Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: sbeavers [at] csusm.edu.
First, a confession: I jumped at the chance to review Judge Ruggero Aldisert’s A Judge’s Advice: 50 Years on The Bench because the title suggested a clever way to begin prepping an upcoming undergraduate political science course on the U.S. judiciary. Thus did I happen upon a book that will prove useful to my undergraduate students on multiple fronts.
Aldisert, a Chief Judge Emeritus of the U.S. Court of Appeals for the Third Circuit, pulls together here works from across his lengthy and prolific career, offering advice on a range of subjects to a range of audiences within the legal profession. Most of the pieces, a few of them originally co-authored, first appeared between 1976-2009. One of the new offerings is the engaging “An Afterword” (pp.227-236), which briefly highlights the fascinating career that incubated the insights offered here. Here Judge Aldisert describes his nearly 70 years of learning, practicing, and ruling on the law, the last 26 of them (and counting!) as a Senior U.S. Circuit Judge.
Judge Aldisert’s continuing enthusiasm for his profession nearly leaps from the pages of the book as he shares suggestions for improving various aspects of legal practice and scholarship. Common themes include concerns over the federal judiciary’s ability to handle its appellate caseload and even more basic matters of legal writing. Later chapters provide insights into both judicial decision-making and judicial reasoning, “two separate processes” which he takes pains to distinguish from one another (p.193). A full chapter is devoted to legal scholarship’s potential role in the development of judicial reasoning (Chapter 11, “Opinion Writers and Law Review Writers: A Community and Continuity of Approach,” pp.151-159). Here, while lauding the law review’s public scrutiny of judicial opinions for providing “an informal check and balance” that can push judges to write better-reasoned opinions (p.152), Judge Aldisert nevertheless cautions scholarly critics to keep own their ideologies in check and to focus their critiques on legal reasoning rather than on desired case outcomes.
From a scholarly perspective (and likely from a political perspective as well), perhaps the most interesting offering is the previously unpublished Chapter 9, “‘The Seniors’ Suggest a Solution” (pp.119-130). Here Judge Aldisert describes a Clinton-era collaboration among several Senior Judges from various Courts of Appeals, known amongst themselves as “The Seniors,” to address the relentlessly heavy workload bombarding the nation’s intermediate appellate courts. Despite some verbal encouragement from then-Chief Justice William Rehnquist, the project sputtered [*108] due to a lack of funding for the judges to continue meeting to craft a formal proposal. Judge Aldisert provides the public’s first look at their ideas here.
Arguing that the U.S. Courts of Appeals are overburdened with a heavy caseload dominated by meritless appeals (p.121), The Seniors were looking to structure a more manageable appellate process. They envisioned a substantial scaling back of federal appeals, looking to states with limited appellate procedures as potential models for their own proposal. Rather than an argumentative brief, they proposed that an appellant submit instead a basic “‘Jurisdiction and Merits Statement’” (p.124), to consist of “a concise summary of the issues presented together with any supporting and contrary authority” (p.125). Such an appeal would be reviewed by up to two Court of Appeals judges. For most cases, these two reviewing judges would have sole authority to determine whether to invite arguments before a full appellate panel or to reject the case summarily.
The Seniors viewed their proposals as “revolutionary” (p.119) even in the 1990s. They had not yet solicited input from other legal professionals, let alone other constituencies, when they ultimately dropped the project. Debating such proposals now may or may not allow the profession to prepare for the day when a less ideologically-riven and less-deadlocked Congress may be able to seriously debate how to address the federal judiciary’s workload. But surely the input of these seasoned judges could provide a provocative starting point for discussion.
