Judicial attention as a scarce resource: A preliminary defense of how judges allocate time across cases in the federal courts of appeals

George Washington Law Review

Volumn 81, Issue 2, 2013, Pages 401-447

  Levy, Marin K ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84883220200     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (149)

1. 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, 543 (1969) ("[T]he federal appellate caseload is likely to continue to increase for the foreseeable future and . . . the resulting congestion poses a serious threat to the institutional role of the courts of appeals.");
2. 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, 877 (1983) ("As the work load of the federal courts and the burdens imposed on federal judges have increased during the last two decades, concern over the effect of these trends on the administration of justice has risen apace.");
3. Henry J. Friendly, Averting the Flood by Lessening the Flow, 59 CORNELL L. REV. 634, 634 (1974) (commenting on the "crisis in the federal courts" that has been caused by the rising caseload);
4. Carolyn Dineen King, Commentary, A Matter of Conscience, 28 HOUS. L. REV. 955, 955 (1991) ("What is the reality of the federal bench today? Insofar as the Court of Appeals for the Fifth Circuit is concerned, we have experienced in the last thirty-two years an exploding case burden.");
5. Diarmuid F. O'Scannlain, Striking a Devil's Bargain: The Federal Courts and Expanding Caseloads in the Twenty-First Century, 13 LEWIS & CLARK L. REV. 473, 473 (2009) (stating that "skyrocket[ing]" caseloads in the federal courts between 1960 and 1988 caused a "crisis");
6. Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. REV. 1049, 1050 (2006) ("[I]f the federal caseload continues to grow . . . the strain on federal appellate courts, as they are now constituted . . . may become acute, even unbearable.");
7. William H. Rehnquist, Address, Seen in a Glass Darkly: The Future of the Federal Courts, 1993 WIS. L. REV. 1, 3 ("Simply put, time and again the nation has looked to the federal courts to handle a larger and larger proportion of society's problems. . . . The point is that as a result of people looking to the federal courts those courts have become overburdened and the system has become clogged.").
8. COMM'N ON STRUCTURAL ALTS. FOR THE FED. COURTS OF APPEALS, FINAL REPORT 14 (1998). Note that this figure takes into account filings from the Court of Customs and Patent Appeals and Court of Claims.
9. See ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: ANNUAL REPORT OF THE DIRECTOR 12 (2011) [hereinafter 2011 ANNUAL REPORT]. This figure was arrived at by taking the number of appeals filed in 2011 (55,126) and dividing it by the number of authorized judgeships (167). Note that these figures exclude data for the U.S. Court of Appeals for the Federal Circuit.
10. Specifically, the number of judgeships has increased from 65 in 1950 to 167 in 2012 (excluding the U.S. Court of Appeals for the Federal Circuit). See How the Federal Courts Are Organized, FED. JUDICIAL CTR., http://www.fjc.gov/ federal/courts.nsf/autoframe?OpenForm&nav=menu3c&page=/federal/courts. nsf/page/A783011AF949B6BF85256B35004AD214?open document (last visited Nov. 20, 2012). Two caveats about this data bear mentioning. First, I borrow the metric that the Administrative Office of the U.S. Courts employs-average filing per judgeship-but this metric does not take into account the contribution of senior judges.
11. J. Harvie Wilkinson III, The Drawbacks of Growth in the Federal Judiciary, 43 EMORY L.J. 1147, 1158 (1994).
12. DANIEL J. MEADOR, APPELLATE COURTS: STAFF AND PROCESS IN THE CRISIS OF VOLUME (1974). The discussion of a caseload "crisis" dates back even further, to at least the 1960s.
13. Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 BROOK. L. REV. 685, 689 n.8 (2000) (citing Carrington, supra note 1).
14. See Bert I. Huang, Lightened Scrutiny, 124 HARV. L. REV. 1109, 1112 (2011) (describing the "flourishing" and "voluminous" literature on the "crisis of volume").
