Academic journal article Case Western Reserve Law Review

Appellate Courts and Independent Experts

Academic journal article Case Western Reserve Law Review

Appellate Courts and Independent Experts

Article excerpt

The federal courts of appeals increasingly hear cases that have scientific or highly technical content. This is particularly true of the Federal Circuit, because of its jurisdiction over patent cases, and of the D.C. Circuit, because of its review of agency rulemakings and adjudications. (1) Many of these complex cases pose a significant challenge for generalist judges, who typically lack scientific or technical expertise.

The challenge of understanding such cases has led some prominent observers to call for the use of independent expert witnesses or, alternatively, expert staff members to assist the courts of appeals as needed. Perhaps because the use of court-appointed experts in the federal district courts has not proved controversial, the idea of appointing independent experts to assist appellate courts has resurfaced in a serious fashion. Under this proposal, neutral staff or outside independent experts would advise judges ex parte and their advice would not be reflected in the record, save perhaps in the opinion of the court.

In my view, it would be a mistake for the federal courts of appeals to retain or consult experts for five reasons. First, the practice is inconsistent with the adversary system. Second, it may cause the judiciary subtly to transfer to the independent expert its non-delegable duty and authority under Article III of the Constitution of the United States to decide cases and controversies. (2) Third, in administrative review cases, which tend to be the most challenging in terms of scientific and technical subject matter, it would undercut the courts' appropriate deference to agency expertise. Fourth, it would sacrifice the virtues of a generalist judiciary. Finally, the practice would be unworkable. Before laying out these objections in greater detail, I discuss the technical challenges faced by judges and the proposals they have elicited that the courts of appeals rely upon independent experts.


Under the hard look doctrine, which originated in the D.C. Circuit in the late 1960s and early 1970s, (3) a court, in reviewing agency decision making, performs a "searching and careful" inquiry into whether the agency's "decision was based on a consideration of the relevant factors and whether there has been a clear error of judgement" but does not "substitute its judgment for that of the agency." (4) This inquiry often forces a judge to evaluate significant technical complexities.

Consider the antitrust case United States v. Microsoft Corp. (5) Although it did not involve review of administrative action, the case is a good example of the difficult technical questions generalist judges may face. A key issue--which, for people under thirty, may not seem challenging, but for the average judge is a bit more daunting--was the extent to which Microsoft's Web browser, Internet Explorer, was so bound to its Windows operating system that it could not be removed without crippling the operating system. (6) If Internet Explorer was in fact inextricably bound to the Windows operating system, then computer hardware manufacturers such as IBM and Dell would have little incentive to pre-install another Internet browser, namely Netscape Navigator, on their machines, nor would consumers have much incentive, after purchasing a new computer, to purchase or download and to install that browser. (7)

Other examples abound. Recently, a panel of the D.C. Circuit reviewed regulations of the Mine Safety and Health Administration that limited concentration levels for diesel particulate matter in underground mines. (8) Although the court, sensitive to the agency's comparative expertise and to its own limitations, explained that it would "give an extreme degree of deference to the agency when ... 'evaluating scientific data within [the agency's] technical expertise,'" it still had to examine the agency's scientific explanations closely for reasonableness. …

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