New England Law Review: Volume 48, Number 3 - Spring 2014

Foreword: Productivity in Public Adjudication

JORDAN M. SINGER*

[48 NEW ENG. L. REV. 445 (2014)]

There is a certain conceit to measuring the work of the American judiciary. The act of measurement is premised on objectivity and universality: to measure something is to say both that its qualities can be measured (that is, the chosen metric meaningfully reflects empirical reality) and should be measured (that is, the chosen qualities meaningfully reflect the work being done). These assumptions hold up well if we are measuring the work of an Olympic sprinter (how much time does it take to run 100 meters?) or a competitive eater (how many hot dogs can be consumed in twelve minutes?). They also hold up well for measuring manufacturing work (how much time and money does it take to produce each widget, and how many widgets pass uniform quality standards?). But the work of the judiciary is fundamentally different from that of an athlete, competitive eater, or manufacturer. Not every case looks alike, and not every result should be identical. Rather than aiming for a fixed set of criteria, judges must balance competing concerns about cost, delay, due process, fealty to the substantive law, and equitable considerations in every case that comes before them.

The measurement of judicial work also presents a host of definitional and methodological questions. Should we evaluate courts as a unit or focus on individual judges? What are the proper criteria for measurement? For that matter, what does it mean to say that a court is efficient? Productive? Accurate? What does excellent (or adequate, or inadequate) judicial performance look like? If we cannot measure all aspects of the judicial process to our satisfaction, should we move forward with what we can measure, or wait until sufficient metrics are in place across the board? And in an era when budget pressures are an everyday reality, how should we pay for any of this?

Given these questions and challenges, it may be tempting to save measurement of the judiciary for another day. And yet the public nature of judicial work demands assessment now. Courts are public institutions, and judges are public servants. Their work affects not only the parties before them, but also the perceptions of every other person who comes into contact with the system—whether as a juror, witness, interested onlooker, or simply an engaged member of the public. Those perceptions matter, both for courts’ own legitimacy and for ongoing public confidence in the judicial system. In short, courts must undertake the challenge of self-assessment and self-improvement to fulfill their public mission. Even as cases reach different resolutions, courts must continue to be guided by common standards of adjudicative excellence.

This symposium issue of the New England Law Review examines efforts to evaluate the judiciary’s work in light of these complex realities, and the contributing authors wrestle with these issues eloquently, intelligently, and with an array of different approaches. For several contributors, the starting point is a productivity model for federal district courts that Judge William Young and I proposed in a recent pair of articles.¹ That model posits that court productivity measures must go beyond longstanding efficiency metrics like time to disposition and docket clearance, and explicitly account for the quality of adjudication as well.² We further suggested that adjudicative quality should be defined as a function of both the accuracy of case outcomes and the fairness of the procedures used to reach those outcomes.³ We then proposed that procedural fairness can be meaningfully approximated at the federal district court level through a new metric called bench presence, which reflects the total number of hours that an active judge in a given district spends on the bench, adjudicating issues in open court.⁴

The bench presence metric is intended to capture the essential relationship between open court adjudication and the primary determinants of procedural fairness: opportunities for litigants’ participation and voice, neutrality of the forum, trustworthiness of legal authorities, and the degree to which all people are treated with dignity and respect.⁵ Not only do these values reach their highest expression in the open courtroom, but in some instances (involving litigant participation or public demonstrations of dignity and impartiality) they can barely exist outside the courtroom. The primary purpose of introducing the bench presence metric and our productivity model, then, was to advance the conversation as to what productive trial courts should really look like. Our sense was that measuring bench presence (and combining it with existing efficiency measures now and to-be-developed accuracy measures later) brings us closer to describing the real work of the federal district courts—both descriptively and normatively.

Our productivity model is new, but Judge Young has laid its groundwork for more than a quarter-century. He is one of our country’s most passionate defenders of the jury trial, an articulate and inexhaustible advocate for the notion that [p]roperly charged, American jury verdicts come closer to genuine justice than any other human institution ever conceived.⁶ Judge Young also originated the push for better federal district court productivity measures. In his keynote speech for this symposium, contained in full in this volume, he describes his own efforts to identify America’s most productive federal district courts, based on a combination of bench presence, trial hours, and actual trials.⁷ These listings, which he continues to update every year, were the forerunners of our productivity model and in a sense represent Bench Presence 1.0. Judge Young’s keynote also reminds us, in his inimitable style, why court measurement matters: the experience of fair, accurate, efficient, and public justice in the courtroom affects every user or potential user of the justice system.

