pageok
pageok
pageok
Educated Judges are Better Judges:

Josh Wright and his co-authors find that federal judges are less likely to have their decisions in antitrust cases appealed if they have received training at the George Mason Law and Economics seminars, at least in less-complex cases.

Despite this apparent increase in the quality of judicial decision-making in some antitrust cases (or a less-charitable critic might postulate, because of it), some interest groups and members of Congress want to shut down the LEC's programs. Indeed, given that they find that judicial training improves decision-making in less-complex but not more-complex cases, perhaps a more logical conclusion would be that judges should be exposed to more rather than less such training.

For those who missed the Federalist Society's National Lawyers Convention, one of the most entertaining panels was the on the "Regulation of Judicial Conduct" which featured a discussion of the efforts by certain members of Congress to restrict or make more difficult the ability of judges to attend judicial education seminars. Eugene appeared on that panel, along with Judge Raymond Randolph and Robert Schiff, and Judge Carlos Bea moderated.

Hoosier:
Which just goes to show that PJ O'Rourke was correct when he conducted his 'smart/dumb experiment.' As it turns out, smart is marginally better.
12.30.2008 4:08pm
RPT (mail):
The fact that the recent R appellate appointments do not believe in the existence of antitrust law in the first place might explain this result. Many district court trial judges may still follow the law as it is rather than act as the law and econ judicial activists would prefer and reflect in their appellate decisions. Aren't they trained to strike down decisions which find violations of the antitrust law?
12.30.2008 4:20pm
Steve:
Even if the George Mason seminars were utterly worthless (which I presume they're not), it stands to reason that judges who care enough about this substantive area of the law to attend seminars on it are more likely, on balance, to render sound decisions than those who do not care as much.
12.30.2008 4:23pm
Patrick216:
This strikes me as being an eminently reasonable study. My experience handling complex commercial matters is that generalist judges (especially state court judges, who hear significantly more criminal cases and have less assistance than their federal counterparts) do a noticeably worse job analyzing the legal issues in the case. I say this being someone who has had received favorable rulings that didn't understand the issues, so I'm not just a sour grapes defense lawyer. :) This pattern has led to a movement in my state and in many other states to create specialist "commercial courts."

The normative question, I suppose, is whether we want to have a specialist federal court (similar to a bankruptcy court, the court of claims, or the federal circuit) deciding antitrust cases, or if there are benefits to having district judges deciding these that offset the value-loss associated with judges that don't get the complex economic issues involved.
12.30.2008 4:44pm
asdf (mail):
Why you would assume that "less reversed" equals "better" is puzzling.
12.30.2008 5:11pm
krs:
These cutesy studies are kind of annoying. Have these people conferred with the professors who showed that hiring a Yale-educated law clerk correlates with getting reversed on appeal?
12.30.2008 5:12pm
Randy R. (mail):
So what if they are appealed less? The question is whether they are overturned less.

However, even that doesn't necessarily mean their decisions are bad. It might mean that the appellate court knows very little or is wrong in their analysis, and so their overturning the decision is the wrong move.
12.30.2008 5:16pm
PersonFromPorlock:
If not being appealed is the criterion, wouldn't the Twentieth Century's best judge be Josef Stalin? ;^)
12.30.2008 6:43pm
bobby b (mail):
Similarly, judges who attend seminars entitled "Private Property Is Theft" likely make Public Takings decisions that are completely in conformance with "Kelo."
12.30.2008 6:53pm
zippypinhead:
This study smells fishy. Wright writes (pun intended):
"Our second finding is that the decisions of judges who attended LEC programs to learn basic economic skills are appealed at the same rate as their untrained counterparts in complex cases, but 9 percent less often in cases that do not involve the evaluation of sophisticated economic or econometric evidence."
He's trying to prove too much here. First, it's not clear that the appeal rate is the relevant metric. Simple cases may be appealed less because there's less at stake and the losing parties have fewer resources to run out all the appeals -- for example, a hospital practice group that's accused of collusive exclusionary conduct toward other physicians (a fairly simple case) inevitably has neither the financial deep pockets nor as much shareholder value at stake in the litigation as does a Microsoft or Intel-type defendant.

Even if one assumes appeal rates are relevant, the Sherman and Clayton Acts cover a very broad spectrum of conduct, ranging from simple per se illegal bid-rigging to extraordinarily complex Sherman Act §2 rule-of-reason monopolization cases, and Clayton Act §7 merger challenges involving predictive judgments about prospective changes to competition. A generalist judge hearing a per se §1 price fixing or bid rigging case has some discretion to limit or disregard economic testimony on the liability issue, since the offense is completed when the conspirators simply reach their anticompetitive agreement. This sort of case may be no more complex than a typical mail, wire, or securities fraud conspiracy case, and in some ways is easier (since one need not actually prove overt acts as an element of the offense). Economic testimony is necessary on the damages issue, but again, determining the price delta that results from the conspiracy is not much different from the sort of damages inquiry necessary in a host of garden variety commercial cases.

