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  • 8/10/2019 Young: Keynote



    Keynote: Mustering HolmesRegiments


    new and valid idea is worth more than a regiment, saidHolmes, and fewer can provide the former than commandthe latter.1This symposium is a splendid gathering of ideas.

    Without expression and exposure to the free marketplace of ideas, even thebest idea can make no difference. It is my co-author, Professor JordanSinger, who brought our Bench Presence idea to publication and madepossible this symposium.

    Ideas are not enough. The motto of my school is truth; yet truthalone is not enough. Justice, Brandeis said, is but truth in action.2

    Truth in actionmaking that possible is New England Law | Bostonsown, the Honorable Paula Carey, Chief Justice for Administration here inMassachusetts. I am so very proud she is here.

    Make no mistakewhat we say here is important; and what we dohereafter is even more important for our Commonwealth, our country, andour democracy.3 If we are to preserve democracy, said Learned Hand,

    *United States District Judge, District of Massachusetts. Judge Young was appointed byPresident Ronald Reagan in 1985. He received an A.B. from Harvard University in 1962 and a

    LL.B. from Harvard Law School in 1967.1 Hon. Oliver Wendell Holmes, Jr., Justice, Supreme Court of the United States, inJUSTICE


    (Harry C. Shriver, ed. 1936).2 Louis D. Brandeis, 1914. SeeThe Art and Craft of Justice: A guide to the stone carvings

    and inscriptions of the John Joseph Moakley United States Courthouse, Boston,

    Massachusetts, available at

    brochure.2e.pdf. (1998).3 As this goes to print, todays symposium is already bearing important fruit. Building on

    our research, Professor Jordan Singer explores the myriad of values implicated through

    interacting with judges on the bench. SeeJordan Singer, Gossiping About Judges, 42FLA.ST.U.

    L.REV. (forthcoming 2015), available at One of our afternoon

    panelists, Rob Farrell, Clerk of the Court, United States District Court for the District of

    Massachusetts, embarked on a rigorous systems analysis of what is involved in developing

    the team necessary to support the trial model of adjudication. See infra. This is especially

    importantwhile we teach judges topics of substantive law and best practices for this and

    that, nowhere do we consider how our various resources (judges, deputy clerks, court

    reporters, law clerks, chambers staff, and information technology) might synergistically be

    deployed together to maximize the just, speedy, and inexpensive adjudication of cases. See


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    there must be one commandment. Thou shalt not ration justice.4

    And yet we doevery day. We have recently seen our federalgovernment actually shut down for sixteen days.5Is the provision of justice

    for our people no longer essential? Face itthe American jury system isdying. It is dying faster in the federal courts than in the state courts andfaster on the civil side than the criminal.6It is dying, and its passing is thegreatest threat to judicial independence in America today.

    Stark claims, but considerwe have so deconstructed the role of thetrial judge that today more than half of us are no longer clear on theconcept. How can this be so?

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

    This is, however, the minority view. Today, the administrative model

    of district court business holds sway.9The administrative model seeks thespeedy, inexpensive (to the courts), and cost-efficient resolution of everycase.10Trials, being costly and inefficient, are disfavored.11

    Both models require hands-on judicial management, of course, buttheir goals are significantly different. Under the trial model, the judgemakes management decisions with an eye toward how the case is going to

    also Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World, 127 HARV. L. REV.

    2173, 2174, 217677 (2014) (arguing persuasively for recognizing the constitutional protection

    afforded the courtroom audience).4

    Learned Hand, Address at the 75th Anniversary of the Legal Aid Society of New York(Feb. 16, 1951); see alsoMilestones in the History of the Legal Aid Society, LEGAL-AID.ORG, (last visited Aug. 6, 2014).5 Lisa Rein, Federal Government Shutdown Cost $2 Billion in Lost Productivity, OMB Report

    Finds, WASHINGTON POST, Nov. 7, 2013, available at 2013 WLNR 28085431.6 Jan Pudlow, The American Jury System is Dying Its up to Lawyers to Protect the

    Fundamental Right of Trial by Jury, FLORIDABAR.ORG (July 15, 2007),

    bd96e4fc0a89a8525731300719de0?OpenDocument.7 SeeD. Brock Hornby, The Business of the U.S. District Courts, 10 GREEN BAG 2D453, 46162

    (2007).8 United States v. Massachusetts, 781 F. Supp. 2d 1, 21 add. (D. Mass. 2011).9 SeePatrick E. Higginbotham, The Present Plight of the United States District Courts, 60 DUKE

    L.J. 745, 747 (2010).10 Cf., e.g., Judith Rudnick, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of

    Article III, 113 HARV. L. REV. 924, 926 & n.3 (noting local district court rules mandating the

    encouragement of alternative dispute resolution and settlement by judges instead of trial).11 See generallyid.

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    2014 Muster ing Holmes Regiments 453

    be tried.12 Settlement and mediation are constantly encouraged, but thejudicial 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 alast resort.

    These are not theoretical differences in management stylethey areactual, palpably different approaches that lead to different institutionalcompetencies and outcomes. The issue is not judicial management.Everyone agrees judicial management is necessary and beneficial. Theissue, rather, isas one astute commentator has so ably observedhowshould district court judges be spending their time?13

    Today, the measures publicly used by the Judicial Conference of theUnited States to evaluate the performance of the ninety-four district courtsall emphasize the administrative model. By omission, these measures tendto undermine the operations of Americas most productive district courts.14

    Every lawyer knows the difference. Emerging from a conference beforea judge ascribing to the administrative model, one lawyer is apt to say tothe other, Hes wondering how to get rid of our case. At the sameconference before a judge ascribing to the trial model, the lawyer will say,Shes wondering what the verdict slip will look like.

