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LIGHTENED SCRUTINY
The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many cases in the federal courts. At risk, it is said, are cherished and important process values. Often left unsaid is a further possibility: that not only process, but also the outcomes of cases, might be at stake. This Article advances the conversation by illustrating how judicial overload might entail sacrifices of first-order importance. I present here empirical evidence suggesting a causal link between judicial burdens and the outcomes of appeals. Starting in 2002, a surge of cases from a single federal agency flooded into the circuit courts. Two circuits bore the brunt, with their caseloads jumping more than forty percent. The other circuits were barely touched, by comparison. To sort cause from effect, I focus on outcomes not in the surging agency cases, but instead in a separate category: civil appeals. The two circuits flooded with agency cases began to overrule district court decisions less often — in the civil cases. This evidence of evolving deference raises the possibility of \"silent splits\": divergences among the circuits in their levels of appellate scrutiny, due not to articulated disagreements but to variation in caseloads.
Journal Article
THE MECHANICS OF FEDERAL APPEALS: UNIFORMITY AND CASE MANAGEMENT IN THE CIRCUIT COURTS
Case-management practices of appellate courts define the judicial review of appeals. The circuit courts constantly make decisions about which cases will receive oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions—decisions that exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts. Despite their importance, there has been no in-depth review of the case-management practices of the different circuit courts in the academic literature. This Article begins to fill that void. It first documents and analyzes the practices of five circuit courts using qualitative research from a series of interviews of appellate judges, clerks of court, court mediators, and staff attorneys. This thorough account of case management reveals the great extent to which these practices vary across circuits. The Article considers reasons for the variation and asks whether such a lack of uniformity is problematic in a federal system. The Article concludes that disuniformity in case management is more defensible than in substantive and procedural law, but that current practices can and should be improved through increased transparency and information sharing between the circuits.
Journal Article
Making Law in the United States Courts of Appeals
The book, first published in 2002, examines circuit court decision making on issues not clearly covered by existing precedents. Its central questions are to what extent circuit judges' choices to adopt legal rules are influenced by the actions of other circuit judges and whether judges attempt to decide legal issues as they think the Supreme Court would in their place. Evidence comes from quantitative analyses of several hundred cases and from interviews with two dozen circuit court judges. The evidence indicates that judges give attention to the work of colleagues on their own court and other circuits and that the actions, prestige, and expertise of these colleagues are important. On the other hand, while Supreme Court precedents factor heavily in the circuit judges' decisions, expectations as to how the Supreme Court might decide appear to have little effect on their actions. These findings suggest that legal and policy goals influence judges' decision-making.
eBook
Truth or Unintended Consequences: Reining in Appellate Court Action in the Absence of a Government Appeal
Sentencing jurisprudence has been continuously evolving since the establishment of the United States Sentencing Guidelines (\"the Guidelines\"). The Supreme Court has worked to limit the influence of the Guidelines while lower courts have attempted to apply them. One particular area in flux is appellate review of sentencing. Under the now-advisory Guidelines, courts of appeals are still expected to review sentences. But the Supreme Court has curtailed appellate court authority by repeatedly emphasizing that lower courts have discretion in sentencing, even when courts impose sentences outside the Guidelines. Continuing its efforts to clarify the scope of review, the Court recently held in 'Greenlaw v United States' that an appellate court cannot increase a defendant's sentence when the defendant has appealed and the government has neither appealed nor cross-appealed.
Journal Article
The View from the Bench and Chambers
For most of their history, the U.S. courts of appeals have toiled in obscurity, well out of the limelight of political controversy. But as the number of appeals has increased dramatically, while the number of cases heard by the Supreme Court has remained the same, the courts of appeals have become the court of last resort for the vast majority of litigants. This enhanced status has been recognized by important political actors, and as a result, appointments to the courts of appeals have become more and more contentious since the 1990s. This combination of increasing political salience and increasing political controversy has led to the rise of serious empirical studies of the role of the courts of appeals in our legal and political system.
At once building on and contributing to this wave of scholarship,The View from the Bench and Chambersmelds a series of quantitative analyses of judicial decisions with the perspectives gained from in-depth interviews with the judges and their law clerks. This multifaceted approach yields a level of insight beyond that provided by any previous work on appellate courts in the United States, makingThe View from the Bench and Chambersthe most comprehensive and rich account of the operation of these courts to date.
