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Volumn 88, Issue 3, 2008, Pages 815-827

Perhaps we should pay federal circuit judges more

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EID: 46749098635     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note
Times cited : (6)

References (72)
  • 1
    • 41649114338 scopus 로고    scopus 로고
    • Should We Pay Federal Circuit Judges More?, 88
    • Scott Baker, Should We Pay Federal Circuit Judges More?, 88 B.U. L. REV. 63, 66 (2008).
    • (2008) B.U. L. REV , vol.63 , pp. 66
    • Baker, S.1
  • 2
    • 46749088083 scopus 로고    scopus 로고
    • Id. at 73 n.42.
    • Id. at 73 n.42.
  • 3
    • 46749143105 scopus 로고    scopus 로고
    • Chief Justice John G. Roberts, Jr., 2006 Year-End Report on the Federal Judiciary, THE THIRD BRANCH: NEWSLETTER OF THE FEDERAL COURTS (Admin. Office of the U.S. Courts, Wash., D.C.), Jan. 2007, at 1, available at http://www.uscourts.gov/ttb/jan06ttb/ yearend/index. html.
    • Chief Justice John G. Roberts, Jr., 2006 Year-End Report on the Federal Judiciary, THE THIRD BRANCH: NEWSLETTER OF THE FEDERAL COURTS (Admin. Office of the U.S. Courts, Wash., D.C.), Jan. 2007, at 1, available at http://www.uscourts.gov/ttb/jan06ttb/ yearend/index. html.
  • 4
    • 46749153621 scopus 로고    scopus 로고
    • Posting of Peter Lattman to Wall Street Journal Law Blog, http://blogs.wsj.com/law/2006/12/14/justice-scalia-bemoans-judicial-pay/ (Dec. 14, 2006, 10:53 A.M.) (quoting a Dec. 13, 2006 speech by Justice Scalia).
    • Posting of Peter Lattman to Wall Street Journal Law Blog, http://blogs.wsj.com/law/2006/12/14/justice-scalia-bemoans-judicial-pay/ (Dec. 14, 2006, 10:53 A.M.) (quoting a Dec. 13, 2006 speech by Justice Scalia).
  • 5
    • 46749157120 scopus 로고    scopus 로고
    • Attracting the Best
    • June 4, at
    • Abner Mikva, Attracting the Best, NAT'L L.J., June 4, 2007, at 23.
    • (2007) NAT'L L.J , pp. 23
    • Mikva, A.1
  • 6
    • 46749103483 scopus 로고    scopus 로고
    • CONG. RESEARCH SERV., JUDICIAL SALARY: CURRENT ISSUES AND OPTIONS FOR CONGRESS, at CRS-25 (2007), available at http://assets.opencrs. com/rpts/RL34281_ 20071212.pdf.
    • CONG. RESEARCH SERV., JUDICIAL SALARY: CURRENT ISSUES AND OPTIONS FOR CONGRESS, at CRS-25 (2007), available at http://assets.opencrs. com/rpts/RL34281_ 20071212.pdf.
  • 8
    • 46749127555 scopus 로고    scopus 로고
    • See, e.g., Russell Smyth, Do Judges Behave as Homo Economicus, and If So, Can We Measure Their Performance? An Antipodean Perspective on a Tournament of Judges, 32 FLA. ST. U. L. REV. 1299, 1302-09 (2005) (reviewing evidence that judges are concerned with incentives other than financial ones).
    • See, e.g., Russell Smyth, Do Judges Behave as Homo Economicus, and If So, Can We Measure Their Performance? An Antipodean Perspective on a Tournament of Judges, 32 FLA. ST. U. L. REV. 1299, 1302-09 (2005) (reviewing evidence that judges are concerned with incentives other than financial ones).
  • 9
    • 46749096543 scopus 로고    scopus 로고
    • We might very well want judges who put less importance on projecting political power, because they would be less inclined to reach political or ideological outcomes (which Baker attempts to measure, see Baker, supra note 1 at 85-97). However, we might prefer judges who put greater importance on projecting legal power, which presumably would induce them to produce legally better decisions and opinions.
    • We might very well want judges who put less importance on projecting political power, because they would be less inclined to reach political or ideological outcomes (which Baker attempts to measure, see Baker, supra note 1 at 85-97). However, we might prefer judges who put greater importance on projecting legal power, which presumably would induce them to produce legally better decisions and opinions.
  • 10
    • 46749157121 scopus 로고    scopus 로고
    • In addition, many workers in private industry are motivated to do a better job by the promise of incentive compensation, but this is inapplicable to the federal judiciary
    • In addition, many workers in private industry are motivated to do a better job by the promise of incentive compensation, but this is inapplicable to the federal judiciary.
