The broad disruption of the federal courts caused by the shutdown

Today, the Administrative Office of the U.S Courts issued a press release describing in vivid detail the impact of the shutdown on the federal courts. It is worth reading (here). If nothing else, the nuts in Congress are now on notice that when they shutdown the judiciary, they do immense harm to real people.


More on judicial behavior

Lee Epstein and Jack Knight are true experts in the study of judicial behavior. They are empirically trained, deep thinkers and excellent writers. They do not grind axes.

Lee Epstein is the Provost Professor of Law and Political Science and the Rader Family Trustee Chair in Law at the University of Southern California. She is also now serving as a Phi Beta Kappa Visiting Scholar, a Guggenheim Fellow, and a Lecturer in Law at the University Chicago. Professor Epstein is a Fellow of the American Academy of Arts and Sciences and the American Academy of Political and Social Science.

Jack Knight is the Frederic Cleaveland Professor of Law and Political Science at Duke University. His scholarly work focuses on modern social and political theory, law and legal theory, and political economy. He holds a joint appointment with Duke Law School and Duke’s Trinity College of Arts and Sciences, where he teaches in the Politics, Philosophy and Economics Program.

If you really want to understand what motivates judges, you must read their a recent article entitled U.S. federal judges are motivated by much more than putting their policy and political preferences into law, London School of Economics and Political Science (October 22, 2013). It is here.

For a long time, political scientists thought judges were motivated primarily by their political and policy preferences. But what if that were not true? For one thing, it would cause political scientists to completely rethink their approach to the study of judges.

What follows is a brief summary of this extremely important article:

What motivates U.S. federal judges and the types of decisions they make? While for a great deal of time, many judicial commentators have maintained that translating their own political values into law is the prime motivator for federal judges, Lee Epstein and Jack Knight disagree. Looking at the U.S. courts over the past 60 years, they find evidence that policy-centric accounts can no longer explain judicial behavior. They argue that judges are motivated by aspects of job satisfaction, external satisfaction, leisure, salary, and promotion – not just by ideology.*

I commend this short article to you. It is well-worth reading as it is brief and yet paints in clear words a portrait of judicial behavior that is far more realistic than standard academic or Conservative/Liberal (Progressive) thinking.


*For more of the work of Epstein and others (most especially Judge Posner) about judicial behavior and particularly the judicial behavior of district judges, see my earlier post here.

On going public

Before every trial, and for the last 25 years plus, I have conducted a jury orientation for prospective jurors that is open to counsel and the public but which is not part of voir dire or the trial. One of the things I do is to take the prospective jurors on a walk about the courtroom as I narrate what they are seeing. The jurors are able to sit at counsel table, sit in the jury box, and sit in the witness chair. We walk on to the clerk’s bench and my bench and jurors see all the “secret” stuff and how it works. The jurors are really interested in the digital audio system that we use instead of a court reporter, the interactive video display to make documents and drawings accessible to the jury, and the panic alarm button to get additional Marshals. We turn on the “white noise” that blocks the jurors from hearing bench conferences, and I explain why we do that. They are also intrigued by the infrared audio head sets we can provide jurors who are, like me, a bit hearing impaired or when we need to listen to those damn wired buys. If they like, the prospective jurors can sit in my big black fake leather chair. In reverse, we use my door to enter the courtroom (hidden in the wood paneling, to the amazement of the jurors) and walk down the steps behind the courtroom and into the jury deliberation room. I’m yammering all the time as we engage in this tour.

You get the picture. So do the prospective jurors. I envisioned this blog being something similar to my jury orientation. That is, I hoped the blog might become a way to open up what I do, how I do it, and why I do it. And that brings me to my earlier post on Mr. Lane’s editorial in the Washington Post that was critical of Judge Posner for being too public. I asked readers to tell me what they thought, and to apply that thinking to this blog. Incidentally, the idea for that post came from a distinguished East coast trial lawyer, and I thank him, again, for calling Lane’s article to my attention. Readers have responded, and I want to take this opportunity to thank them (and apologize for not responding to each of their comments). That said, I also want to add five thoughts.

