Category Archives: Chris Bonneau

Scarcity and the Value of Journal Publications

A couple of recent events has caused me to think about the issue of the scarcity of journal space.  Recently, the Law and Courts Section of APSA formed a committee (and surveyed its membership) about the need for a section journal.  One of the strongest arguments put forth in support of a section journal is that it would provide more opportunity for scholars (particularly junior scholars) to get their work published.  This is of no small concern to junior faculty as tenure decisions are often based on the quantity and quality of their scholarship.  More opportunities for publication will also benefit the community as a whole since we all would benefit from the additional knowledge being disseminated in articles.  Additionally, I have noticed both the shrinking size of the APSR (the flagship journal in the discipline) and the increasing size of the JOP (a premier journal, widely recognized as the 3rd best journal in the discipline).  Finally, some (links not readily handy) have argued that academia should do away with the peer-review publication system and publish everything on-line.  In the marketplace of ideas, the best works would be most heavily cited and those papers that were less useful (or fatally flawed) would be ignored.  There is obviously positive and negatives to such an approach–I’ll save that for another blog post.

Pre-tenure, I was all in favor of a section journal.  Selfishly, I did not care much for the argument that the scarcity of journal space (especially in the top 3) was an indicator (however imperfect) of the quality of the research.  After all, those who study legislatures have LSQ.  If you do mass politics, you have POQ and Political Behavior (and maybe even some others).  For courts people, there are no comparable journals.  LSR is interdisciplinary as is JELS and JLS.  Both Judicature and JSJ are fine outlets, but the audience for these journals is composed of practitioners as well as academics (thereby limiting the type of research published there).  So, there is no LSQ for courts people.

However, the more I think about it, the less sure I am that a section journal is a good idea.  The reason for this has to do with the issue of scarcity.  It seems to me that we should want scarcity–it is a quick measure of quality.  That is not to say that there are no “clunkers” in journals.  However, I have found that, on average, the best papers tend to be published in the best journals.  Moreover, I have found that there is a home for just about all quality papers.  Is the status quo perfect?  No.  I am sure we can all blog at length about problems with the current system.  But it is unclear to me that providing more “supply” is the answer.  Indeed, even if demand has increased, then keeping supply at the same level would help journals to be of even higher quality.  While I think the APSR should accept more articles than they seem to be currently accepting, there is little doubt that the prestige of an APSR article has increased with the smaller number of articles being published.  Likewise, if all research is published, then having a “publication” is of little value.  Indeed, this is why some journals are perceived as “better” than others:  some journals are far more selective than others.  This selectivity is a cue for evaluating scholars’ records as well as individual articles:  the more selective the journal, the “better” the publication.

So, I guess I am ambivalent about increasing the amount of journal space and whether the Law & Courts section should go down the road of a section journal.  There seem to me to be good arguments on both sides.  I guess I would be persuaded that it is a good thing if we had evidence that there were articles worthy of publication that were being kept out of the system.  Also, I wonder where the journal would fall in the current hierarchy.  LSQ, by virtue of publishing high quality articles for years, is a good outlet for legislative scholars.  It would take a Law & Courts journal several years to reach that status (if it does at all).  Finally, given the split in the Law & Courts section between judicial politics scholars and public law scholars…the control and administration of the journal (editor, editorial board, etc.) is likely to be contentious, with neither side finding the journal as useful as it could be.

On the Fallacy of Judges as Umpires

Much has been made of the whole “judges as umpires” business, popularized by John Roberts.  Indeed, Dahlia Lithwick has a column in Newsweek (http://www.newsweek.com/id/208123) arguing that Sotomayor’s testimony over the past weeks will make it harder for Obama (or any other president) to appoint a justice who does not subscribe to this mechanical jurisprudence.

Much less has been written about why Roberts’ justice-as-umpire analogy simply does not work (or does not work in the way he thinks it does).  Most basically, umpires work within the rules of baseball; Supreme Court justices help set the rules.  Certainly the analogy works better for lower court judges, who handle more “routine” cases than Supreme Court justices (though there have been several studies showing that lower court judges also make policy).