15. Marin K. Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, 61 DUKE L.J. 315 (2011) (describing and analyzing the case management practices of five of the federal courts of appeals).
16. As the Second Circuit has explicitly stated: "appellate courts certainly have the inherent authority to allocate scarce judicial resources among the petitions and appeals that press for their attention, and such allocations become especially necessary in this era of burgeoning appellate dockets." Pillay v. I.N.S. 45 F.3d 14, 17 (2d Cir. 1995) (per curiam).
17. See JOE S. CECIL & DONNA STIENSTRA, FED. JUDICIAL CTR., DECIDING CASES WITHOUT ARGUMENT: AN EXAMINATION OF FOUR COURTS OF APPEALS 9 (1987), http://www.fjc.gov/public/pdf.nsf/lookup/dcwa4cts.pdf/$file/dcwa4cts.pdf ("The procedures adopted by the courts have not always been enthusiastically received by . . . court scholars . . . .").
18. David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate over Unpublished Opinions, 62 WASH. & LEE L. REV. 1667, 1668 (2005).
19. William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 CORNELL L. REV. 273, 275 (1996);
20. Penelope Pether, Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1, 34 (2007).
21. See Stephen Reinhardt, A Plea to Save the Federal Courts: Too Few Judges, Too Many Cases, A.B.A. J., Jan. 1993, at 52, 53 (calling upon Congress to double the size of the federal appellate judiciary);
22. Jon O. Newman, Litigation Reforms and the Dangers of Growth of the Federal Judiciary, 70 TEMP. L. REV. 1125, 1130 (1997) ("[T]he only realistic way to slow the growth of the federal judiciary is to reallocate some cases now within federal jurisdiction to the state courts.").
23. Some scholars and judges have considered the related question in the district courts of how, in a time of constrained resources, judges should divide their time between "managing" their caseloads and actually considering cases, including, most famously, Judith Resnik. See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 380 (1982).
24. For a more recent consideration of this question, see Steven S. Gensler, Judicial Case Management: Caught in the Crossfire, 60 DUKE L.J. 669, 689-97 (2010). Scholars have also considered how limited judicial capacity has affected particular areas of substantive law.
25. Andrew B. Coan, Judicial Capacity and the Substance of Constitutional Law, 122 YALE L.J. 422 (2012);
26. Marin K. Levy, Judging the Flood of Litigation, 80 U. CHI. L. REV. (forthcoming 2013).
27. Others, of course, have recognized that judicial time or attention is scarce. See, e.g., Cathy Catterson, Changes in Appellate Caseload and Its Processing, 48 ARIZ. L. REV. 287, 287 (2006) ("Judicial time is now one of the scarcest items in our society.");
28. Frank I. Michelman, Anastasoff and Remembrance, 58 ARK. L. REV. 555, 568 (2005) (noting the "scarce resources of judicial time and care"). Unlike this previous scholarship, this Article focuses on how the scarcity of judicial time should affect the allocation of that time.
29. 2011 YEAR-END REPORT ON THE FEDERAL JUDICIARY 13 (2011), http://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf, effectively rendering the court of appeals the court of last resort in nearly all federal cases.
30. FED. COURTS STUDY COMM., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 5 (1990).
31. PAUL D. CARRINGTON ET AL., JUSTICE ON APPEAL 143-46 (1976);
32. Ruggero J. Aldisert, Appellate Justice, 11 U. MICH. J.L. REFORM 317, 320 (1978);
33. Charles Alan Wright, The Overloaded Fifth Circuit: A Crisis in Judicial Administration, 42 TEX. L. REV. 949, 956-58 (1964).
34. GORDON BERMANT ET AL., FED. JUDICIAL CTR., IMPOSING A MORATORIUM ON THE NUMBER OF FEDERAL JUDGES: ANALYSIS OF ARGUMENTS AND IMPLICATIONS 8-9 (1993).
