Lightened scrutiny

Harvard Law Review

Volumn 124, Issue 5, 2011, Pages 1109-1152

  Huang, Bert I ^a  

^a The Earth Institute at Columbia University

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EID: 79953311006     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (284)

1. Consider the familiar (if often fictional) binary of law versus fact: great deference is said to be due to a trial court's finding of fact; a ruling of law invites full reconsideration under de novo review, for which "no form of appellate deference is acceptable."
2. Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991)
3. see also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 498-501 (1984)
4. (describing deferential standard of review for findings of fact generally, but not for "First Amendment questions of 'constitutional fact,'"
5. id. at 509 n.27).
6. Moreover, every appellant's brief is required to state the proper standard of review, for each issue raised, under the current Federal Rules of Appellate Procedure.
7. See FED. R. APP. P. 28(a)(9)(B).
8. See Salve Regina Coll., 499 U.S. at 233
9. see also Miller v. Fenton, 474 U.S. 104, 114 (1985)
10. Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 237 (1985).
11. See Monaghan, supra note 3, at 234-39.
12. See Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 540 U.S. 1027, 1033 (2003)
13. Scalia, J., dissenting from denial of certiorari)
14. ("[T]he case is worthy of the Court's review because it presents a clear Circuit split on the standard of appellate review for the 'strong basis in evidence' requirement.")
15. see also, e.g., Gall v. United States, 128 S. Ct. 586 (2007)
16. (directing use of deferential abuse-of-discretion standard of review for federal criminal sentences)
17. Rita v. United States, 127 S. Ct. 2456, 2462 (2007)
18. (resolving circuit split over presumption-of-reasonableness review of federal sentences falling within Guidelines-recommended ranges)
19. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 431 (2001)
20. (resolving split over standard of review for constitutionality of punitive damages awards)
21. Ornelas v. United States, 517 U.S. 690, 695, 699 (1996)
22. (resolving split over standard of review for findings of reasonable suspicion to stop and probable cause to make a warrantless search).
23. This process includes glosses on standards set out in rules and statutes
24. such as in FED. R. CIV. P. 52(a)
25. and in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2006).
26. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 345 (1996).
27. Judge Posner explains that "[a] possible consequence is that fewer errors made by district courts are being corrected - an example of an undesired by-product of the growth in the caseload."
28. Id. at 176.
29. He also identifies a similar effect in the district courts, observing that the "least visible but probably most important way in which the pressure of a growing caseload had resulted in streamlining or corner cutting" is the "sub rosa redefinition [by district courts] of the standards for granting summary judgment and for dismissing a complaint for failure to state a claim."
30. Id. at 178.
31. John J. Gibbons, Maintaining Effective Procedures in the Federal Appellate Courts, in THE FEDERAL APPELLATE JUDICIARY IN THE TWENTY-FIRST CENTURY 22, 23 (Cynthia Harrison & Russell R. Wheeler eds., 1989)
32. [hereinafter Gibbons, Maintaining Effective Procedures]
33. see also John J. Gibbons, Illuminating the Invisible Court of Appeals, 19 SETON HALL L. REV. 484 (1989).
34. This literature, too, goes back at least half a century, having engaged leading scholars and judges of a prior generation.
35. See, e.g., Henry J. Friendly, Averting the Flood by Lessening the Flow, 59 CORNELL L. REV. 634, 642 (1974)
36. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, 55 U. COLO. L. REV. 1, 7-13 (1983)
37. Lewis F. Powell, Jr., Are the Federal Courts Becoming Bureaucracies?, 68 A.B.A. J. 1370, 1371 (1982)
38. Charles Alan Wright, The Overloaded Fifth Circuit: A Crisis in Judicial Administration, 42 TEX. L. REV. 949, 949 (1964).
39. In fact, the phrase "crisis of volume" seems to have come into use in the 1970s.
40. See, e.g., DANIEL J. MEADOR, APPELLATE COURTS: STAFF AND PROCESS IN THE CRISIS OF VOLUME (1974).
41. See, e.g., Mitu Gulati & C.M.A. McCauliff, On Not Making Law, LAW & CONTEMP. PROBS., Summer 1998, at 157, 159-60
42. (focusing on "shortcuts" circuit courts take to manage their workloads, such as short-form opinions)
43. Richard A. Posner, Will the Federal Courts of Appeals Survive Until 1984? An Essay on Delegation and Specialization of the Judicial Function, 56 S. CAL. L. REV. 761, 767-77 (1983)
44. describing consequences of the "delegation of the judicial function to law clerks and staff attorneys,"
45. id. at 774
46. William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 CORNELL L. REV. 273, 284 (1996)
47. Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 MICH. L. REV. 940, 940-41 (1989)
48. There is, of course, not always a sharp line between process and outcomes.
49. See, e.g., Eric Helland & Jonathan Klick, The Effect of Judicial Expedience on Attorney Fees in Class Actions, 36 J. LEGAL STUD. 171 (2007)
50. (describing the effect of court congestion on fee awards)
51. Lee Epstein, William M. Landes & Richard A. Posner, Why (and When) Judges Dissent: A Theoretical and Empirical Analysis, J. LEGAL ANALYSIS (forthcoming), available at http://ssrn.com/abstract=1542834.