So this pinhead might humbly suggest that Wright may be confusing causation with mere correlation in his "second finding." Yes, there's a positive correlation, but an equally plausible conclusion one might draw is that the sort of jurist who's interested enough in economic litigation issues to attend an LEC program is probably also going to be appealed and/or reversed less often in many types of commercial cases and white collar prosecutions. Why? Because the judge finds them interesting and takes more care with them than another judge who gets his kicks from presiding over, say, personal injury tort cases or "cop and chemist" drug prosecutions.

And what about more complex cases that turn on sophisticated econometric analysis under a full rule-of-reason mode of analysis? I'm not sure even Court of Appeals reversal rates are all that relevant, because it's not entirely clear that a panel of three generalist appellate judges looking at a cold record are in that much better a position to "get it right" than the District Judge who actually heard the econometric testimony.

As for "specialized courts" for antitrust -- if somebody wants to do some empirical research as to whether they would do a better job than a U.S. District Court, they should look at the FTC's administrative litigation results before their own ALJ's -- clearly about as specialized an antitrust court as one could concoct. But my holistic hunch is that in those relatively rare cases where the ALJ's reach decisions on the merits in economically complex cases, they're probably reversed on appeal by the Commission or the Courts of Appeal at an even higher rate than are generalist District Judges. Can you say "Rambus" boys and girls?
12.30.2008 7:07pm
trad and anon (mail):
He's trying to prove too much here. First, it's not clear that the appeal rate is the relevant metric.
I think the appeal rate is pretty obviously not the relevant metric. The implicit assumption seems to be that the only reason their decisions might be appealed less is that their decisions are "correct" more often. Judges who attend the seminars might just be different from other judges in some way. Steve suggests that they have more interest in antitrust law (seems plausible); you suggest that they systematically take different kinds of cases (which also seems plausible). Judges who attend might just be more pro-defendant, which would produce fewer appeals because antitrust defendants tend to have more resources to prosecute an appeal. Any of these factors could explain the effect without the GMU seminars having any effect at all.

Or, for that matter, the GMU seminars might simply bias judges against antitrust defendants. That would produce the same effect without producing "better" decisions in any sense (unless you think more pro-defendant antitrust law is better per se).
12.30.2008 10:33pm
Randy R. (mail):
At the least, it seems highly unlikely that a losing party will say, hey we lost fair and square, and this judge really knows his stuff, so there is no point to appealing the case.

Another reason why this isn't a good metric is that the losing parties might conclude that the cards are stacked against them in the appellate court, and so it's not worth the time spent just to lose again.
12.30.2008 11:31pm
Public_Defender (mail):
Gifts to public employees are routinely restricted, especially from people whose matters will come before those employees. The problem with the "education" is that it's also a thinly disguised gift of a luxury vacation to the judges and their spouses paid for by groups who have (or expect to have) matters before those judges.

The solution is simple. Either judges can pay their own way with their generous salary (they are the highest paid government lawyers and the highest paid employees in federal courthouses) or the federal government can give them a training budget.

Please, continue the "education." But if the education is as valuable as you claim, the judges should be willing to pay their own way with their generous salary. If cost to the judges is a problem, drop the luxury vacations that come with the seminars. You can still learn something in a Ramada conference room. I also understand that George Mason has a whole building (maybe more) with fully-equipped classrooms it could use for these seminars.
12.31.2008 6:18am
Public_Defender (mail):
The George Mason luxury vacations/seminars are examples of how so many judges expect to be wined and dined. They want to accept gifts that would lead to criminal charges if accepted by many other public employees.

The judges expect to be treated financially as if they were the best paid private attorneys. They even whine (as ex-judge Cassell did), that they can't support a family on a salary most Americans (and most lawyers) would dream of. Chief Justice Roberts joined the party when he claimed that the judiciary was suffering because it did not have enough lawyers from white-shoe law firms even though lawyers from those law firms are grossly over-represented on the federal bench.

Most private sector lawyers pay for their continuing education out of their own pocket on an income far less than what the federal judges make. And don't forget that federal judges continue to "earn" their federal salary while at these seminars, but private lawyers have to take an unpaid vacation.

