I received lots of mail from former Ninth Circuit clerks in response to my Friday post on the role that bench memos play in the Ninth Circuit. Some agreed with my pet theory that shared bench memos contribute to some of the Ninth Circuit’s quirky decisions; others weren’t convinced. I thought VC readers might be interested in a sampling of the responses.
From a former clerk to one of the court’s liberal judges:
I think you’re spot-on regarding the Circuit’s unusual practice of having one judge’s clerk write a bench memo for the entire panel. It probably does lead to quirkier opinions. I’d simply add that we scrutinized the bench memos of certain judges far more intensely than others. To some extent, the additional scrutiny was a function of politics — god forbid I’d accept tout court a bench memo written by the clerks [of particular conservative judges], because they would inevitably slant facts or ignore cases for partisan political reasons. By and large, though, the additional scrutiny would reflect the Judge’s assessment of the legal abilities of the other judges on the panel, an assessment that in no way tracked their political ideologies. Simply put, the Judge thought some judges were better than others, a fact that invariably affected the quality of the clerks they hired. So we knew going into each panel the level of scrutiny we should give the bench memos from the other chambers.
From a former clerk to a conservative-leaning judge on the Ninth Circuit:
[When I was a Ninth Circuit clerk,] I thought some of its problems could be attributed to the sharing of bench memos as well. In fact, I proposed to my co-clerk that we write a law review article on the subject, but that never materialized.
A former clerk to one of the Ninth Circuit’s prominent conservative judges offered this perspective:
I think you’re right about the bench memoranda on the ninth circuit being partially responsible for the outlier decisions. Some judge’s chambers were notorious for simply doing poor work, other judge’s chambers notorious for doing politically motivated work, and you really had to check up on them. Problem was, bench memoranda were often circulated very close to oral argument, so there wasn’t much time to do the necessary research, write a memorandum for the judge explaining how the case might more properly be viewed, etc. So having only one chamber do an initial memorandum might work if you provided enough time for review and comment, but the Ninth doesn’t.
A former clerk to one of the Ninth Circuit’s leading liberal judges offered a somewhat different take:
There may be something to what you say, but you miss an important psychological dynamic that cuts the other
way. As a clerk, there’s really nothing better than finding an error in a bench memo produced by another chambers. It makes you feel like a real smarty-pants. One of the best things in Ninth Circuit clerk life is being able to brag at the end of a case: “We came out this way, but actually the bench memo from ___ chambers recommended the other outcome. I wrote a memo disagreeing, and the panel came out my way.”
More generally — even accepting the factual premise that an unusually high number of Ninth Circuit cases are outliers (is there any real empirical support for such a claim?), the explanation is probably more straightforward. Ninth Circuit judges don’t care much about disagreeing with other circuits, and perhaps they don’t care much about being overturned. In my experience, when we were writing a case that might be considered an outlier, we knew what we were doing. When the Ninth Circuit produces “outlier cases,” it’s not because of poor legal work — it’s just that it disagrees with everyone else.
One significant problem with my theory is that, according to my correspondents, the Fifth Circuit and the Sixth Circuit also share bench memos. The Sixth Circuit is just about as dysfunctional as the Ninth Circuit, so I don’t know which way that cuts, but it seems important to note that the Ninth isn’t the only circuit that uses a common bench memo. That does cut against the theory.
UPDATE: Sources have informed me that the Sixth Circuit does not routinely share bench memos. Some judges do, but most don’t, and in any event it is not a circuit practice. Sorry for the confusion.
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