52. One notable exception is Professor Paul Carrington's classic article.
53. See Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 HARV. L. REV. 542, 554 (1969)
54. ("Pressure of time may create a tendency to give greater deference to primary decision makers.").
55. For an account of composition effects in the rising rate of civil appeals
56. see CAROL KRAFKA ET AL., STALKING THE INCREASE IN THE RATE OF FEDERAL CIVIL APPEALS (1995), available at http://www.fjc.gov/public/pdf.nsf/lookup/rate_of_appeal.pdf/$file/rate_of_appeal.pdf.
57. See also Chris Guthrie & Tracey E. George, The Futility of Appeal: Disciplinary Insights into the "Affirmance Effect" on the United States Courts of Appeals, 32 FLA. ST. U. L. REV. 357, 361 & fig.1B (2005)
58. (observing the dual, long-term trends of rising caseloads and declining reversal rates, and noting that "[t]hese two phenomena may be related in any number of ways: one may be a cause of the other or both may be the product of other forces").
59. This surge continued unabated through the period of study. My analysis ends in late 2005, just before the Second Circuit's initiation of the "non-argument calendar" as a special track for processing the immigration appeals (as explained in Part III).
60. See Jon O. Newman, The Second Circuit's Expedited Adjudication of Asylum Cases: A Case Study of a Judicial Response to an Unprecedented Problem of Caseload Management, 74 BROOK. L. REV. 429, 432-34 (2009).
61. My study is thus focused on the period when docket crowding had become so salient that the circuit felt compelled to adopt a major change in how it processed cases - giving up a long tradition of oral argument for nearly every case,
62. id. at 433
63. but had yet to put the new plan to use.
64. Between 2001 and 2005, the flow of agency appeals in the Second Circuit rose by roughly 2400 cases per year - a number that is nearly fifty percent of the circuit's total caseflow before the surge.
65. (Accordingly, the share of agency appeals on the docket rose by over thirty percent.)
66. In the Ninth Circuit, too, the surge can be seen as adding about fifty percent to the total caseflow (and likewise, the share of agency cases grew by more than thirty percent).
67. See ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2005 ANNUAL REPORT OF THE DIRECTOR 114 tbl.B-3 (2006), available at http://www.uscourts.gov/Statistics/JudicialBusiness/JudicialBusiness2005.aspx.
68. Even though the immigration appeals are not my object of study, I should add that their own story has begun to be richly examined and vividly told.
69. See, e.g., JAYA RAMJI-NOGALES, ANDREW I. SCHOENHOLTZ & PHILIP G. SCHRAG, REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM (2009).
70. Indeed, the period of study encompasses the Apprendi-Booker revolution in criminal sentencing.
71. See United States v. Booker, 543 U.S. 220 (2005)
72. Apprendi v. New Jersey, 530 U.S. 466 (2000).
73. And it also follows closely upon the enactment of both the federal habeas statute and the prisoner litigation statute.
74. See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
75. (codified as amended in scattered sections of the U.S.C.)
76. Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, §§ 801-810,
77. 110 Stat. 1321-66 (1996)
78. (codified as amended in scattered sections of 11, 18, 28, and 42 U.S.C.).
79. "Circuit drift" is a term Judge Posner applies to a related phenomenon; as he has noted in another context, the failure to converge may be an illustration of "circuit drift": the heavy caseloads and large accumulations of precedent in each circuit induce courts of appeals to rely on their own "circuit law," as if each circuit were a separate jurisdiction rather than all being part of a single national judiciary enforcing a uniform body of federal law. Nightingale Home Healthcare,
80. Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 962 (7th Cir. 2010) (noting divergence of standards for fees under the Lanham Act).
81. It leaves open the questions, for instance, of whether the mechanisms include changes in the use of law clerks or staff or visiting judges; time-shifting of when easier or harder cases are decided; changes in how (and how much) case information reaches judicial officers or staff; or other shifts in the court's internal dynamics or case processing.
82. See infra Part V, pp. 1145-46.
83. Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 756 (1982).
84. Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 CLEV. ST. L. REV. 385, 403 (1983-1984).
85. Carolyn Dineen King, Lecture, Challenges to Judicial Independence and the Rule of Law: A Perspective from the Circuit Courts, 90 MARQ. L. REV. 765, 785 (2007).
86. The "handful" of cases reviewed by the Supreme Court is now about eighty per year.
87. See, e.g., The Supreme Court, 2009 Term - The Statistics, 124 HARV. L. REV. 411, 411 tbl.1(A) (2010)
88. (noting that the Supreme Court issued eighty-seven decisions with full opinions in the October 2009 Term)
89. The Supreme Court, 2008 Term - The Statistics, 123 HARV. L. REV. 382, 382 tbl.1(A) (2009)
90. (finding seventyeight decisions with full opinions in the October 2008 Term). For a classic account of caseload concerns at the Supreme Court when its caseload was double the current norm,
91. see Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093 (1987).
92. ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2009 ANNUAL REPORT OF THE DIRECTOR 81 tbl.B (2010), available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2009/JudicialBusinespdfversion.pdf.
93. Id. at 42 tbl.S-3.
94. Judge Ruggero Aldisert of the Third Circuit described one such tradeoff: "Constraints of time demand the tradeoff. I would rather have adequate time for a decision conference, allowing for the discussion of complex and difficult issues. than be forced to shortchange those cases by the process of automatically granting oral argument in every case."
95. Ruggero J. Aldisert, Appellate Justice, 11 U. MICH. J.L. REFORM 317, 321 (1978).
96. "Rational triage" is how Judge Frank Coffin of the First Circuit described the "timeconscious evaluation of cases" for potential publication.
97. FRANK M. COFFIN, ON APPEAL: COURTS, LAWYERING, AND JUDGING 175-76 (1994)
98. see also Lauren K. Robel, Caseload and Judging: Judicial Adaptations to Caseload, 1990 BYU L. REV. 3, 9.
99. Time reallocation is necessary if the courts do not permit enough delay or backlog to maintain prior levels of judicial time per case. Circuit courts use the "power of shame" to control delay- "at meetings of the judges, each judge is required to explain the status of every one of the opinions assigned to him that has not been issued within a specified period," for example ninety days.
100. POSNER supra note 7, at 223.
101. In this sense, they are commonly said to be courts of "mandatory" jurisdiction or review, as opposed to "discretionary" review of the sort exercised by the Supreme Court. Formally discretionary appeals occasionally do come before these courts, but even for such filings, the courts must at least rule on whether the appeal will proceed.
102. See, e.g., 28 U.S.C. § 1292 (2006)
103. (granting federal courts of appeals discretionary jurisdiction over interlocutory appeals).
104. See Additional Authorized Judgeships, ADMIN. OFFICE OF THE U.S. COURTS, http://www.uscourts.gov/uscourts/JudgesJudgeships/docs/authAppealsJudgeships.pdf (last visited Jan. 30, 2011).
105. In 2008, 61,104 appeals were filed in the circuit courts (not counting the specialized Federal Circuit).
106. In 1990, there were 40,893. ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL FACTS AND FIGURES 2008, at tbl.2.2 (2009), available at http://www.uscourts.gov/uscourts/Statistics/JudicialFactsAndFigures/2008/alljudicialfactsfigures.pdf.
107. Harry T. Edwards, The Rising Work Load and Perceived "Bureaucracy" of the Federal Courts: A Causation-Based Approach to the Search for Appropriate Remedies, 68 IOWA L. REV. 871, 922 (1983).
108. Examples of such caseload-driven adaptations are thoughtfully presented in a recent firsthand account by the Ninth Circuit's then-Clerk of Court.
109. See Cathy Catterson, Changes in Appellate Caseload and Its Processing, 48 ARIZ. L. REV. 287 (2006).
110. Ruggero J. Aldisert, Then and Now - Danger in the Courts, FED. LAW., Jan. 1997, at 41, 43
111. ("The danger is that some cases are affirmed rather than reversed because a reversal will require a time-consuming, researched opinion."). Similarly, Judge Friendly has noted of the district courts, "[I]n these days of crowded dockets there is an inevitable risk of some degree of subconscious bias when [the] decision whether to dismiss a case. is made by the judge who will have to [hear] it."
112. Friendly, supra note 19, at 754.
113. Patricia M. Wald, Thoughts on Decisionmaking, 87 W. VA. L. REV. 1, 10 (1984).
114. Friendly, supra note 19, at 756.
115. Calvert Magruder, The Trials and Tribulations of an Intermediate Appellate Court, 44 CORNELL L.Q. 1, 3 (1958)
116. ("As to the trial judges, we must always bear in mind that they may be as good lawyers as we are, or better. [T]he main reason we on appeal may have a better chance of being right is that we have more time for reflection and study.")
