Empirical Legal Studies

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Volume 91.7
Intervention and Universal Remedies
Monica Haymond
Assistant Professor of Law, Northwestern Pritzker School of Law.

For helpful comments and discussions on this Article, I am thankful to Payvand Ahdout, Rachel Bayefsky, Judge Stephanos Bibas, Josh Bowers, Upnit K. Bhatti, Sergio Campos, Maureen Carroll, Guy-Uriel Charles, Zachary Clopton, I. Glenn Cohen, Ryan Doerfler, Richard Fallon, Jonathan Gould, James Greiner, Andrew Hammond, Judge Adalberto Jordan, Brian Lipshutz, Caleb Nelson, Andrea Olson, Richard Re, William Rubenstein, Stephen Sachs, Joanna Schwartz, David Simon, Susannah Tobin, and the participants in workshops at Harvard Law School, the Annual Civil Procedure Workshop, the American Constitution Society Junior Scholars Public Law Workshop, the Junior Faculty Federal Courts Workshop, and the Association of American Law Schools Remedies Workshop. I am also grateful to the editors of the University of Chicago Law Review for their invaluable editorial assistance.

This Article examines over 500 nationwide-injunction cases and shows that a surprising participant is influencing the result: an outsider who has joined as an intervenor. Judicial discretion over intervention functionally gives courts control over how nationwide-injunction cases proceed, or whether they proceed at all. With few principles guiding that discretion, procedural rulings can appear to be influenced by the court’s own political leanings, undermining public confidence in the court’s decision on the merits. This Article represents the first scholarly examination of the significant role that intervention plays in nationwide-injunction suits. More broadly, this Article uses intervention to explore the function of procedural rules and the federal courts in a democratic system. Finally, this Article offers two reforms that would promote procedural values and cabin the role of the federal courts in ideological litigation.

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Volume 91.7
Judicial Dark Matter
Nina Varsava
Associate Professor of Law, University of Wisconsin Law School.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Michael A. Livermore
Class of 1957 Research Professor of Law, University of Virginia School of Law.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Keith Carlson
Tuck School of Business, Dartmouth College.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Daniel N. Rockmore
Professor, Department of Computer Science, Dartmouth College; External Professor, Science Steering Committee, Santa Fe Institute.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Judicial reform aimed at rectifying historical inequalities understandably focus on increasing the number of women and people of color on the bench. This Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments: the understudied and opaque practices of judicial administration. Through an empirical study of federal appellate decisions, we find systematic gender and racial imbalances across decision panels. These imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, distorting the representation of judges in reported cases. Our findings suggest that assessing the distribution of legal power across gender and racial groups based on the numbers of judges from these groups may create an inflated sense of the influence of judges from underrepresented groups. We propose reforms to protect against the demographic biases that we uncover.

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