Our productivity proposal drew a range of highly thoughtful reactions. In their contribution to this symposium, Professor Steven Gensler and Judge Lee Rosenthal remind us that the core elements of procedural fairness—participation, neutrality, trustworthiness, and dignity—are fully consistent with active case management in the district courts. Good judicial case management, they tell us, is participatory and interactive, not remote and dictatorial. . . . The best case-management practices do not cause judges to vanish from view; they cause them to reappear—to the parties, to the lawyers that represent them, and to the public.⁸ To illustrate the point, they offer a range of tools that combine case management with direct interaction between judges and parties: live Rule 16(b) conferences, pre-motion conferences for discovery and dispositive motions, and hearing oral argument on motions that only later proceed to full briefing.⁹ These tools and others underscore the point that good management and traditional adjudication go hand in hand.¹⁰

The court productivity model proposed in the Bench Presence articles included accuracy of outcomes as a central component in adjudicative quality, but deliberately set aside the question of how such accuracy might be consistently and universally measured. In his contribution to the symposium, Professor Chad Oldfather challenges this piece of the model, arguing that outcome accuracy cannot—or at least should not—be included in a court productivity measure. He explains that [a]ccuracy, in cases where it counts, depends on too many assessments that are too contestable or indeterminable in too many respects.¹¹ Using an extended case study to illustrate his point, Professor Oldfather concludes that efforts to objectively assess the accuracy of an outcome would require replicating the entire case, and even then would be subject to the very real possibility that different people would come to different conclusions about the same evidence, or even that the same person would come to different conclusions at different times.¹²

While Professor Oldfather worries about accuracy on its own terms, Professor Mark Spottswood worries about accuracy’s sublimation to more easily accessible efficiency metrics. After cataloging the wide range of federal and state efforts to boost the speed of case processing over the last half-century, he asks what has been gained—or lost—as a result. Among his many insights, Spottswood argues that emphasizing (and sometimes exclusively measuring) case processing speed comes at a cost to outcome accuracy, does not necessarily result in happier or more satisfied litigants, and does not guarantee lower litigation costs.¹³ In a word, advantaging efficiency over other measures—at least without concluding that delay has a harmful impact on more fundamental litigation values[]—is perilous.¹⁴

Public courts operate within a political environment, and their work is influenced by legislative goals and policies. In her contribution, Professor Carolyn Dubay reminds us of that broader picture, cautioning that in the current economic climate, measurements of federal court productivity must reconcile increasing pressure on the courts to do more with less.¹⁵ That is, one cannot reasonably expect courts to continually improve their efficiency and productivity when judicial vacancies remain unfilled, courthouses are closed, and budgets are slashed. Professor Dubay offers no magic bullet for the current predicament, but provides something all the more useful: an analytical framework for evaluating proposed judicial productivity measures. In particular, she argues that productivity measures must account for both the extent to which such measures incentivize judges to engage in activity that promotes prudential and constitutional goals, and the impact of the measures on judicial resources in the current climate of aggressive cost containment.¹⁶

Another broadening perspective comes from Malia Reddick, who helpfully turns the spotlight to the appellate courts. Dr. Reddick, the former Director of the Quality Judges Initiative at the Institute for the Advancement of the American Legal System at the University of Denver (IAALS), explains that just as trial court evaluation should measure the primary work product of trial judges (courtroom activity, periodic rulings, and trials), appellate evaluation should measure the primary work product of appellate judges: the written opinion.¹⁷ She goes on to describe a carefully constructed opinion review process, developed by IAALS over the course of two years. The opinion review is designed to fit neatly into judicial performance evaluation programs that already exist—or are being considered—in a number of states.

Judge Young and I conclude this issue with a brief response to the rich set of ideas that are contained herein.¹⁸ We offer a few additional observations about the future of the bench presence metric, our productivity model, and the general measurement of judicial activity. But response is not quite the right word for our essay, because it inadequately captures our delight at the sophistication and insight of the other contributions. I am personally thankful to all of the symposium participants for their perceptive comments and ideas, and I am also deeply grateful to the editors of the New England Law Review for providing a forum for discussing these important issues. Our hope at the outset of the bench presence project was that it would spark a national conversation on court productivity and performance measures, and this symposium issue makes clear that the conversation has begun in earnest.

Footnotes

* Associate Professor of Law, New England Law | Boston; A.B. Harvard College; J.D. Harvard Law School.

