The vanishing common law judge?

• Author: Devins, Neal

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding-dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in judges' practices. In the first fifty years included in our study, district court judges were not notably deferential to either their federal court of appeals or the U.S. Supreme Court. District court judges regularly assessed the relevance and scope of precedents from those higher courts and asserted their prerogative to disregard many of them. Since then, judges have become far more likely to treat a given higher court precedent as dispositive. In so doing, lower courts have embraced a hierarchical view of judicial authority at odds with the common law style of judging. The causes of this shift are multifold and likely permanent; we discuss several of them, including dramatic changes in legal research, the proliferation of law clerks throughout the legal system, the growing docket of lower court judges, the growth of the administrative state, and the Supreme Court's increasing embrace of judicial hierarchy.

INTRODUCTION I. COMMON LAW JUDGING AND THE AMERICAN LEGAL SYSTEM II. THE DEMISE OF COMMON LAW JUDGING A. What's at Stake? B. Data C. Preliminary Analysis D. How Real Is the Change? E. The Death of Common Law Judging? III. CAUSES AND RAMIFICATIONS OF THE DECLINE IN COMMON LAW JUDGING A. Causes 1. Legal Research 2. Judges' Reliance on Law Clerks 3. Explosion of Lower Court Docket 4. Rise of the Administrative State 5. The U.S. Supreme Court's Embrace of Judicial Hierarchy B. Ramifications CONCLUSION INTRODUCTION

This Article will document and offer some explanations for the decline of what we call the common law style of judging, a way of approaching precedent and decisionmaking that once was fundamental to the American legal system. While we are not the first to suggest that common law judging is in decline, (1) we back up this claim with original evidence of the changing behavior of trial judges vis-a-vis higher courts. In our view, the evidence of change is so striking-and the change potentially so consequential-that the subject merits considerably greater attention than it has received from scholars and practitioners until now.

The common law style of judging is an approach that gives pride of place to precedent, but in a specific way: Occasionally, an individual precedent has the capacity to determine the outcome of numerous cases. But typically, it must be read and understood as part of a set of related precedents. Doctrine generally emerges not from a single decision, but rather from repeated efforts to grapple with a particular problem. It therefore tends to develop incrementally. Because trials are the testing grounds of emerging doctrine, a central feature of common law judging is the willingness of trial judges to question the application of precedents that could lead to poor results. When trial judges resist the application of precedents from higher courts-for instance, by distinguishing a precedent or treating language in a higher court opinion as dicta-they, at least temporarily, slow the movement of the law in a particular direction and may succeed in diverting it down another path. Because trial judges hear so many more cases than appellate judges do, they as a group have tremendous potential to shape the law. But to what extent do they seize their opportunities to shape the law, and to what extent does the role that trial judges play today differ from the one they played in the past? These are the questions addressed by this study.

In an earlier study, we considered lower court invocations of the holding-dicta distinction. (2) We found that lower courts hardly ever refuse to follow a statement from a higher court because it is dictum. (3) Specifically, federal courts of appeals meaningfully invoke the distinction in about i in 4000 cases, federal district courts in about 1 in 2000 cases, and state courts in about 1 in 4000 cases. (4) In this Article, we consider the more basic question of lower court adherence to precedent. We address this principally by analyzing U.S. district court judges' treatment of precedents from the Supreme Court and courts of appeals across an eighty-year span. We conclude that today's district court judges play a far less active role in shaping the law than their predecessors did. From 1932 to 1972, district court judges resisted a substantial proportion of higher court precedents. But since 1982, and especially over the past twenty years, they have become much more likely simply to follow the precedents they cite.

This fundamental shift in lower court decisionmaking alters both the balance of authority and the practice of law in our federal system. In part, the demise of the holding-dicta distinction and the increasing uncritical reliance on higher court precedent suggest that district court judges see themselves as subordinates, not partners, in the legal policymaking enterprise. More than that, the causes of this shift are varied and enduring. The internet has fundamentally altered legal research, lower court judges have increasingly looked to law clerks to help them manage an ever-growing docket, the rise of big government has shifted lawmaking power away from courts and to lawmakers and regulators, and the U.S. Supreme Court increasingly has backed a hierarchical model of judging.

This Article proceeds in three parts. Part I highlights the central role of common law judging in the American system and notes recent questioning of its continued vitality. Part II, the heart of this Article, details our empirical study on district court citation practices. Part II also contains a discussion of other relevant empirical work, including our 2013 holding-dicta study and studies of federal courts of appeals' adherence to Supreme Court precedent. These studies strengthen our conclusions about federal district court judges. They also suggest that our conclusions extend to the hierarchical relationship between the U.S. Supreme Court and lower-level appellate courts (federal courts of appeals and state appellate courts). Part III speculates on the causes of the decline of common law judging. It suggests that those causes are enduring, and, as such, common law judging is largely dead. Part III also considers the ramifications of our findings, including a snapshot of arguments defending and critiquing common law judging.

1. COMMON LAW JUDGING AND THE AMERICAN LEGAL SYSTEM

   "[T]he most significant feature of the common law," Chief Justice Harlan Stone once observed, is "the fact that it is preeminently a system built up by gradual accretion of special instances." (5) This image of fact-sensitive and incremental judging was once widely embraced. (6) Consider this description of procedure from a legal scholar writing near the end of the nineteenth century:

   [Analogous] cases are scrutinized, classified, [and] distinguished.... [T]he decision in each case is a step in the growth of the law, a new datum for future reasoning. As this process goes on, fought over at every step by trained counsel and scrutinized by the court, there is a constant shaping of the law. A principle which lay vaguely in the cases takes a more definite form, its boundaries on the one side and the other are determined, and it becomes eventually as fixed and precise as a statutory enactment. (7) Under this view, as Karl Llewellyn put it, a "court can decide nothing but the legal dispute before it.... Everything ... said in an opinion is to be read and understood only in relation to the actual case before the court." (8) This understanding is reflected in the concept of dicta. "It is not what the [higher court] intended that is of any importance; rather it is what the present judge, attempting to see the law as a fairly consistent whole, thinks should be the determining classification." (9) In other words, the doctrine of dicta compels the judge deciding a case to make her "own decision." (10)

   Precedents have also been understood as provisional. As Benjamin Cardozo wrote, the rule of adherence to precedent should be "relaxed" when a decision "has been found to be inconsistent with the sense of justice or with the social welfare." (11) Perhaps more telling, Llewellyn catalogued sixty-four possible ways to use precedent, including "[f]ollowing," "[e]xpans[ion]" and "[r]edirect[ion]," and "[ajvoidance." (12) "Not only does this selection provide judges and advocates with a ready-made tool kit for use in daily practice; it also persuasively demonstrates that courts are not controlled or dictated by prior authority." (13)

   In this traditional view, lower courts "elaborate" on higher court precedent, reasoning by analogy and taking into account changing factual or policy developments. (14) Correspondingly, lower courts' common law power to disavow or limit higher court precedent allows lower courts to respond to "changed conditions" when "convinced that the rule was originally erroneous or is no longer sound." (15) Such resistance by the lower courts, moreover, is "often the only means of bringing the question anew to the attention of the appellate court, and thus affording opportunity for a correction of the blunder." (16) In the common law style of judging, trial judges play an active role in shaping legal policy. Indeed, with trial judges deciding many more cases than appellate judges, trial judges can often play the defining role in legal policymaking.

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