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

    Since fact finding in our American system takes place only in opencourt, each year there is less and less fact finding with a concomitant

    12 United States v. Massachusetts, 781 F. Supp. 2d at 21 add. (citing Steven S. Gensler,

    Judicial Case Management: Caught in the Crossfire, 60DUKE L.J.669,68997(2010));see alsoHon.

    James E. Gritzner, In Defense of the Jury Trial: ADR Has its Place, but it Is Not the Only Place, 60

    DRAKE L. REV. 349, 354 (2012); Hon. William G. Young, Vanishing Trials, Vanishing Juries,

    Vanishing Constitution, 40SUFFOLK U.L.REV. 67, 84, 89 (2006).13 Steven S. Gensler, supra note 12.

    14 United States v. Massachusetts, 781 F. Supp. 2d at 21 add.15 Hon. William G. Young & Jordan M. Singer, Measuring Bench Presence: Federal District

    Judges in the Courtroom, 2008-2012, 118 PENN.ST.L.REV.243, 279 (2013).16 See infra App. A.

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    erosion in the judicial branchs moral authority.17 The eclipse of factfinding foreshadows the twilight of judicial independence.18

    Simply put, the goal of the trial judge is notresolution of every case by

    any means at hand; rather, it is resolution by fair and impartial adjudicationby jury trial wherever permitted. With such single minded focus onadjudication, settlements largely take care of themselves. After all,nothing so concentrates the mind of the trial lawyer as the prospect of trialon the morrow.19

    So I am here to beg.

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

    First, we need to get judges back out on the bench. As Judge FranklinFord said to that great courtroom deputy clerk, Austin Jones, You [have togo out on the bench and] listen to the bastards, Austin. They might just

    17 As I have stated in the past:

    [F]act-finding is difficult. Exacting and time consuming, it inevitably falls

    short of absolute certainty. More than any society in history, the United

    States entrusts fact-finding to the collective wisdom of the community.

    Our insistence on procedural safeguards, application of evidence rules,

    and our willingness to innovate are all designed to enhance impartial


    Judicial fact-finding is equally rigorous. Necessarily detailed, judicial fact-

    finding must draw logical inferences from the record, and, after lucidly

    presenting the subsidiary facts, must apply the legal framework in a

    transparent written or oral analysis that leads to a relevant conclusion.

    Such fact-finding is among the most difficult of judicial tasks. It is tedious

    and demanding, requiring the entirety of the judges attention, all herpowers of observation, organization, and recall, and every ounce of

    analytic common sense he possesses. Moreover, fact-finding is the one

    judicial duty that may never be delegated to law clerks or court staff.

    Indeed, unlike legal analysis, many judges will not even discuss fact-

    finding with staff, lest the resulting conclusions morph into judgment by

    committee rather than the personal judgment of the duly constituted

    judicial officer.

    While trial court legal analysis is appropriately constrained by statues

    and the doctrine of stare decisis, the true glory of our trial courts, state

    and federal, is their commitment to fair and neutral fact-finding. Properly

    done, facts found through jury investigation or judicial analysis truly are

    like flint.

    Hon. William G. Young,A Lament for What Was Once and Can Yet Be, 32 B.C. INTL &COMP.L.

    REV. 305, 31218 (2009) [hereinafter Young,A Lament] (footnotes omitted).18 Hon. William G. Young,Juries and Judicial Independence, 43 INTL SOCY OF BARRISTERS Q.

    475,481(2007).19 Brookridge Funding Corp. v. Aquamarine, Inc., 675 F. Supp. 2d 227, 230 (D. Mass. 2009).

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    have something.20 This is the gravamen of our argument for benchpresence. It is likewise the thrust of Steve Gensler and Lee Rosenthal sbrilliant article, The Reappearing Judge.21 Going further, I havefor five

    years nowbeen putting out a listing of Americas Most ProductiveFederal Courts ranked by time on the bench, trial time, and number of civiland criminal cases tried per active district judge. 22All this to exhort federaldistrict judges, as Justice Meagher exhorted me, [G]o on the bench everyday and try cases.23

    20 They might just have something. That is the key. It is in the hurly burly of actual court

    proceedings, with opportunity for searching cross examination that factual findings are

    hammered out:

    Yet there has been virtual abandonment by the federal judiciary of any

    sense that its fact-finding processes are exceptional, or due any special

    deference. Federal district court judges used to spend their time on the

    bench learning from lawyers in an adversarial atmosphere and

    overseeing fact-finding by juries or engaging in it themselves. This was

    their job and they were proud of it. Today, judges learn more reflectively,

    reading and conferring with law clerks in chambers. Their primary

    challenge is the proper application of the law to the factsfacts that are

    either taken for granted, or sifted out of briefs and affidavits, and, in the

    mode of the European civil justice systems, scrutinized by judges and

    clerks behind closed doors. While judges do talk to lawyers in formal

    hearings, these hearings can be short, and usually serve to test and

    confirm a judges understanding rather than develop it.

    The major reasons for the decline in the preeminence of fact-finding are

    not structural but cultural. On the civil side, they result from a marked

    shift in emphasis from the trial of actual disputes to mere litigation

    management, resulting in an overuse of summary judgment and a

    concomitant settlement culture. On the criminal side, the sentencingguidelines ushered into judicial opinions a degree of sophistry heretofore

    unknown to the federal judiciary. For seventeen years, an entire

    generation of federal judges spoke of sentencing based on facts

    determined by a preponderance of the evidence, when what they had

    before them was manifestly not evidence, but rather faux facts that had

    neither been tested by cross examination nor presented to a jury.