But even if one were to concede that judges ought not make new rules, then if judging is like umpiring…this is an argument for judges having a lot of discretion (not minimal discretion).  Indeed, umpiring can even be empathetic.  For example, at every level (with the exception of MLB), umpires are not bound by the formal definition of the strike zone.  Indeed, umpires often call strikes that are a ball width off the plate.  Why?  Because it is a hittable pitch.  Moreover, strikes keep the game moving.  Without strikes, there are no hits and no outs.  The game grinds to a halt.  The game cannot even end without strikes (since there is no clock).  As long as the zone is “fair” to the hitters, there is a lot of discretion.  (Even at the MLB level, there is a 2 inch margin of error given when evaluating umpires.)  Thus, sometimes one has to stretch the zone a bit to keep the game moving.  Another example:  a batter cannot intentionally be hit by a pitched ball.  If he does, he is not entitled to first base.  But, a batter is allowed to be frozen by the pitch (at least under NCAA rules).  So, how do you determine whether or not the batter was intentionall hit or whether he froze?  Context and judgment.  Even if judging is like umpiring, this analogy does NOT require a judge to be deferential to Congress.  Or engage in minimalism.  In some cases, it commands precisely the opposite.

On second thought, maybe Roberts has it right:  good judges should be like good umpires.  They should be fair, even if it means bending the rules a little bit.  They should keep things moving.  They should take into account context when making their rulings.  For Roberts to become the Tim McClelland of the Supreme Court, he’ll need to be less mechanical and more “fair” in the upcoming terms.

Things to Read

So, while I was away last week in beautiful Bermuda, I had some time to catch up on some leisure reading.  My two major non-academic hobbies are baseball and our Brussels Griffon, Boss.  Those of you who have similar interests would enjoy reading:

The Yankee Years, by Joe Torre and Tom Verducci.

One Nation Under Dog, by Michael Schaffer

A book I read earlier this summer, which I cannot recommend enough to baseball fans is:

As They Seem ‘Em, by Bruce Weber.

And I would be remiss if I didn’t mention the best book of the summer:  In Defense of Judicial Elections.

Keeping up with the literature

One of the things I (and I am sure others) struggle with is keeping up with the current literature.  Even in a field that seems small (like Law and Courts) there are dozens (if not more) new articles every year that are of interest.  Between producing my own stuff, teaching, administrative responsibilities, baseball games, trips to the dog park, etc., I find it a challenge to keep up.  Moreover, because I teach a graduate seminar every other year, I need to stay somewhat current so I can incorporate the most recent interesting literature into my seminar.

I have tried to solve this by scanning certain journals every 3 months and reading every article on judicial politics in those journals.  The journals I look at are:  APSR, AJPS, JOP, PRQ, APR, SSQ, BJPS, LSR, JLEO, JELS, Political Behavior, Public Choice, QJPS, and Judicature.  Some of these are more useful than others.  (I rarely find anything in BJPS or Public Choice.)  I also only read empirical articles about judicial politics–relatively broadly defined.  I am sure I miss some good article by limiting my scope to only these journals.  And I do not read law reviews at all, unless there is an article specifically brought to my attention.  But I think I get MOST of the good scholarship out there via this search method.  As for books…that is a lot harder.  Both in terms of time and cost (to me and the students), I tend to prefer articles to books (though I do try to read those I find interesting).

So…all of this is a preface to a question:  How are others able to stay current?  What strategies do you use?

On judicial “qualifications”

Over the past few days, there has been an interesting (?) discussion on the Law and Courts Listserv over the nature of judicial qualifications.  Specifically, the issue seems to boil down to whether or not the executive (or judicial nominating commission) should recommend/nominate the “most qualified” individual or a person/slate of people who are all qualified, but also may diversify the bench somehow (demographically, experience, etc.)

It seems to me that anyone arguing for a “most qualified” person needs to first come up with a workable operationalization of that concept.  And I (for one) have yet to see such a concept.  Moreover, even if one were to come up with such an operationalization, it is not clear to me that we ought to be appointing judges in such a manner.  If we think about hiring committees in academia, qualifications are important, but much more important is the “fit” of the candidate.  The same is true is the private sector as well–while one candidate may seemingly rise to the top on paper, how the candidate fites with the mission of the company is just as (if not more) important.  Indeed, this is why candidates interview for jobs and not just simply send in their resumes.

Applying this to the judicial realm, a candidate must first, of course, be qualified.  But, after that threshold has been met, it seems to me that the candidate who is the “best fit” be selected.  When Justice O’Connor retired, she said that Chief Justice Roberts (who was selected to replace her) was perfect in every way, except that he was male.  What she was saying is that he was not the best fit for the job at the time.  Justice O’Connor herself was not the “most qualified” but in the eyes of Reagan, she was the “best fit.”  The same can be said of Thurgood Marshall, Lewis Powell, Clarence Thomas, and countless others:  even if we had a workable operationalization of “best qualified” none of these justices would have risen to the top; however, they were all qualified and they were deemed to be the “best fit.”  Sonia Sotomayor also fits here.

