Error correction

Indiana Law Journal

Volumn 85, Issue 1, 2010, Pages 49-85

  Oldfather, Chad M ^a,b,c  

^a MARQUETTE UNIVERSITY   (United States)

^b HARVARD UNIVERSITY   (United States)

^c UNIVERSITY OF VIRGINIA   (United States)

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[No Author keywords available]

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EID: 77950632863     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (214)

1. For a thoughtful explication of what appellate lawyers expect from courts, see Mary M. Ross, Reflections on Appellate Courts: An Appellate Advocate's Thoughts for Judges, 8 J. APP. PRAC. & PROCESS 355 (2006). As Ross diplomaticaUy puts it: Appellate advocates hope that the appellate court will address, somewhere in the opinion, all issues that the parties have raised. The failure to do so suggests that the court reviewed the matter so quickly that it missed an issue or saw the issue but then forgot to address it in the written opinion. This apparent lack of care undermines confidence in the outcome. It does so for both sides, although it is particularly difficult for the losing side to accept a decision when the court failed to discuss all issues.
2. Id. at 362.
3. See infra Part I.B.
4. The processes of statutory and constitutional interpretation and construction, for example, require courts to make law interstitially by assigning a meaning to the words of the authority and then to go beyond that meaning as necessary to ascertain the legal standard applicable to the given dispute. See, e.g., Lawrence B. Solum, Semantic Originalism 67-69 (Ill. Pub. Law & Legal Theory Research Paper Series, No. 07-24, 2008), available at http:// papers.ssrn.com/so13/papers.cfin?abstract-id=1120244. The methodology by which a court goes about those processes wiU often have dramatic effects on the identity of the law that is thereby generated.
5. Cf. Robert J. Lipkin, Which Constitution? Who Decides?, 28 CARDOZO L. REV. 1055, 1074 (2006) ("[T]he perennial debate over the correct interpretive methodology is the search for which constitution is our Constitution. Among the candidates are: The living Constitution, the strictly constructed Constitution, the perfect Constitution, the strategic Constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, and the Constitution in exile." (emphasis in original)).
6. See, e.g., CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT, at ix (1999) ("A minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions.").
7. Arguments from precedent look "forward as well [as backward], asking us to view today's decision as a precedent for tomorrow's decisionmakers. Today is not only yesterday's tomorrow; it is also tomorrow's yesterday. A system of precedent therefore involves the special responsibility accompanying the power to commit [to] the future before we get there." Frederick Schauer, Precedent, 39 STAN. L. REV. 571,572-573 (1987).
8. See infra Part I.A.
9. I suspect that this proposition is also true with respect to criminal appeals. Because of the different aims (and, to some extent, different processes) of the two systems, I have limited the discussion here to the civil system.
10. See infra Part I.A.
11. BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 177 (3d ed. 2003) ("[T]he phrase, 'we are all realists now', has become a kind of legal-academic cliche≤." (citation omitted));
12. Michael S. Green, Legal Realism as a Theory of Law, 46 WM. & MARY L. REV. 1915, 1917 (2005) (suggesting that the observation has been made so often "that it has become a cliché to call it a'cliché'").
13. BIX, supra note 9, at 178.
14. have explored the relationship between the recognition of indeterminacy and the exercise of the lawmaking function elsewhere. Chad M. Oldfather, Universal De Novo Review, 77 GEO. WASH. L. REV. 308 (2009).
15. Paul D. Carrington, The Function of the Civil Appeal: A Late-Century View, 38 S.C. L. REV. 411, 416 (1987). In describing the simple-minded formalism that characterized the jurisprudential view underlying the Evarts Act, which in 1891 established the current federal appellate system, Carrington writes: A chief concern of the time seems to have been a mistrust of the professionalism of the judiciary and of the capacity of individual judges to apply correctly law that was presumed clear and, thus, amenable to application...Such a legal system required an effective appellate system for one reason: The perceived role of the appellate court was to correct the errors of the trial court in applying the law to the facts.
16. Id.
17. Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 605 (1908).
18. Perhaps the most prominent example of such an approach is Justice Owen Roberts's opinion for the Court in United States v. Butler. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the government has only one duty, [sic]-to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. AU the court does, or can do, is to announce its considered judgment upon the question. United States v. Butler, 297 U.S. 1, 62-63 (1936).
19. See infra Part I.C.I.
20. See infra Part I.C.2.
21. See infra Part I.A.
22. See infra Part II
23. See infra note 34 and accompanying text.
24. See Ross, supra note 1, at 356 ("[T]he issues selected and the arguments presented by the advocate are, or should be, grounded on a respect for the law. The advocate seeks to persuade the appellate court that professional principles of decisionmaking that are accepted in the jurisdiction support the advocate's position.").
25. For a comprehensive articulation of the lawyer's perspective, see id.
26. See abo Martha I. Morgan, The Constitutional Right to Know Why, 17HARV.C.R.-C.L.L.REV.297(1982);
27. Chad M. Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide, 94 GEO. L.J. 121, 139-42 (2005).
28. Stephen B. Burbank, Making Progress the Old-Fashioned Way, 149 U. PA. L. REV. 1231, 1232 (2001).
29. Note that I have been careful to frame the point in terms of tendencies. Even then, of course, the assertions lack systematic empirical support simply because of the difficulties that would be involved in testing the underlying hypothesis. As I discuss more fully below, however, there is convincing anecdotal evidence of the point, which consists primarily of sitting judges asserting that the phenomenon is real. See infra text accompanying notes 92-94.