First, although I do not agree with Lane’s criticism of Judge Posner, I agree with him that judges can become too public. Indeed, I don’t give interviews to the regular profit-making media because I hope what I do has a significant educational component and I don’t want to detract from that mission by becoming some sort of minor celebrity. Besides, no matter how I faced the camera, I have no good side.

Second, I waited to begin blogging until I was a senior judge primarily to shield the federal judiciary from criticism that I was shirking my judicial duties.  Since taking senior status, I am legally “retired” under 28 U.S.C. § 371(a)&(b)(1), paid an annuity (not a salary) and I would be paid whether I stayed home or worked.  Indeed, in a very real sense, I am working for free. In short, by waiting to blog until I was a senior judge, I hope I have made it hard to attack the federal judiciary for my blogging activities.

Third, like all judges (but not Justices), both active judges and judges on senior status, I am bound by the Code of Conduct for United States Judges. However, since senior judges have the statutory right to turn down cases, see 28 USC § 294(b), senior judges have somewhat more freedom to express themselves without impairing their usefulness as judges. That is, I have to worry slightly less about causing recusals when I blog since I have no obligation to take cases and I may turn down the assignment of specific cases. Nonetheless, I strive hard not to comment upon pending or impending matters in order to avoid recusals. My blog prominently highlights that caveat. See here and here. More generally, having served for six years on the Judicial Conference’s Committee on Codes of Conduct, I try hard to be sensitive to ethical issues under the Code while recognizing that I am pushing the boundaries by engaging in this new medium.

Fourth, the Code of Conduct for United States Judges, in the commentary to Canon 4, encourages judges to help in law reform efforts: “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.” (Emphasis added.) I hope what I am doing in this blog is consistent with this very important statement.

Fifth, there is a strong theoretical justification for judges to be transparent because only by doing so can we harmonize the very anti-democratic institution of the judiciary with a broader society that exalts, and has enshrined in its written Constitution, the supremacy of democratic principles. The digital age gives judges a powerful opportunity to become more accessible and thus transparent. I have written an essay on this subject, ironically enough, for a Canadian law journal, and I refer the reader to it for a greater exposition of my views. See Richard G. Kopf, The Courts, The Internet, E-Filing and Democracy, 56 U.N.B.L.J 40 (2007). If nothing else, people tell me that the essay is a short and fun read (assuming you have no life, like me). Unfortunately, I just realized that a subscription is required (those damn Canadians). I will see if I can’t post the essay myself and provide a free link later. Later: The essay is now freely available here under “Archive” and “Articles.”


Thoughts on employment cases and summary judgment from someone who has seen how the sausage is made

Regarding the study of employment cases pitched at the summary judgment stage in the Northern District of Georgia and the Atlanta Journal Constitution’s article reporting about it, I heard from a career law clerk via e-mail. The e-mail was insightful. This person has graciously allowed me to reprint his or her thoughts, with certain minor edits.

Here are the guts of the e-mail:

In response to the AJC article about N.D. Ga. Title VII cases, I have a few responses, gleaned from my experience as a law clerk for two different federal trial judges over the past five years.

1. [V]irtually all Title VII cases that get tossed before discovery are DOA because of failure to exhaust administrative remedies. The AJC article briefly touches on that, yet the entire article is premised upon the idea that the cases don’t get a fair shake in federal trial courts. It’s not the trial judges’ fault that Congress wrote in an administrative remedy requirement, and it’s not the trial judges’ fault that the appellate courts have strictly construed it. [A]t least half of Title VII cases get tossed before discovery, and it’s because the plaintiffs either sit on their claims and don’t retain counsel, or they retain incompetent counsel. That was not the case in . . . where I [previously] worked because there was a plaintiffs’ firm that had built a large practice almost solely focused on employment litigation; they knew what they were doing and did it well.