1 See Hon. William G. Young & Jordan M. Singer, Bench Presence: Toward a More Comprehensive Model of Federal District Court Productivity, 118 PENN ST. L. REV. 55 (2013) [hereinafter Bench Presence]; Jordan M. Singer & Hon. William G. Young, Measuring Bench Presence: Federal District Judges in the Courtroom, 2008–2012, 118 PENN ST. L. REV. 243 (2013).

2 Bench Presence, supra note 1, at 57–58.

3 See id.

4 Id. at 89.

5 Id. at 80.

6 Hon. William G. Young, Keynote: Mustering Holmes’ Regiments, 48 NEW ENG. L. REV. 451, 463 (2014).

7 Id. at 455.

8 Steven S. Gensler & Hon. Lee H. Rosenthal, Pretrial Bench Presence, 48 NEW ENG. L. REV. 475, 477 (2014).

9 Id. at 490—91. See generally Steven S. Gensler & Lee H. Rosenthal, The Reappearing Judge, 61 U. KAN. L. REV. 849, 857–65 (2013).

10 Gensler & Rosenthal, supra note 8, at 487.

11 Chad M. Oldfather, Against Accuracy (as a Measure of Judicial Performance), 48 NEW ENG. L. REV. 493, 494 (2014).

12 Id. at 500.

13 Mark Spottswood, The Perils of Productivity, 48 NEW ENG. L. REV. 503, 528 (2014).

14 Id.

15 Carolyn A. Dubay, A Country Without Courts: Doing More with Less in the Twenty-First Century Federal Courts, 48 NEW ENG. L. REV. 531, 543 (2014).

16 Id.

17 Malia Reddick, Evaluating the Written Opinions of Appellate Judges: Toward a More Qualitative Measure of Judicial Productivity, 48 NEW ENG. L. REV. 547, 552 (2014).

18 Jordan M. Singer & Hon. William G. Young, Bench Presence 2014: An Updated Look at Federal District Court Productivity, 48 NEW ENG. L. REV. 565, 565—78 (2014).

Keynote: Mustering Holmes’ Regiments

HON. WILLIAM G. YOUNG*

[48 NEW ENG. L. REV. 451 (2014)]

A new and valid idea is worth more than a regiment, said Holmes, and fewer can provide the former than command the latter.¹ This symposium is a splendid gathering of ideas. Without expression and exposure to the free marketplace of ideas, even the best idea can make no difference. It is my co-author, Professor Jordan Singer, who brought our Bench Presence idea to publication and made possible this symposium.

Ideas are not enough. The motto of my school is truth; yet truth alone is not enough. Justice, Brandeis said, is but truth in action.² Truth in action—making that possible is New England Law | Boston’s own, the Honorable Paula Carey, Chief Justice for Administration here in Massachusetts. I am so very proud she is here.

Make no mistake—what we say here is important; and what we do hereafter is even more important for our Commonwealth, our country, and our democracy.³ If we are to preserve democracy, said Learned Hand, there must be one commandment. Thou shalt not ration justice.⁴

And yet we do—every day. We have recently seen our federal government actually shut down for sixteen days.⁵ Is the provision of justice for our people no longer essential? Face it—the American jury system is dying. It is dying faster in the federal courts than in the state courts and faster on the civil side than the criminal.⁶ It is dying, and its passing is the greatest threat to judicial independence in America today.

Stark claims, but consider—we have so deconstructed the role of the trial judge that today more than half of us are no longer clear on the concept. How can this be so?

I conceive of trial as the primary means provided by our Constitution and laws for the fair and impartial resolution of legal disputes. All litigants come to court seeking a prompt trial or the credible threat of a trial.⁷ This is called the trial model of district court business.⁸

This is, however, the minority view. Today, the administrative model of district court business holds sway.⁹ The administrative model seeks the speedy, inexpensive (to the courts), and cost-efficient resolution of every case.¹⁰ Trials, being costly and inefficient, are disfavored.¹¹

Both models require hands-on judicial management, of course, but their goals are significantly different. Under the trial model, the judge makes management decisions with an eye toward how the case is going to be tried.¹² Settlement and mediation are constantly encouraged, but the judicial function is seen as steering the case toward a prompt and fair trial. The choice to opt-out is left to the litigants. Under the administrative model, the primary goal is case resolution. Trial is an option, but usually a last resort.