35. As Ewrin Chemerinsky and Larry Kramer write, "[o]ne possibility is to increase the number of judges . . . . The alternative is to reduce the number of cases in the federal courts." Erwin Chemerinsky & Larry Kramer, Defining the Role of the Federal Courts, 1990 BYU L. REV. 67, 94-95.
36. By contrast, some state court judges have argued that abolishing diversity jurisdiction would only further burden their own dockets. See, e.g., Sol Wachtler, Diversity Jurisdiction: Case for Retention, N.Y. L.J., Jan. 17, 1990, at 39 ("[E]limination of federal diversity jurisdiction could prove disastrous to state court systems . . . .").
37. See Irving R. Kaufman, New Remedies for the Next Century of Judicial Reform: Time as the Greatest Innovator, 57 FORDHAM L. REV. 253, 267-68 (1988) (calling diversity jurisdiction a "plague" on the federal courts).
38. See Wilfred Feinberg, Is Diversity Jurisdiction an Idea Whose Time Has Passed?, 61 N.Y. ST. B.J. 14, 14 (1989).
39. See Jon O. Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the Federal Judicial System, 56 U. CHI. L. REV. 761, 771-76 (1989).
40. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 176 (1985).
41. Edith H. Jones, Back to the Future for Federal Appeals Courts: Rationing Federal Justice by Recovering Limited Jurisdiction, 73 TEX. L. REV. 1485, 1502 (1995) (book review).
42. In addition to those scholars and judges who have advocated expanding the bench, there are some who have pointed to the need to ensure that existing judgeships are actually filled. See, e.g., Stefanie A. Lindquist, Bureaucratization and Balkanization: The Origins and Effects of Decision-Making Norms in the Federal Appellate Courts, 41 U. RICH. L. REV. 659, 704 (2007) (describing the ramifications for the courts of appeals of unfilled vacancies, including an increased reliance on senior judges). Although providing that existing vacancies are filled will ensure that the strain on current judges does not grow needlessly worse, filling the vacancies alone cannot solve the caseload difficulties. As of December 2012, the Administrative Office of the U.S. Courts reports that there are fifteen vacancies in the U.S. Courts of Appeals, only seven of which have nominees pending.
43. See Judicial Vacancies, U.S. CTS., http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx (last visited Dec. 24, 2012). Although the number of vacancies is not trivial, it is a mere fraction of the number of additional judgeships that some scholars and judges have said are needed to respond to the increase in caseload.
44. Anastasoff v. United States, 223 F.3d 898, 904 (8th Cir. 2000).
45. Of course, some have opposed increasing the number of judges for fear, inter alia, that the quality of the judiciary would be compromised. This sentiment is perhaps best captured by Justice Frankfurter: "a steady increase in judges . . . is bound to depreciate the quality of the federal judiciary and thereby adversely to affect the whole system." Lumbermen's Mut. Cas. Co. V. Elbert, 348 U.S. 48, 59 (1954) (Frankfurter, J., concurring).
46. See, e.g., Stephen Reinhardt, Developing the Mission: Another View, 27 CONN. L. REV. 877, 880 (1995) ("I suggest doubling only because it seems to provide roughly the minimum number of judges necessary to deal with the current workload. If, after we have doubled the judiciary . . . the crisis has not been alleviated, then we should consider further expansion.").
47. Thomas E. Baker, Proposed Intramural Reforms: What the U.S. Courts of Appeals Might Do to Help Themselves, 25 ST. MARY'S L.J. 1321, 1339 (1994).
48. Griffin B. Bell, Toward a More Efficient Federal Appeals System, 54 JUDICATURE 237, 239-43 (1971).
49. Rochelle Cooper Dreyfuss, Specialized Adjudication, 1990 BYU L. REV. 377, 377;
50. Andrew W. Jurs, Science Court: Past Proposals, Current Considerations, and a Suggested Structure, 15 VA. J.L. & TECH. 1, 28 (2010).
51. See Paul D. Carrington, The Function of the Civil Appeal: A Late-Century View, 38 S.C. L. REV. 411, 433 (1987)
52. citing Shirley Hufstedler & Seth M. Hufstedler, Improving the California Appellate Pyramid, 46 L.A. B. BULL. 275 (1971).