The judges' sense of entitlement to litigant-paid (albeit indirectly litigant-paid) luxury vacations makes me sympathize with Blagojevich. If the judges want luxury vacations, they can budget their generous salary to permit them. If, like Professor Cassell, they lack the financial skills to balance a family budget on $170K a year, they can leave public service and make the big bucks they feel they deserve. There are plenty of highly qualified lawyers and state court judges who would be happy to fill the empty seat.
12.31.2008 7:09am
FoolsMate:

At the least, it seems highly unlikely that a losing party will say, hey we lost fair and square, and this judge really knows his stuff, so there is no point to appealing the case.

Another reason why this isn't a good metric is that the losing parties might conclude that the cards are stacked against them in the appellate court, and so it's not worth the time spent just to lose again.


This type of thinking actually illustrates why appeals rate is a decent (Prof. Wright I think would agree not perfect) metric of the efficacy of judge training programs. After losing in court, litigants decide whether to appeal based on a variety of factors, one of which is perceived likelihood of prevailing in higher courts. Most commercial litigants will not appeal when they believe they have zero chance of ultimately winning on appeal; conversely, they will often appeal when a reversal seems certain. A judge will be overturned less often when he gets the law "right" -- defined by consistency with higher courts -- and will be appealed less by rational litigants when their counsel is able to see that. There are other factors in play here but it seems obvious to expect an appeals rate decline with judicial education.
12.31.2008 3:37pm
EMG:
I (a non-lawyer trying to decide whether to go into law) listened to the audio of the panel. It was my first listen to Federalist Society material after hearing several ACS panels in the past few days. As a centrist I am not entirely sympathetic (or unsympathetic) to either group's point of view, but the difference in tone and professionalism between the two is striking. I found the tone of the Federalist Society presentation at once vulgar and smug. I have yet to hear anything like that from ACS. It is unfortunate.

That said, it's fairly obvious that the legislation is designed to discriminate as to content without coming out and saying that's what it's doing. But attitude plays into that too. It was disturbing to hear one gentleman, presumably a judge, ask what would happen if he defied the law. You all might stand a lesser chance of being discriminated against if you present yourselves more respectfully. (I am not speaking of you personally, Prof. Volokh; you were perfectly civil throughout.)

This is a great blog and I'm glad I found it. I am afraid that it may inappropriately sway my personal decisions by making law seem more interesting than it actually is!
12.31.2008 3:51pm
EMG:
I am personally close to a situation where a small business was bankrupted by litigation from a major corporation. Doesn't the likelihood of an appeal depend on whether one can afford to keep paying lawyers? That was certainly what happened in the case I am familiar with. It also seems likely that one's willingness to risk an appeal would depend on whether one is defending an advantage already possessed, or trying to gain an advantage one never had in the first place. That suggests to me that the large, wealthy, and established would be more likely to appeal an adverse decision than small, underfunded newcomers. If that's right, then favorable decisions for the big guys would reduce the appeals rate more quickly than favorable decisions for the little guys would. So it's plausible that if judges develop views friendly to big business, they will decide in favor of the parties more disposed to appeal, and that will drive the appeals rate down. Not saying that's necessarily what's going on (for one thing, I can't actually support the rather ungenerous assumption that George Mason seminars = "friendly to big business"), just one possible explanation.
12.31.2008 4:18pm
Hamilton:
"I found the tone of the Federalist Society presentation at once vulgar and smug."

That's what they do. It's their shtick.
12.31.2008 5:07pm
Public_Defender (mail):
I watched about half the program. Judge Randolph came across as an arrogant jerk. "I'm so pure, how dare you think that a lush vacation might sway me." (Not an exact quote, of course.) If his presentation is an accurate reflection of him, he lacks the self-assured humility that it takes to be a good judge.

There were good arguments about the scope of the exceptions (which perhaps should be eliminated), but other than that Schiff had the much stronger argument.

Randolph came close to outright lying about the 20/20 program. He asserted that the program gave the impression that the seminar paid for the judges' greens fees, when the program expressly said that was not the case.

Randolph also claims that the purpose of the legislation is to shut down his viewpoint, but I just don't see that. The two-man advocacy firm he criticizes may want to do that, but Feingold's legislation just demands that the well-paid judges pay their own way, like about half the audience did at this seminar. If judges are so willing to support the programs through donations (as he says), why won't they just pay the expenses directly? His arguments aren't even consistent with each other.


"I found the tone of the Federalist Society presentation at once vulgar and smug."

And you wonder why so many people want to stop the freebies. Judge Randolph's arrogance makes him a terrible advocate for his cause. Judges sometimes make the worst advocates.
12.31.2008 7:37pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.