eBook
TIME WAITS FOR NO MAN—BUT IS TOLLED FOR CERTAIN POST-JUDGMENT MOTIONS: FEDERAL RULE OF APPELLATE PROCEDURE 4(a)(4) AND THE FATE OF WITHDRAWN POST-JUDGMENT MOTIONS
In 2007, the Supreme Court, in Bowles v. Russell, determined that Federal Rule of Appellate Procedure 4(a)(6)'s appeal deadline is a jurisdictional requirement. Failure to meet the deadline cannot be excused, as it divests the court of appeals of jurisdiction over the case. In reaching its conclusion, the Court invalidated the unique circumstances doctrine, an equitable doctrine that judges and justices had previously applied in order to excuse untimely filings of notices of appeal in special cases. As to why this particular deadline amounted to a jurisdictional requirement, the Court laid emphasis on the fact that the deadline had been set forth, by Congress, in a statute. The decision led to the natural conclusion that other appeal deadlines in Rule 4 that have been codified are likewise jurisdictional, and cannot be relaxed in response to equitable considerations. This Note focuses on the appeal deadlines in Rule 4(a), and in particular the provision in Rule 4(a)(4) that totts these deadlines when certain post-judgment motions are filed in the district court. A qualified post-judgment motion traditionally tolls the appeal deadline until the district court has entered judgment on the motion. However, when a post-judgment motion is voluntarily withdrawn, rather than decided by the district court, a question arises as to whether the appeal deadline was effectively tolled. The language of Rule 4(a)(4) on the matter is unsatisfying and unclear, leading courts to reach different conclusions about the effectiveness of a withdrawn post-judgment motion and the timeliness of an appellant's notice of appeal. A determination that a withdrawal nullifies the tolling effect of the post-judgment motion can render a notice untimely, and given the Supreme Court's decision in Bowles v. Russell, courts ofappeals are now clearly without equitable power to excuse such untimeliness. With the right to appeal in the balance, this Note considers how Rule 4(a)(4) ought to be read in light of the text of the rule, the jurisdictionality of the appeal deadlines, and the history of Rule 4.
Journal Article
THE APPLICABILITY OF STATE APPEAL BOND CAPS IN SUITS BROUGHT IN FEDERAL COURTS PURSUANT TO DIVERSITY JURISDICTION
Since 2000, forty-one states have passed appeal bond reform statutes, a tort reform measure that, in some shape or form, caps the amount of a supersedeas bond a defendant must secure in order to stay the execution of a judgment while pursuing an appeal. The state statutes vary widely in their operation, but their underlying goal is to protect a defendant's right to appeal massive damages awards without putting himself in dire financial straits just to secure a sufficient supersedeas bond. Prior to the wave of reform beginning in 2000, state courts often required a bond in the amount of the full judgment plus costs and interest, which could be prohibitively expensive if the verdict was for hundreds of millions-or billions-of dollars. This Comment addresses whether state statutes capping supersedeas bond amounts are applicable in federal courts exercising diversity jurisdiction, or whether such statutes conflict with Federal Rule of Civil Procedure (FRCP) 62(d)-the rule governing postjudgment stays pursuant to supersedeas bonds.
Journal Article
The new frontier of guidance reviewability
In the administrative context, agency actions must be \"final\" to trigger judicial review. The Supreme Court's opinions in 'Sackett v. Environmental Protection Agency' and 'U.S. Army Corps of Engineers v. Hawkes Co'. marked an important shift in finality doctrine by emphasizing that the calculus of whether agency guidance is \"final\" may turn on its practical effects. For decades, agency guidance rarely warranted judicial review because it is not legally binding and, thus, not final. But the advent of the 'Sackett-Hawkes' pragmatic analysis has changed the landscape, raising particular concerns for agencies relying on promulgating guidance documents to \"softly\" regulate. This presents a puzzle: guidance varies in form and purpose, so what guidance is final? This Note makes two contributions. First, it offers a taxonomy of how circuit courts have developed the 'Sackett-Hawkes' finality test into different doctrinal strands. Second, it evaluates a recent case in the Fifth Circuit, 'Clarke v. CFTC', to explain why no-action letters should remain insulated from judicial review. Unlike other guidance documents, no-action letters are \"committed to agency discretion\" because they are a species of prosecutorial discretion. Conflating the reviewability of no-action letters with general guidance risks doctrinal, constitutional, and policy consequences.
Journal Article
Inside appellate courts
Inside Appellate Courts is a comprehensive study of how the organization of a court affects the decisions of appellate judges. Drawing on interviews with more than seventy federal appellate judges and law clerks, Jonathan M. Cohen challenges the assumption that increasing caseloads and bureaucratization have impinged on judges' abilities to bestow justice. By viewing the courts of appeals as large-scale organizations, Inside Appellate Courts shows how courts have walked the tightrope between justice and efficiency to increase the number of cases they decide without sacrificing their ability to dispense a high level of justice. Cohen theorizes that, like large corporations, the courts must overcome the critical tension between the autonomy of the judges and their interdependence and coordination. However, unlike corporations, courts lack a central office to coordinate the balance between independence and interdependence. Cohen investigates how courts have dealt with this tension by examining topics such as the role of law clerks, methods of communication between judges, the effect of a court's size and geographic location, the role of argumentation, the use of visiting judges, the significance of the increasing use of unpublished decisions, and the nature and role of court culture. Inside Appellate Courts offers the first comprehensive organizational study of the appellate judicial process. It will be of interest to the social scientist studying organizations, the sociology of law, and comparative dispute resolution and have a wide appeal to the legal audience, especially practicing lawyers, legal scholars, and judges.
eBook