2. Once these cases make it to the summary judgment phase, the burden-shifting analytical framework cuts against the plaintiff’s interests most of the time. Again, this is something wholly outside the trial judge’s control, and the article doesn’t even address it.

3. In those cases where the plaintiff actually does present sufficient evidence to make out a prima facie case, the evaluation of their evidence in the pretext portion of the analysis is often outside the trial court’s discretion. Likewise, in a hostile environment analysis, the severe or pervasive question is often out of the Court’s discretion. In other words, there is often Circuit Court precedent that is either directly on-point or close enough that it is determinative. The article makes much of the fact that a case where a plaintiff alleged – and presumably offered evidence – that someone groped his/her crotch was tossed. [T]here are precedents providing that such behavior, or even more shocking behavior, is not sufficiently severe or pervasive to violate Title VII.

So, my experience is that the federal trial courts have significantly less discretion than journalists and the plaintiffs’ bar like to think they do. If the administrative requirements are too onerous, that’s on Congress. If Circuit precedents set the bar too high to get past summary judgment, that’s on the appellate courts. Everyone likes to beat up on trial judges. Sure, some deserve it. But, for the most part, the trial judges are the most honest, hardworking judges in the judiciary (among Article III judges, at least). They’re also the closest thing in the judiciary to Justice Roberts’ “balls and strikes” metaphor (poor as it may be, insofar as umps have a lot of discretion over balls and strikes). They don’t make the rules. They just apply them.

I thank my correspondent for the contribution. And, by the way, Jan and Jim, my career law clerks, didn’t write one damn word!


Kopf’s response to Amanda A. Farahany’s request for data

Ms. Farahany wondered what my summary judgment dismissal rate was for cases falling in nature of suit codes 442 (civil rights: jobs) and 445 (Civil rights: Americans with Disabilities-Employment) during the years 2011 and 2012 regardless of when suit was filed. She asked for cases where summary judgment was granted in whole, granted in part, or denied in whole. See Amanda A. Farahany, October 22, 2013 at 2:38 pm here.

I had my judicial assistant run a query of CM/ECF to produce the requested information. I then had my judicial assistant contact the deputy-in-charge in Lincoln to verify her approach. The deputy-in-charge then ran another query using a different method and came up with the same results.  I played no part in running the numbers except for telling the staff the parameters requested by Ms. Farahany.

Here are some caveats:

*Cases where summary judgment was granted only in part include at least one case where the case went away on the federal level because I declined to exercise “supplemental jurisdiction” on state law claims.

*I have not gone back into the court file to read any of the orders. That is, I relied on the docket text for the disposition. I would suggest that the consumer of this data go into the docket of each case, click on the filing number for the order (which has been provided), and verify that the docket text is accurate.

*There were only 7 cases that fit the search criteria.  Our civil docket has dramatically fallen over the years. Vince says this is because plaintiffs’ lawyers avoid federal court like the plague. Whatever the reason, we end up doing a lot of federal criminal work. This year we rank 8th in the nation for federal criminal filings per active judge for the 12-month period ending June 30, 2013. We rank 7th in the nation for federal supervised release violation proceedings. This compares to our rank of 76th for civil cases.  Overall, we rank 27th in the nation for all filings per active judge.

*We do not normally employ magistrate judges to issue reports and recommendations for these types of summary judgment motions.

Here are the statistics for my docket for 2011 and 2012 using the aforementioned criteria:

Case style: Nugara v. Nebraska Association of Public Employees, et al.
Case number: 4:09CV3212
Summary judgment Memorandum and Order filing no.: 69
Summary judgment granted in whole: no
Summary judgment granted in part: yes
Summary judgment denied in whole: no