    Young,A Lament, supranote 17, at 31214(citations omitted).21 See generally Steven S. Gensler & Lee H. Rosenthal, The Reappearing Judge, 61U.KAN.L.

    REV.849(2012).22 SeeinfraApp. A (collecting district court productivity data from 20092013).23 Justice John Henry Meagher was the senior justice of the Massachusetts Superior Court

    when I first came to the bench in 1978. His simple admonition, This is a trial court. Trial

    judges ought go on the bench every day and try cases,is the best advice I ever received as a

    judge because it reminds me that whatever our other obligations, our major efforts ought be

    directed to the trial of cases. This is actually a variant, adapted to the judicial role, of Lord

    Nelsons tactical instruction that [n]o captain can do very wrong if he places his ship

    alongside that of an enemy. C.S. FORESTER, LORD NELSON 324 (1929). It has, for thirty-five

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    We must be cautious not to claim too much for productivity,however defined. There is, for example, no direct relationship betweenproductivity, as Ive defined it in Appendix A, and case terminations.24

    SeeFigure 1below:

    Thats right, theres no direct relationship.

    This set me to thinking that maybe the discontinuity occurred amongthose courts that had the highest caseloads (swamped with cases, perhaps

    years, been the lodestar of my own judicial practice.24 A word on methodology: I am assisted by my superb Judicial Assistant, Elizabeth

    Sonnenberg. All data comes from the AO databases and is common throughout our district

    courts. Our focus is on each court as a unit, the aggregate figure being divided by the number

    of assigned active district judges fairly to compare court to court. As is obvious, courts with a

    proportionately greater number of magistrate judges and engaged senior judges will be more

    productive; while a court with one or more active judge vacancies will be less productive. Jake

    Pughs article, Jake D. Pugh, Another Nail in the [Trial Model] Coffin? Whether Federal District

    Court Vacancies Push Adjudication Toward an Administrative Model (on file with Hon. William G.

    Young (D. Mass.)), shows that most important and persuasive conclusions can be derived

    from the productivity index in the hands of a skilled researcher and scholar.

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    2014 Muster ing Holmes Regiments 457

    productivity doesnt count for much) and the lowest (with only a few casesto get to trial, perhaps productivity is marginalized). Maybe productivityaffects terminations among courts with roughly average caseloads. Thus,

    we ranked productivity against case filings. SeeFigure 2below:

    Again, there is no relationship.

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    There matters sat for a while. Matching various variables, we matchedcase filings with terminations on the same per active judge basis.

    SeeFigure 3below:

    Bingo! The relationship is unmistakable. This is the first noteworthyfinding from this effort. It appears that, by hook or crook, across the districtcourt board, court through-putis more or less constant. Courts with thehighest per active judge case filings also have the highest per active judgeterminations, and the courts with the lowest caseloads seem satisfied todispose of their business without ever getting ahead.25 It almost seems asthough court productivity makes little practical difference.

    The intriguing finding, however, is the portion of cases disposed ofwithout judicial actionwhich seems to increase with per-judge case load.To my surprise, nearly half of the district courts (42 out of 94) dispose ofmore than a quarter of their business without any judicial action at all.

    25 This is a bit unfair as courts with low caseloads frequently help out other courts, which

    properly boosts the productivity of the recipients.

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    Indeed, the figure approaches or exceeds 50% for some courts. This is thesecond important finding of this project. Thousands of cases are filed in ourfederal 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 tellingresearch questions can be framed and addressed.

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

    For example, I am a loyal son of the Superior Court. 27Thats where I

    learned to be a judge and I will be forever grateful to those giants in thelaw with whom it has been my privilege to serve. At the same time, wemust all acknowledge that our judicial duty is to lend a hand wherever theneed is greatest.

    On the federal side, the same balkanization is apparent from districtcourt to district court. Here, however, there is a growing realization thatsince, due to budget constraints, we are going to do less with less28it isnecessary to work smarter and more cooperatively. Let me recount a fewimportant recent examples:

    Faced by over 1,300 triable tobacco product liability cases on top oftheir already crowded docket, the Middle District of Florida proactivelyreached out for help.29 Today one circuit judge and thirty-two district

    judges (nearly 5% of the nations 677 active district judges) from everygeographic circuit are traveling to the five locations where the MiddleDistrict of Florida sits to afford these litigants the jury trials guaranteed by


    JUDICIAL CTR. (2012), available at

    /$file/leeearly.pdf.27 I cherish the privilege of offering the toast to the Superior Court on the occasion of its

    150th anniversary: My Colleagues, I give you the finest common law court in America. The

    Court whichbefore all othersinsures the day-to-day quality of justice in Massachusetts.

    The great trial court of the Commonwealth: The Superior Court.28 The Judges Roundtable, DUKE L.MAG.,Fall 2013, at 19(quoting Hon. Philip Pro).29 In reNexium (Esomeprazole) Antitrust Litigation, No. 12-md-02409-WGY, at 34 n.7 (D.

    Mass. Nov. 14, 2013). Consistently one of Americas most productive federal district courts,

    the Middle District of Florida has an enviable trial record and is adept at working with

    visiting judges. Small wonder that, over the last eight years, a citizens chance of sitting on a

    federal jury in that district hasincreasedby 17.29%. Id.

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    our constitution.30 This is an extraordinarily cooperative federal judicialventure. (Oh yes, some of you say. But thats Florida. Try it in Fargo, NorthDakota and see what happens. Well Im here to tell you that Ocala in

    August is no walk in the park.)Approximately the same number of district judges volunteer to handle

    pre-trial motions and jury-waived cases via the judiciarysvideoconferencing infrastructure. This is an extraordinarily powerfultechnological tool. It is cost effective, as neither judicial officers nor staffneed travel, and lawyers and litigants need appear only in their homecourts. Moreover, it exposes judges and law clerks to the variances in othercircuits jurisprudence.31 I know one judge doing this who is currentlyauthorized to sit in five different districts.