30. I have considered the question of responsiveness elsewhere. See Oldfather, supra note 20, at 161-74;
31. Chad M. Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation, 58 FLA. L. REV. 743, 754-756 (2006).
32. E.g., DANIEL J. MEADOR, THOMAS E. BAKER & JOAN E. STEINMAN, APPELLATE COURTS: STRUCTURES, FUNCTIONS, PROCESSES, AND PERSONNEL 189 (2d ed. 2006) ("Subject to exceptions for issues of the trial and appellate courts' jurisdiction and for some issues of law..., courts of appeals-whether federal or state-generally will not address issues that were not presented to the trial court or rulings that the litigant did not challenge in a timely fashion and in a prescribed manner...").
33. See, e.g., STEPHEN C. YEAZELL, CIVIL PROCEDURE 625 (7th ed. 2008) ("Understanding the barriers to appellate review helps one to comprehend that, as a practical matter, the trial court's decision on most procedural and substantive matters will likely be the only decision.").
34. See infra Part I.C.I.
35. FED. R. Crv.P.61.
36. One could also generate a critique on a more formalist ground. Consider, for example, an appeal based on an evidentiary issue. The Federal Rules of Evidence seemingly require consideration of the substantial rights of the party in the initial determination of whether something constitutes error: "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected..." FED. R. EVID. 103(a). It is undoubtedly best to regard this rule as simply duplicative-a way of underscoring to courts that there are to be no reversals in cases where substantial rights are unaffected. But it would not be doing undue violence to the language of the rules to suggest that one cannot have an evidentiary error when the ruling in question did not go to substantial rights, that such an error, in turn, cannot provide the basis for reversal unless it affects substantial rights, and that this sort of dual assessment of substantial rights might require slightly different inquiries in the two contexts. No doubt the two inquiries would almost always collapse into one another. My point is simply to underscore the ambiguity that results and to suggest that courts are to assess substantial rights in the initial assessment of error.
37. "[N]on-reversible error" constitutes an act or condition of imprudent deviation from an accepted norm. In lay terms, it is an error. In jurisprudence, however, it does not rise to a quality or magnitude that would require reversing or vacating the judgment of the trial court or granting a petition for review of an agency final order. It is, therefore, not described as an error. In this respect, however, it must not be confused with the doctrine of "harmless error," which has become a term of art. RUGGERO J. ALDISERT, THE JUDICIAL PROCESS: TEXT, MATERIALS AND CASES 732 (2d ed. 1996).
38. Compare FED. R. Crv. P. 61,
39. with FED. R. CRTM. P. 52 (authorizing courts to take action only with respect to errors that "affect substantial rights").
40. ROGER J. TRAYNOR, THE PUDDLE OF HARMLESS ERROR 16 (1970).
41. See, e.g., Frederick Schauer, Formalism, 97 YALE L.J. 509, 515 (1988) (discussing the Vermont case of Hunter v. Norman, which involved the missing of a deadline by three minutes).
42. Many decisions made by the district judge in orchestrating a bench or jury trial before him-or in more broadly supervising his docket, the litigation process, and the general operation of the district court-involve a certain measure of judgment or on-the-scene presence. These decisions are classified generally as discretionary and are deferred to, within limits, on appeal. 1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW § 4.01, at 4-12 (3d ed. 1999).
43. See, e.g., Highlands Ins. Co. v. Patrons Ins. Co., No.94, 601, 2006 WL1379854, at *4 (Kan. Ct. App. May 19, 2006) (unpublished table decision) ("Because we ordinarily function as an error-correcting court, we are hesitant to be the first tribunal to rule upon a hypothetical summary judgment motion without the benefit of the parties' compliance with the rules associated with such motions.");
44. In re Grand Jury Subpoena, 2002-Ohio-5600U, 22 ("By and large, courts of appeal in Ohio function in an error correction capacity. We leave the creation of public policy to the legislature and the Supreme Court.").
45. See, e.g., State v. Rodriguez, 738 N.W.2d 422, 432 (Mina Ct App. 2007) ("The task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court. Therefore, we decline the invitation to extend the Minnesota Constitution's Confrontation Clause to sentencing-jury proceedings. Our analysis is consistent with our role as an errorcorrecting court and describes what we believe to be the current state of the law." (citation omitted)), aff, d 754 N.W.2d 672 (Minn. 2008). Such courts will also contrast their role with the trial court's fact-finding role.
46. See, e.g., In re Children of N.R.M & J.S.H., Nos. C6-00-2128, C6-00-2140,2001 WL 569030, at *4 (Minn. Ct. App. May 29, 2001) ("The county asks us to correct this deficiency by reviewing the issue of the county's efforts de novo and ruling that the county's efforts were reasonable. While we are tempted to do so, we ultimately are constrained by our role as an error-correcting court, and will not usurp the fact-finding functions of the trial judge.").
47. See supra note 35.
48. See supra note 35.
49. Simmons v. Cordell (In re J.L.C.), No. M2004-00538-COA-R3-CV, 2005 WL 3555583, at *4 (Tenn. Ct App. Dec. 28, 2005) (Highers, J., dissenting);
50. see abo Tyler v. City of Manhattan, 118 F.3d 1400, 1416 (10th Cir. 1997) (Jenkins, J., dissenting) ("A doubtful proposition should not become the law of this case merely because the parties may assume it to be so, either before the district court or in framing their arguments on appeal. By affirming the district court's legal ruling... we would appear to be abdicating an appellate court's crucial role in the correction of legal error.").