117. see also Friendly, supra note 19, at 757-58.
118. Edwards, supra note 20, at 403.
119. Salve Regina Coll. v. Russell, 499 U.S. 225, 233 (1991).
120. I borrow this evocative phrase from Judges Coffin and Katzmann.
121. See Frank M. Coffin & Robert A. Katzmann, Steps Towards Optimal Judicial Workways: Perspectives from the Federal Bench, 59 N.Y.U. ANN. SURV. AM. L. 377, 377 (2003).
122. POSNER, supra note 7, at 176.
123. Richard A. Posner, Demand and Supply Trends in Federal and State Courts over the Last Half Century, 8 J. APP. PRAC. & PROCESS 133, 135 (2006).
124. Or is it? As to reversals, Judge Posner has more recently noted that "[t]he [Seventh] Circuit doesn't have one of the heaviest workloads," adding with a laugh, "Maybe that's why we reverse so many of the appeals."
125. Abdon M. Pallasch, Political Refugees Better Off Right Here, CHI. SUNTIMES, Apr. 27, 2009, at 14
126. (quoting Judge Posner) (internal quotation marks omitted). All joking aside, there may actually be less tension than one might think between falling reversals (in overloaded appeals courts) and the aim of sustaining "the quality of federal judicial output" (by the judiciary as a whole). I explore this idea - intimated by the epigraph from Judge Edwards - in more depth in Part V.
127. See sources cited supra note 8.
128. See, e.g., KRAFKA ET AL., supra note 12, at 9-10.
129. Jill Redhage, Does This Man Look Like He's Funny? ASU-Educated Judge Uses Humor to Lighten Load of 9th U.S. Circuit Court of Appeals,
130. TRIBUNE (Mesa, Ariz.), Aug. 31, 2007.
131. Judge Silverman also noted, "This Court of Appeals is a full-time job and then some."
132. John R.B. Palmer, The Nature and Causes of the Immigration Surge in the Federal Courts of Appeals: A Preliminary Analysis, 51 N.Y.L. SCH. L. REV. 13, 14 (2006-2007).
133. This description is the account of an associate supervisory staff attorney in the Second Circuit during the surge.
134. Gibbons, Maintaining Effective Procedures, supra note 8, at 23
135. see also POSNER, supra note 7, at 345.
136. Press Release, Dep't of Justice, Department of Justice Unveils Administrative Rule Change to Board of Immigration Appeals in Order to Eliminate Massive Backlog of More than 56,000 Cases (Feb. 6, 2002), available at http://www.justice.gov/opa/pr/2002/February/02_ag_063.htm.
137. See Memorandum from Lori L. Scialabba, Acting Chairman of the BIA, to all BIA Members (Mar. 15, 2002), in DORSEY & WHITNEY LLP, STUDY CONDUCTED FOR AMERICAN BAR ASSOCIATION COMMISSION ON IMMIGRATION POLICY, PRACTICE AND PRO BONO RE: BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT app. at 22 (2003).
138. The streamlined process authorized "affirmance[s] without opinion" by any single member of the appeals board; it also made single-member decisions the norm (rather than three-member decisions, as had previously been the standard).
139. see also Palmer, supra note 46, at 19.
140. Immigration Appeals Surge in Courts, THIRD BRANCH (Admin. Office of the U.S. Courts, Washington, D.C.), Sept. 2003, at 5, 6.
141. DORSEY & WHITNEY LLP, BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT, SUMMARY OF FINDINGS AND CONCLUSIONS 2 (2003), available at http://www.dorsey.com/files/upload/Summary-Conclusion_DorseyABAStudy.pdf.
142. See Palmer, supra note 46, at 32 fig.3.
143. The Federal Circuit is not included in the data from the Administrative Office of the U.S. Courts (AO). Including the D.C. Circuit in the analysis makes no substantive difference in the results, and given the circuit's highly unusual docket, excluding it likely allows a more credible presentation for most readers.
144. The Second Circuit's tradition of allowing the option of oral argument did not extend to appeals from incarcerated persons.
145. See Newman, supra note 13, at 432-34.
146. The Second Circuit is dominated by New York and also covers Connecticut and Vermont. The Ninth Circuit covers the Pacific states and their neighbors: California, Oregon, and Washington
147. Alaska and Hawaii; and Arizona, Nevada, Idaho, and Montana. It also covers Guam and the Northern Mariana Islands.
148. See Court Locator, ADMIN. OFFICE OF THE U.S. COURTS, http://www.uscourts.gov/court_locator.aspx (last visited Jan. 30, 2011).
