Whither The Great Appellate Judge?

90px-LearnedHandOn Wednesday Chief Justice Roberts awarded the Henry J. Friendly Medal (given by the ALI) to Judges Pierre Leval and Michael Boudin, who were both Friendly clerks.  The Chief Justice and Judge Leval extolled Friendly’s contributions as a judge, a lawyer, and a scholar, which led me to wonder why there is not someone like him today.  The closest example is Richard Posner, but Posner’s influence as an academic far outstrips his importance as a judge.  (I’d be hard pressed to name a Posner opinion that is considered authoritative in a given field.)

Why are there no successors to Learned Hand, Benjamin Cardozo, or Henry Friendly?  Here are a couple of thoughts:

1.  There are a lot more judges now (both state and federal).  Consequently, it is much harder for one judge to wield that kind of influence.

2.  There is a lot less common law today.  Judges have a diminished role because of the growth of the administrative state and because of the expansion of federal law into realms that used to be the province of state courts.

3.  The profession is more diverse.  Hand, Cardozo, and Friendly all sat in New York, which was widely acknowledged as the center of the legal universe.  Not now.  There is also less deference to the “Harvard” view of the world that Friendly and Hand embodied.

 

 

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4 Responses

  1. Dan Cole says:

    I can think of a couple of very influential judicial opinions penned by Judge Posner: (1) his concurrence in the Chicago rent-control case and (2) his opinion in the bed-bug case, which virtually overruled the Supreme Court’s ruling in State Farm.

  2. Chad Oldfather says:

    I would think increased caseloads have a lot to do with it as well. In 1974 – Friendly’s last year on the bench – the total caseload of the federal appellate courts was somewhere in the range of 11,000 cases, which was itself more than double the caseload from 1960 (when caseloads really started to expand). Over the most recent five years it’s been closer to 55,000 cases. The growth in the judiciary has been much more modest, so judges simply have less time to devote to their cases, and must rely to a much greater extent on their clerks.

  3. Jim Maloney says:

    As an aside to this discussion, but one perhaps worth sharing here, I learned only today of “Judge Learned Hand’s promise that he would never vote to convene an en banc court.” The foregoing quote is taken from a dissent from a denial of en banc rehearing in United States v. Taylor written by Judge Cabranes, which appeared on the Second Circuit’s website this morning. (The vote on the en banc rehearing was 7-6, as close as it gets.) Is there perhaps a correlation between Judge Hand’s position on this issue and his status as a jurist? Something along the lines, perhaps, of a sense that any review of a Circuit Court Panel’s opinion ought to come from the highest Court?

  4. Howard Wasserman says:

    1) Might cert. practices have something to do with it? Despite the smaller caseloads, SCOTUS tends to resolve most major constitutional issues (the ones that catch everyone’s attention), so there are fewer appellate court decisions that remain the last word on an issue?
    2) Might it vary by area? I’m sure some Ad Law experts could identify a DC Circuit judge whose influence in that field is akin to that of Hand or Friendly.