51. E.g., State v. Bailey, 924 P.2d 833, 836 (Or. Ct. App. 1996) ("We are an errorcorrecting court; we reverse or modify trial court rulings only if those rulings are erroneous as asserted by the party assigning or cross-assigning error.");
52. Ozaukee County v. Scott, 2008 WI App 64U, 7 ("Finally, the court of appeals' primary function is error correcting. We cannot review for error an action the trial court was not given a chance to take." (citation omitted)).
53. E.g, Alstom Caribe, Inc. v. Geo. P. Reintjes Co., 484 F.3d 106, 117 (1st Cir. 2007) ("Given the peculiar circumstances of this case, our error-correction function must operate under severe constraints. There is simply no way that we can replicate exactly the situation that existed on July 27,2006.");
54. Clay v. Equifax, Inc., 762 F.2d 952, 957 (11th Cir. 1985) ("In the final analysis appellate review of what the district court did is largely an error-correcting function. Ordinarily the appellate court is given the tools to determine if the trial court acted correctly. The unexplained summary judgment order not only denies to the appellate court the tools of review but conceals what the court did and why and leaves the appeals court, like the proverbial blind hog, scrambling through the record in search of an acorn. This is antithetical to proper performance of the review function.");
55. Highlands Ins. Co. v. Patrons Ins. Co., No.94,601, 2006 WL1379854, at *4 (Kan. Ct App. May 19,2006) (unpublished table decision) ("Because we ordinarily function as an error-correcting court, we are hesitant to be the first tribunal to rule upon a hypothetical summary judgment motion without the benefit of the parties' compliance with the rules associated with such motions.").
56. See, e.g., Corcoran v. Universal Guardian Corp., 140 Cal. Rptr. 421, 424 (Ct App. 1977) ("An appeal to the superior court is for the purpose of correcting errors of the small claims court, thereby improving the quality of justice as between the parties.");
57. Vollmer v. Luety, 456 N.W.2d 797, 806 (Wis. 1990) ("[T]he court of appeals has the same broad discretion under sec. 752.35, as does this court under sec. 751.06. This broad discretion enables it to achieve justice in individual cases, which is consistent with its role as an error-correcting court.");
58. ROBERT J. MARTTNEAU, MODERN APPELLATE PRACTICE: FEDERAL AND STATE CIVIL. APPEALS §1.10 (1983) (suggesting that doing justice in the individual case is a function of appellate courts);
59. DANIEL J. MEADOR, APPELLATE COURTS: STAFF AND PROCESS IN THE CRISIS OF VOLUME, at 1-3 ( 1974) (describing the error-correction function as requiring courts "[t]o correct error in the trial proceedings and to insure justice under law to the litigants");
60. Comm. on Appellate Skills Training, Am. Bar Ass'n, Appellate Litigation Skills Training: The Role of the Law Schoob, 54 U. CIN. L. REV. 129, 137 (1985) ("Fundamental questions such as the functions of the appellate court (error correction and law development), the goal of the appellate judge (to do justice between the parties in accordance with law), and the difference in functions between an intermediate appellate court and a supreme court are ignored in the education of most law students.");
61. Jonathan D. Varat, Determining the Mission and Size of the Federal Judiciary via a Three-Branch Process: The Judges ' Debate and a Reform Menu, 27 CONN. L. REV. 885, 906 (1995) ("By contrast, emphasizing the error-correcting function of appellate courts points toward a larger number of judges who can undertake the intensive fact and application of law to fact reviews that are needed to do justice in each case.").
62. "The second function of appellate courts is one of assuring correctness-to determine, by whatever test is applicable to that particular kind of case, that the trial court correctly decided the questions which were presented in the case." David P. Leonard, The Correctness Function of Appellate Decbion-Making: Judicial Obligation in an Era of Fragmentation, 17 LOY. L.A. L. REV. 299, 302 (1984).
63. TRAYNOR, supra note 31, at 16.
64. David Frisch, Contractual Choice of Law and the Prudential Foundations of Appellate Review, 56 VAND. L. REV. 57, 75 (2003).
65. E.g., Jeremy Waldron, Lucky in Your Judge, 9 THEORETICAL INQUIRIES L. 185, 192 (2008) ("The requirement that like cases be treated alike is one of the key elements of the Rule of Law.").
66. One set of commentators states the ideal of review for error as foUows: "[T]he reviewing court should systematically scrutinize the entire trial record to identify procedural mistakes. Substantive mistakes should not be considered." Anna-Rose Mathieson & Samuel R. Gross, Review for Error, 2 LAW PROBABILITY & RISK 259, 260 (2003). Mathieson's and Gross's conception of procedural mistakes is somewhat more expansive than my definition, however. One also sees shades of a process-based approach in this definition: In review for error, the governing legal rules are assumed to be clear, and the only issues are whether the factual findings of the tribunal below are supportable under the appropriate standard of review, whether the law was correctly applied to the facts, and whether the procedures followed were improper or unfair.
67. Arthur D. Hellman, Error Correction, Lawmaking, and the Supreme Court's Exercbe of Dbcretionary Review, 44 U. PIIT. L. REV. 795, 796 (1983).
68. With respect to error correction, appellate courts see to it that inferior tribunals obey the law, thereby promoting the perception of legitimacy by ensuring that the ultimate outcome of litigation is based on impersonal and reasoned judgments. Further, the expectation by lower court judges that many, though not all, of their decisions will be reviewed, can help to prevent error by encouraging those judges to exercise greater caution in performing their duties. Frisch, supra note 44, at 75.
