Chapter 13 Further Reading

The lower federal courts have a substantial scholarly and journalistic literature. This list is selective — designed to give you durable scholarly depth on the institutional questions, plus contemporary empirical and journalistic work on the post-2013 confirmation environment, the Fifth Circuit's transformation, the shadow docket, and the nationwide-injunction debate. The annotations are intended to help you choose where to invest reading time.

Foundational scholarship on the federal judiciary

Cass R. Sunstein, Are Judges Political? An Empirical Analysis of the Federal Judiciary (Brookings, 2006). With co-authors David Schkade, Lisa Ellman, and Andres Sawicki. The empirical foundation for understanding panel effects in the courts of appeals — how a judge's vote depends not just on her ideology but on the ideology of the other panel members. Required reading for anyone interested in how the lower courts actually function. Largely accessible to non-lawyers.

Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton University Press, 2006). A serious, careful argument about what motivates judges — not just ideology, not just law, but a complex mix of professional reputation, attentiveness to peers, and institutional role. Pairs well with the more strictly attitudinal work of Segal and Spaeth.

Frank B. Cross, Decision Making in the U.S. Courts of Appeals (Stanford University Press, 2007). The empirical study of how the federal courts of appeals decide cases — the role of doctrine, the role of ideology, the role of panel composition. Cross is careful and skeptical, and the book pushes back on simplistic political models without rejecting empirical analysis.

Richard A. Posner, How Judges Think (Harvard University Press, 2008). Posner, a former Seventh Circuit judge, gives an insider's account of the multiple factors that shape judicial decision-making. Idiosyncratic, opinionated, and deeply informed.

Stephen L. Wasby, The Multi-Member Federal District Court: Three Examples (Carolina Academic Press, 2018). A close institutional study of how federal district courts actually function — local rules, internal management, the relationships among judges and between judges and magistrates. Specialized but valuable.

Constitutional and theoretical work on lower courts

J. Harvie Wilkinson III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Oxford University Press, 2012). Judge Wilkinson, a Reagan appointee to the Fourth Circuit, critiques grand constitutional theories (originalism, living constitutionalism, both versions) from the perspective of an institutionally modest jurist. Even readers who disagree will find the institutional argument worth engaging.

Stephen B. Burbank and Sean Farhang, Rights and Retrenchment: The Counterrevolution Against Federal Litigation (Cambridge University Press, 2017). A careful empirical and historical account of efforts to constrain federal-court litigation — from class-action restrictions to arbitration mandates to standing doctrine. Useful for students who want to understand how the lower courts have been reshaped by procedural and jurisdictional changes.

Edward A. Purcell Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (Oxford University Press, 1992). Older but essential history. Purcell shows how the federal-court system was shaped by economic and political conflicts that we no longer remember but whose institutional residue we still inhabit.

On the Ninth Circuit specifically

Stephen L. Wasby, Borrowed Judges: Visitors in the U.S. Courts of Appeals (Carolina Academic Press, 2018). Wasby has been the foremost scholarly student of the Ninth Circuit for decades. His shorter articles in the Journal of Appellate Practice and Process are also valuable.

Carl Tobias, "The Newest Ninth Circuit," Loyola of Los Angeles Law Review (multiple articles, 2010s–2020s). Tobias tracks the changing composition of the Ninth Circuit, including the substantial Trump-1 transformation and subsequent rebalancing. Available on SSRN and in law-review databases.

Empirical and journalistic work on the post-2013 confirmation environment

Russell Wheeler, "Federal Judicial Selection: A Recurring Tracking Study" (Brookings Institution, ongoing). Wheeler's regular updates on confirmation totals, demographic composition of cohorts, and vacancy patterns are the most reliable single source. Available at brookings.edu.

Adam Liptak, ongoing reporting in The New York Times. Liptak's coverage of the federal courts — from the Supreme Court down through the circuits — is the most consistently informed mainstream-press source. The "Sidebar" column is particularly useful for institutional questions.

Pew Research Center, "U.S. Federal Court Composition" (ongoing). Regular empirical updates on the partisan-appointment composition of the federal courts of appeals, with district-court data for major districts.

Jonathan H. Adler, ed., Marble Palace, Gilded Cage: Liberty and Federal Judicial Reform (Hoover Institution Press, 2024). A multi-author volume, mostly from a conservative-libertarian perspective, on how the federal judiciary should be reformed. Includes essays on lower-court reform, term limits, and standing doctrine.