  • 11
    • 33646337192 scopus 로고    scopus 로고
    • See Lee Epstein et al., The Changing Dynamics of Senate Voting on Supreme Court Nominees, 68 J. POL. 296, 296 (2006).
    • See Lee Epstein et al., The Changing Dynamics of Senate Voting on Supreme Court Nominees, 68 J. POL. 296, 296 (2006).
  • 12
    • 46749146716 scopus 로고    scopus 로고
    • See Baker, supra note 1, at 76
    • See Baker, supra note 1, at 76.
  • 13
    • 46749129550 scopus 로고    scopus 로고
    • Id. at 78
    • Id. at 78.
  • 14
    • 46749143106 scopus 로고    scopus 로고
    • Id
    • Id.
  • 15
    • 46749108240 scopus 로고    scopus 로고
    • See id. at 89
    • See id. at 89.
  • 16
    • 46749098782 scopus 로고    scopus 로고
    • Id. at 91
    • Id. at 91.
  • 17
    • 46749142712 scopus 로고    scopus 로고
    • Many D.C. Circuit judges come from outside of Washington, D.C. and Professor Baker has appropriately adjusted for this by using their preexisting locale. Baker, supra note 1, at 83-84 n.75. However, the effect is not entirely limited to the D.C. Circuit. Michael Boudin of the First Circuit had been in private practice in Washington, D.C. prior to taking the bench in Boston, although he was first nominated for the D.C. District Court. J. Michael Luttig of the Fourth Circuit had spent a decade in government in Washington D.C. This list is incomplete but shows that mobility is not uncommon. Federal judicial biographies can be found at Judges of the United States Courts, http://www.fjc.gov/public/home.nsf/hisj search by judge name; then click on judge name when results appear, Most circuit court judges are drawn from within the circuit, so the measure has some accuracy, but it is rough
    • Many D.C. Circuit judges come from outside of Washington, D.C. and Professor Baker has appropriately adjusted for this by using their preexisting locale. Baker, supra note 1, at 83-84 n.75. However, the effect is not entirely limited to the D.C. Circuit. Michael Boudin of the First Circuit had been in private practice in Washington, D.C. prior to taking the bench in Boston, although he was first nominated for the D.C. District Court. J. Michael Luttig of the Fourth Circuit had spent a decade in government in Washington D.C. This list is incomplete but shows that mobility is not uncommon. Federal judicial biographies can be found at Judges of the United States Courts, http://www.fjc.gov/public/home.nsf/hisj (search by judge name; then click on judge name when results appear). Most circuit court judges are drawn from within the circuit, so the measure has some accuracy, but it is rough.
  • 18
    • 46749107858 scopus 로고    scopus 로고
    • For example, when Judge Luttig left the bench, he moved from Richmond, Virginia to Chicago. See Jerry Markon, Appeals Court Judge Leaves Life Appointment for Boeing, WASH. POST, May 11, 2006, at A 11. This move likely would have occurred earlier had he not served as a federal judge.
    • For example, when Judge Luttig left the bench, he moved from Richmond, Virginia to Chicago. See Jerry Markon, Appeals Court Judge Leaves Life Appointment for Boeing, WASH. POST, May 11, 2006, at A 11. This move likely would have occurred earlier had he not served as a federal judge.
  • 19
    • 46749115325 scopus 로고    scopus 로고
    • Baker, supra note 1, at 79-81
    • Baker, supra note 1, at 79-81.
  • 20
    • 46749083205 scopus 로고    scopus 로고
    • See Judges of the United States Courts, supra note 18
    • See Judges of the United States Courts, supra note 18.
  • 21
    • 46749118597 scopus 로고    scopus 로고
    • Baker, supra note 1, at 80
    • Baker, supra note 1, at 80.
  • 22
    • 46749144334 scopus 로고    scopus 로고
    • Id. at 91
    • Id. at 91.
  • 23
    • 46749091861 scopus 로고    scopus 로고
    • At a general level, this effect is not implausible. It is harder to be an average quality lawyer in very high-paying areas which require more aptitude than it is to be an average quality lawyer in lower paying areas
    • At a general level, this effect is not implausible. It is harder to be an average quality lawyer in very high-paying areas which require more aptitude than it is to be an average quality lawyer in lower paying areas.
  • 24
    • 46749091471 scopus 로고    scopus 로고
    • Baker, supra note 1, at 85
    • Baker, supra note 1, at 85.
  • 25
    • 46749099977 scopus 로고    scopus 로고
    • Id. at 86
    • Id. at 86.
