Professor Tanenhaus developed a theory regarding which cases are accepted for review by the United States Supreme Court and he and I applied this theory to 3,000 petitions for certiorari or review by the High Court. The fruit of this research was published as a long chapter in a pioneering book called The Quantitative Analysis of Judicial Behavior. This study remains fifty years later as the most vital examination ever conducted of the process whereby the Supreme Court decides which appeals to accept for review and decision.
I breezed through the comprehensive exams, both written and oral, in political science and somehow managed to meet the language requirement. Professor Tanenhaus supervised my dissertation, which was a study of the United States Court of Appeals for the Second Circuit. This court covers New York, Connecticut, and Vermont and is primarily located in the Federal Courthouse on Foley Square in Lower Manhattan. It is often described as the country’s most important appellate court for commercial law cases.
The dissertation employed conventional case analysis as well as statistics to illuminate the relationship among the court’s judges. It focused primarily on the 1941-1951 years when its chief judge was Learned Hand, an extraordinary name for a judge, especially for one who was an iconic figure in American jurisprudence. He served as a federal judge for more than fifty years and is often referred to as the greatest American judge never to have served on the U.S. Supreme Court. At the time, the Second Circuit had but six judges, each of whom was a person of significant achievement and intellect. It was perhaps the most respected court in the entire country.
As an appellate court, the Second Circuit cases were decided by panels consisting of three judges. In the years covered by my research, it had a unique process whereby each judge hearing the case would write – or his law clerk would write – a preliminary memorandum outlining how he looked at the case. Because these documents were informal and certainly not intended for publication, the language used was often far more biting than what ultimately appeared in the published opinions.
One of its judges was Charles Clark, who had been dean of Yale Law School prior to becoming a judge. In the course of my research I developed a nice relationship with Clark and ultimately he provided me with a trove of material that included internal memoranda circulated among the judges. As he continued to live in New Haven where Yale is located, he had an office there in the Federal Courthouse. I would visit him from time to time. On one occasion, he said, “Marvin, I would like to treat you to lunch at one of the Yale cafeterias.” I responded that I could not accept because I only eat kosher food. “That’s no problem,” he said. “The cafeteria has delicious roast beef.”
The dissertation was, of course, handwritten, but by the time it was ready to be typed, I had the good fortune of being married to Malka who, in addition to blessings and skills too numerous to be mentioned here, was able to do the typing for me.
After I received my doctorate, I revised the text and included juicy portions of the Clark material in a book called Learned Hand’s Court, which was published by Johns Hopkins University Press. The work received good reviews but was sharply criticized in an unfriendly law review article written by Henry J. Friendly, who by then had become a judge on the Second Circuit. He was peeved that I had access to the unpublished memoranda and would include them in the book and he objected strongly to my employment of statistics to analyze the court’s decisions. My recollection is that the review contained this line: “Thinkers don’t count and counters don’t think.”