149. See 8 U.S.C. § 1252(b)(2) (2006).
150. Also, none of the immigration agency's decisionmakers seemed to recognize that streamlining might cause a flood of cases in the federal courts.
151. See DORSEY & WHITNEY LLP, supra note 49, at 39-41.
152. Id. at 16-19.
153. Solomon Moore & Ann M. Simmons, Immigrant Pleas Crushing Federal Appellate Courts, L.A. TIMES, May 2, 2005, at A1 (alteration in original).
154. 8 U.S.C. § 1252(b)(2).
155. Three judges retired from regular active service, taking senior status: Judge Altimari in January 1996,
156. Judge Miner in January 1997, and Judge Newman in July 1997. The fourth, Judge Mahoney, died in October 1996.
157. See Biographical Directory of Federal Judges, FED. JUD. CENTER, http://www.fjc.gov/public/home.nsf/hisj (last visited Jan. 30, 2011).
158. Judge McLaughlin took senior status in March 1998.
159. Considering the Appropriate Allocation of Judgeships in the U.S. Courts of Appeals for the Second and Eighth Circuits and the First, Third, and Federal Circuits: Hearing Before the Subcomm.
160. on Admin. Oversight and the Courts of the S. Comm. on the Judiciary, 105th Cong. 47 (1997)
161. (statement of Hon. Ralph K. Winter, C.J., U.S. Court of Appeals for the Second Circuit) (warning he may need "to certify an emergency under 28 U.S.C. § 46(b)").
162. This vacancy threshold seems consistent with what Judge Niemeyer, a Fourth Circuit judge, has recently said about vacancies in his court (which has fifteen authorized seats): The circuit "can operate with twelve or thirteen judges without a problem. But, if we are reduced to ten judges, things will get a little dicey, and it will be difficult to operate efficiently."
163. Paul Mark Sandler, A Conversation with Judge Niemeyer, in APPELLATE PRACTICE FOR THE MARYLAND LAWYER: STATE AND FEDERAL § II-7 (Paul Mark Sandler & Andrew D. Levy eds., 3d ed. 2007) (quoting Judge Niemeyer), available at APML MD-CLE 7-73 (Westlaw).
164. See Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 124 n.*** (2d Cir. 1998) (recognizing the existence of a judicial emergency).
165. Judges Straub, Pooler, and Sack began service in June 1998, and then-Judge Sotomayor started in October 1998.
166. See Biographical Directory of Federal Judges, supra note 61.
167. Senator Patrick Leahy has suggested that the extra delay for Judge Sotomayor was intended by his Republican colleagues to prevent her from being nominated that same summer for a possible Supreme Court vacancy.
168. See Nominations: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2010) (statement of Sen. Patrick Leahy, Chairman, S. Comm. on the Judiciary), available at http://judiciary.senate.gov/hearings/testimony.cfm?id=4533&wit_id=2629.
169. Of the original five judges, all but Judge Newman were appointed by Republican Presidents.
170. See Biographical Directory of Federal Judges, supra note 61.
171. And the 1998 appointees were nominated by President Clinton.
172. General background on the AO data is detailed with care in Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455 (2003).
173. Their informative essay focuses on certain limitations of the district court data (not relevant to the appeals data used here) and also catalogs the growing use of AO data in academic literature.
174. Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code).
175. Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 (1996)
176. (codified as amended in scattered sections of 11, 18, 28, and 42 U.S.C.).
177. These sentencing decisions include United States v. Booker, 543 U.S. 220 (2005)
178. and Apprendi v. New Jersey, 530 U.S. 466 (2000).
179. On some graphs I will also show data going farther back. This is especially useful for seeing the effects of the Second Circuit's earlier vacancy crisis, as explained above.
180. See JUDITH A. MCKENNA, LAURAL L. HOOPER & MARY CLARK, FED. JUD. CENTER, CASE MANAGEMENT PROCEDURES IN THE FEDERAL COURTS OF APPEALS 52 (2000), available at http://www.fjc.gov/public/pdf.nsf/lookup/caseman1.pdf/$file/caseman1.pdf
181. Federal Rule of Appellate Procedure 32.1(a) requires that all circuits permit the citation of any unpublished opinion issued on or after January 1, 2007. FED. R. APP. P. 32.1(a).
182. 2D CIR. R. 34.2.