    My predecessor Peleg Sprague would sign as Judge of the UnitedStates.32That is how we federal judges ought to think of ourselves. If theseideas are worthwhileand they arewhy dont we step them up ten-fold?

    For example, why not consolidate all social security, bankruptcy, and statehabeas appeals (i.e. all those many cases that do not require takingevidence) and redistribute them across the nation so that district courtcaseloads are more or less even?33The simple fact is thiswe need everyone of our 678 active U.S. District Judges. Any measure that reduces thisnumber impairs the quality of justice in the United States.

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

    America is the only country in the world to embrace what I call firstinstance constitutional interpretationinvesting in a single federal trial

    judge the power to declare an act of Congress unconstitutional. Theprinciple stems from dicta in John Daviss 1808 decision in the District of

    30 These are heavy cases. Judge Frederic Block of the Eastern District of New York tried

    three of them in three weeks without drawing a breath; no vanishing trial syndrome here.31 For example, in the First Circuit the reversal rate on appeals of Social Security disability

    decisions is less than 5%. In the Second Circuit, it is over 40% same law, different circuits.32 See, e.g., Amy Warwick, 1 F. Cas. 799, 802 (D. Mass. 1862); see also Hon. William G.

    Young,Amy Warwick Encounters the Quaker City: The District of Massachusetts and the Presidents

    War Powers, 74 MASS.L.REV. 206, 213 (1989).33 See Letter from Hon. William G. Young to Chief Judge David Bryan Sentelle Regarding

    Bankruptcy Appeals (Nov. 30, 2012), available at

    uscourts/RulesAndPolicies/rules/Agenda%20Books/Bankruptcy/BK2013-04.pdf (making these

    proposals).34 S.E.C. v. EagleEye Asset Mgmt., No. 11-11576-WGY, 2013 WL 5498182, at *2 n.5 (D.

    Mass. Oct. 4, 2013).

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    Massachusetts: The William.35 This case is called the most importantconstitutional law case not decided by the Supreme Court, 36the principletoday is constitutional bedrock.

    Why? The answer is simple: Without it, our jury system simply couldnot function. To decide cases fairly, juries must be properly instructed as tothe law, so it falls to the individual trial judge to declare what the lawis.37

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

    Thus, we need a more robust jurisprudence of the constitutional rightof juries themselves to sit and adjudicate cases. 42 Remember that theremedy in Batson was to sit the juror against whom an improperperemptory challenge had been raised.43 Why then is it not the

    35 See United States v. William, 28 F. Cas. 614, 61621 (D. Mass. 1808); Hon. William G.

    Young, Of Iron Men and Wooden Ships [Who] Went to Sea with Sails in LEGAL CHOWDER:

    LAWYERING ANDJUDGING IN MASSACHUSETTS 186,18687(Rudolph Kass ed., 2002).36 SeeCharles Warren, The Early History of the Supreme Court of the United States with Modern

    Attacks on the Judiciary, 8 MASS. L. QUARTERLY 1, 20 (1922). Professor Charles Warren is also

    author of the multivolume history, The Supreme Court in United States History . CHARLES


    See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167, 17278 (1803).38 See, e.g., Enwonwu v. United States, 199 F. Appx 6 (1st Cir. 2006).39 See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 103,

    107, 110 Stat. 1214, 121823 (1996).40 SeeUnited States v. Booker, 543 U.S. 220, 23839 (2005).41 Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), in 7 THE WRITINGS OF

    THOMASJEFFERSON at 408(Albert Ellery Bergh, ed., definitive ed., 1905).42 Distinguished legislative leaders and scholars have already embarked on such an

    endeavor. See, e.g., Sheldon Whitehouse, Restoring the Civil Jurys Role in the Structure of our

    Government, 55 WM. & MARY L. REV. 1241, 127981 (2014); Hon. J. Harvie Wilkinson III, In

    Defense of American Criminal Justice, 67 VAND. L. REV. 1099, 115765 (2014); Alexandra D.

    Lahav, The Jury and Participatory Democracy, 55WM.&MARY L.REV. 1029, 103541 (2014); Suja

    A. Thomas, Blackstones Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the

    Executive, the Legislature, the Judiciary, and the States, 55 WM. & MARY L. REV. 1195, 123239

    (2014); Marion Munley, Vanishing Civil Jury Trials Blow to Justice, THE SCRANTON TIMES-

    TRIBUNE, Dec. 1, 2013, available at

    columns/guest-columnists/vanishing-civil-jury-trials-blow-to-justice-1.1593613.43 Batson v. Kentucky, 476 U.S. 79, 96 (1985).

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    constitutional right of the people themselves to come into court and sit asjurors once a judge has determined that a case is trial ready? This wouldseem to be the mandate of Article III (criminal cases) 44 and the Seventh

    Amendment (civil cases).45

    Such a right is beyond Congressional power toabrogate, either directly or by removing funding.46

    Are any of these ideas worthy of Holmess regimentalstatus? Othersmust decide. This much I know is true: The defense of our American jurysystem and the judicial framework that supports it has never been moreimportant, for it is under constant assault.

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

    44 The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. U.S. CONST.

    art. III, 2.45 U.S.CONST.amend. VII.46 Nearly thirty years ago, when I had just recently embarked on federal judicial service,

    my first Courtroom Deputy Clerk, Kate Hart Duffy, told me this: Judge, she said, your

    great strength and your great weakness is that you will hold court in a parking lot! As the

    years passed I came to realize just how accurate and profound this insight was.

