by proving that judging is infused with politics, a mission that warped the development of the field.
ReplyDeleteThe second point is that the results of their studies below the Supreme Court strongly confirm what judges have been saying for many decades - that their judicial decisions are substantially determined by the law. Political scientists have tended to repress this finding, however, by focusing on the wrong point: repeating time and again that their studies show that politics matters without also emphasizing that it matters very little. A balanced realism about judging accepts that - owing to the uncertainty of law and the inherent limitations of human decision makers - it is inevitable that there will be a certain (minimal) degree of political influence in judicial decision making, but this does not detract from the broader claim that judges can and usually do rule in accordance with the law.
Recognition of these points will help nudge quantitative studies in a direction that promises to produce more accurate and valuable information about judicial decision making.
Tamanaha, Brian Z.,The Distorting Slant of Quantitative Studies of Judging(October 30, 2008). Boston College Law Review, Vol. 50, 2009; St. John's Legal Studies Research Paper No. 08-0159. Available at SSRN: http://ssrn.com/abstract=1292459
Pat,
ReplyDeleteI had just emailed Brian asking permission to post the abstract, then saw you already did it. ;)
I think the observation that lower levels are less politicized may be something of a non-starter. After all, the only reason a matter rises to a higher court is because there is something to question. The higher the court, the more opportunity for politicized judgment, by definition. I won't get to read the paper 'til later today, but I wonder if that's taken into account.
ReplyDeleteIt may just be of interest to those interested to have a quick look at what the English Judiciary considers to be the skills and abilities needed in a Judge Framework of Judicial Abilities and Qualities for the High Court and the Circuit and District Benches (MS Word document).
ReplyDeleteI am rather hoping that the next stage will be to distribute assessment cards to the lawyers using the Courts - something like:
"On a scale of 0 to 10 how do you rate Judge X for..."
That could begin to be interesting.
Mourad:
ReplyDeleteI am rather hoping that the next stage will be to distribute assessment cards to the lawyers using the Courts - something like:
"On a scale of 0 to 10 how do you rate Judge X for..."
That could begin to be interesting.
IIRC, the ABA basically did something along those lines in evaluation judicial nominees.
The Dubya maladministration chose to not solicit ABA ratings (which were distilled down into "well qualified" "qualified", and "not qualified"). Instead, the Dubya maladministration has chosen people informally vetted by their Federalist Society poobahs, who obviously have different criteria in mind. We see the results....
Cheers,
Arne:
ReplyDeleteYes, I remember the ABA ratings and in particular the fury which exploded when a number of ABA people voted to hold Bork "not qualified" to occupy a place on the Supreme Court.
Firstly, I am deeply suspicious of the competence of most professional organisations: in the UK one tends to find that most professionals want to get on with their professional work and therefore those that have time to devote themselves to the affairs of their professional body tend to be either the senile (partners nearing retirement) or the incompetent (those not making a sufficient living at their profession so they have the tine to become busybodies in their professional group).
In England we have the Magistracy and the Judiciary. About 90% of all criminal cases are disposed of by lay magistrates (Justices of the Peace). JP's are unpaid but are reimbursed for expenses and loss of earnings. They sit in benches of 3 and are drawn from their local communities. This is a system of great antiquity but it still commands much community confidence, because they are fiercely independent. You can get a flavour from: The Magistrates' Blog .
In the judiciary we have 3 categories of first instance judges: (i) District Judges/Masters/Registrars (ii) Circuit Judges and (iii) High Court Judges. On the criminal side, District Judges help put with the work of magistrates courts - sitting alone in place of a bench of 3 JP's - normally only in the big population centres. Circuit Judges and High Court Judges sit in the Crown Courts which have criminal jurisdiction. Offences are divided into cateogies of seriousness and the most serious (eg murder or rape) are only tried before High Court Judges or specially authorised Circuit Judges. On the civil side, category (i) does most of the interlocutory work and post judgment enforcement while (ii) and (iii) take the trial work.
But - and this is, I think, the big difference - practising trial lawyers are expected to offer up their services as part time judges: sitting as Deputy or Assistant Judges in category (i) or a Recorders or Deputy Judges in categories (ii) and (iii). They are paid a per diem fraction of the full-time salary and obviously they take the less serious work. But it gives them real life experience of being a judge, gives their colleagues and the judiciary time to evaluate them and, of course, all the while they will be participating in the training offered by the Judicial Studies Board.