69. Id.
70. [A]ppellate courts serve as the instrument of accountability for those who make the basic decisions in trial courts and administrative agencies. The traditional appeal calls for an examination of the rulings below to assure that they are correct, or at least within the range of error the law for sufficient reasons allows the primary decision-maker. PAUL D. CARRINGTON, DANIEL J. MEADOR & MAURICE ROSENBERG, JUSTICE ON APPEAL 2(1976).
71. The availability of the appellate process assures the decision-makers at the first level that their correct judgments will not be, or appear to be, the unconnected actions of isolated individuals, but will have the concerted support of the legal system; and it assures litigants that the decision in their case is not prey to the failings of whichever mortal happened to render it, but bears the institutional imprimatur and approval of the whole social order as represented by its legal system. Thus, the review for correctness serves to reinforce the dignity, authority, and acceptability of the trial, and to control the adverse effects of any personal shortcomings of the basic decision-makers.
72. Id.
73. But see MEADOR, et al., supra note 24, at 210 ("It is controversial whether the plain error doctrine even applies to civil cases.").
74. Such sua sponte decision making by appellate courts is controversial. See generally Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 TENN. L. REV. 245 (2002);
75. Barry A. MiUer, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 SAN DIEGO L. REV. 1253 (2002).
76. The question of when an error is "substantial" introduces its own uncertainties. See TRAYNOR, supra note 31, at 15-16.
77. See, e.g., ROBERT J. MARTTNEAU, KENT SINCLAIR, MICHAEL E. SOLIMINE & RANDY J. HOLLAND, APPELLATE PRACTICE AND PROCEDURE: CASES AND MATERIALS 6-31 (2d ed. 2005);
78. MEADOR et al., supra note 24, at 4-9. This listing is not to suggest that these are the exclusive functions of appellate courts, but just the most prominent; some commentators have identified others.
79. E.g., Robert J. Martineau, The Appellate Process in Civil Cases: A Proposed Model, 63 MARQ. L. REV. 163, 167 n.15 (1979) (citing authorities identifying other functions and identifying the additional function of "doing justice" between the parties). Steven Shavell has questioned the suggestion that there are legitimacy benefits that flow from the appellate process that are distinct from error correction. In his view, any need for legitimating the legal process must be rooted in the possibility that the process might result in error, otherwise, by definition, the legal process would be regarded as legitimate. Hence, the goal of legitimating the legal system should not be taken as a ground for the appeals process distinct from error correction.
80. Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J. LEGAL STUD. 379, 426 (1995). Where Shavell seems to go astray is in his failure to recognize that there appear to be psychological benefits that flow from the opportunity to meaningfully state one's case apart from whether one is successful. There are process values apart from correctness that can be vindicated.
81. See generally Tom R. Tyler, Citizen Dbcontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform, 45 AM. J. COMP. L. 871 (1992) (analyzing the public's low confidence in lawyers, judges, and the American jurisprudential system as a whole). An appeal may satisfy those values not because the litigant has won-in other words, not because the litigant perceives an error to have been corrected-but because the litigant comes away from the process feeling that he or she was given an audience.
82. Id. at 887-889
83. This statement is true at least in the sense that discussions of the error-correction function itself tend to be quite perfunctory. See supra Part IA. That is not to suggest that there are not works considering various components of the error-correction function, as the discussion herein will reveal.
84. This statement is not to suggest that the Uterature on the law-development function is as developed as it might be, as I have noted elsewhere. See Oldfather, supra note 10.
85. See supra notes 3-5.
86. Stephen Burbank suggests that, at least in the federal courts, some appellate judges may prefer current institutional arrangements, which, for the most part, allow them to focus on law declaration and off-load much of the work of error correction on staff lawyers and law clerks. Stephen B. Burbank, Judicial Accountability to the Past, Present, and Future: Precedent, Politics, and Power, 28 U. ARK. LITTLE ROCK L. REV. 19, 32-33 (2005).
87. "[I]n order to obtain an appellate decision, one must take and complete the appeal while the issues remain alive and the parties continue to have a legally cognizable interest in the outcome." MEADOR et al., supra note 24, at 36 (describing the application of mootness on appeal).
88. See Oldfather, supra note 20, at 164-181
89. Karl Llewellyn referred to this idea as the "one single right answer" idea. KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 24-25 (1960). As Dan Simon has put the point more recently: [M]uch of what was supposedly undone by the realist critique seems to persist until this day. The judicial opinion continues to be based largely on syllogistic forms of argumentation; judges maintain remarkably high levels of confidence in their decisions;
90. and opinions portray the chosen decision as singularly correct. Opinions are overstated, rigid, seemingly inevitable. The rhetorical style is that of closure. The judge is depicted as having little choice in the matter: The decisions are strongly constrained by the legal materials. Dan Simon, A Psychological Model of Judicial Decbion Making, 30 RUTGERS LJ. 1, 10-11 (1998) (citations omitted).
91. Those appeUate courts that have spoken to the issue seem to regard this as more than mere possibility and claim to define their roles based on the distinction between cases involving law declaration and those involving only error correction. See infra note 90.
92. See OFFICE OF JUDGES PROGRAMS, ADMTN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2007 ANNUAL REPORT OF THE DIRECTOR 48 tbl.S-3 (2008), available at http://www.uscourts.gov/judbus2007/ Judiciau3usinespdfversion.pdf.