53. Although judges could likely improve their efficiency at the margins, the general consensus is that judges are working diligently already. The Federal Courts Study Committee surveyed all federal appellate judges two decades ago, when the average number of filings was considerably less than it is today, and eighty-one percent reported that they found the workload to be "overwhelming" or "heavy." See Lauren K. Robel, Caseload and Judging: Judicial Adaptations to Caseload, 1990 BYU L. REV. 3, 38. Beyond this study, judges' statements echo this view.
54. Carolyn Dineen King, Current Challenges to the Federal Judiciary, 66 LA. L. REV. 661, 679 (2006). Judge Kaufman of the Second Circuit put the sentiment in more colorful terms: "I am second to none in my admiration of hard work, but that particular ointment has already been liberally applied."
55. Irving R. Kaufman, Reform for a System in Crisis: Alternative Dispute Resolution in the Federal Courts, 59 FORDHAM L. REV. 1, 3 (1990). Although it may be wise to accept the judges' self-reporting cum grano salis, it nevertheless seems reasonable to infer that significantly increasing judicial capacity is unlikely.
56. See Federal Judgeship Act of 1990, Pub. L. No. 101-650, § 202, 104 Stat. 5089, 5098 (codified as amended in scattered sections of 28 U.S.C.).
57. This is not to say that Congress has made no attempts to limit the caseload. Indeed, Congress made such attempts when it passed the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to -77 (1996)
58. (codified as amended in scattered sections of 11, 18, 28, and 42 U.S.C.)
59. the Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109 Stat. 737 (1995)
60. (codified as amended in scattered sections of 15 and 18 U.S.C.).
61. Porter v. Nussle, 534 U.S. 516, 524 (2002) (noting that part of the purpose of the Prison Litigation Reform Act was to "reduce the quantity and improve the quality of prisoner suits.");
62. H.R. REP. NO. 104-369, at 41 (1995) (Conf. Rep.) (noting that part of the purpose of the Private Securities Litigation Reform Act was to reduce the volume of suits). Aside from these interventions, however, Congress has not taken significant steps to limit the federal judiciary's docket.
63. JAMES A. STRAZZELLA, A.B.A. CRIMINAL JUSTICE SECTION TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, THE FEDERALIZATION OF CRIMINAL LAW 2 (1998).
64. Though some portions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
65. the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, "focused on reducing immigration litigation by limiting and streamlining both administrative appeal and judicial review procedures," other portions of the acts in fact "increased litigation by expanding the scope of the grounds for inadmissibility and deportation and the definition of aggravated felony, which effectively further expanded the grounds for deportation."
66. MARGARET MIKYUNG LEE, CONG. RESEARCH SERV., RL33410, IMMIGRATION LITIGATION REFORM 1 (2006). Since then, the federal appellate courts have witnessed a significant increase in the number of immigration appeals.
67. In economics, a resource is defined as scarce if the demand for it exceeds the supply, when the resource is free of charge. See, e.g., JOHN BLACK ET AL., A DICTIONARY OF ECONOMICS (3d ed. 2008).
68. Interestingly, scholars have consistently found that these types of questions are relevant when considering another constrained judicial institution-the Supreme Court. See, e.g., Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. REV. 681, 722-31 (1984) (describing the kinds of cases the Court should consider for certiorari given the limited number of cases it can hear per year). By contrast, relatively few scholars have argued that the Supreme Court should alter its constraints, say by increasing its complement of Justices.
69. Tracey E. George & Chris Guthrie, Remaking the United States Supreme Court in the Courts' of Appeals Image, 58 DUKE L.J. 1439, 1442 (2009).
70. Carl Tobias, The New Certiorari and a National Study of the Appeals Courts, 81 CORNELL L. REV. 1264, 1268 (1996) ("Most appellate courts and circuit judges recognize that they have promulgated and applied measures which alter the traditional treatment of appeals.").
