What judges think of the quality of legal representation

Stanford Law Review

Volumn 63, Issue 2, 2011, Pages 317-350

  Posner, Richard A ^a   Yoon, Albert H ^b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

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EID: 79751475614     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (133)

1. Marc Galanter & Mia Cahill, "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 STAN. L. REV. 1339, 1340 (1994).
2. See MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 41 (1994)
3. see also ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 275 (1993).
4. See David S. Abrams & Albert H. Yoon, The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability, 74 U. CHI. L. REV. 1145, 1146 (2007).
5. See, e.g., KENNETH MANN, DEFENDING WHITE-COLLAR CRIME: A PORTRAIT OF ATTORNEYS AT WORK (1985) (white collar defense)
6. LYNN MATHER ET AL., DIVORCE LAWYERS AT WORK: VARIETIES OF PROFESSIONALISM IN PRACTICE (2001) (divorce)
7. ARTHUR LEWIS WOOD, CRIMINAL LAWYER (1967) (criminal law)
8. Sara Parikh, Professionalism and Its Discontents: A Study of Social Networks in the Plaintiff's Personal Injury Bar (2001) (unpublished Ph.D. dissertation, University of Illinois at Chicago) (on file with authors) (personal injury).
9. See, e.g., LINCOLN CAPLAN, SKADDEN: POWER, MONEY, AND THE RISE OF A LEGAL EMPIRE (1993)
10. JEROME E. CARLIN, LAWYERS ON THEIR OWN: A STUDY OF INDIVIDUAL PRACTITIONERS IN CHICAGO (1962)
11. CARROLL SERON, THE BUSINESS OF PRACTICING LAW: THE WORK LIVES OF SOLO AND SMALL-FIRM ATTORNEYS (1996)
12. JERRY VAN HOY, FRANCHISE LAW FIRMS AND THE TRANSFORMATION OF PERSONAL LEGAL SERVICES (1997).
13. See, e.g., JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (1982)
14. see also JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR (2005)
15. ERWIN O. SMIGEL, THE WALL STREET LAWYER: PROFESSIONAL ORGANIZATION MAN? (1964).
16. The distribution of LSAT scores for matriculating students follows a normal distribution
17. See E-mail from Philip Handwerk, Institutional Researcher, Law Sch. Admission Council, to author (July 28, 2009) (on file with authors).
18. See Lawrence F. Katz & Kevin M. Murphy, Changes in Relative Wages, 1963-1987: Supply and Demand Factors, 107 Q.J. ECON. 35, 36 (1992) (stating how shifting modern labor markets favor "more-educated and 'more-skilled' workers over less-educated and 'less-skilled' workers").
19. See Richard Birke & Craig R. Fox, Psychological Principles in Negotiating Civil Settlements, 4 HARV. NEGOT. L. REV. 1, 17-18 (1999) (citing surveys showing that most people, including a majority of lawyers, believe themselves to be better than average in their field).
20. For example, legal scholars have examined the impact of differences in ideology among federal judges on outcomes in administrative law and environmental cases
21. See Frank B. Cross & Emerson H. Tiller, Essay, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998) (administrative law)
22. Richard L. Revesz, Environmental Regulations, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717 (1997) (environmental cases)
23. These articles prompted a critical response from Chief Judge Harry Edwards
24. See Harry T. Edwards, Essay, Collegiality and Decision Making on the D.C. Circuit, 84 VA. L. REV. 1335 (1998).
25. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 45, 56 (1966).
26. See Lauren K. Robel, Caseload and Judging: Judicial Adaptations to Caseload, 1990 BYU L. REV. 3.
27. See Joe S. Cecil & Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 EMORY L.J. 995, 997 & n.7 (1994)
28. Louis Harris & Assocs., Judges' Opinions on Procedural Issues: A Survey of State and Federal Trial Judges Who Spend at Least Half Their Time on General Civil Cases, 69 B.U. L. REV. 731, 731-33 (1989).
29. See Christopher Avery, Christine Jolls, Richard A. Posner & Alvin E. Roth, The Market for Federal Judicial Law Clerks, 68 U. CHI. L. REV. 793, 796-97 (2001)
30. Christopher Avery, Christine Jolls, Richard A. Posner & Alvin E. Roth, The New Market for Federal Judicial Law Clerks, 74 U. CHI. L. REV. 447, 451 (2007).