93. See, e.g., 3 JUDICIAL ADMTN. Drv., AM. BAR ASS'N, STANDARDS OF JUDICIAL ADMINISTRATION: STANDARDS RELATING TO APPELLATE COURTS § 3.37(b) (1994) [hereinafter STANDARDS RELATING TO APPELLATE COURTS] (proclaiming that formal publication should be reserved for opinions that establish a new rule of law, alter or modify an existing rule, apply an established rule to a novel fact situation, involve a legal issue of "continuing public interest," criticize existing law, or resolve an apparent conflict of authority). Not everyone shares the view that these cases do not involve law declaration.
94. Judge Richard Arnold, for example, took the position that nearly every appellate disposition created at least some small increment of law, if only by lending additional credence to the continuing validity of the core legal proposition implicated and demonstrating that it appUes to the unique facts of the case at hand. Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. APP. PRAC.& PROCESS 219,222-23 (1999).
95. Circuit Court of Appeals Act (Evarts Act), ch. 517, 26 Stat 826 (1891) (repealed 1948).
96. Carrington, supra note 11, at 416.
97. Id.
98. See, e.g., CARRINGTON et al., supra note 49, at 3 ("Until recent decades, it was customary to conceal, even from ourselves, the creative and political aspects of this function; we were given to proclaiming that judges do not make law.");
99. G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 2 (1976) ("[J]udging was not regarded in the nineteenth century as an exercise in making law. Rather, law was conceived of as a mystical body of permanent truths, and the judge was seen as one who declared what those truths were and made them intelligible-as an oracle who 'found' and interpreted the law.");
100. Carrington, supra note 11, at 416-17 ("Such a legal system required an effective appellate system for one reason: The perceived role of the appellate court was to correct the errors of the trial court in applying the law to the facts. No one thought appellate courts necessary or useful in making law or policy.... Certainly it was very far from the minds of those who adopted the Evarts Act that the intermediate courts of the United States would ever be taken seriously as sources of federal law." (citation omitted)). Whether the participants in the system universally adhered to this view remains open to question. Recently, Brian Tamanaha has taken to calling the conventional understanding into question: Jurists in the formalist age held views of law and judging as realistic as we do today. Judges, lawyers, and theorists did not widely think of judging as a mechanical or deductive process. Just about everything the realbts said about judging was said decades earlier by individuals who have been identified as important formalist thinkers, as well as by many others in legal circles, including accomplished judges.
101. Brian J. Tamanaha, The Bogus Tale About the Legal Formalists 5 (St John's Sch. of Law Legal Studies Research Paper Series, Paper No. 08-0130, 2008), available at http://ssrn.com/abstract=1123498 (emphasis in original)
102. see abo Susanna L. Blumenthal, Law and the Creative Mind, 74 CHI.-KENT L. REV. 151, 154(1998) (arguing that the legal literature of the nineteenth century "demonstrates that the creative power of the judge was not only acknowledged but celebrated weU before the emergence of legal realism"). Regardless of whether the realists uncovered something that was not previously apparent, or merely made more of a show of it, it does not strike me as an overstatement to suggest that judges, then and today, purported to act under Llewellyn's "one single right answer" ideology.
103. See LLEWELLYN, supra note 61, at 24. Whether the recognition of indeterminacy predated realism or not, what seems clear is that the design of the system rests on the understanding that judges are more constrained by rules than they actually regard themselves to be (or at least to portray judges as acting on this understanding). This understanding is understandable. As Judge Posner recently wrote: [J]udges (most of them, anyway) talk a deferential game even when they are playing a discretionary one. They do this today, and it is understandable why they did it even more emphatically in [the pre-Constitution era]. For the less secure a judge's authority-and judicial authority was far less secure then than it is in the United States today-the greater his need to represent himself as merely an oracle of the law. He does not decide cases; it is the law, speaking through him, that decides them. Rather than being a "decider," he is merely a "discerner." To criticize a judicial decision is to criticize the law itself.
104. Richard A. Posner, Modesty and Power, THE NEW REPUBLIC, Dec. 31, 2008, at 38, 40 (reviewing PHILIP HAMBURGER, LAW AND JUDICIAL DUTY (2008)).
105. E.g., Kenneth E. Scott, Two Modeb of the Civil Process, 27 STAN. L. REV. 937,937-38 (1975);
106. Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 IND. LJ. 301, 303-06 (1989).
107. See Harlon L. Dalton, Taking the Right to Appeal (More or Less) Seriously, 95 YALE LJ. 62,66-67 (1985) (discussing the goal of correctness in attempting to find the justifications for the availability of a right of appeal in every case). For an overview of the "truth-finding theory" of the adversarial process,
108. see Martin P. Golding, On the Adversary System and Justice, in PHILOSOPHICAL LAW 98,106-112 (Richard Bronaugh ed., 1978).
109. That is, of course, a supposition on which not everyone would agree. Even without buying into the suggestion that the legal system generally generates results that bear little relation to governing legal standards, one might conclude that it is at least occasionally desirable for courts to reach results inconsistent with articulated law. It might be, for example, desirable to maintain an absolute formulation of a legal standard on the theory that such a formulation will do a better job of protecting core values than would a more flexible statement of the rule, even while understanding that courts will occasionally have to manipulate the standard to reach acceptable results. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 172-177 (1982). Still, it seems appropriate to conclude that, at least as a general matter, the system is designed to achieve accuracy in the sense suggested.
110. I have considered comparative institutional competence in the context of appellate review of factual and legal questions elsewhere. Chad M. Oldfather, Appellate Courts, Hbtorical Facts, and the Civil-Criminal Dbtinction, 57 VAND. L. REV. 437 (2004) (factual questions);
111. Oldfather, supra note 10 (legal questions).
112. Indeed, I have probably understated the matter. It is probably more accurate to say that no informed observer accepts this vision of formalism. See Martin Stone, Formalbm, in THE OXFORD HANDBOOKOF JURISPRUDENCEAND PHILOSOPHY OF LAW 166,166-168 (Jules Coleman & Scott Shapiro eds., 2002).