Case style: Williams v. Rehtmeyer, et al.
Case number: 8:10CV92
Summary judgment Memorandum and Order filing no.: 54
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Ryan v. Capital Contractors, Inc.
Case number: 4:10CV3019
Summary judgment Memorandum and Order filing no.: 61
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Bodfield v. AG Valley Cooperative, Non-Stock
Case number: 4:10CV3097
Summary judgment Memorandum and Order filing no.: 31
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Ellis et al. v. Houston, et al.
Case number: 8:10CV3222
Summary judgment Memorandum and Order filing no.: 134
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Chamberlin v. Cable USA
Case number: 7:10CV5011
Summary judgment Memorandum and Order filing no.: 39
Summary judgment granted in whole: no
Summary judgment granted in part: no
Summary judgment denied in whole: yes

Case style: Anderson v. Cabela’s, Inc.
Case number: 4:11CV3022
Summary judgment Memorandum and Order filing no.: 43
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no


Can judges be too public?

Charles Lane (an editorial writer who attended Yale Law school) has written a piece in the Washington Post that deserves reading. A reader, who is a lawyer, called my attention to the article, and I thank the reader for doing so.

The piece criticizes Judge Posner for being too public. While I sure as hell don’t compare myself to Judge Posner in any form or fashion, I would appreciate it if readers would review Mr. Lane’s piece about Judge Posner’s penchant for being public and apply Lane’s critique to this blog. After that, I would welcome hearing from readers about what they think. Truly, I am not trying to gin up discussion. Since this blogging gig is new to me, I am sincerely interested in what others think about the important points made by Mr. Lane.


Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations

Yesterday, I highlighted a study and asked readers to examine it. The study authored by Amanda Farahany and Tanya McAdams, both of Barrett & Farahany, LLP, entitled “Analysis of Employment Discrimination Claims for Cases in Which an Order was Issued on Defendant’s Motion for Summary Judgment in 2011 and 2012 in the U.S. District Court for the Northern District of Georgia” makes an important contribution to the empirical literature on the subject of resolving employment cases in the federal courts by summary judgment rather than trial. In this post, I will provide a brief summary of the study, and then add several observations.

A Caveat and Then a Brief Summary of the Study

First the caveat and then the brief summary. The following is not intended as an extended analysis of the statistics generated by the study. I have omitted a lot of information in the interest of brevity and for that reason only. Indeed, that is why I requested that readers of this blog examine the study themselves. That said, here is my brief overview:

*In 2011 and 2012, of the 181 employment discrimination cases in which plaintiffs were represented by counsel and summary judgment motions were in play, 147 (81.21% rounded to 82%) cases were dismissed entirely, 170 (94%) cases were dismissed in whole or in part and 11 (6%) cases survived entirely intact.

*In 2011 and 2012, in race discrimination cases where the claimant was represented by counsel, out of 71 cases, 10 cases (14%) survived summary judgment.

*In 2011 and 2012, in race discrimination cases where the claimant was represented by counsel, black claimants survived summary judgment in 4 (7%) of the 56 cases filed by blacks. During that same time period, in race discrimination cases where the claimant was represented by counsel, white claimants survived summary judgment in 3 (30%) of the 10 cases filed by whites. The remaining 5 cases were comprised of other races or ethnic groups or were not identified by race or ethnicity. Regarding gender, and for that same time period and regarding race discrimination cases, black female claimants survived summary judgment in 1 out of 29 cases or 3% of such cases whereas black male claimants survived summary judgment in 3 out of 25 cases or 12% of such cases. White male claimants survived summary judgment in 3 out 5 cases or 60% of such cases, whereas white female claimants survived summary judgment in none (0%) of the 4 cases they brought.

*In 2011 and 2012 and for sex discrimination cases involving hostile work environment, sexual harassment and disparate treatment claims (lumped together by me) where the claimant was represented by counsel, out of 55 cases, 6 (11%) survived summary judgment.

*In 2011 and 2012, in sex discrimination cases where the claimant was represented by counsel, I could not find a break down by the race of the claimant. Regarding gender, and for that same time period regarding sex discrimination cases, female claimants survived summary judgment in 6 out of 48 cases or 12.5% of such cases whereas male claimants survived summary judgment in none (0%) of the 4 cases they brought. In “multi-female” class cases, none (0%) survived summary judgment in the 3 cases they brought.