  • 26
    • 46749151172 scopus 로고    scopus 로고
    • Id. at 95-97
    • Id. at 95-97.
  • 27
    • 46749129131 scopus 로고    scopus 로고
    • Id. at 95-96
    • Id. at 95-96.
  • 28
    • 46749133694 scopus 로고    scopus 로고
    • Some of the shortcomings of Baker's citation analysis are summarized briefly in Frank B. Cross et al., Warren Court Precedents in the Rehnquist Court, 24 CONST. COMM. 3, 5-6 (2007). While these limitations do not invalidate the measure, they counsel for caution in placing heavy reliance on results of the measure.
    • Some of the shortcomings of Baker's citation analysis are summarized briefly in Frank B. Cross et al., Warren Court Precedents in the Rehnquist Court, 24 CONST. COMM. 3, 5-6 (2007). While these limitations do not invalidate the measure, they counsel for caution in placing heavy reliance on results of the measure.
  • 29
    • 46749108239 scopus 로고    scopus 로고
    • Id. at 97
    • Id. at 97.
  • 30
    • 46749123676 scopus 로고    scopus 로고
    • Id. at 98
    • Id. at 98.
  • 32
    • 46749102307 scopus 로고    scopus 로고
    • Id
    • Id.
  • 33
    • 46749098781 scopus 로고    scopus 로고
    • JEFFREY ROSEN, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA 129-30 (2007).
    • JEFFREY ROSEN, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA 129-30 (2007).
  • 34
    • 46749137697 scopus 로고    scopus 로고
    • Baker, supra note 1, at 105
    • Baker, supra note 1, at 105.
  • 35
    • 46749147365 scopus 로고    scopus 로고
    • See id. at 109.
    • See id. at 109.
  • 36
    • 46749133328 scopus 로고    scopus 로고
    • Id. at 105 n. 128.
    • Id. at 105 n. 128.
  • 37
    • 46749113244 scopus 로고    scopus 로고
    • See Amos Tversky & Daniel Kahneman, Belief in the Law of Small Numbers, in A HANDBOOK FOR DATA ANALYSIS IN THE BEHAVIORAL SCIENCES: METHODOLOGICAL ISSUES 341, 343 (Gideon Keren & Charles Lewis eds., 1993).
    • See Amos Tversky & Daniel Kahneman, Belief in the Law of Small Numbers, in A HANDBOOK FOR DATA ANALYSIS IN THE BEHAVIORAL SCIENCES: METHODOLOGICAL ISSUES 341, 343 (Gideon Keren & Charles Lewis eds., 1993).
  • 38
    • 46749114962 scopus 로고    scopus 로고
    • See John Connolly, Estimation of Sample Size Required for Experiment (Apr. 3, 2008) (unpublished manuscript, available at http://www.ucd.ie/statdept/jconnolly/pgrm/ sample%20size/samplesize.doc). The noise would only produce a false positive Type I error if the noise were somehow systematically associated with the independent variables. There is no plausible explanation for this in Baker's study.
    • See John Connolly, Estimation of Sample Size Required for Experiment (Apr. 3, 2008) (unpublished manuscript, available at http://www.ucd.ie/statdept/jconnolly/pgrm/ sample%20size/samplesize.doc). The noise would only produce a false positive Type I error if the noise were somehow systematically associated with the independent variables. There is no plausible explanation for this in Baker's study.
  • 39
    • 46749099978 scopus 로고    scopus 로고
    • Baker, supra note 1, at 112
    • Baker, supra note 1, at 112.
  • 40
    • 46749159474 scopus 로고    scopus 로고
    • Id. at 110
    • Id. at 110.
  • 41
    • 11144308765 scopus 로고    scopus 로고
    • Multicollinearity and Measurement Error in Structural Equation Models: Implications for Theory Testing, 23
    • Rajdeep Grewal et al., Multicollinearity and Measurement Error in Structural Equation Models: Implications for Theory Testing, 23 MARKETING SCI. 519, 526-27 (2004).
    • (2004) MARKETING SCI , vol.519 , pp. 526-527
    • Grewal, R.1
  • 42
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    • Collinearity, Power, and Interpretation of Multiple Regression Analysis, 28
    • Charlotte H. Mason & William D. Perreault, Jr., Collinearity, Power, and Interpretation of Multiple Regression Analysis, 28 J. MARKETING RES. 268, 277 (1991).