113. See supra note 9.
114. See Oldfather, supra note 10, at 324-325
115. See JEROME FRANK, COURTS ON TRIAL: MYTH AND REALTTY γμ AMERICAN JUSTICE 73-74 (1949) (distinguishing between those realists who were "rule-skeptics" and those who were "fact-skeptics").
116. See, e.g., Frederick Schauer, The Jurisprudence of Reasons, 85 MlCH. L. REV. 847,847 (1987) (reviewing RONALD DWORKTN, LAW'S EMPTRE(1986)) (noting that the goal of getting any given case right "and the tradition embracing it are in tension with the very idea of a rule, for implicit in rule-based adjudication is a tolerance for some proportion of wrong results, results other than the results that would be reached, all things other than the rule considered, for the case at hand").
117. Cf. Johnson v. Rogers Mem'l Hosp. Inc., 616 N.W.2d 903, 909-10 (Wis. Q. App. 2000) (Dykman, J., dissenting) ("It seems, therefore, that the majority has invented a seventh policy factor: 'the plaintiff will be unable to prove a negligence case.' To me, that goes far beyond the error-correcting function of this court."), rev'd, 627 N.W.2d 890 (Wis. 2001).
118. See Oldfather, supra note 10, at 312-316
119. See Patrick W. Brennen, Standards of Appellate Review, 33 DEF. LJ. 377, 412-414 (1984) (discussing the abuse-of-discretion standard).
120. See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 98(1996) [hereinafter POSNER, FEDERAL COURTS] (discussing the increase in the number of federal rights, and thus potential claims, in the period since the 1960s). Less law increases the likelihood of consensus with respect to the goals of law, which, in turn, increases the extent to which judges will view themselves constrained by law.
121. See RICHARD A. POSNER, How JUDGES THINK 85-87 (2008) [hereinafter POSNER, How JUDGES THTNK].
122. As Paul Carrington has observed, judges of an earlier era were trained as formalists, and thus less inclined to recognize indeterminacy. See Carrington, supra note 11, at 423-425
123. Judicial Code of Feb. 26 1919, ch. 48, Pub. L. No.65-251,§ 269, 40 Stat 1181 (repealed 1948).
124. Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 VA. L. REV. 1,9-10 (2002);
125. John M. Walker, Jr., Harmless Error Review in the Second Circuit, 63 BROOK. L. REV. 395, 398 (1997).
126. See Walker, supra note 84, at 398.
127. See supra note 78 and accompanying text.
128. Marcus A. Kavanagh, Improvement of Adminbtration of Criminal Justice by Exercbe of Judicial Power, 11 A.B.A. J. 217, 222 (1925).
129. §269,40 Stat, at 1181 ("On the hearing of any appeal, certiorari, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.").
130. Kotteakos v. United States, 328 U.S. 750, 760 (1946).
131. See, e.g., Mfrs. Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 19 (2d Cir. 1986) ("We need not resolve this question to hold, as we do today, that even assuming repos are not securities, the district court's instruction that they are securities, if erroneous, constitutes mere harmless error.");
132. W. Spring Serv. Co. v. Andrew, 229 F.2d413, 420 (10th Cir. 1956) ("In any event and assuming without deciding that the partnership was improperly joined, it is harmless error which does not require reversal of the judgment");
133. Frym v. Ramsey, 243 So. 2d 23, 26 (Ala. 1971) ("Therefore, even assuming without deciding that the register committed error in determining that the un withdrawn profits (if there were any) became capital, then this holding would be harmless error.");
134. Hernandez v. Atieh, No. 14-06-00582-CV, 2008 Tex. App. LEXIS 3727, at *9-10 (Tex. App. May 20,2008) ("Assuming, without deciding, that inclusion of the question of Sisa's negligence was error, we conclude the error was harmless.").
135. Mathieson & Gross, supra note 46, at 264.
136. Harry T. Edwards, To Err Is Human, but Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. REV. 1167, 1170 (1995).
137. Id. at 1171.
138. Given that the government must establish a criminal defendant's guilt by proof beyond a reasonable doubt, it seems reasonable to believe that an appellate court ought to be relatively more hesitant to conclude that an error did not affect a defendant's rights than in the context of a civil case, where a plaintiff is required merely to prevail by a preponderance of the evidence. See Oldfather, supra note 72, at 502-504
139. See id. at 488-489 (discussing contentions that harmless-error review requires appellate courts to act as "a super jury" (citation omitted)).
140. See supra note 78 and accompanying text If we assume that appellate courts are generally inferior to trial courts and juries when it comes to the finding of historical facts, then an appellate court substituting its judgment for that of the lower-level fact finder is likely to reach a conclusion further from that which is objectively appropriate, and thus "create" error by, over the run of cases, reaching results that depart from what the dispassionate application of law to fact would generate.
141. See supra text accompanying notes 67-69.
142. See Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985) (addressing particular clauses, articles, and amendments which consistently receive a very small fraction of the comprehensive literature on constitutional theory).
143. The idea is captured by Justice Holmes in S. Pac. Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting) ("I recognize without hesitation that judges do and must legislate, but they can do so only interstitially, they are confined from molar to molecular motions.").
144. See, e.g., William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 CORNELL L. REV. 273,275-76 (1996). Richman and Reynolds posit two factors to determine the track a litigant will travel in the appellate court system: "[I]mportant cases (usually measured by monetary value) and powerful Utigants receive greater judicial attention than less important cases and weaker litigants."
