Author: Corey Yung


RIP, Taz

Professor Andrew Taslitz (Taz) passed away yesterday after a battle with cancer. The loss to the criminal justice community and many of us personally is immeasurable. From even before I joined the legal academy, he was incredibly kind and generous with me. He has always been and will be continue to be an amazing inspiration. He was truly one the most caring, thoughtful, and wonderful people that I have ever met. It is a tragedy that he was taken from us too soon.


What’s Wrong with the US News Rankings?

Many of the shortcomings of the US News law school rankings have been extensively documented. My purpose here is not to rehash those well-known issues. Instead, I want to outline the ways in which the US News law school rankings may have been a contributing factor in law schools making bad decisions over the last decade. Whether one believes that the economic downturn or structural changes in the legal market have caused employment numbers to decline for graduates, it is helpful to consider how the rankings “game” has led to decisions that have, at a minimum, exacerbated present circumstances. So, in this series of posts, I only want to focus on the potential ways in which the US News rankings may have affirmatively made the situation worse rather than the defects in the rankings system regarding methodology and statistical validity.

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Silence and Evil

Some of you may have read the story of the 55 bodies found at a reform school for boys in Florida. Although the national media is finally paying some attention (law professor Tim Wu deserves some credit for this), I cannot help but wonder the reasons that it isn’t considered true headline news. It is hard to identify a clearer example of a recent story exhibiting  such genuine evil and injustice.

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What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.


In Praise of Complexity

Earlier this month, right here on this very blog, Dave Hoffman pontificated about two of my favorite subjects: empirical legal studies and baseball. Primarily, Dave wondered about whether empirical legal research was facing might face the same problem as sabermatic baseball analysis: inaccessible complexity. I won’t rehash his argument because he did a very good job of explaining it in the original post. Although I completely agree with his conclusion that empirical legal studies should seek to be more accessible (which I always note at the end of my introduction of my empirical work), I disagree with his contention that empirical legal studies are facing might face widespread incomprehensibility due to growing complexity. Because I think it is a helpful analogy, I’ll borrow Dave’s example of advanced statistics in baseball. Read More


What is “Practical” Scholarship?

Due to a public comment by the Chief Justice and as a side issue in the ongoing ScamProf debacle, the criticism that legal scholarship in law reviews is worthless to real lawyers has reemerged with a vengeance. As someone who enjoys doctrinal, empirical, theoretical, and completely esoteric scholarship, I’ve struggled to figure out why people in these discussions essentially equivocate doctrinal with practical. Why would Chief Justice Roberts think that a doctrinal article in a law review which might be out of date by the time he reads it is better suited to persuade him than the extensive briefing in the case he is reviewing? For Supreme Court Justices, who have party and amicus briefs so numerous that they don’t read them all, it seems strange to want law reviews to become redundant with other materials that they don’t bother to review.

For lower federal courts, the situation is a bit different. There, I think a strong case can be made that doctrinal scholarship can play a substantial role. Yet, when I have looked through cases that cite law reviews, it seems like the propositions cited are rarely doctrinal in nature. As someone who reads more federal cases for my scholarship than any sane person should, it seems as though law reviews are most often cited for propositions other than legal argument. At least if citations are a good proxy for the utility of law reviews for courts, it appears like the far more used portions of law reviews concern factual, empirical, or historical claims. Even broad theories of law seem to receive more attention than strict doctrinal points. Of course, no one has really studied this issue to confirm my impressions, but, to me, law reviews are most “practical” when they fill a niche distinguishable from other forms of legal writing. Why would anyone want a law review to simply become a legal brief (even one that was more even-handed than the average party brief)? I think many of these complaints about legal scholarship are simple railings against academia, but when they are made by people like Chief Justice Roberts they take on special significance. Although the Chief might not read law reviews in their current form, I hope for the sake of scholarship that he doesn’t get his wish to make them “practical” as he understands the concept.


Panel Effects and the Independent Vote Assumption

For people interested in judicial decision-making, one of the most interesting findings in the last decade was the evidence that judges on panels do not make decisions independent of one another. In fact, the political ideology of co-panelists has a strong connection to how an individual judge will vote in many cases. These “panel effects” are now well-known among scholars who are not regular readers of empirical work regarding the courts. However, the details, magnitude, and explanation for these panel effects are still disputed and ambiguous.

The so-called “whistleblower” panel effect occurs when a judge wants to draw attention to the actions of co-panelists that might be acting in an ideological extreme manner. In contrast, strategic incentives often point in a different direction because dissents rarely serve any function at the federal appellate level when en banc panels are infrequent and Supreme Court review even less likely. There are also strong incentives toward consensus among judges in the same circuits because of the limited value of dissents and the upsides to collegiality among judges that will serve on panels hundreds of times together. To these theories of panel decision-making, I wanted to share one of my recent findings. Read More


From the Ivory Tower to the Courts

It has been conventional wisdom for some time that the legal academy has become increasingly disconnected from the practice of law. And because of this, law reviews are said to be of little use to attorneys and judges. A recent piece in the California Lawyer by a law professor and former law school dean has received some attention for making these claims in the strongest terms. From the article:

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite—or perhaps because of—the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley’s alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

As Adam Liptak of the New York Times observed a few years ago, “Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions—which is to say the practice of law—is beneath them.”