On the shadow docket and emergency relief

Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Generate Public Distrust (Basic Books, 2023). The book-length treatment of the trend Vladeck has been documenting in his University of Texas Law work for years. Vladeck is a careful scholar; the argument is critical of the Court's emergency-order practice but is grounded in the empirical record. Required reading for anyone interested in lower-court emergency rulings and the Supreme Court's response to them.

William Baude, "Foreword: The Supreme Court's Shadow Docket," 9 NYU J.L. & Liberty 1 (2015). The article that coined the term. Baude is more sympathetic to the practice than Vladeck and provides the institutional defense.

On nationwide injunctions

Samuel L. Bray, "Multiple Chancellors: Reforming the National Injunction," 131 Harv. L. Rev. 417 (2017). The foundational critique. Bray's argument is historical (about the equitable-remedy tradition), constitutional (about Article III judicial power), and structural (about institutional consequences). The article is essential reading; the subsequent debate is largely a response to it.

Mila Sohoni, "The Lost History of the 'Universal' Injunction," 133 Harv. L. Rev. 920 (2020). The most rigorous defense. Sohoni argues that the historical record is more mixed than Bray suggests and that practical necessity sometimes requires broader relief.

Howard M. Wasserman, "Nationwide Injunctions Are Really Universal Injunctions and They Are Never Appropriate," 22 Lewis & Clark L. Rev. 335 (2018). Wasserman elaborates the structural critique with attention to the distinction between universal and precedential effects.

Amanda Frost, "In Defense of Nationwide Injunctions," 93 N.Y.U. L. Rev. 1065 (2018). Counterpoint to the structural critique. Frost emphasizes the practical necessity of broader relief in cases of widespread federal-policy harm.

On the lower courts and contemporary politics

Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, 2013). Empirical work on how federal judges actually behave. Useful for the data-driven student.

Brookings Institution, "Federal Court Reform" series (ongoing). Multi-author analyses of court reform proposals — term limits, expansion, jurisdictional restrictions. Available at brookings.edu.

The Federal Judicial Center, multiple publications (ongoing). The FJC's research arm produces regular reports on the federal courts — caseload statistics, sentencing trends, the workload of magistrate and bankruptcy judges. Available at fjc.gov.

On the Fifth Circuit's transformation

Adam Bonica and Maya Sen, "The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary," Journal of Law and Economics (2017) and subsequent work. Bonica and Sen develop empirical methods for measuring the partisan composition of the federal bench. Their work is the foundation for many of the compositional claims in popular journalism about circuit transformation.

Steve Vladeck, "The Fifth Circuit and the Shadow Docket," Lawfare (multiple articles, 2022–2024). Vladeck's running commentary on the Fifth Circuit's role in the emergency-stay environment. Available at lawfaremedia.org.

On magistrate and bankruptcy judges

Tim A. Baker and Daniel S. Pollack, The Magistrate Judge's Manual (Federal Judicial Center, ongoing). The standard reference. Less polemical than scholarly literature, but invaluable for understanding what magistrate judges actually do.

Ronald J. Mann, "Bankruptcy and the U.S. Supreme Court" series (multiple articles). Mann's careful work on the constitutional and practical dimensions of the bankruptcy-court system, including post-Stern v. Marshall questions.

Where to look online (free)

• uscourts.gov — official source for federal-court information, vacancy data, statistical reports.
• fjc.gov — Federal Judicial Center, the research arm of the federal judiciary.
• courtlistener.com — free database of federal court opinions (and many state opinions).
• scotusblog.com — Supreme Court coverage with attention to lower-court precursors.
• lawfaremedia.org — frequent commentary on national-security-adjacent and emergency-relief litigation.
• Volokh Conspiracy (at Reason.com) — Volokh and his co-bloggers cover federal-court doctrine from a libertarian-conservative perspective with academic rigor.
• Take Care Blog (more progressive) and Election Law Blog (Rick Hasen, mostly election cases) are also excellent.

A reading order suggestion

If you have time for only three things, read: Bray's "Multiple Chancellors," Sohoni's "Lost History," and Vladeck's The Shadow Docket. Together, they will give you the framing of the contemporary debate and the institutional context for everything else. Then move to Wheeler's confirmation tracker for current empirical numbers, and to Liptak's Times coverage for ongoing developments. From there, follow your interests — the Fifth Circuit, the magistrate bench, sentencing, the bankruptcy puzzle.