145. Id, at 275.
146. See id at 278.
147. Id at 278 n.14.
148. See John P. Borger & Chad M. Oldfather, Anastasoff v. United States and the Debate over Unpublshed Opinions, 36 TORT& INS. L.J. 899, 901 (2001).
149. Id. at 900-901
150. ROSCOE POUND, APPELLATE PROCEDURE IN CIVIL CASES 390 (1941).
151. Dm. OF THE ADMTN. OFFICE OF THE U.S. COURTS, REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 11 (1964).
152. STANDARDS RELATING TO APPELLATE COURTS, supra note 64, §3.37.
153. There is likely something of a feedback loop at work here. Recognition of indeterminacy brings along with it recognition of different classes of cases, which can then be slotted on different procedural tracks, in which those involving mere error correction receive something less than full treatment This slotting, in turn, makes it easier for a court to engage in a case-based error analysis with respect to those cases deemed to involve only error correction. There are fewer institutional checks in place-there is no oral argument; any opinion issued is deemed good for one time and place only, and, in general, because the case will not generate any sort of rule of law that the court might have to confront in the future, it is regarded as an "unimportant" case not worthy of a great deal of attention.
154. For an overview of the increase in volume and its effects, see Oldfather, supra note 23, at 768-779
155. There is, of course, a rejoinder to this suggestion, which is that these really are easy cases that involve nothing more than the application of settled legal standards to specific facts, in which case it is not that error correction is hard but rather that it is easy. But see Burbank, supra note 21. What is more, there seem clearly to be some cases where judges use unpublished opinions, et cetera, to resolve hard cases via easy means.
156. See, e.g., POSNER, FEDERAL COURTS, supra note 81, at 165 (noting that "the unpublished opinion provides a temptation forjudges to shove difficult issues under the rug in cases where a one-liner would be too blatant an evasion of judicial duty");
157. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Cm. L. REV. 1371, 1374 (1995) ("I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls.").
158. As Judge Posner has put it: There is almost always a zone of reasonableness within which a decision either way can be defended persuasively... using the resources of judicial rhetoric. But the zone can be narrow or wide-narrow when formalist analysis provides a satisfactory solution, wide when it does not. Within the zone, a decision cannot be labeled "right" or "wrong"; truth just is not in the picture.
159. Richard A. Posner. The Role of the Judge in the Twenty-First Century, 86 B.U. L. REV. 1049, 1053 (2006);
160. see abo Charles A. Wright, The Doubtful Omnbcience of Appellate Courts, 41 L. REV. 751, 751 (1957) ("Subtle rules about presumptions and burden of proof, elaborate concepts of causation and consideration and the rest, have been devised in such a way that unless the appellate judge handling the case is a dullard, some doctrine is always at hand to achieve the ends of justice, as they appear to the appellate court.").
161. POSNER, How JUDGES THINK, Supra note 81, at 13;
162. see abo id. at 230-265 (elaborating on the model).
163. See LLEWELLYN, Supra note 61, at 19-61.
164. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN lNSTITUTEONAL THEORY OF LEGAL INTERPRETATION 3, 38 (2006) (discussing "the distorting force of particulars" (emphasis omitted));
165. Frederick Schauer, Do Cases Make Bad Law?, 73 U. Cm. L. REV. 883, 884 (2006) (suggesting that judges are impeded in the task of lawmaking by "the thb-ness" of the cases before them (emphasis in original)).
166. ]115. Dalton, supra note 70, at 74. Although this argument has a ring of plausibility to it, I wonder if it brings an insufficiently fine-grained focus to the problem The problem of indeterminacy can be broken up in different ways, not all of which implicate this argument to the same extent. We might speak of an inability to isolate correct outcomes at two levels, that of the larger dispute between the parties and that of the specific issue as to which one of the parties claims the trial court made an erroneous ruling. Moreover, indeterminacy might result from the ambiguity of the governing legal standard or the difficulty of establishing conclusively the historical facts to which the standard must apply. Dalton's point seems stronger if taken to apply at the level of the lawsuit. He supports his claim with the fundamentally correct assertion that the cases that make it to trial (which constitute at least a substantial portion of those cases that are appealed) tend to be those in which there are no clear-cut winners. See id. More generaliy, selection effects are likely to make it the case that some substantial portion of the cases that make it to the appellate stage will be "close cases" in some general sense of it not being clear at the outset of the litigation who the rightful winner is.
167. See supra Part LB.
168. See supra Part LB.
169. POSNER, HOW JUDGES THINK, supra note 81, at 230 ("The word that best describes the average American judge at all levels of our judicial hierarchies and yields the greatest insight into his behavior is 'pragmatist'").
170. See supra note 109 and accompanying text. Describing that "[t]he pragmatic judge is a constrained pragmatist," POSNER, HOW JUDGES THINK, supra note 81, at 13, Judge Posner discusses the degree of constraint as follows: The box is not so small that it precludes his being a political judge, at least in a nonpartisan sense. But he need not be one unless 'political' is given the broadest of its possible meanings ... in which the 'political' is anything that has the slightest white of concern for policy. A pragmatic judge assesses the consequences of judicial decisions for their bearing on sound public policy as he conceives it. But it need not be policy chosen by him on political grounds as normally understood.