71. See THOMAS E. BAKER, RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF THE U.S. COURTS OF APPEALS 127 (1994)
72. citing ADMIN. OFFICE OF THE U.S. COURTS, REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 11 (1964).
73. William L. Reynolds & William M. Richman, Limited Publication in the Fourth and Sixth Circuits, 1979 DUKE L.J. 807, 808
74. citing ADMIN. OFFICE OF THE U.S. COURTS, REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 12-13 (1974).
75. citing ADMIN. OFFICE OF THE U.S. COURTS, 1977 ANNUAL REPORT OF THE DIRECTOR 3 (1977).
76. JOE CECIL & DONNA STIENSTRA, FED. JUDICIAL CTR., DECIDING CASES WITHOUT ARGUMENT: A DESCRIPTION OF PROCEDURES IN THE COURTS OF APPEALS 2 (1985).
77. FED. R. APP. P. 34(a)(2);
78. 28 U.S.C. app. Rule 34(a) (Supp. III 1980).
79. See Staff Attorney Offices Help Manage Rising Caseloads, USCOURTS.GOV, host4.uscourts.gov/newsroom/stffattys.htm (last visited Dec. 25, 2012).
80. See Thomas E. Baker, Applied Freakonomics: Explaining the "Crisis of Volume", 8 J. APP. PRAC. & PROCESS 101, 113 (2006) ("We conserved scarce resources by reducing judicial inputs in some cases by various procedural reforms like screening appeals to non-argument calendars and relying on unpublished opinions or doing away with opinions.");
81. J. Clifford Wallace, Essay, Improving the Appellate Process Worldwide Through Maximizing Judicial Resources, 38 VAND. J. TRANSNAT'L L. 187, 189 (2005) ("A shrinking proportion of litigants is afforded the opportunity to present cases orally before the tribunal; fewer parties still are fortunate enough to have their disputes resolved in a published, fully reasoned decision.").
82. FED. R. APP. P. 34(a)(2) (stating that panel unanimity is required to forgo oral argument).
83. See JUDITH A. MCKENNA ET AL., FED. JUDICIAL CTR., CASE MANAGEMENT PROCEDURES IN THE FEDERAL COURTS OF APPEALS 8 (2000).
84. Interviews with a Senior Member of the Clerk's Office, U.S. Court of Appeals for the Second Circuit, in New York, NY (Sept. 23, 2010, Dec. 10, 2010, & Jan. 5, 2011).
85. 4TH CIR. R. 34(b).
86. 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, 430-32 (2009);
87. 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, 17-20 (2006-2007).
88. See Lawrence Baum, Judicial Specialization and the Adjudication of Immigration Cases, 59 DUKE L.J. 1501, 1521 (2010).
89. citing Immigration Litigation Reduction: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 9 (2006) (testimony of Carlos T. Bea, J., U.S. Court of Appeals for the Ninth Circuit).
90. Anders v. California, 386 U.S. 738 (1967).
91. See Richard B. Cappalli, The Common Law's Case Against Non-Precedential Opinions, 76 S. CAL. L. REV. 755, 759 (2003). That said, some judges have argued that the law is clearer when fewer opinions are published.
92. Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 OHIO ST. L.J. 177, 189 (1999) ("Policy-wise, we need to be able to distinguish those opinions worthy of publication, and of making a meaningful contribution to our body of precedent, from those that merely apply settled law to decide a dispute between parties.").
93. See generally WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS, INJUSTICE ON APPEAL: THE UNITED STATES COURTS OF APPEALS IN CRISIS (2013).
94. See 28 U.S.C. § 453 (2006) ("Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: 'I, -, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as - under the Constitution and laws of the United States. So help me God.'").
95. This is a different enterprise from assessing what broader objectives judges maximize in their jobs-an enterprise others have already undertaken. See, e.g., Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1, 39-40 (1993).