    We need a constitutional analysis to delineate those core constitutional functions of the

    judiciary that, due to the commands of the Constitution, are simply beyond the vagaries of the

    budget process. The Article III judiciary salaries are the prime example.

    But surely there is more.

    The American Jury: Our Constitution makes clear that it is the right of each citizen to serve

    on the nations juries. Jury trials are a vital expression of direct democracy. They are like small

    special elections that resolve a particular matter. It cannot be that Congress may suspend

    elections because we are out of money to print ballots. At a bare minimum, it follows that

    when a jury case is ripe for adjudication, there must be present: a judge to teach the law, acourtroom deputy clerk, a court reporter, a courtroom and jury room (which even colonial

    courthouses had), a jury commissioner to obtain the jurors, and a minimal infrastructure

    (heat, phones, postage, summonses, etc.).

    The Judicial Power to Adjudicate: As Chief Justice Marshall explained in Marbury v.

    Madison, 5 U.S. (1 Cranch) 137, 177 (1803), [ i]t is emphatically the province and duty of the

    judicial department to say what the law is. If this constitutional bedrock is more than shifting

    sand, it must mean at a minimum, that an Article III judge may conduct the judicial

    proceedings necessary to say what the law is. Id.Thus, she must have a courtroom deputy

    clerk, court reporter, and courtroom whenever necessary, as well as the same minimal

    infrastructure to deal with litigants and counsel. We would argue that we also need law

    clerks, legal research materials, and secretaries to make it all work, but, as one who started as

    a state court trial judge, I can attest that none of these things is absolutely essential.

    My point is that there is a small central core of our activities that cannot be denied us

    through the budget process if we are to remain an independent branch of government. Of

    course Congress has the final word. It can eviscerate our jurisdiction, turn permanent

    judgeships into temporary ones (so that as we die off there are fewer judgeships), and even

    disband the lower courtsbut notas an incident of the budget process.

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    Many characteristics of juries limit their ability to dispenseinformed and objective justice, especially when compared to

    judges. . . . [T]he typical jury posses[es] much less formaleducation than the typical judgeoften, no more than a high

    school education . . . . Additionally, juries drawn from the generalpopulationas all juries arewill tend to have innate biasestowards those they identify with, usually meaning smaller partiesand individuals. . . . [This] hurts the interests of justice when thelaw is on the side of the larger party. By the opposite token, thewealthier side will usually have the option of hiring moreexpensive and talented legal counselattorneys who are expertsin playing on the emotions of juries. For this reason, with a jurysystem, whichever party has the most resources also has a greaterability to distract the fact-finders from reaching the correctdecision. In either case, the higher manipulability of juries isanother reason not to sue them. Judges, as learned experts havingextensive familiarity with the procedures of justice, are much lesslikely to substitute the attorneysjudgment for their own.47

    This is what passes for scholarship today.I have been a trial judge working with jurors for over 35 years and I

    assert to you without hesitation or equivocationAmericans have aninnate decency coupled with a sense of duty that is second to none.Properly charged, American jury verdicts come closer to genuine justicethan any other human institution ever conceived.

    How do I know? On Monday, April 15, 2013, like you, I watched thevideos of the Marathon bombing again and again. Amidst the cries and thechaos, I saw Americansaverage Americansrush into the smoke afterthe second bomb went off, tearing down the barricades with their barehands to aid the bleeding and the maimed. In Newtown, no teachers doveout the windows. No; they put their bodies between the shooter and the

    children in their care. So did the Alabama school bus driver when thekidnapper boarded his school bus. On 9/11? Everyone who could get out ofthe World Trade Center got outand hundreds of firefighters rushed in;that was their job. All of these people: average Americans.

    On Tuesday, April16, 2013, I went to greet the jurors called for servicethat day. I looked out at them: teachers, truck and bus drivers, firefighters,average Americans.

    Now, I suppose my learned academic colleague thinks they are unfit torule, while I think they are the very quintessence of democracy. But thequestion is not what he thinks or I thinkit is what you think.

    If you truly believe the American jury is the most robust form of directdemocracy anywhere on the planet and that where a jury sits there burns

    47 David P. Kohn, The Split: Constitutional and Policy Bases for Establishing Separate U.S.

    Patent Courts, 16 INTELL.PROP.L.BULL. 115, 12627 (2012) (footnotes omitted).

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    464 New England Law Review v. 48 | 451

    the lamp of liberty,48then remember what President Reagan said:

    Freedom is a fragile thing

    Never more than one generation away from extinction

    It is ours only by inheritance

    It must be fought for and defended in every generation

    For it comes but once to a people.49

    Our duty is clear. The great judge Richard Arnold said it best: Therehas to be a safe place, and we have to be it.50

    Want a fair, vigorous, and effective jury system?

    Want justice?

    Goand make it so.

    48 Hon. William G. Young, Speech at the Florida Bar Convention in Orlando (June 28, 2007).

    49 President Ronald Reagan, California Gubernatorial Inaugural Address (Jan. 5, 1967),

    available HON.WILLIAM G.YOUNG,THEJUDGES COMMON BOOK3, available athttp://www.mad.