*In 2011 and 2012, the great majority of judges in the Northern District of Georgia granted dismissals in 75% percent or more of all race and sex discrimination cases.

Kopf’s Preliminary Observations

*In a comment to this blog, there is a veiled suggestion from one of the authors of the study that an observer might read into the statistics a discriminatory animus on the part of the Georgia federal judges based on the race or sex of the claimant. See Amanda A. Farahany, October 21, 2013 at 11:53 am, here. I categorically reject that suggestion, if indeed that is what the author intended to imply. The numbers are just too small to make such a claim. For example, only 10 cases of race discrimination involved whites, and only 3 of those survived summary judgment. To use those tiny numbers to suggest judges favored whites because the white dismissal rate was only 70% whereas the black dismissal rate was 93% is weak support indeed for a claim of racial animus. To illustrate further, if you want to use tiny numbers, black females had a 100% greater chance of prevailing than white female claimants of race discrimination, but the absolute difference is 1 case as no white female claimants survived summary judgment while 1 out of 29 black female claimants survived summary judgment. Moreover, given that the great majority of judges dismissed these cases at rate equal to 75% or more of the time, it is impossible to believe that most of the judges in the Northern District of Georgia act because of a racial or gender animus.

*According to the Atlanta Journal Constitution, “The U.S. District Court headquartered in Atlanta currently has eight active judges, five of whom were appointed by Democratic presidents and three of whom were appointed by Republican presidents. Title VII cases are also heard by the court’s eight senior judges; six of these judges were appointed by Democratic presidents, two by Republicans. The magistrates are appointed by district court judges.” As a result, it is impossible to believe that the results of the study represent the actions of judges with the same ideological bent.

*In a comment to this blog, see Amanda A. Farahany, October 21, 2013 at 11:53 am, here, one of the authors of this study has written: “Having heard that the problem is the law of our circuit, we expanded the study to the Northern District of Alabama, a state with no state laws (like Georgia) and within our circuit. With essentially the same sample size, rather than dismissing 82%, 66% were dismissed in full. Rather than letting 6% past summary judgment unscathed, Alabama let 12%. Statistician Dr. Michael Freeman has already concluded that this a statistically significant difference.”  I have several reactions to this comment and address them to the authors. A. Please publish the complete statistical analysis for the Northern District of Alabama so that it can be reviewed and tested by others. (Please give due attention to the statistician’s definition of “statistical significance” and the statistical method employed to arrive at such significance.) B. In absolute numbers, the difference between 6% (11 cases) in Georgia and 12% (22 cases (rounded)) in Alabama is only 11 cases. As a result, I would not be willing to conclude that something is wrong with the judges in the Northern District of Georgia on the basis of 11 cases spread among 16 active and senior district judges over a 2-year period even if the results are “statistically significant.” C. Finally, is the number of “unscathed” cases in the Northern District of Alabama about right, too high or too low?  What is the statistic that federal trial judges should shoot for and how do you derive that number?

*My experience leads me to believe that most race and sex discrimination claims against most employers are legally baseless. By this, I do not mean to suggest that most employees or job-seekers are dishonest or that most employees or job-seekers may not have legitimate (but not legally cognizable) grievances. However, the federal law (whether you agree with it or not) does not make employers responsible for work place disputes unless the employer can reasonably be expected to have known and approved of conduct prohibited by the federal law. In short, these are hard cases to get to a jury because derivative liability (you pay me because somebody who worked for you hurt me) is manifestly not the standard in federal employment law.

*Despite my significant reservations about this study, it is a serious attempt to get at a serious subject. Civil jury trials in the federal courts are rare indeed and that is particularly true in the employment context. This study shows us how rare they are in one large metropolitan federal court and presumably throughout the country. I sincerely thank Vince Powers and Barrett & Farahany, LLP for giving me access to the study and for their commitment to the rule of law.

*The reader is reminded that these are my preliminary observations. I am willing to learn more. If I have erred, I am also willing to be corrected.


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