Despite much of the book’s obvious bent toward current members of the legal profession, there is plenty here for other audiences as well. Chapter 8’s “Life in the Raw in the Appellate Courts” (pp.113-117) found its way to my current syllabus for a political science course on the U.S. judiciary to provide undergraduates with insights on the workload and the experience of appellate courts in the U.S. Several other chapters will find their way to my undergraduate advisees who want to know how best to prepare for law school. In particular, “Elements of Legal Thinking” (Chapter 4, pp.69-76) explains the importance of understanding basic principles of logic as a foundation for the study and practice of law. Chapter 5’s “Logic for Law Students: How to Think Like a Lawyer” (pp.77-93, drawn from a piece originally co-authored with Stephen Clowney and Jeremy D. Peterson) provides a brief, practical overview of such concepts as syllogisms and analogies. Substantially less helpful in this context is Chapter 6’s “Formal and Informal Fallacies” (pp.95-101), as its bare-bones approach includes few examples or explanations. But overall, I was excited at finding offerings appropriate for undergraduates seeking to develop a solid foundation that will help them to compete in law school admissions and beyond.
A common thread running through several chapters is Judge Aldisert’s long-standing “concern over the rather dismal state of legal writing” (p.133). Authors from practicing attorneys to law review contributors to fellow judges earn their share of the judge’s ire. For example, he faults the Supreme Court for leading a trend toward overly long, citation-laden opinions rather than succinct, clearly articulated precedents (Chapter 1, “The House of the Law,” pp.9-29). A separate chapter on “Brief Writing” (Chapter 10, [*109] pp.135-149) recites a litany of common shortcomings found in appellate briefs (pp.140-141). Noting that these concerns are long-standing and widespread among fellow jurists, Judge Aldisert goes on to provide suggestions for organizing and styling successful briefs. The advice seems straightforward enough: that appellate briefs must be well-reasoned and well-written to persuade busy, multi-tasking judges to take them seriously.
As noted above, another recurring theme is Judge Aldisert’s attention to the heavy workload facing the U.S. Courts of Appeals. He registers alarm at the growth in per-judge caseloads, which he reasonably enough argues must diminish the attention that an appellate judge can give to any individual case. Judge Aldisert’s frustrations are compounded by the “drudgery” (p.105) of most such appeals, largely because so few put forward “genuinely arguable issues” in the first place (p.111). Chapter 7’s “State Courts and Federalism” (pp.105-112) addresses the federal judicial workload crunch by decrying the “bias toward litigating federal issues in federal court instead of state court” (p.106). Instead, he argues that under-appreciated state judges can handle many such cases at least as competently as can federal jurists. Unfortunately, the essay can easily be read as a desire for much of the “drudgery” of Judge Aldisert’s own caseload to be shifted downward to his state judicial counterparts. Moreover, are state courts are any less capacity-challenged in the recent aftermath of rampant state budget-cutting (see Mauro 2011), which has led to courtroom closures and personnel layoffs in states such as California (see Moran 2012)?
For political scientists interested in judicial behavior, perhaps the most useful chapters will be those found in “Part E: How Judges Decide Cases.” While Aldisert criticizes efforts to label judges and to categorize legal decisions into “a neat formula” (p.173), some of his ideas may in fact lend themselves to social scientific study. At a minimum, they are worth a look as a judicial response to outsiders’ perceptions of judicial decision-making and judicial reasoning.
David W. Burcham’s “Foreward” praises the book as “a sort of ‘best of Aldisert’” (p.xi). The reader familiar with the judge’s work may appreciate having this collection available in one concise volume. Readers new to Aldisert, particularly those who aspire to join his beloved profession, will surely benefit from the judge’s efforts to encourage better scholarship and writing among future generations of legal writers.
Mauro, Tony. “Budget Cuts are Crippling our Nation’s Courts.” USA Today, 25 May, 2011. Retrieved at http://usatoday30.usatoday.com/news/opinion/forum/2011-05-26-Budget-cuts-crippling-courts_n.htm
Moran, Greg “Money Woes Shut Down Services in Courts.” U-T San Diego, 7 September, 2012. Retrieved at http://www.utsandiego.com/news/2012/sep/07/tp-money-woes-shut-down-services-in-courts/?page=1
Copyright 2013 by the Author, Staci L. Beavers.