    • (1991) J. MARKETING RES , vol.268 , pp. 277
    • Mason, C.H.1    Perreault Jr., W.D.2
  • 43
    • 46749141075 scopus 로고    scopus 로고
    • Professor Baker suggests the multicollinearity should not bias the size of the coefficients, which are small. Baker, supra note 1, at 110. This may or may not be true and is difficult to establish. Even if true, a small coefficient could still justify some increase in judicial pay, as I explain in my conclusion.
    • Professor Baker suggests the multicollinearity should not bias the size of the coefficients, which are small. Baker, supra note 1, at 110. This may or may not be true and is difficult to establish. Even if true, a small coefficient could still justify some increase in judicial pay, as I explain in my conclusion.
  • 44
    • 84888467546 scopus 로고    scopus 로고
    • notes 57-68 and accompanying text
    • See infra notes 57-68 and accompanying text.
    • See infra
  • 45
    • 46749094829 scopus 로고    scopus 로고
    • Baker, supra note 1, at 86
    • Baker, supra note 1, at 86.
  • 46
    • 46749120415 scopus 로고    scopus 로고
    • See CASS R. SUNSTETN ET AL., ARE JUDGES POLITICAL? 22 (2006) (concluding that votes of judges are significantly influenced by the party affiliation of the president who appointed the other two judges on the same panel).
    • See CASS R. SUNSTETN ET AL., ARE JUDGES POLITICAL? 22 (2006) (concluding that "votes of judges are significantly influenced by the party affiliation of the president who appointed the other two judges on the same panel").
  • 47
    • 46749151562 scopus 로고    scopus 로고
    • See id
    • See id.
  • 48
    • 46749095760 scopus 로고    scopus 로고
    • FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 165 (2007). Similar results were found in Richard L. Revesz, Environmental Regulation, Ideology, and theD.C. Circuit, 83 VA. L. REV. 1717, 1719 (1997).
    • FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 165 (2007). Similar results were found in Richard L. Revesz, Environmental Regulation, Ideology, and theD.C. Circuit, 83 VA. L. REV. 1717, 1719 (1997).
  • 49
    • 46749149019 scopus 로고    scopus 로고
    • Baker, supra note 1, at 92-94
    • Baker, supra note 1, at 92-94.
  • 51
    • 46749143496 scopus 로고    scopus 로고
    • Id. at 112
    • Id. at 112.
  • 52
    • 46749132905 scopus 로고    scopus 로고
    • See Kevin D. Hoover & Mark V. Siegler, Sound and Fury: McCloskey and Significance Testing in Economics, J. ECON. METHODOLOGY (forthcoming) (manuscript at 19), available at http://www.econ.duke.edu/∼kdh9/Source%20Materials/McCloskey/ Sound%20and%20Fury%206%20March%202007.pdf.
    • See Kevin D. Hoover & Mark V. Siegler, Sound and Fury: McCloskey and Significance Testing in Economics, J. ECON. METHODOLOGY (forthcoming) (manuscript at 19), available at http://www.econ.duke.edu/∼kdh9/Source%20Materials/McCloskey/ Sound%20and%20Fury%206%20March%202007.pdf.
  • 53
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    • Baker, supra note 1, at 112
    • Baker, supra note 1, at 112.
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    • Labor Contracts as Partial Gift Exchange, 97
    • See
    • See George A. Akerlof, Labor Contracts as Partial Gift Exchange, 97 Q.J. ECON. 543, 567 (1982);
    • (1982) Q.J. ECON , vol.543 , pp. 567
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    • Careers and Contingency, 51
    • Gillian Lester, Careers and Contingency, 51 STAN. L. REV. 73, 135 (1998).
    • (1998) STAN. L. REV , vol.73 , pp. 135
    • Lester, G.1
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    • Fairness and Retaliation: The Economics of Reciprocity, 14
    • Ernst Fehr & Simon Gächter, Fairness and Retaliation: The Economics of Reciprocity, 14 J. ECON. PERSP. 159, 169 (2000).
    • (2000) J. ECON. PERSP , vol.159 , pp. 169
    • Fehr, E.1    Gächter, S.2
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    • The Fair Wage-Effort Hypothesis and Unemployment, 105
    • George A. Akerlof & Janet L. Yellen, The Fair Wage-Effort Hypothesis and Unemployment, 105 Q.J. ECON. 255, 255 (1990).
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    • See, e.g, Roberts, supra note 3
    • See, e.g., Roberts, supra note 3.
  • 59
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    • Baker, supra note 1, at 82
    • Baker, supra note 1, at 82.
