The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts

By Levy, Marin K. | Duke Law Journal, November 2011 | Go to article overview

The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts


Levy, Marin K., Duke Law Journal


ABSTRACT

Case-management practices of appellate courts define the judicial review of appeals. The circuit courts constantly make decisions about which cases will receive oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions--decisions that exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts. Despite their importance, there has been no in-depth review of the case-management practices of the different circuit courts in the academic literature.

This Article begins to fill that void. It first documents and analyzes the practices of five circuit courts using qualitative research from a series of interviews of appellate judges, clerks of court, court mediators, and staff attorneys. This thorough account of case management reveals the great extent to which these practices vary across circuits. The Article considers reasons for the variation and asks whether such a lack of uniformity is problematic in a federal system. The Article concludes that disuniformity in case management is more defensible than in substantive and procedural law, but that current practices can and should be improved through increased transparency and information sharing between the circuits.

TABLE OF CONTENTS
Introduction

I. A Background on Circuit Case Management

II. The Case-Management Practices of Five Circuits
     A. General Figures and Statistics
     B. Initial Screening
     C. Mediation
     D. Nonargument-Track Cases and the Role of Staff
        Attorneys
     E. Sittings and Argument
     F. Publication of Dispositions
     G. Additional Practices

III. Explaining the Variation
     A. Differences in Dockets
     B. Differences in Priorities
     C. The Dynamic Interplay Between Dockets and
        Priorities
     D. The Role of Path Dependence

IV. Is Disuniformity Problematic?

V. A Call for Greater Information Sharing and Transparency
   A. Information Sharing
   B. Transparency

Conclusion

INTRODUCTION

Twenty-five years ago, then-Chief Judge Wilfred Feinberg of the Court of Appeals for the Second Circuit wrote: "[J]udicial administration continues to be the stepchild of the law. This comparative inattention is odd, since the way that courts operate has a significant, possibly even dominant, influence on the quality of justice that can be obtained from them." (1) Both of these observations--that judicial administration is a critical component of the American justice system and that it is often overlooked--remain just as true, and just as troubling, today.

First, the decisions that appellate courts make about how to review their vast caseloads shape the consideration that appeals receive and may even affect their outcomes. Determinations about case management--including whether a case will receive oral argument or will be decided solely on the briefs, whether its disposition will be drafted by judges and their law clerks or by staff attorneys, and whether it will be resolved by a published opinion or by an unpublished, nonbinding order--are therefore an essential part not just of judicial administration, but of justice itself. (2)

Second, despite its critical importance, case management has often been overlooked by the academy. Most scholars are unaware of how cases move from filing to disposition in the individual courts of appeals. (3) Of the few scholars who have written in this area, most have focused on specific case-management practices--for example, on the benefits or drawbacks of holding fewer oral arguments or publishing fewer opinions. (4) No one outside of the judiciary has undertaken the essential task of examining how these practices fit together within each circuit and how the circuits' practices compare. (5)

Even within the judiciary, a void in knowledge exists. Judges themselves acknowledge that they are unacquainted with the case-management practices of courts outside their own.

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