I’m not quite sure the method that the author used to identify just six citations to law reviews, but I performed a quick and dirty Lexis search and turned up far more. The bigger question, though, is whether the author is right that judges are not reading law reviews. A new article by David Schwartz and Lee Petherbridge indicates that, at least for the federal appellate courts, the conventional wisdom seems to be flat wrong. In fact, according to their study, law review citations have increased dramatically in the last twenty years (even when accounting for the increased number of journals). I couldn’t cut and paste the tables and graphs from the article, but the results regarding the proportion of court opinions that cite law reviews are clear.

So, why is the conventional wisdom so completely wrong on this point? Maybe citations are clerk driven. Or it could be that judges are misremembering the golden age of law reviews. I want to offer a different explanation, though. Judges and commentators have argued that because law review articles are rarely concerned with legal doctrine, they are of no use to those practicing law and judging cases. I think there is a strong argument that it is precisely because law reviews are unconcerned with doctrine, they are much more valuable to judges and are cited as a result. Articles that merely outline, discuss, or analyze doctrinal areas do little to advance the judge’s knowledge beyond what he or she could establish alone. Instead, it is the broader theoretical points and empirical studies that are outside of a judge’s metaphorical wheelhouse. Just as judges will not allow an expert on law to testify, it makes little sense for law reviews to inform judges about topics which they are comfortable. Instead, like the expert on ballistics evidence or biological sciences, law reviews that are increasingly removed from “law” actually educate judges where they are weakest. And, as a result, law reviews are increasingly being cited by the very judges who proclaim their uselessness.


The Federalism Revolution Did Not Take Place

In 1991, Jean Baudrillard provocatively titled a collection of essays as The Gulf War Did Not Take Place. In the book, Baudrillard did not embrace some bizarre conspiracy theory that the Gulf War was staged like many have contended about the Apollo moon landing. Instead, Baudrillard argued that the invasion of Iraq was not a “war” in any meaningful sense of the word. Although the media treated the run up to the conflict as the beginning of a possible global conflagration, the outcome was preordained. I remember the repeated statement that Iraq had the fourth largest army in the world as a particularly odd statement of propaganda. The death and environmental damage were real, but, to Baudrillard, the non-event could not be termed a “war.”

Baudrillard’s view of the Gulf War is perhaps more applicable to the so-called “federalism revolution” that was led by Justice Rehnquist. As a result of the Court’s opinions in Lopez and Morrison, many legal scholars felt that the Commerce Clause was seemingly reinvigorated as a means of limiting federal power. As hundreds of law reviews embraced the revolutionary narrative, the popular press joined them. To many, the revolution came to a screeching halt with the Court’s ruling in Raich. However, it was still possible to reconcile the doctrine in Raich (as a logical extension of Wickard v. Filburn) with Lopez and Morrison. Whereas marijuana was an economic good, sexual violence and guns were not (although the tension with Lopez was clear). However, with the Court’s recent decision in United States v. Comstock, the legacy of Justice Rehnquist in regards to the Commerce Clause seems to have vanished. Read More


Judicial Conservatism, Liberalism, Activism, Restraint, and Everything in Between

While this is my last planned post on the subject, I continue to welcome comments and suggestions about my attempt to measure judicial ideology. My goal in both my posts here and overall project has been to push forward the effort to better understand the process of judging and the outcomes of judicial decision-making. Judge Richard Posner’s detailed and extremely valuable account of judging in How Judges Think offers one of the most interesting looks into judicial decision-making. However, there has been limited empirical research into the various models of judging like those described by Judge Posner as applied in the real world. Frank Cross has been one of the few that has rigorously tested whether the major models of judging describe judicial behavior for judges at the federal appellate level. There is still an immense amount of work to be done in this area.

Thus far, I have created measures of judicial activism and ideology. I’m currently working on projects to assess the traits of judicial partisanship and independence. My goal is not to just create a typology of judges based upon those measures, but to really have an objective grasp of the differing ways judges in our federal system are reviewing cases. Since I have results based upon my first two measures, I thought it would be worthwhile to consider the Activism and Ideology Scores of a handful of judges.

Judge Circuit Activism Score (Mean = 56.0) Ideology Score (Midpoint = 0)
Deborah L. Cook 6 74.0 77.2
Diarmuid F. O’Scannlain 9 57.1 59.7
Frank H. Easterbrook 7 33.6 55.8
Edith H. Jones 5 68.6 22.0
Richard A. Posner 7 68.3 -9.9
Jerome A. Holmes 10 89.6 -9.7
Ann C. Williams 7 64.1 -31.5
Diane P. Wood 7 44.7 -37.2
Sonia Sotomayor 2 51.8 -40.1
Gilbert S. Merritt, Jr. 6 25.2 -52.4
Kim M. Wardlaw 9 92.7 -63.3

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