These are not theoretical differences in management style—they are actual, palpably different approaches that lead to different institutional competencies and outcomes. The issue is not judicial management. Everyone agrees judicial management is necessary and beneficial. The issue, rather, is—as one astute commentator has so ably observed—how should district court judges be spending their time?¹³

Today, the measures publicly used by the Judicial Conference of the United States to evaluate the performance of the ninety-four district courts all emphasize the administrative model. By omission, these measures tend to undermine the operations of America’s most productive district courts.¹⁴

Every lawyer knows the difference. Emerging from a conference before a judge ascribing to the administrative model, one lawyer is apt to say to the other, He’s wondering how to get rid of our case. At the same conference before a judge ascribing to the trial model, the lawyer will say, She’s wondering what the verdict slip will look like.

The result of the rise of the administrative model: our federal judicial system is ever slower and more costly, even as our research shows that judges spend progressively less time on the bench¹⁵ and handle an aggregate of only eight to nine civil and criminal trials every year.¹⁶

Since fact finding in our American system takes place only in open court, each year there is less and less fact finding with a concomitant erosion in the judicial branch’s moral authority.¹⁷ The eclipse of fact finding foreshadows the twilight of judicial independence.¹⁸

Simply put, the goal of the trial judge is not resolution of every case by any means at hand; rather, it is resolution by fair and impartial adjudication by jury trial wherever permitted. With such single minded focus on adjudication, settlements largely take care of themselves. After all, nothing so concentrates the mind of the trial lawyer as the prospect of trial on the morrow.¹⁹

So I am here to beg.

I am here to beg for your best ideas, your best and most thoughtful research addressing three crucial issues:

First, we need to get judges back out on the bench. As Judge Franklin Ford said to that great courtroom deputy clerk, Austin Jones, You [have to go out on the bench and] listen to the bastards, Austin. They might just have something.²⁰ This is the gravamen of our argument for bench presence. It is likewise the thrust of Steve Gensler and Lee Rosenthal’s brilliant article, The Reappearing Judge.²¹ Going further, I have—for five years now—been putting out a listing of America’s Most Productive Federal Courts ranked by time on the bench, trial time, and number of civil and criminal cases tried per active district judge.²² All this to exhort federal district judges, as Justice Meagher exhorted me, [G]o on the bench every day and try cases.²³

We must be cautious not to claim too much for productivity, however defined. There is, for example, no direct relationship between productivity, as I’ve defined it in Appendix A, and case terminations.²⁴ See Figure 1 below:

That’s right, there’s no direct relationship.

This set me to thinking that maybe the discontinuity occurred among those courts that had the highest caseloads (swamped with cases, perhaps productivity doesn’t count for much) and the lowest (with only a few cases to get to trial, perhaps productivity is marginalized). Maybe productivity affects terminations among courts with roughly average caseloads. Thus, we ranked productivity against case filings. See Figure 2 below:

Again, there is no relationship.

There matters sat for a while. Matching various variables, we matched case filings with terminations on the same per active judge basis. See Figure 3 below:

Bingo! The relationship is unmistakable. This is the first noteworthy finding from this effort. It appears that, by hook or crook, across the district court board, court through-put is more or less constant. Courts with the highest per active judge case filings also have the highest per active judge terminations, and the courts with the lowest caseloads seem satisfied to dispose of their business without ever getting ahead.²⁵ It almost seems as though court productivity makes little practical difference.

The intriguing finding, however, is the portion of cases disposed of without judicial action which seems to increase with per-judge case load. To my surprise, nearly half of the district courts (42 out of 94) dispose of more than a quarter of their business without any judicial action at all. Indeed, the figure approaches or exceeds 50% for some courts. This is the second important finding of this project. Thousands of cases are filed in our federal courts only to disappear without any judicial action. What happens to these cases? This surely is an area that warrants further study.²⁶

I do not have answers to these questions. My point here is that with more robust metrics as to judicial operations, more important and telling research questions can be framed and addressed.

Second, it bears continuing and unceasing emphasis that injustice anywhere is injustice everywhere. To properly discharge the judicial function requires affording a high degree of autonomy and discretion to each individual trial judge and each individual trial court. This, however, creates a tension as judges may tend to act as though the only significant cases are those before their own court even though uneven case distribution may be causing injustice and bottlenecks elsewhere.

For example, I am a loyal son of the Superior Court.²⁷ That’s where I learned to be a judge and I will be forever grateful to those giants in the law with whom it has been my privilege to serve. At the same time, we must all acknowledge that our judicial duty is to lend a hand wherever the need is greatest.