183. Again, this is because the data on reversals in criminal cases are hard to interpret in this period
184. it cannot be said (with Apprendi decided in 2000 and Booker in 2005) that the inherent characteristics of federal criminal appeals were steady during the studied period. (Habeas and other prisoner cases suffer a similar problem, given the enactment of the AEDPA and the PLRA near the start of the period of study, and the changing case law concerning those statutes in the years following.)
185. See MCKENNA, HOOPER & CLARK, supra note 72, at 51.
186. See Henry Paul Monaghan, Taking Bureaucracy Seriously, 99 HARV. L. REV. 344, 346 (1985)
187. (reviewing RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM (1985)).
188. I thank Judge Newman for suggesting specific possibilities (without endorsing any of them); he also emphasized that conscious change in judicial behavior is an unlikely one.
189. By partial reversals, I mean any decision listed as "reversed in part," including those which were also "affirmed in part."
190. Moreover, this combined measure allows greater comparability, as the circuits tend to vary in their usage of the terms "reversal" and "remand" (at times interchanging them).
191. Judge Newman, formerly Chief Judge of the Second Circuit, has documented these varying usages
192. see Jon O. Newman, Decretal Language: Last Words of an Appellate Opinion, 70 BROOK. L. REV. 727, 729-31 (2005),
193. and he has also used the same shorthand I am using here,
194. see Jon O. Newman, A Study of Appellate Reversals, 58 BROOK. L. REV. 629, 629 (1992).
195. The coding of the administrative data does not distinguish between decisions that are "reversed" and those that are "vacated."
196. I avoid presenting a fitted line in the earlier crisis period (though the shape may be obvious) so as not to encourage reading too much into how far this measure falls, given that it pools both circuits together and only the Second Circuit could have been affected by the crisis in that circuit. This is less of a worry for the surge period, during which the proportional increases in caseload in these two circuits were very similar; hence the fitted curve there. These are aesthetic, and not substantively important, choices.
197. Moreover, no other individual circuit matches the pattern of outcome changes seen in the Second and Ninth Circuits during the surge period.
198. See FED. R. APP. P. 32.1;
199. Robert Timothy Reagan, Citing Unpublished Federal Appellate Opinions Issued Before 2007, FED. JUD. CENTER (Mar. 9, 2007), http://www.fjc.gov/public/pdf.nsf/lookup/citrules.pdf/$file/citrules.pdf.
200. Of the circuits studied, only the First Circuit changed its citation rules during the period of study;
201. its outcome measures show no noticeable changes coinciding with its rule change. The D.C. Circuit also changed its rules during this period, but it is excluded from this study. (Again, including the D.C. Circuit makes virtually no difference in the results.)
202. See 2D CIR. R. 34.2.
203. Consider a party deciding whether to file an appeal, say, in 2005. Searching on Lexis or Westlaw might have turned up very few cases addressing the same issue and decided in the surge period (after mid-2002); probably this litigant would have had to look further back, and include cases before the surge, to get a usable sample.
204. Tellingly, the total number of civil appeals terminated was lower than usual in third-quarter 2001 (ending September 30) - but it immediately rebounded by the next quarter (October 1 to December 31).
205. It then remained high in following quarters. (The same was true for the number of civil cases reaching a judicial panel for decision.)
206. The judiciary itself also plays a leading role in requesting new judgeships; for a recent appraisal of the practice,
207. see Arthur D. Hellman, Assessing Judgeship Needs in the Federal Courts of Appeals: Policy Choices and Process Concerns, 5 J. APP. PRAC. & PROCESS 239 (2003).
208. The present delay has been widely noted by both judges and commentators.
209. See, e.g., Letter from Chief Judge Alex Kozinski and Judges of the Ninth Circuit to Senate Leaders (Nov. 15, 2010), available at http://legaltimes.typepad.com/files/111510-letter-from-9th-circuit.pdf
210. (noting "our desperate need for judges" and asserting that "we would be greatly assisted if our judicial vacancies - some of which have been open for several years and declared 'judicial emergencies' - were to be filled promptly")
211. see also Dahlia Lithwick & Carl Tobias, Vacant Stares: Why Don't Americans Worry About How an Understaffed Federal Bench is Hazardous to Their Health?, SLATE (Sept. 27, 2010), http://www.slate.com/id/2268466 (analyzing data on the present delay and collecting links to further commentary).
212. By no means does this study's focus on case outcomes suggest that process values, including what may be called "procedural justice," are undeserving of the widespread attention they have received.
213. See Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181 (2004).
214. See, e.g., FDIC v. Providence Coll., 115 F.3d 136, 140 (2d Cir. 1997)
215. Evan Tsen Lee, Principled Decision Making and the Proper Role of Federal Appellate Courts: The Mixed Questions Conflict, 64 S. CAL. L. REV. 235, 241 (1991)
216. (citing Second Circuit "mixed questions" cases dating from the 1980s).
217. Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 & n.3 (2d Cir. 2001).
218. This "either/or approach," as applied in civil cases,
219. seems to have come from unlikely origins: a criminal case interpreting a statutory provision for the review of district courts' applications of sentencing guidelines.
220. See United States v. Vasquez, 389 F.3d 65, 70 (2d Cir. 2004)
221. (calling it the "either/or approach"). By 2005, however, this option for greater deference had worked its way into the circuit's civil cases.
222. See Uzdavines v. Weeks Marine, Inc., 418 F.3d 138, 143 (2d Cir. 2005).
223. And there it seems to have stayed.
224. See Barscz v. Dir.,
225. Office of Workers' Comp. Programs & Elec. Boat Corp., 486 F.3d 744, 749 (2d Cir. 2007).
226. The task is not as trivial as spotting variations in phrasing, of course, but it is an easy place to start. As Judge Posner recently noted, even though he was "surpris[ed] to find so many different standards for awarding attorneys' fees in Lanham Act cases," it would not do to assume that they implied more than an illusory split; rather, "[t]o decide whether the standards differ more than semantically would require a close study of the facts of each case."
227. Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 962 (7th Cir. 2010).
228. In Gall, for instance, Justice Stevens concluded that "[a]lthough the Court of Appeals correctly stated that the appropriate standard of review was abuse of discretion, it engaged in an analysis that more closely resembled de novo review."
229. Gall v. United States, 128 S. Ct. 586, 600 (2007).
230. Concern for balance across circuits has been noted in recent debates over splitting the Ninth Circuit.
231. Senator Dianne Feinstein, for instance, opposed one proposal in 2006 on such grounds (among others): The split proposal before us would unfairly distribute judicial resources in the West.
232. The Ninth Circuit would keep 71% of the caseload of the current Circuit, but only 58% of its permanent judges. Currently, the Ninth Circuit has a caseload of 570 cases per judge - as opposed to the national average of 381 cases per judge. Under the proposed split, the average caseload in the new Ninth Circuit would actually increase to 600 cases per judge, while the new Twelfth Circuit would have only 326 cases per judge. This inequitable division of resources would leave residents of California and Hawaii facing greater delays, and with court services inferior to their Twelfth Circuit neighbors.
233. Press Release, Sen. Dianne Feinstein, Senator Dianne Feinstein Cautions Against Splitting Ninth Circuit Court of Appeals for Ideological Motivations (Sept. 20, 2006), available at 2006 WLNR 16399308.
234. See, e.g., POSNER, supra note 7, at 210-21
235. Friendly, supra note 9, at 640-41.
236. Just which resources or personnel to add is a harder, and harder-fought, question. What common sense is shared, and what is not, has been laid out by the late Judge Richard Arnold: Well, if you're not going to have less business, and in fact you're going to have more, and you want to decide the cases promptly, there are only two or three things that can happen to bring that about.
237. The first thing - and this is happening, and this is disturbing - you spend less time on each case. That generally is a bad idea. The only other solution is more people. [But] the proposition that we solve the problem by putting on more staff, it seems to me, ignores the fact that we may be just about at the limit of that solution. My feeling is that what we need is more judges. This is very controversial in the federal judiciary and I think I'm in a minority on this subject.
238. Richard S. Arnold, The Future of the Federal Courts, 60 MO. L. REV. 533, 542-43 (1995).
239. Today, a version of this is done through an ad hoc and limited visiting judges system. This study's findings raise the question of whether such a system is enough.
240. See Immigration Litigation Reduction: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 147-57 (2006)
241. [hereinafter Immigration Litigation Reduction] (statement of Jon O. Newman, United States Circuit Judge, United States Court of Appeals for the Second Circuit).
242. See Foreign Intelligence Surveillance Court, FED. JUD. CENTER, http://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html (last visited Jan. 30, 2011)
243. Temporary Emergency Court of Appeals, 1971-1992, FED. JUD. CENTER, http://www.fjc.gov/history/home.nsf/page/courts_special_tecoa.html (last visited Jan. 30, 2011).
244. Immigration Litigation Reduction, supra note 99, at 153
245. (statement of Jon O. Newman, United States Circuit Judge, United States Court of Appeals for the Second Circuit).
246. Judge Newman made amply clear his general opposition to sending the immigration cases to a centralized court; he proffered this proposal only as a lesser-of-evils option.