31. See Kimberly A. Lonsway, Leslie V. Freeman, Lilia M. Cortina, Vicki J. Magley & Louise F. Fitzgerald, Understanding the Judicial Role in Addressing Gender Bias: A View from the Eighth Circuit Federal Court System, 27 LAW & SOC. INQUIRY 205 (2002).
32. See Albert Yoon, As You Like It: Senior Federal Judges and the Political Economy of Judicial Tenure, 2 J. EMPIRICAL LEGAL STUD. 495 (2005).
33. Prior to joining the University of Toronto, Professor Yoon was a professor at Northwestern University School of Law from 2001 to 2008.
34. Judge Posner was, for obvious reasons, not surveyed. The total number of mailings was 456 rather than 480 because some circuits had fewer than forty active district and circuit judges.
35. The state survey was administered through SurveyMonkey.com, which offers encrypted, web-based surveys.
36. For the sake of completeness, we include in the tables all judge responses for each question.
37. We present unweighted results in the tables. Although the state survey was administered to all members of the four state judge organizations, we could not determine how representative these organizations were of the general state judge population. Aggregate statistics about state judges exist
38. see, for example, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, STATE COURT ORGANIZATION (2004)-but are published only intermittently, and report demographics (e.g., age, gender, ethnicity) that differ from what we asked in our survey. The absence of these state judicial data prevented us from engaging in poststratification weighting (to adjust for over- or underresponses based on judge demographics).
39. The Bonferroni correction allows multiple comparisons without assuming either independence or homogeneity of variance. We chose this correction to allow comparisons for repeated measures. We also used it on single questions where the assumption of homogeneity of variance did not hold. These normalizations produced similar results to other normalization approaches (i.e., Scheffé and Šidák).
40. See N.J. Schweitzer et al., Rule Violations and the Rule of Law: A Factorial Survey of Public Attitudes, 56 DEPAUL L. REV. 615, 628 n.39 (2007) (citing a study showing that the average response rate for unsolicited e-mail surveys ranges from 4% to 10%).
41. Among the respondents, one federal judge and twenty-four state judges did not reveal whether they were appellate or trial court judges. Although included in Table 1 for the sake of completeness, these twenty-five judges were omitted from Table 2 and subsequent tables.
42. E-mail from Shannon Roth, Admin. Manager, Nat'l Ctr. for State Courts, to author (Sept. 30, 2008) (on file with authors).
43. One notable exception was Question 6, infra Table 5, in which Kentucky judges viewed prosecutors and public defenders as having a greater effect on case outcomes, and court-appointed counsel as having less effect.
44. The chi-square test of independence was statistically significant, indicating that the responses were meaningfully different across the judge groups.
45. Both federal and state judges noted in their comments the challenges posed by pro se litigants. One state trial judge commented, "If one party is pro se, which is frequent, I bend the rules of evidence and procedure somewhat to accommodate the pro se litigant."
46. Responses in Question 4 reveal statistically significant differences within judge groups, within lawyer type, and in the interaction of judge group and lawyer type. We conducted tests for statistical significance using multivariate analysis of variance (MANOVA), running Wilks's lambda, Pillai's trace, Lawley-Hotelling trace, and Roy's largest root tests. These tests produced similar results rejecting the null hypotheses that the responses (within judge group, within lawyer type, and in the interaction of the two) are the same.
47. For each federal judge group, the difference in ranking between prosecutors and public defenders was small and not significant.
48. For each federal judge group, the difference in ranking between court-appointed and private counsel was small and not significant.
49. The differences in scores among state appellate judges for prosecutors, public defenders, and retained counsel were small and not statistically significant.
50. For state trial judges, the perceived differences between prosecutors, public defenders, and court-appointed counsel were small and not statistically significant.
51. See, e.g., Kurt X. Metzmeier & Peter Scott Campbell, Nursery of a Supreme Court Justice: The Library of James Harlan of Kentucky, Father of John Marshall Harlan, 100 LAW LIBR. J. 639, 640 (2008) (stating "that the technical skill that made [Harlan] a good appellate lawyer was a hindrance before a jury")
52. citing THOMAS Z. MORROW, RECOLLECTIONS OF AN OLD TIME DEMOCRATIC MASS MEETING 21-22 (1911)
53. See Owen M. Fiss, Comment, Against Settlement, 93 YALE L.J. 1073, 1077 (1984) ("Resources influence the quality of presentation, which in turn has an important bearing on who wins and the terms of victory.")
54. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 103 (1974) (describing how repeat litigants-who typically have greater experience and expertise than one-shot litigants-usually also have greater resources).