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    2014 Muster ing Holmes Regiments 465

    APPENDIX AAMERICAS MOST PRODUCTIVE FEDERAL COURT DISTRICTS(Ranked by court on bench presence*and the cases tried by an average active district judge in that court)

    Fiscal Year Ending September 30, 2013**

    District Hourson the





    Average ProductivityRanking

    M.D. Tenn. 5th 2nd 8th 17th 8.0 1st

    S.D. Fla. 2nd 1st 25th 7th 8.8 2nd

    E.D.N.Y. 1st 3rd 6th 31st 10.3 3rd

    D. Nev. 20th 10th 12th 5th 11.8 4th

    D. Idaho 8th 5th 33rd 10th 14.0 5th

    D. Colo. 13th 7th 7th 33rd 15.0 6th

    E.D. Cal. 16th 11th 10th 24th 15.3 7th

    D. Conn. 7th 9th 14th 33rd 15.8 8th

    D. Del. 10th 8th 4th 43rd 16.3 9th

    M.D. Fla. 30th 12th 17th 10th 17.3 10th

    S.D.N.Y. 4th 6th 22nd 41st 18.3 11th

    N.D. Ill. 3rd 20th 21st 31st 18.8 12th

    N.D.N.Y. 44th 18th 8th 5th 18.8 12th

    D.P.R. 6th 13th 44th 16th 19.8 13th

    C.D. Ill. 14th 24th 23rd 25th 21.5 14th

    D. Md. 18th 15th 34th 19th 21.5 14th

    D.V.I. 39th 19th 9th 21st 22.0 15th

    E.D. Ark. 47th 14th 5th 25th 22.8 16th

    D. Guam 11th 4th 51st 25th 22.8 16th

    W.D.N.Y. 15th 26th 35th 18th 23.5 17th

    D.S.D. 21st 29th 44th 2nd 24.0 18th

    M.D. La. 33rd 21st 2nd 44th 25.0 19th

    W.D. Wash. 28th 17th 22nd 34th 25.3 20th

    S.D. Cal. 24th 35th 36th 9th 26.0 21st

    D. Utah 12th 33rd 25th 35th 26.3 22nd

    E.D.N.C. 48th 51st 3rd 4th 26.5 23rd

    *SeeSteven S. Gensler & Lee H. Rosenthal, The Reappearing Judge, 61 U. KAN.L.REV. 849, 854

    66 (2013); See generallyHon. William G. Young & Jordan M. Singer, Bench Presence, Toward a

    More Complete Model of District Court Productivity, 111 PENN.ST.L.REV. 55 (2013).** ADMIN.OFFICE STATISTICS DIV.,DISTRICT COURT TRIAL TABLES, RY 2013 (data extracted from

    T-4, T-6, and T-8) (on file with author).

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    466 New England Law Review v. 48 | 451

    District Hours

    on the








    Average Productivity


    D. Or. 9th 34th 28th 35th 26.5 23rd

    E.D. Pa. 26th 31st 25th 28th 27.5 24th

    D. Neb. 41st 28th 28th 14th 27.8 25th

    N.D. Iowa 38th 25th 41st 8th 28.0 26th

    D. Minn. 34th 16th 34th 28th 28.0 26th

    M.D. Pa. 46th 27th 15th 25th 28.3 27th

    M.D. Ala. 51st 22nd 21st 20th 28.5 28th

    D. Ariz. 35th 36th 40th 3rd 28.5 28th

    E.D. Mo. 65th 38th 1st 13th 29.3 29th

    W.D. Mich. 45th 43rd 11th 19th 29.5 30th

    D. Mont. 27th 42nd 48th 1st 29.5 30thW.D. Tenn. 22nd 69th 17th 13th 30.3 31st

    E.D. Va. 42nd 33rd 33rd 15th 30.8 32nd

    D.N.D. 23rd 48th 49th 6th 31.5 33rd






    Average Total



    Average Civil


    Average Criminal





    677 259,239.3 382.9 132,353.7 195.5 2,906 4.3 2,726 4.0

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    2014 Muster ing Holmes Regiments 467

    APPENDIX AAMERICAS MOST PRODUCTIVE FEDERAL COURT DISTRICTS(Ranked by court on the service of an average district judge in that court )

    Fiscal Year Ending September 30, 2012

    District Hours onthe Bench




    Average ProductivityRanking

    E.D.N.C. 7th 5th 1st 4th 4.3 1st

    S.D. Fla. 2nd 1st 20th 9th 8.0 2nd

    M.D. Fla. 14th 3rd 19th 6th 10.5 3rd

    D. Colo. 4th 2nd 5th 36th 11.8 4th

    E.D.N.Y. 1st 6th 9th 33rd 12.3 5th

    D. Idaho 6th 10th 35th 5th 14.0 6th

    M.D. Tenn. 9th 4th 16th 30th 14.8 7th

    D. Neb. 19th 13th 20th 13th 16.3 8th

    M.D. Pa. 20th 8th 7th 30th 16.3 8th

    M.D. Ill. 3rd




    18.3 9th

    W.D. Wash. 22nd 12 13th 29th 19.0 10th

    M.D. La. 16th 7th 33rd 21st 19.3 11th

    D. Md. 11th 17th 26th 24th 19.5 12th

    D.V.I. 37th 24th 3rd 17th 20.3 13th

    M.D. Iowa 26th 9th 48th 2nd 21.3 14th

    D.P.R. 5th 11th 42nd 29th 21.8 15th

    D. Mont. 23rd 29th 35th 1st 22.0 16th

    D. Conn. 13th 14th 18th 46th 22.8 17th

    E.D. Cal. 24th 23 17th 28th 23.0 18th

    D. Del. 18th 20th 6th 51st 23.8 19th

    N.D. Fla. 38th 16th 32nd 11th 24.3 20thS.D.N.Y. 10th 22nd 25th 41st 24.5 21st

    S.D. Tex. 27th 36th 22nd 18th 25.8 22nd

    D. Or. 8th 37th 14th 47th 26.5 23rd

    N.D.N.Y. 46th 26th 3rd 37th 28.0 24th

    E.D. Ark. 49th 18th 8th 39th 28.5 25th

    D. Ariz. 28th 44th 42nd 3rd 29.3 26th

    D. Vt. 25th 39th 27th 26th 29.3 26th

    W.D. Mich. 40th 46th 15th 19th 30.0 27th

    W.D. Tenn. 17th 50th 41st 12th 30.0 27th

    N.D. Ohio 12th 34th 10th 35th 30.3 28th

    S.D. Ohio 15th 41st 21st 45th 30.5 29thE.D. Wash. 30th 35th 33rd 24th 30.5 29th

    D. Utah 21st 32nd 24th 47th 31.0 30th

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    District Hours onthe Bench