96. Sanford Levinson, Assessing the Supreme Court's Current Caseload: A Question of Law or Politics?, 119 YALE L.J. ONLINE 99, 100 (2010), http://www.yalelawjournal.org/images/pdfs/842.pdf (describing how one cannot comment upon how the Supreme Court should decide to hear cases "unless one has a conception of what the Court, as an institution, should be doing in the first place").
97. KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 12-13 (1960);
98. ROSCOE POUND, APPELLATE PROCEDURE IN CIVIL CASES 3 (1941).
99. DANIEL JOHN MEADOR, APPELLATE COURTS IN THE UNITED STATES 3 (2d ed. 2006) ("Error correcting and lawmaking are the core appellate functions.").
100. Chad M. Oldfather, Error Correction, 85 IND. L.J. 49, 49 (2010).
101. Numerous other scholars have stated that the twin goals of appellate courts are error correction and law development. For a few additional examples, see David Frisch, Contractual Choice of Law and the Prudential Foundations of Appellate Review, 56 VAND. L. REV. 57, 74 (2003) ("Discussions of the essential functions of appellate review have been dominated by the distinction between error correction and law development . . . .");
102. Christopher M. Pietruszkiewicz, Economic Substance and the Standard of Review, 60 ALA. L. REV. 339, 360 (2009) ("Appellate courts have two primary purposes . . . . Appellate courts should serve to develop the law in a particular area as guidance for future cases and to rectify egregious errors in particular cases.");
103. Michael E. Solimine, Ideology and En Banc Review, 67 N.C. L. REV. 29, 52 (1988) ("One should begin by reviewing the purposes and functions of the federal courts of appeals. It is widely acknowledged that these courts serve both an 'error correction' and a 'law development' function.").
104. ROBERT J. MARTINEAU, MODERN APPELLATE PRACTICE: FEDERAL AND STATE CIVIL APPEALS 19 (1983) ("Although some commentators identify other functions, these other purposes are usually aspects of either error correction or law development . . . .").
105. Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J. LEGAL STUD. 379, 384 (1995) ("The state's objective is minimization of total social costs: the sum of the social costs of adjudication-the costs of trial together with the expected costs of appeal, if appeals are allowed- plus the social harm from erroneous decisions." (footnote omitted)).
106. Martin Shapiro, Appeal, 14 LAW & SOC'Y REV. 629, 636 (1980) ("Appeal can therefore be reexamined in the light of the question-to what extent do the mechanisms of appeal contribute to the perceived legitimacy of the regime?-rather than in terms of the conventional question- to what extent does appeal correct the wrongs done by trial courts?");
107. Dan Simon & Nicholas Scurich, Lay Judgments of Judicial Decision Making, 8 J. EMPIRICAL LEGAL STUD. 709, 721 (2011) ("The research demonstrating the importance of adequate procedures to the legitimacy of the system is well established . . . .");
108. Tom R. Tyler, Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform, 45 AM. J. COMP. L. 871, 895-96 (1997) (stating that judges should "seek[ ] to rebuild public trust in the legal system" by paying attention to issues like the court's legitimacy).
109. Circuit Courts of Appeals Act (Evarts Act), ch. 517, 26 Stat. 826 (1891) (repealed 1948).
110. Thomas E. Baker & Douglas D. McFarland, Commentary, The Need for a New National Court, 100 HARV. L. REV. 1400, 1405 (1987).
111. I am assuming for these purposes that, for the most part, there are appropriate and less appropriate case outcomes. In the words of Harlon Dalton, "It is meaningless to talk about error correction if we cannot, at least theoretically, isolate correct and incorrect outcomes." Harlon Leigh Dalton, Taking the Right to Appeal (More or Less) Seriously, 95 YALE L.J. 62, 74 (1985).
112. Two caveats are in order. First, error correction does not include the correction of alleged errors that are "harmless"-i.e., errors or defects that do not affect the substantial rights of an aggrieved party. Second, in limited circumstances, a "plain error" affecting susbtantial rights may be addressed by an appellate court even though it was not brought to the attention of the trial court. For a detailed discussion of these points, and the way error correction relates to standards of review more broadly, see generally HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL COURTS-STANDARDS OF REVIEW: APPELLATE COURT REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS (2007).