55. Another germane factor in civil cases is the practice setting of the civil lawyer: for example, solo practitioner, small firm, or large firm. We ultimately excluded these questions because we were not sure that, as a general matter, judges would be aware of the practice settings of the lawyers who appear before them.
56. State trial judges also gave similarly high ratings to practitioners in personal injury and malpractice, and tax and trusts and estates.
57. Federal district judges and state trial judges gave similarly low ratings to lawyers practicing civil rights and family law. Federal and state appellate judges also gave low ratings to family law.
58. In the annual Federal Judicial Caseload Statistics, ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS 51 tbl.C-3 (2009), available at http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics.aspx, family law cases are not recognized as a separate category for bringing suit.
59. Personal injury was the second most cited practice area for both Questions 9a and 10; this reflects differences of judicial perception across geographic jurisdictions.
60. The sum of these two responses exceeds 100% for both federal appellate and trial judges, an odd result since a "no effect" response seems mutually exclusive of the other choices in the question. We suspect that a small fraction of judges viewed conducting additional legal research as part of their approach to any case before them. For an interesting discussion of the normative and positive implications of independent research by judges in cases
61. see Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 DUKE L.J. 1263 (2007).
62. For appellate judges-who do not interact with juries-we cannot determine whether their perceptions are based on their review of appellate records, prior experience as a trial judge, or legal experience prior to joining the bench.
63. The Cramer's V statistic was 0.13, reflecting small differences in response patterns across judge groups.
64. The Cramer's V statistic was 0.16.
65. The Cramer's V statistic was 0.20.
66. As illustrated by the table below, federal judges were more likely to cite the need for higher judicial salaries than were state judges.
67. We ran a repeated measures ANOVA for all the ordered response questions (Questions 1-2, 4-8, 11, and 17) with an unstructured correlation structure, which allows the correlation to vary from one question to the next. State trial judges were statistically significantly different from state appellate and federal district judges.
68. See, e.g., Albert Yoon, Love's Labor's Lost? Judicial Tenure Among Federal Court Judges: 1945-2000, 91 CALIF. L. REV. 1029, 1044 tbl.2 (2003) (showing that 11.4% of retired federal judges were prosecutors immediately before joining the federal bench and 38.9% worked in private practice).
69. See FRANCES KAHN ZEMANS & VICTOR G. ROSENBLUM, THE MAKING OF A PUBLIC PROFESSION 126-27 (1981) (describing how survey respondents emphasized analytic and interpersonal skills rather than writing skills).
70. See also ROBERT A. LEFLAR, INTERNAL OPERATING PROCEDURES OF APPELLATE COURTS 31 (1976) (stating that some judges believe oral advocacy is relatively unimportant to their understanding of cases).
71. See THE FLA. BAR, FLORIDA APPELLATE PRACTICE § 17.10 (4th ed. 1998) (quoting Justice Scalia as saying that oral argument "give[s] counsel his or her best shot at meeting my major difficulty with that side of the case")
72. see also John M. Harlan, What Part Does the Oral Argument Play in the Conduct of an Appeal?, 41 CORNELL L.Q. 6, 11 (1955) ("[O]ral argument on an appeal is perhaps the most effective weapon you have got if you will give it the time and attention it deserves.")
73. Gilbert S. Merritt, The Decision Making Process in Federal Courts of Appeals, 51 OHIO ST. L.J. 1385, 1387 (1990) ("Oral argument keeps judges from unreflectively adopting their law clerks' view rather than developing their own view through reflection.").
74. See, e.g., Morton Gitelman, The Relative Performance of Appointed and Retained Counsel in Arkansas Felony Cases-An Empirical Study, 24 ARK. L. REV. 442 (1971)
75. Joyce S. Sterling, Retained Counsel Versus the Public Defender: The Impact of Type of Counsel on Charge Bargaining, in THE DEFENSE COUNSEL 151, 167 (William F. McDonald ed., 1983)
76. Robert V. Stover & Dennis R. Eckart, A Systematic Comparison of Public Defenders and Private Attorneys, 3 AM. J. CRIM. L. 265 (1975).
77. See, e.g., Margareth Etienne, The Declining Utility of the Right to Counsel in Federal Criminal Courts: An Empirical Study on the Diminished Role of Defense Attorney Advocacy Under the Sentencing Guidelines, 92 CALIF. L. REV. 425, 478 (2004) (citing studies attesting to the quality of federal public defenders)
78. Jack B. Weinstein, The Role of Judges in a Government of, by, and for the People: Notes for the Fifty-Eighth Cardozo Lecture, 30 CARDOZO L. REV. 1, 49-50 (2008) (discussing the gap in quality between federal public defenders and court-appointed (Criminal Justice Act panel) attorneys).