171. Id.
172. Eg., Scott Altman, Beyond Candor, 89 MICH. L. REV. 296 ( 1990).
173. Anthony D'Amato, A New (and Better) Interpretation of Holmes's Prediction Theory of Law 4 (Nw. Univ. Sch. of Law Pub. Law & Legal Theory Series, Paper No. 08-28, 2008), available at http://ssrn.com/abstract=1255522 (emphasis in original).
174. Altman, supra note 120, at 303-04.
175. See POSNER, HOW JUDGES THINK, supra note 81, at 252 ("Judges are less likely to be drunk with power if they realize they are exercising discretion than if they think they are just a transmission belt for decisions made elsewhere and so bear no responsibility for any ugly consequences of those decisions.");
176. see abo POSNER, FEDERAL COURTS, supra note 81, at 331 (hypothesizing a positive relationship between judicial candor and judicial self-restraint).
177. Anthony D'Amato suggests: [L]egal realism was a disastrous setback for American law. It seemed to justify as an uncontestable fact of empiricism that judges may make all kinds of decisions based upon a wide range of factors: emotions, prejudices (unless they amount to a conflict of interest), party affiliation, rewarding campaign contributors, facile study of the law, liking or disliking the attorneys arguing a case, mere whim, and other bells and whistles. Law-school curriculums are then skewed to prepare students to argue successfully before judges who may only care minimally about what the law says.
178. D'Amato, supra note 121, at 14-15;
179. see abo supra note 119 and accompanying text.
180. See Sapra Part I.A.
181. For an overview of the various ways in which the phrase "judicial activism" is used, see Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activbm, " 92 CAL. L. REV. 1441 (2004). On the relationship between judicial independence and judicial accountability,
182. see Stephen B. Burbank, What Do We Mean by "Judicial Independence"?, 64 OHIO ST. LJ. 323, 330-32(2003).
183. The primary question of institutional allocation here, of course, concerns the relative power of appellate versus trial-level decision makers (i.e., trial judges and juries). But separation of powers questions can also inform viewpoints in the context of many asserted errors, such as those involving statutory construction.
184. PosNER, How JUDGES THINK, Supra note 81, at 3.
185. Michael Dorf describes the general phenomenon as follows: For over a generation, the fields of jurisprudence and constitutional theory have struggled to reconcile the fact of considerable legal indeterminacy with, respectively, law generally and constitutional legitimacy in particular. In its bare essentials, the problem can be formulated as follows: If the application of a rule requires deliberation about its meaning, then the rule cannot be a guide to action in the way that a commitment to the rule of law appears to require; similarly, if the content of a constitutional right (or other constitutional provision) can only be determined by extensive deliberation, then the Constitution does not entrench rights (or other principles) in the sense of providing foundational assurances. Michael C. Dorf; Legal Indeterminacy and Institutional Design, 78 N.Y.U. L. REV. 875, 877 (2003).
186. Dorf reaches a similar conclusion. Id. at 877 ("This Article denies that much progress can be made by further theorizing about the nature of law and constitutions as they are.").
187. In this sense, as weU, the analysis here is consistent with Dorfs approach, though the analyses vary considerably in their focus and particulars. See id. at 876-888
188. See Bix, supra note 9, at 84-85.
189. See Chad M. Oldfather, Writing, Cognition, andthe Nature of the Judicial Function, 96 GEO. L.J. 1283, 1288-1297 (2008).
190. See supra notes 66-69 and accompanying text.
191. See supra notes 66-69 and accompanying text.
192. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 364 (1978).
193. Id.
194. Oldfather, supra note 20, at 164.
195. See Fuller, supra, note 136, at 364.
196. I have expanded on these ideas elsewhere. See Oldfather, supra note 20, at 152-53;
197. Oldfather, supra note 23, at 754-56.
198. See Oldfather, supra note 20, at 140.
199. See, e.g., Tyler, supra note 54, at 887-89.
200. E.g., 28 U.S.C. §§1-4001 (2006).
201. Most such codes are based on the ABA MODEL CODE OF JUDICIAL CONDUCT (2007), available at http://www.abanet.org/judicialethics/ABA-MCJC-approved.pdf.
202. E.g., MICH. COURT OF APPEALS CLERK'S OFFICE, INTERNAL OPERATING PROCEDURES (2009), available at http://coa.courts.mi.gov/pdf/clerkiops.pdf,
203. U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT, INTERNAL OPERATING PROCEDURES (2002), available at http://www.ca3. uscourts.gov/Rules/IOP-Final. pdf.
204. See Oldfather, supra note 23, at 779-793
205. See id. at 794-801.
206. Id at 796.
207. See Burbank, supra note 21, at 1233-1234
208. See supra note 4.
209. For the case in favor of rule generation by courts, see Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Cm. L. REV. 1175 (1989).
210. Judge Posner writes: Appellate review is likewise intuitive, though judges pretend otherwise. Opinions recite a variety of standards of review-plenary, clearly erroneous, substantial evidence, some evidence, a modicum of evidence, reasonableness, arbitrary and capricious, abuse of discretion, Chevron, Skidmore, and so forth-but the gradations of deference that these distinctions mark are finer than judges want, can discern, or need. The only distinction the judicial intellect actually makes is between deferential and nondeferential review..... So what is involved in appellate review is, at bottom, simply confidence or lack thereof in another person's decision. That is an intuitive response informed by experience with similar decisions. It is not rule- or even standard-driven, except in the clearest cases, but it is not mindless guesswork either. POSNER, How JUDGES THINK, supra note 81, at 113-14.
211. See id.
212. See supra notes 95-96 and accompanying text.
213. See, e.g., Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1235-41 (10th Cir. 1999).
214. PosNER, How JUDGES THINK, Supra Mpranote 81, at 3.