    TrialsAverage Productivity


    W.D. Wis. 48th 21st 8th 47th 31.0 30th

    S.D. Cal. 33rd 47th 37th 8th 31.3 31stM.D. Ala. 47th 19th 30th 30th 31.5 32nd

    S.D. Miss. 39th 25th 12th 50th 31.5 32nd

    D. Nev. 45th 33rd 23rd 27th 32.0 33rd






    Average Total



    Average Civil


    Average Criminal





    677 263,887.4 389.8 135,440 200.1 3,018 4.5 2,864 4.2

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    2014 Muster ing Holmes Regiments 469

    APPENDIX AAMERICAS MOST PRODUCTIVE FEDERAL COURT DISTRICTS(Ranked by court on the service of an average district judge in that court )

    Fiscal Year Ending September 30, 2011

    District Hours onthe Bench




    Average ProductivityRanking

    E.D.N.Y. 2nd 3rd 3rd 20th 7.00 1st

    S.D. Fla. 3rd 2nd 16th 16th 9.25 2nd

    S.D. Iowa 11th 5th 18th 7th 10.25 3rd

    E.D. Cal. 1st 1st 1st 38th 10.25 3rd

    N.D.N.Y. 32nd 8th 2nd 4th 11.50 4th

    D.V.I. 20th 6th 2nd 18th 11.50 4th

    N.D. Iowa 7th 7th 27th 18th 14.75 5th

    E.D. Va. 17th 12th 21st 10th 15.00 6th

    M.D. La. 27th 9th 12th 12th 15.00 6th

    E.D. Ark. 33rd




    16.75 7th

    D. Utah 5th 14th 19th 30th 17.00 8th

    N.D. Ill. 4th 17th 7th 41st 17.25 9th

    W.D. Wash. 21st 15th 8th 27th 17.75 10th

    D. Colo. 12th 11th 8th 40th 17.75 10th

    D. Vt. 10th 16th 31st 16th 18.25 11th

    D. Neb. 30th 19th 15th 14th 19.50 12th

    D. Idaho 15 36th 18th 14th 20.75 13th

    S.D. Tex. 14th 44th 17th 13th 22.00 14th

    S.D.N.Y. 6th 18th 26th 38th 22.00 14th

    W.D. Tenn. 18th 49th 9th 14th 22.50 15th

    N.D. Fla. 54th 20th 11th 9th 23.50 16thM.D. Pa. 29th 13th 24th 30th 24.00 17th

    D. Nev. 38th 33rd 18th 9th 24.50 18th

    M.D. Ala. 53rd 10th 24th 14th 25.25 19th

    D. Conn. 16th 32nd 14th 40th 25.50 20th

    D.N.M. 37th 25th 36th 8th 26.50 21st

    M.D. Fla. 52nd 27th 14th 15th 27.00 22nd

    M.D. Tenn. 35th 28th 19th 26th 27.00 22nd

    W.D. Tex. 31st 38th 36th 5th 27.50 23rd

    S.D. Miss. 47th 21st 6th 36th 27.50 23rd

    D. Wyo. 26th 22nd 24th 38th 27.50 23rd

    D. Kan. 40th 23rd 29th 20th 28.00 24thW.D. Wis. 55th 26th 5th 26th 28.00 24th

    D. Md. 13th 30th 34th 35th 28.00 24th

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    District Hours onthe Bench




    TrialsAverage Productivity


    D.S.D. 24th 40th 43rd 6th 28.25 25th

    D.P.R. 9th 24th 43rd 37th 28.25 25thD. Ariz. 23rd 50th 40th 1st 28.50 26th

    D. Minn. 28th 35th 20th 31st 28.50 26th

    S.D. Ohio 8th 37th 30th 47th 30.50 27th

    C.D. Ill. 34th 43rd 24th 22nd 30.75 28th

    E.D. Tenn. 39th 48th 32nd 10th 32.25 29th

    N.D. Miss. 74th 34th 10th 14th 33.00 30th

    S.D. Cal. 41st 47th 39th 11th 34.50 31st






    Average Total



    Average Civil


    Average Criminal





    677 265,758.6 392.6 135,903 200.7 2,967 4.4 3,205 4.7

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    2014 Muster ing Holmes Regiments 471

    APPENDIX AAMERICAS MOST PRODUCTIVE FEDERAL COURT DISTRICTS(Ranked by court on the service of an average district judge in that court)