  • 60
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    • It should be noted that Professor Baker is not the only person to have attempted to study the effect of judicial pay levels. Others have analyzed state judicial pay, which has the advantage of providing differential cross-sectional pay levels, but the disadvantage of being only a rough parallel to the federal judiciary. One study used an approach similar to Professor Baker's to examine state judicial salaries and found little positive effect on their measures of judicial output (which included total opinions, outside citations, and dissents, See Stephen J. Choi et al, Are Judges Overpaid, A Skeptical Response to the Judicial Salary Debate 59 Univ. of Chicago Law School John M. Olin Law & Economics Research Paper Series, Working Paper No. 376, 2008, available at http://ssrn.com/abstract=1077295
    • It should be noted that Professor Baker is not the only person to have attempted to study the effect of judicial pay levels. Others have analyzed state judicial pay, which has the advantage of providing differential cross-sectional pay levels, but the disadvantage of being only a rough parallel to the federal judiciary. One study used an approach similar to Professor Baker's to examine state judicial salaries and found little positive effect on their measures of judicial output (which included total opinions, outside citations, and dissents). See Stephen J. Choi et al., Are Judges Overpaid?: A Skeptical Response to the Judicial Salary Debate 59 (Univ. of Chicago Law School John M. Olin Law & Economics Research Paper Series, Working Paper No. 376, 2008), available at http://ssrn.com/abstract=1077295.
  • 61
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    • See Adriana S. Cordis
    • unpublished manuscript, available at http.7/ssrn.com/abstract=1019897, Another study found that higher levels of state judicial pay were significantly associated with lower levels of general governmental corruption, February
    • Another study found that higher levels of state judicial pay were significantly associated with lower levels of general governmental corruption. See Adriana S. Cordis, Judicial Checks on Corruption in the United States 4 (February 2008) (unpublished manuscript, available at http.7/ssrn.com/abstract=1019897).
    • (2008) Judicial Checks on Corruption in the United States , vol.4
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    • T]he inability of societies to develop effective, low-cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment in the Third World, See
    • See DOUGLASS C. NORTH, INSTITUTTONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE 54 (1990) ("[T]he inability of societies to develop effective, low-cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment in the Third World.").
    • (1990) PERFORMANCE , vol.54
    • NORTH, D.C.1    INSTITUTTONS, I.2    AND ECONOMIC, C.3
  • 63
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    • ROBERT J. BARRO, DETERMINANTS OF ECONOMIC GROWTH: A CROSS-COUNTRY EMPIRICAL STUDY 26-28 (1997).
    • ROBERT J. BARRO, DETERMINANTS OF ECONOMIC GROWTH: A CROSS-COUNTRY EMPIRICAL STUDY 26-28 (1997).
  • 64
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    • KENNETH W. DAM, THE LAW-G ROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT 93 (2006). Dam notes that [bjetter-performing courts have been shown to lead to more developed credit markets and that a stronger judiciary is associated with more rapid growth of small firms as well as with larger firms in the economy. Id. (citation omitted).
    • KENNETH W. DAM, THE LAW-G ROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT 93 (2006). Dam notes that "[bjetter-performing courts have been shown to lead to more developed credit markets" and that a "stronger judiciary is associated with more rapid growth of small firms as well as with larger firms in the economy." Id. (citation omitted).
  • 66
    • 46749136994 scopus 로고    scopus 로고
    • Id. (quoting Singaporean Prime Minister Lee Kwan Yew).
    • Id. (quoting Singaporean Prime Minister Lee Kwan Yew).
  • 67
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    • Choi, supra note 57, at 13
    • Choi, supra note 57, at 13.
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    • James F. Spriggs, II & Paul J. Wahlbeck, Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991, 48 POL. RES. Q. 573, 589-90 (1995).
    • James F. Spriggs, II & Paul J. Wahlbeck, Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991, 48 POL. RES. Q. 573, 589-90 (1995).
  • 69
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    • Deborah J. Barrow & Gary Zuk, An Institutional Analysis of Turnover in the Lower Federal Courts, 1900-1987, 52 J. POL. 457, 473-74 (1990).
    • Deborah J. Barrow & Gary Zuk, An Institutional Analysis of Turnover in the Lower Federal Courts, 1900-1987, 52 J. POL. 457, 473-74 (1990).
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    • Markon, supra note 18
    • Markon, supra note 18.
  • 72
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    • See Posting of Peter Lattman to Wall Street Journal Law Blog, http://blogs.wsj.com/law/2007/09/21/judge-paul-cassell-resigning/ (Sep. 21, 2007, 15:48 EST).
    • See Posting of Peter Lattman to Wall Street Journal Law Blog, http://blogs.wsj.com/law/2007/09/21/judge-paul-cassell-resigning/ (Sep. 21, 2007, 15:48 EST).


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