113. Gall v. United States, 552 U.S. 38, 51 (2007). Following the Supreme Court's decision in Gall, lower courts had to determine what constituted an unreasonable sentence.
114. United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (noting that the "broad statements" of Gall "require more specificity, both as to substantive and procedural reasonableness review if they are to guide us in particular cases, including the one before us").
115. Specifically, following the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008)
116. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the lower courts had to determine the appropriate standard of review for Second Amendment claims.
117. Ezell v. City of Chicago, 651 F.3d 684, 706 (7th Cir. 2011) (noting the need to "select an appropriate standard of review" for a Second Amendment claim because "the Supreme Court did not do so in either Heller or McDonald");
118. Nordyke v. King, 644 F.3d 776, 782 (9th Cir. 2011) ("Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts.");
119. United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010) ("Heller left open the level of scrutiny applicable to review a law that burdens conduct protected under the Second Amendment, other than to indicate that rationalbasis review would not apply in this context. . . . Our task, therefore, is to select between strict scrutiny and intermediate scrutiny.").
120. Of course, there are other allocation approaches that have "operational merit," including input equalization and output equalization. See, e.g., David Kennett, Standards and Procedures for the Distribution of a Public Service: Shoup Revisited, 37 PUB. FIN. 80, 81 (1982). Since output maximization is the most common approach, it is the one I focus on here.
121. I am considering how to allocate attention in a static sense. That is, given the cases that the judges currently have on their dockets, how should they distribute their attention to maximize these two outputs? One could consider instead whether judges should spend more attention on their cases at the expense of disposition times. For example, instead of deciding nearly all 330 of her cases in one year, a judge could spend more time per case and decide say only 200 of them, simply expanding the average time it takes to decide each case. The obvious problem with such a strategy is that while tempting in the short term, it quickly leads to disastrous consequences in the long term, as the backlog in the federal appellate courts grows greater by the year. An extreme example of a court facing such consequences is the High Court of Delhi, which, as of 2009, had a projected backlog of 466 years. See Renu Agal, Delhi Justice's 466-Year Backlog, BBC NEWS (Feb. 11, 2009), http://news.bbc.co.uk/2/hi/7883750.stm.
122. Even for those circuits that have relatively high number of cases reviewed by the Supreme Court, how scholars should interpret reversal rates is not always clear. For example, the Supreme Court took twenty-six cases in the October Term 2010 from the Ninth Circuit and ultimately reversed or vacated nineteen of those decisions for a reversal rate of seventy-three percent. See Carol J. Williams, U.S. Supreme Court Again Rejects Most Decisions by the U.S. 9th Circuit Court of Appeals, L.A. TIMES (July 18, 2011), http://articles. latimes.com/2011/jul/18/local/la-me-ninth-circuit-scorecard-20110718. Although some of those reversals may be due to perceived errors, others might be because the Supreme Court ultimately decided to change a particular rule. Regarding this last point, Judge Reinhardt has colorfully stated: "It would be easy not to get reversed if you just tried to guess what five of nine justices were going to say about the case . . . . If you follow the law the way it is, before they change it, you're going to get reversed." Id.
123. 8 U.S.C. § 1158 (2006).
124. Allamby v. United States, 207 F. App'x 7, 8 (2d Cir. 2006).
125. United States v. Rogers, 16 F. App'x 38, 39 (2d Cir. 2001).
126. Licari v. Voog, 374 F. App'x 230, 231 (2d Cir. 2010).
127. I employ the term "meaningful" to screen out cases that have gone through only a cursory form of review. For example, some have suggested that the BIA's review of decisions by Immigration Judges is not particularly thorough. See, e.g., Guchshenkov v. Ashcroft, 366 F.3d 554, 558 (7th Cir. 2004) (Posner, J.) (describing a decision by the BIA as a "characteristically perfunctory opinion affirming the immigration judge"). For the purposes of this discussion, it is not necessary to take a position on the BIA's quality of review as its appeals tend to raise repeating issues, thus already placing it within a category of cases appropriate for nonargument review.
