Appellate Judges as Gatekeepers? an Investigation of Threshold Decisions in the Federal Courts of Appeals

By Kaheny, Erin B. | Journal of Appellate Practice and Process, Fall 2011 | Go to article overview

Appellate Judges as Gatekeepers? an Investigation of Threshold Decisions in the Federal Courts of Appeals


Kaheny, Erin B., Journal of Appellate Practice and Process


I. INTRODUCTION

Although litigants may take their claims to court, full merits consideration of those claims may or may not be provided. Judges, for example, might find that a litigant lacks standing to sue or that a claim was presented too early or too late for adjudication. They might conclude that the litigant failed to exhaust administrative remedies prior to seeking judicial resolution of a legal question or that the court lacks jurisdiction to decide the matter. These and other similar decisions are based on a group of threshold rules that are frequently raised in litigation which, when applied, might lead a judge to forego reaching the merits of a claim. Thus, when judges apply such threshold rules, they are aptly described as "gatekeepers." (1)

Because of the significance of threshold rules, it is unsurprising that judicial scholars have explored their use in some detail, and they have done so especially with respect to the Supreme Court. (2) Yet relatively few scholars have acknowledged and analyzed the threshold decisions made by the judges of the federal courts of appeals. (3)

But there is something very revealing about these sorts of rulings in the federal courts of appeals, which makes this situation all the more notable. After all, as Professor Cross describes, (4) these procedural rules provide judges with discretion. This fact alone makes a study of threshold decisions in the federal courts of appeals potentially worthwhile given how their dockets are marked by their non-discretionary nature. That is, federal appellate judges' interpretations of threshold rules might lead them to forego making decisions on appellate claims even if they might otherwise have no discretion to decline to hear particular cases. (5) In addition, while it is impossible to disagree with the argument that federal district judges play an important role as gatekeepers via the application of threshold rules, (6) their decisions pertaining to threshold matters are obviously subject to appeal. (7)

This paper represents an effort to further explore this dimension of gatekeeping in the federal courts of appeals by providing a descriptive analysis of their threshold decisions over a substantial period of time. Employing the sample data available in the United States Courts of Appeals Database, (8) I investigate the frequency with which the federal courts of appeals consider cases raising threshold issues and examine whether the circuits seem to vary in their threshold behavior. Moreover, comparisons are drawn between Democratic and Republican appointees to the federal appellate bench and among "presidential appointment cohorts" (9) to determine whether presidents have selected federal appeals court judges whose voting behavior varies systematically on questions of judicial access and, if so, whether such tendencies are more pronounced in certain types of litigant contests and/or with respect to certain types of threshold issues.

II. BACKGROUND

Judicial scholars have recognized the importance of threshold rules, given the implications such rules have on litigant access to the judiciary. (10) Review of the relevant literature suggests emphasis on the Supreme Court's procedural gatekeeping--investigating both the frequency with which the Court considers threshold questions and whether such decisions serve to restrict or enhance access. (11) The resulting analyses are suggestive of at least some differences in the consideration and treatment of these issues across select Supreme Court regimes (i.e., Warren versus Burger Court eras) (12) and also point to multiple sources of influence in the gatekeeping behavior of individual justices. (13) In addition, among the insights generated by this line of research is the basic notion that a justice's preferences pertaining to the merits of a case can influence how the justice construes threshold rules. (14)

Of course, another important area of research involves an exploration of gatekeeping practices at the first rung of the judicial ladder--the federal district courts. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Appellate Judges as Gatekeepers? an Investigation of Threshold Decisions in the Federal Courts of Appeals
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.