79. See Radha Iyengar, An Analysis of the Performance of Federal Indigent Defense Counsel 3 (Nat'l Bureau of Econ. Research, Working Paper No. 13187, 2007), available at http://www.nber.org/papers/w13187 (discussing how federal public defenders earn sentences approximately eight months shorter, on average, than federal court-appointed lawyers).
80. See id. at 34.
81. See Abrams & Yoon, supra note 3, at 1173
82. showing that a "defendant who is randomly assigned the tenth percentile public defender has a 14 percentage point greater chance of receiving incarceration than one assigned to the ninetieth percentile public defender"
83. Strickland v. Washington, 466 U.S. 668 (1984) (interpreting the Sixth Amendment's Counsel Clause as guaranteeing the effective assistance of counsel, whether appointed or privately retained).
84. This view is consistent with the scholarly criticism of court-appointed attorneys in criminal cases
85. See, e.g., Stephen B. Bright, The Failure to Achieve Fairness: Race and Poverty Continue to Influence Who Dies, 11 U. PA. J. CONST. L. 23, 27 (2008) (describing the "meet'em and plead'em" process in which court-appointed lawyers meet their criminal clients and minutes later seek to reach plea agreements with the prosecutor)
86. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 767, 810-11 (1995) (discussing the prevalence of ineffective assistance of counsel in capital cases)
87. For example, a series of articles regarding the representation of indigent state criminal defendants by court-appointed counsel found the system expensive and inefficient, causing defendants to fare worse than if they had been represented by a public defender
88. See Alan Maimon, Conflicted Justice, LAS VEGAS REV.-J., Mar. 25, 2007, at 1J
89. Alan Maimon, Court Officials Review Indigent Defense, LAS VEGAS REV.-J., Mar. 27, 2007, at 1A
90. Alan Maimon, Probe Finds Uneven Justice, LAS VEGAS REV.-J., Mar. 5, 2007, at 1A.
91. See, e.g., Jennifer Bennett Shinall, Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes, 63 VAND. L. REV. 267, 274 (2010) (arguing that prosecutors matter more than defense attorneys in criminal jury trials)
92. Frank O. Bowman, III & Michael Heise, Quiet Rebellion II: An Empirical Analysis of Declining Federal Drug Sentences Including Data from the District Level, 87 IOWA L. REV. 477, 526-30 (2002) (discussing the discretionary authority of prosecutors that can have significant effects on sentence outcomes).
93. Galanter, supra note 35, at 98-100.
94. Of course, even among the "haves," disparities in the quality of legal representation may still occur, affecting case outcomes
95. See David Luban, The Adversary System Excuse, in THE GOOD LAWYER 83, 98-99 (David Luban ed., 1983) ("[W]e have no reason at all to believe that when two overkillers slug it out the better case, rather than the better lawyer, wins.").
96. But see Laura K. Abel, Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws, 42 LOY. L.A. L. REV. 1087 (2009)
97. Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System, 98 MICH. L. REV. 953 (2000)
98. Andrew Scherer, Why People Who Face Losing Their Homes in Legal Proceedings Must Have a Right to Counsel, 3 CARDOZO PUB. L. POL'Y & ETHICS J. 699 (2006).
99. See, e.g., David L. Bazelon, The Defective Assistance of Counsel, 42 U. CIN. L. REV. 1 (1973)
100. Vivian O. Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths-A Dead End?, 86 COLUM. L. REV. 9, 59-112 (1986)
101. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835 (1994)
102. Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 CORNELL L. REV. 679, 686-88 (2007).
103. See Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, 365 n.43 (1996) (describing the vast disparity in expenditures in federal criminal cases between prosecutors and public defenders).
104. See Primus, supra note 64, at 683-84 (recognizing that ineffective assistance of counsel occurs far more frequently than suggested by the number of overturned criminal convictions).
105. In re Winship, 397 U.S. 358, 364 (1970).
106. Gideon v. Wainwright, 372 U.S. 335 (1963).
107. See Anthony Paduano & Clive A. Stafford Smith, The Unconscionability of Sub-Minimum Wages Paid Appointed Counsel in Capital Cases, 43 RUTGERS L. REV. 281, 333 (1991) (stating that many criminal lawyers are solo practitioners or members of small law firms (quoting Affidavit of Hon. W.F. Coleman, State v. Wilson, Nos. 89-301, -302 (Miss. Cir. Ct. Oct. 31, 1988))).