In sum, I wold argue that qualifications are best judged like airplace landings….dichotomously.  One either is qualified or is not, just as an airplane either lands successfully or does not.  Once a candidate has been judged qualified, executives should move on to other things, such as fit.  This is both a normative statement as well as an empirical truth.

Rivera’s Historic (?) 500th Save?

One of the things that is great about sports is that every game you have the chance of seeing something you have never seen before.  In that sense, it is the ultimate reality TV.  The other night, while watching the Yankees-Mets game (apologies to Mets fan Bob Howard), we witnessed such a moment.  With the Yankees leading by a run, they put in the best closer of all-time, Mariano Rivera.  He got the last out of the bottom of the 8th.  In the top of the 9th, with the bases loaded and 2 outs, Rivera’s turn to bat came up.  This was only the third time in his career (since 1995) that he batted in a major league game.  The Mets closer, Francisco Rodriguez (no slouch himself), fell behind 2-0.  Rivera worked the count to 3-2, and then Rodriguez delivered ball 4.  Not only had Rivera walked, but he got credit for a run batted in, since the runner from 3rd scored on the walk.

This got me wondering…has a closer ever earned an RBI in an MLB game.  A quick google search yielded….nothing.  My hunch is that the issue is “no.”  Closers generally enter the game in the 9th inning (or later) and if/when their time to bat comes up, they are generally pinch-hit for since the game is tight and ABs are valuable.  Moreover, there was no such thing as a “closer” until the 1970s–it is a modern development of the game.  Certainly, pitchers who have served as both starters and closers have RBIs (Derek Lowe, Ryan Dempster, etc.)  But….has a pitcher serving as a closer ever received an RBI?

If not, then Rivera’s Hall of Fame career just got even better.

Why the Supreme Court Got It Wrong in the Massey case

Recently, the U.S. Supreme Court decided Caperton v. Massey (http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf).  In this landmark ruling, the Court held that a judge must recuse himself/herself if there was an appearance of impropriety.  In this case, the CEO of Massey Energy (which had a case in the legal pipeline that was likely to be heard by the West Virginia Supreme Court) contributed over $2.5 million of his own money to a 527 group called And For the Sake of the Kids.  This group targeted the incumbent state supreme court justice Warren McGraw (and thus favored his opponent Brent Benjamin).  McGraw lost the election.  When the Massey case was heard by the West Virginia Court, Benjamin refused to recuse himself and voted with the 3-2 majority to overturn a multimillion dollar verdict.  The case is slightly more nuanced than that, but the above facts capture the essence of the case.

By a 5-4 vote, the U.S. Supreme Court held that it was a violation of due process for Benjamin to not disqualify himself.  Justice Kennedy wrote:  “We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  It is important to note that the Court did not find (or allege) that Benjamin’s vote was “bought.”  Rather, the mere appearance of bias was good enough.

Now, on the face of it, it is hard to argue with the Court’s conclusion.  After all, we can’t have biased judges hearing cases.  But, the Court’s conclusions were driven by a selective reading of the available evidence.  For example, 50% of West Virginia incumbents have lost their bids for reelection over the past 2 decades.  Incumbent defeats are not new events in WV.  Second, every newspaper in the state except one endorsed Benjamin over McGraw.  Third, the election was held in 2004.  West Virginia elects its judges on a partisan ballot, and West Virginia supported the reelection of George W. Bush.  It is not surprising that a down-ballot Democrat might lose under these conditions.  But the most damning piece of evidence arguing against the Court’s conclusion was a press release from the WV Supreme Court (http://www.state.wv.us/wvsca/press/march2_09.htm).  Of the 5 cases involving Massey Energy decided by the WV Supreme Court, Benjamin voted against Massey in 4 of them! Indeed, he supported $90.5 million in damages against Massey.  The only time he supported Massey was in the Caperton case, where he voted to overturn a $50 million verdict.  So, the CEO of Massey energy spent over $2.5 million of his own money to help elect Brent Benjamin…and Benjamin repaid him by costing his company $40 million.  Hardly the stuff of justice for sale.

The Chief Justice’s dissent goes into the plethora of unanswered questions raised by the case—I’ll not summarize them here.  I will close, though, with what I think is a likely outcome of the decision.  A conservative interest group in say, Texas, will now decide to support a liberal judge for the Court.  If the liberal wins, they can argue he/she should recuse himself/herself under Massey.  If the liberal loses, all the better since the candidate who is closer to the group will end up winning (and not have to worry about recusal since there is no appearance of impropriety).  Kennedy’s opinion stressed the “extraordinary” nature of the Massey case.  And maybe this case is like Bush v. Gore—good for one time only.  But I fear the Court has opened up a huge can of worms, and provided no guidance as to how lower courts should interpret and implement the decision.