Academics are also encouraged to contribute their services to this pool.
Vacancies for judicial appointments are advertised and applications evaluated by the Judicial Appointments Commission which only recommends candidates to the appointor - but its recommendations are generally followed.
The make-up of the the Commission is interesting: The Chairman of the Commission must always be a lay member. Of the 14 other Commissioners: 5 must be judicial members, 2 must be professional members (1 barrister and 1 solicitor), 5 must be lay members, 1 must be a tribunal member and 1 must be a JP member.
Under this system (i) candidates must want to be judges - they have to apply; (ii) they have to have the qualifications (i.e. they must have been practising for 7 - 10 or 15 years); (iii) they generally have to have "done their time" as a deputy part time judge before first appointment.
Its a relatively new process - but it is doing very well.
I wonder if a similar commission could not be formed to make recommendations to the President and Senate. At the very least, with an open process of advertising, recruitment, vetting and evaluation, some of the partisan heat might be taken out of the appointment process - and if there were also a Studies Board and a part time service system there might be a chance of getting more able and diverse people with the right "judicial temperament" as well.
@Mourad,
ReplyDeleteI gather from Brian's post (well, from Pat's post of Brian's abstract) that he's not particularly concerned about the rank and file of the judiciary. "studies show that politics matters...very little.". Now, I think this misses the point, as I said upthread, because it seems rather obvious and less than informative to observe most judicial work turns on matters of law rather than politics. Most judiciary work is sufficiently routine as to never reach any political questions. Can you imagine a traffic court judge deciding cases on some kind of ideological basis?
So the point isn't really that the majority of cases are decided on their merits (or at least non-politically) because the most notorious cases at the highest court in the land are increasingly 5/4 splits predicted by partisan affiliation. It's a quality-not-quantity issue, and I don't think the system you suggest would do much about nominations at that level but it is exactly that level that really matters.
Robert:
ReplyDeleteFirst of all, except for the original jurisdiction, no case gets to the Supreme Court other than by way of Certiorari (and very few petitions are granted).
Second, the decisions made at first instance (including case management decisions) frame the shape of the case and the issues.
Therefore, overly partisan, or incompetent, judges at first instance (including those with a heterodox view of constitutional interpretation, i.e., originalism) can do a lot of damage which it will not always be possible to repair by appeal.
With all the originalist leaning appointments made at all levels, it seems to me that there is now a problem at all levels. Particularly since today's Circuit Judge may become tomorrow's member of an Appellate Bench.
Mourad: "...very few petitions are granted."
ReplyDeleteAgreed and understood.
Mourad: "decisions made at first instance (including case management decisions) frame the shape of the case and the issues."
Somewhat, but not primarily. The doctrines of mootness, ripeness, and standing all serve to make sure it is the participants in the adversarial process who frame and shape the case. Case management also influences, but it's certainly not the primary influence.
Mourad: "overly partisan, or incompetent, judges at first instance...can do a lot of damage"
Agreed and understood, but the point of Brian's article is that this just doesn't happen much. I'm arguing it happens less at lower levels because there is less room at lower levels. I referenced the case of traffic courts, for instance.
You rightly point out that between traffic court and the high bench there are layers which are increasingly vulnerable to partisan influence, and that it is from these layers that the higher layers are populated. Agreed and understood. But to my eye the problem lies in the top-down nature of the high bench's influence. The biggest part of the problem comes from having ideologues like Thomas and Scalia writing nonsensical decisions (see Scalia's dissent on McCreary, or Thomas's concurrence on Morse), or so it seems to me. Better behavior by the high bench is my preferred cure for what ails us.
None of which is to say it wouldn't be nice to have a better system in place for all levels. As you say, the rot has spread. I suppose I'm just cynical about such systems, especially in the light of the recent gaming of the DoJ.
Robert:
ReplyDeleteI'm glad we agree on so much and I think all the points you make have validity.
Obviously, I cannot have the knowledge most people on this blog will have of their own legal system but having compared the Federal Rules of Civil Procedure (which are in substantial parts derived from our 1936 Rules) US procedure is becoming something of a museum piece.
So I would like to see a progressive Administration go for root and branch modernisation - and as you will note from the previous thread I included depoliticisation of the government legal service - inter alia because far too many OLC lawyers end up on the DC Circuit.