108. See Abrams & Yoon, supra note 3, at 1158.
109. See KALVEN & ZEISEL, supra note 11, at 55-56 (finding in a study of over 3500 criminal cases that the judges and juries agreed on the verdict 75.4% of the time)
110. see also Theodore Eisenberg et al., Judge-Jury Agreement in Criminal Cases: A Partial Replication of Kalven and Zeisel's The American Jury, 2 J. EMPIRICAL LEGAL STUD. 171, 173 (2005) (reaching results similar to Kalven and Zeisel's in a replicated study)
111. For a discussion of scholarship motivated by the Kalven and Zeisel study
112. see Valerie P. Hans & Neil Vidmar, The American Jury at Twenty-Five Years, 16 LAW & SOC. INQUIRY 323 (1991).
113. It may also be that the level of agreement between judges and juries differs between criminal and civil cases. In a supplemental question, state judges were asked in what percentage of cases they thought juries reached the right outcome: explanation is that judges believe that the appropriate outcome is more apparent in criminal cases than in civil cases, thus warranting the high conviction rate of criminal defendants
114. See Erica J. Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. REV. 423, 440, 449 (2007) (stating that in their study of state court criminal trials, 78% of represented state court defendants charged with felonies between 1990 and 2000 were convicted at trial)
115. Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 WASH. U. L.Q. 151, 152, 180 tbl.F (2005) (citing federal felony conviction rate of more than 80% between 1989 and 2002)
116. If so, it may imply that judges think criminal juries are doing their job properly.
117. Cf. Fiss, supra note 35, at 1077 (discussing "the guiding presence of the judge, who can employ a number of measures to lessen the impact of distributional inequalities").
118. See Abrams & Yoon, supra note 3, at 1173 (finding that defendants who are assigned public defenders in the ninetieth percentile of ability have an incarceration rate fourteen percentage points lower than those with public defenders in the tenth percentile of ability)
119. Carroll Seron et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City's Housing Court: Results of a Randomized Experiment, 35 LAW & SOC'Y REV. 419 (2001) (showing in a randomized study that plaintiffs with legal representation fared much better than those without).
120. For an empirical examination of trends in trial rates in state and federal court
121. See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004).
122. See Gerald R. Williams, Negotiation as a Healing Process, 1996 J. DISP. RESOL. 1, 24-25 (finding that, in a random sample of cases scheduled for trial, attorneys in 53% of the cases actually going to trial attributed the failure to settle to "a refusal by one party or the other to agree to the terms recommended by their own attorney").
123. See Amir Efrati, Hard Case: Job Market Wanes for U.S. Lawyers, WALL ST. J., Sept. 24, 2007, at A1.
124. See NALP, STARTING SALARIES: WHAT NEW LAW GRADUATES EARN: CLASS OF 2009, at 8 (2010)
125. see also Lewis A. Kornhauser & Richard L. Revesz, Legal Education and Entry into the Legal Profession: The Role of Race, Gender, and Educational Debt, 70 N.Y.U. L. REV. 829, 865-74 (1995) (showing salary trends across different areas of law).
126. See Erica Field, Educational Debt Burden and Career Choice: Evidence from a Financial Aid Experiment at NYU Law School, 1 AM. ECON. J.: APPLIED ECON. 1, 3 (2009).
127. Of course, if noneconomic factors (e.g., hours, stress) closely correlate with salary, then the lawyer-sorting process may look the same.
128. See Jonathan D. Glater, Amateur Hour in Court, N.Y. TIMES, Apr. 10, 2009, at B1 (noting that legal fees have prompted many litigants to represent themselves or forego litigation altogether)
129. see also Margery A. Gibbs, Courts See More People Being Own Lawyers, DENV. POST, Nov. 25, 2008, http://www.denverpost.com/ci_11066610 (same).
130. See Hadfield, supra note 63, at 968-72.
131. Frank B. Cross, Response, Perhaps We Should Pay Federal Circuit Judges More, 88 B.U. L. REV. 815, 816 (2008).
132. See, e.g., Neil A. Lewis, Judge Leaves Appeals Court for Boeing, N.Y. TIMES, May 11, 2006, at A31 (noting that Judge J. Michael Luttig attributed his decision to retire from the U.S. Court of Appeals for the Fourth Circuit, to become general counsel of Boeing, in part to his desire for a higher salary).
133. See Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Are Judges Overpaid?: A Skeptical Response to the Judicial Salary Debate, 1 J. LEGAL ANALYSIS 47, 57 (2009).