Academic journal article
By Haire, Susan
Justice System Journal , Vol. 25, No. 1
Inside Appellate Courts: The Impact of Court Organization on judicial Decision Making in the United States Courts of Appeals, by Jonathan Matthew Cohen. Ann Arbor, MI: University of Michigan Press, 2002.
Several studies have examined the consequences of the increasing workload of the U.S. Courts of Appeals over the last several decades (see Baker, 2000, for a chronological review). judges and scholars alike have expressed concern that judicial quality has been sacrificed for measures designed to increase productivity (Posner, 1985; Baker, 1994). Inside Appellate Courts: The Impact of Court Organization unjudicial Decision Making in the United States Courts of Appeals challenges the view that heavy caseloads on the circuit courts are contributing to an organizational crisis. In a rich, interesting account drawn largely from interviews with judges and law clerks, Jonathan Cohen offers a portrayal of case processing and decision making in the circuit court that draws on theoretical perspectives associated with organizational behavior. His conceptualization of this level of the federal court system suggests that complex organizational dynamics operate within each circuit. Although increasing caseloads would suggest the potential for a crisis, the U.S. Courts of Appeals continue to function well, according to Cohen, as a result of three sets of inherent organizational features of the circuit courts. These organizational features-formal controls, structures, and institutional culture-contribute to a balance between judicial autonomy and interdependence. Devoting at least one chapter to each set of organizational features, Cohen describes how the circuit courts adapt to a dynamic environment.
As outlined by Cohen, formal controls include those rules that limit and shape the behavior of court actors. Included among these rules are stare decisis and standards of appellate review. By limiting the scope of an appeal and binding judges to relevant precedent of the circuit and U.S. Supreme Court, these formal controls would be expected to limit judicial autonomy through enforcement mechanisms associated with this hierarchical organization. Instead, Cohen finds judges relatively unconcerned about the threat of reversal. His interviews do suggest that judges adhere to stare decisis and standards of review because they believe that it is their duty to do so. The effectiveness of stare decisis and standards of review may depend, therefore, on the judge's ability to learn relevant facts and legal authority for each case. Cohen identifies five sources that judges draw upon: 1) personal expertise, 2) other judges' expertise, 3) law clerks and central staff, 4) appellate briefs and oral argument, and 5) the record of the lower court. Recognizing that these sources are not equally effective at identifying relevant information, Cohen notes how organizational changes can limit information from one source so that judges will then draw more heavily from another source. For example, as the number of cases on the appellate docket has grown, judges have increasingly relied on record excerpts that are provided by attorneys rather than reading the full record. In this respect, caseload constraints contributed to a potential problem, but the organization responded by shifting to another information source.
Formal controls also include circuit rules and internal operating procedures that deal with agenda setting and case processing. These controls outline procedures for screening panels, panel assignments, and opinion assignments. Rules and practices dealing with case processing may shift the balance between judicial autonomy and interdependence, according to Cohen. For example, in most circuits, panel assignments are random and, therefore, limit the potential for any individual judge to influence the development of precedent in a single legal policy area. Moreover, in circuits where opinion writing is assigned before detailed case review, judges are less likely to develop specialization within a particular area of the law. …