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Publication Title

Washington University Law Quarterly

Abstract

Judge Harry Edwards dislikes empirical work that is not flattering to federal appellate judges. We believe that Judge Edwards, when he commented on our presentation at a recent conference, preserved his batting average. Giving no forewarning and employing an unjudicial tone, he lambasted a single paragraph of our thirty-five page paper, a paragraph to which we had not so much as alluded in our oral presentation. That paragraph just happened to have summarized a series of our earlier articles that had raised some doubts about the evenhandedness of federal appellate courts’ treatments of plaintiffs and defendants. Even after delivering his oral comments, he refused to let us see the written version prepared by him and his co-author. He then used his considerable influence to persuade the law review against publishing in the symposium issue any form of reply whatsoever to his oral or written comments. Now, upon its publication, we have finally been able to read his written remarks. Suffice it to say, his Article exhibits none of the virtues or benefits that would have flowed from open discourse. And the tone, although turned down several notches, remains disturbing. We sadly realize that authors who reply to an attack never distinguish themselves unless they take the very high road. But that road looks steep when the attack goes to such extremes. Still, we shall try here at least to restrict our response to his principal line of argument. Respond to that argument we must, because allowing it to stand would undermine not only our appellate research but also much of current empirical work on the law.

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