128. 20 C.F.R. § 404.900 (2012).
129. National Labor Relations Act § 10(a), 29 U.S.C. § 160 (2006).
130. Allamby v. United States, 207 F. App'x 7, 8 (2d Cir. 2006).
131. And as a more general matter, the Federal Rules of Appellate Procedure explicitly allow for dispensing with oral argument when a panel agrees that a case is frivolous, see FED. R. APP. P. 34(a)(2)(A), which would suggest that frivolous appeals routinely receive limited judicial attention.
132. Flood v. Schaefer, 439 F. App'x 179, 180 (3d Cir. 2011).
133. Wynns v. Davis, 435 F. App'x 27, 28 (2d Cir. 2011).
134. Chavis v. Pennsylvania, 434 F. App'x 50, 50 (3d Cir. 2011).
135. Paulino v. Burlington Cnty. Jail, 438 F. App'x 106, 107-08 (3d Cir. 2011)
136. cert. denied, 132 S. Ct. 1548 (2012).
137. Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 701-716, 78 Stat. 241, 253-66
138. codified as amended in 42 U.S.C. § 2000e (2006).
139. Americans with Disabilities Act of 1990, Pub L. No. 101-336, 104 Stat. 327
140. codified as amended in 42 U.S.C. § 12101;
141. Price v. Plantation Mgmt. Co., 433 F. App'x 264, 264-65 (5th Cir. 2011).
142. Meehan Rasch, Not Taking Frivolity Lightly: Circuit Variance in Determining Frivolous Appeals Under Federal Rule of Appellate Procedure 38, 62 ARK. L. REV. 249, 276 (2009) ("[T]here is a perception among many courts and commentators that a large percentage of meritless suits and appeals are brought by pro se and in forma pauperis litigants.").
143. See David Greenwald & Frederick A. O. Schwarz, Jr., The Censorial Judiciary, 35 U.C. DAVIS L. REV. 1133, 1158 (2002) (noting that it is "generally believed" that "pro se prisoner petitions . . . are overwhelmingly weak and often frivolous.").
144. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321- 66 to 1321-77 (1996)
145. (codified as amended in scattered sections of 11, 18, 28, and 42 U.S.C.). The Prison Litigation Reform Act of 1995 was designed to reduce the number of frivolous prisoner cases.
146. Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 62 BROOK. L. REV. 519, 527 (1996).
147. Even if most courts might not be willing to conduct such an experiment, a minor proposal like this might be able to get traction in at least one circuit. It is worth noting that members of the federal judiciary have proven willing to participate in some experiments in the past, albeit on themselves (and not on the way they manage cases). See generally, e.g., Chris Guthrie, et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777 (2001) (reporting the results of cognitive study based on 167 federal magistrate judges).
148. Comments made by Justice Stevens suggest that a similar effect occurs when clerks on the Supreme Court decide whether to recommend that the Court grant or deny certiorari. According to the Justice, law clerks he spoke to said that when they were in doubt about a case, they erred on the side of not recommending a grant of certiorari. Interview by David F. Levi with John Paul Stevens, Retired Assoc. Justice, Supreme Court of the U.S., in Durham, N.C. (May 12, 2012).
149. In the words of the Second Circuit: As a matter of policy, finally, appellate courts certainly have the inherent authority to allocate scarce judicial resources among the petitions and appeals that press for their attention, and such allocations become especially necessary in this era of burgeoning appellate dockets. We recognize, in this context as in others, the need to exercise this authority with care and discrimination to ensure that nonfrivolous claims are fully considered and fairly decided. Pillay v. I.N.S. 45 F.3d 14, 17 (2d Cir. 1995) (per curiam).