247. To imagine the opposite effect, one need look no further than the surge itself. Recall that a jurisdictional rule is what sent such large shares of the immigration surge into the Second and Ninth Circuits - even though all the decisions being reviewed were made by the BIA in a single building in a suburb in northern Virginia.
248. See Securing America's Borders Act, S. 2454, 109th Cong. § 501 (2006).
249. In the case of the Second Circuit, the prevailing wisdom is that the immigration appeals are in fact especially well-suited to the NAC - which is probably a testament to the design of the NAC. Whether other cases are also suitable may soon be seen; the circuit has started to move selected criminal sentencing appeals onto this track as well.
250. See MCKENNA, HOOPER & CLARK, supra note 72, at 51, 104, 117, 143, 156, 171, 185.
251. Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995).
252. Most familiar may be Justice Jackson's warning that "[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones," for "[h]e who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search."
253. Brown v. Allen, 344 U.S. 443, 537 (1953)
254. (Jackson, J., concurring in the result).
255. A similar impulse may have fueled Judge Friendly's well-known war against diversity jurisdiction in the federal courts.
256. See Friendly, supra note 9, at 641
257. ("[T]he arguments for retaining [diversity jurisdiction] will not hold water when the federal courts are overburdened with distinctively federal business." (footnote omitted)).
258. POSNER, supra note 7, at 223.
259. In economic terms, this may be seen as a classic "multitask" problem.
260. See Bengt Holmstrom & Paul Milgrom, Multitask Principal-Agent Analyses: Incentive Contracts, Asset Ownership, and Job Design, 7 J.L. ECON. & ORG. 24, 27-28 (1991).
261. I thank Professor Scott Hemphill for calling attention to this parallel.
262. The standard case for uniformity may be more mantra than gospel; I thank Professor Trevor Morrison for pointing me to very fine new work on reasons we may tolerate or even desire disuniformity in legal interpretation.
263. See Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567, 1571 (2008)
264. (questioning the value of uniformity within the federal judiciary)
265. see also Gil Seinfeld, The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 CALIF. L. REV. 95, 99-100 (2009)
266. (questioning the mantra of seeking uniformity among the federal judiciary).
267. In thinking about the sort of "splits" I am describing here, though, it helps to distinguish between disuniformity that comes of reasoned disagreement and the kind that occurs by accident or for other unarticulated reasons.
268. It may seem something of an irony that the dilemma may be lessened if a less munificent theory of deference is credited: that affirming can be tempting under time pressure
269. as Judge Aldisert cautioned, merely "because a reversal will require a time-consuming, researched opinion."
270. Aldisert, supra note 32, at 43.
271. On such a view, affirmances would be a variant of, rather than a byproduct of, what Judges Newman and Reinhardt have called judicial "shortcuts" and Judge Posner has called "economy measures."
272. See Posner, supra note 40, at 135
273. Jon O. Newman, Are 1,000 Federal Judges Enough? Yes. More Would Dilute the Quality, N.Y. TIMES, May 17, 1993, at A17
274. Stephen Reinhardt, Are 1,000 Federal Judges Enough? No. More Cases Should be Heard, N.Y. TIMES, May 17, 1993, at A17.
275. I thank Professor Kate Stith for raising this interesting possibility.
276. Judge Posner has suggested that heavy caseloads contribute to more isolation among the circuits, rather than mutual reference.
277. See Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 962 (7th Cir. 2010). But might the story differ for issues of first impression?
278. For instance, a data point for the reversal-rates regression would be the percentage of cases decided, in a given circuit and in a given quarter, that resulted in reversal or remand.
279. The measure is the share of active judges who were appointed by Republican presidents. In the estimations reported here, this measure is included both for the district judges and for the appeals judges, along with a simple interaction term.
280. (Consistent and somewhat sharper results, not reported here, are found using a more compact measure of the chances of having different-partyappointees at the district and circuit level.) As might be expected given the difference-indifferences design (which is itself a way of controlling for the changing political composition of the courts during the Clinton and Bush years), and given the fixed effects that are also included, adding (or omitting) these extra control variables does not disturb the finding of falling reversal rates during the surge.
281. That is, ten quarters for specifications with the half-year transition period, and eight quarters for those with the full-year transition period. The sum of t and the transition length is always twelve quarters (that is, three years into the surge).
282. 2)), which more clearly shows how the contribution of prior trends is removed.
283. The tradeoff in defining the transition period is that a longer transition is more likely to cover the true lag (if any), but a shorter one leaves a longer "flooded" period and hence more data for estimating the desired coefficients. It should be emphasized that this transition period need not capture the entire time needed for the surging caseloads (or their effects, if any) to reach their full heights
284. however; to the contrary, the change-in-trends variables allow for such growth over time.