    District Hours on theBench




    TrialsAverage Productivity


    N.D.N.Y. 6th 4th 1st 2nd 3.25 1st

    E.D. Cal. 1st 1st 2nd 25th 7.25 2nd

    S.D. Fla. 3rd 2nd 9th 16th 7.50 3rd

    E.D.N.Y. 2nd 3rd 3rd 32nd 10.00 4th

    S.D. Iowa 18th 6th 11th 10th 11.25 5th

    E.D. Tenn. 11th 12th 9th 13th 11.25 5th

    W.D. Tenn. 10th 22nd 12th 11th 13.75 6th

    D. Idaho 8th 13th 14th 21st 14.00 7th

    N.D. Fla. 33rd




    15.75 8th

    S.D. Tex. 13th 30th 18th 9th 17.50 9th

    D. Del. 24th 7th 3rd 42nd 19.00 10th

    S.D.N.Y. 4th 9th 25th 38th 19.00 10th

    E.D. Ark. 27th 5th 8th 43rd 20.75 11th

    N.D. Ill. 5th 18th 15th 45th 20.75 11th

    D. Colo. 16th 10th 16th 43rd 21.25 12th

    S.D. Miss. 29th 8th 8th 40th 21.25 12th

    D.V.I. 45th 23rd 11th 7th 21.50 13th

    D.S.D. 21st 17th 48th 4th 22.50 14th

    D. Md. 20th 21st 33rd 24th 24.50 15th

    D. Conn. 14th




    24.75 16th

    M.D. Fla. 46th 25th 10th 18th 24.75 16th

    W.D. Tex. 23rd 39th 33rd 6th 25.25 17th

    D. Mass. 31st 16th 17th 39th 25.75 18th

    D. Mont. 36th 41st 29th 1st 26.75 19th

    N.D. Miss. 67th 15th 6th 21st 27.25 20th

    N.D. Cal. 25th 14th 26th 45th 27.50 21st

    W.D. Okla. 35th 31st 13th 31st 27.50 21st

    E.D. Penn. 22nd 32nd 28th 32nd 28.50 22nd

    E.D. Tex. 60th 20th 5th 29th 28.50 22nd

    S.D. Ohio 9th 28th 35th 46th 29.50 23rd

    D.P.R. 12th




    29.75 24th

    S.D. Ala. 59th 27th 22nd 12th 30.00 25th

    D. Utah 7th 38th 26th 49th 30.00 25th

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    District Hours on theBench




    TrialsAverage Productivity


    W.D. Wash. 30th 33rd 26th 34th 30.75 26th

    D. Ariz. 32nd 53rd 32nd 8th 31.25 27thE.D. Ky. 42nd 26th 39th 21st 32.00 28th

    D. Nev. 43rd 43rd 23rd 20th 32.25 29th

    C.D. Ill. 34th 44th 26th 26th 32.50 30th

    D.N.J. 28th 24th 27th 51st 32.50 30th

    D. Kan. 41st 23rd 31st 36th 32.75 31st

    D. Neb. 37th 46th 22nd 26th 32.75 31st






    Average Total



    Average Civil


    Average Criminal





    678 271,667.8 400.7 140,310.8 206.9 3,013 4.4 3,247 4.8

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    2014 Muster ing Holmes Regiments 473

    APPENDIX AAMERICAS MOST PRODUCTIVE FEDERAL COURT DISTRICTS(Ranked by court on the service of an average district judge in that court )


    District Hours onthe Bench




    TrialsAverage Productivity


    D.V.I. 9th 3rd 5th 9th 6.50 1st

    S.D. Fla. 4th 2nd 15th 7th 7.00 2nd

    E.D. Cal. 1st 1st 4th 25th 7.75 3rd

    S.D. Iowa 7th 4th 27th 2nd 10.00 4th

    E.D.N.Y. 2nd 6th 13th 22nd 10.75 5th

    W.D. Tenn. 8th 11th 16th 12th 11.75 6th

    D. Neb. 13th 12th 19th 5th 12.25 7th

    D.P.R. 5th 8th 9th 32nd 13.50 8th

    N.D. Fla. 27th




    13.75 9th

    E.D.N.C. 29th 29th 2nd 3rd 15.75 10th

    E.D. Tenn. 21st 15th 21st 8th 16.25 11th

    M.D. Tenn. 10th 9th 17th 29th 16.25 11th

    D. Idaho 6th 5th 42nd 19th 18.00 12th

    S.D.N.Y. 3rd 7th 22nd 40th 18.00 12th

    C.D. Ill. 20th 22nd 6th 26th 18.50 13th

    N.D. Iowa 15th 14th 40th 6th 18.75 14th

    D. Mont. 25th 17th 51st 1st 23.50 15th

    D. Md. 19th 18th 38th 20th 23.75 16th

    W.D. Wash. 18th 16th 28th 33rd 23.75 16th

    D.S.D. 31st




    24.25 17th

    E.D. Va. 33rd 23rd 33rd 9th 24.50 18th

    M.D. Fla. 50th 33rd 1st 17th 25.25 19th

    D. Kan. 28th 21st 27th 29th 26.25 20th

    W.D.N.Y. 11th 30th 29th 37th 26.75 21st

    D.N.M. 35th 34th 22nd 16th 26.75 21st

    S.D. Miss. 38th 13th 19th 39th 27.25 22nd

    M.D. Pa. 32nd 36th 11th 31st 27.50 23rd

    W.D. Tex. 23rd 44th 33rd 11th 27.75 24th

    D. Colo. 32nd 26th 13th 42nd 28.25 25th

    E.D. Ark. 53rd 20th 3rd 38th 28.50 26th

    N.D. Ill. 12th




    28.50 26th

    D. Mass. 34th 25th 12th 45th 29.00 27th

    N.D.N.Y. 40th 19th 24th 33rd 29.00 27th

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    District Hours onthe Bench




    TrialsAverage Productivity


    S.D. Ill. 48th 35th 10th 29th 30.50 28th

    D. Or. 14th 47th 20th 43rd 31.00 29thE.D. Pa. 26th 38th 36th 27th 31.75 30th

    D. Conn. 24th 48th 14th 44th 32.50 31st






    Average Total



    Average Civil


    Average Criminal





    678 276,594.4 408.0 142,564.9 210.3 3,271 4.8 3,257 4.8