On the federal side, the same balkanization is apparent from district court to district court. Here, however, there is a growing realization that since, due to budget constraints, we are going to do less with less²⁸ it is necessary to work smarter and more cooperatively. Let me recount a few important recent examples:

Faced by over 1,300 triable tobacco product liability cases on top of their already crowded docket, the Middle District of Florida proactively reached out for help.²⁹ Today one circuit judge and thirty-two district judges (nearly 5% of the nation’s 677 active district judges) from every geographic circuit are traveling to the five locations where the Middle District of Florida sits to afford these litigants the jury trials guaranteed by our constitution.³⁰ This is an extraordinarily cooperative federal judicial venture. (Oh yes, some of you say. But that’s Florida. Try it in Fargo, North Dakota and see what happens. Well I’m here to tell you that Ocala in August is no walk in the park.)

Approximately the same number of district judges volunteer to handle pretrial motions and jury-waived cases via the judiciary’s videoconferencing infrastructure. This is an extraordinarily powerful technological tool. It is cost effective, as neither judicial officers nor staff need travel, and lawyers and litigants need appear only in their home courts. Moreover, it exposes judges and law clerks to the variances in other circuits’ jurisprudence.³¹ I know one judge doing this who is currently authorized to sit in five different districts.

My predecessor Peleg Sprague would sign as Judge of the United States.³² That is how we federal judges ought to think of ourselves. If these ideas are worthwhile—and they are—why don’t we step them up ten-fold? For example, why not consolidate all social security, bankruptcy, and state habeas appeals (i.e. all those many cases that do not require taking evidence) and redistribute them across the nation so that district court caseloads are more or less even?³³ The simple fact is this—we need every one of our 678 active U.S. District Judges. Any measure that reduces this number impairs the quality of justice in the United States.

Third, and most important, we must make the American jury central to our efforts to improve judicial operations. Consider this: did you know that your right to sit on a federal jury diminished by nearly a third (32.54% to be exact) over just the past eight years?³⁴ That ought concern us all.

America is the only country in the world to embrace what I call first instance constitutional interpretation—investing in a single federal trial judge the power to declare an act of Congress unconstitutional. The principle stems from dicta in John Davis’s 1808 decision in the District of Massachusetts: The William.³⁵ This case is called the most important constitutional law case not decided by the Supreme Court,³⁶ the principle today is constitutional bedrock.

Why? The answer is simple: Without it, our jury system simply could not function. To decide cases fairly, juries must be properly instructed as to the law, so it falls to the individual trial judge to declare what the law is.³⁷

Without juries, however, it is fully within the province of Congress to ossify the law so that only Supreme Court decisions matter.³⁸ Indeed, Congress has done precisely that in the Antiterrorism Effective Death Penalty Act,³⁹ an area of habeas corpus law where juries do not sit. So it is that the American jury is the most effective bulwark against the erosion of judicial independence.⁴⁰ As Jefferson so cogently predicted, Trial by Jury [is] the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.⁴¹ These things matter.

Thus, we need a more robust jurisprudence of the constitutional right of juries themselves to sit and adjudicate cases.⁴² Remember that the remedy in Batson was to sit the juror against whom an improper peremptory challenge had been raised.⁴³ Why then is it not the constitutional right of the people themselves to come into court and sit as jurors once a judge has determined that a case is trial ready? This would seem to be the mandate of Article III (criminal cases)⁴⁴ and the Seventh Amendment (civil cases).⁴⁵ Such a right is beyond Congressional power to abrogate, either directly or by removing funding.⁴⁶

Are any of these ideas worthy of Holmes’s regimental status? Others must decide. This much I know is true: The defense of our American jury system and the judicial framework that supports it has never been more important, for it is under constant assault.

Here, for example, is what one academic recently had to say about juries:

Many characteristics of juries limit their ability to dispense informed and objective justice, especially when compared to judges. . . . [T]he typical jury posses[es] much less formal education than the typical judge—often, no more than a high school education . . . . Additionally, juries drawn from the general population—as all juries are—will tend to have innate biases towards those they identify with, usually meaning smaller parties and individuals. . . . [This] hurts the interests of justice when the law is on the side of the larger party. By the opposite token, the wealthier side will usually have the option of hiring more expensive and talented legal counsel—attorneys who are experts in playing on the emotions of juries. For this reason, with a jury system, whichever party has the most resources also has a greater ability to distract the fact-finders from reaching the correct decision. In either case, the higher manipulability of juries is another reason not to sue them. Judges, as learned experts having extensive familiarity with the procedures of justice, are much less likely to substitute the attorneys’ judgment for their own.⁴⁷

This is what passes for scholarship today.

I have been a trial