Thursday, January 29, 2015
Tony Mauro has this article in The National Law Journal reporting on Justice Thomas' rebuke of the Fourth Circuit over the issuance of a lengthy unpublished opinion on an unsettled issue of law. Justice Scalia joined Thomas' dissent from denial of certiorari, finding the unpublished nature of the Fourth Circuit's decision a "disturbing aspect." Thomas explains:
The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published....It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.
Thomas noted that the Fourth Circuit opinion met at least three of the five possible causes for publication, any of which should have sufficed. The Fourth Circuit’s Local Rule 36(a) provides for publication of any opinion that establishes a rule of law in the Circuit, creates a conflict with another circuit, or is of continuing public interest. Finding that it met all of these, the two Justices express concern that it wasn't published.
The Justices' concern is well-placed but ineffectively expressed. Members of the Court occasionally take a swipe at the unpublished opinion practice or a single instance of it, usually through dissents from denial of cert or similar writings, or through off-the-bench comments. They have done so for the last forty years, chiding individual circuits or questioning the system itself. This is clearly not having any effect on the circuit's practices, though. The number of unpublished opinions remains high, and the percentage of circuit cases resolved this way remains in the mid-eighty percent range. Many of these cases meet the circuits' standards for publication but are not published. Many involve dissents, lengthy explanations or novel applications of the law, or other indicia of being a useful addition to the body of law. And that doesn't even address the notion that every decision, however similar to prior cases, adds something valuable to the law by showing application to slight variations of fact, continued adherence to the doctrine, or simply the "weight of authority."
Individual Justices have expressed dissatisfaction with the system and individual instances of it. , and they should be commended for spotting the problem and speaking out against its harm to appellate justice. But rather than having Justices individually take sporadic shots at the practice, the Court should actually examine it directly, either through one of the cert petitions on the issue or through its rule-making authority.
Monday, January 19, 2015
Judicial transparency seems to be a popular issue of late, and I thought I'd pass along some recent news items on the issue.
Public.Resource.Org has a new memorandum regarding the PACER system. Drafted as a "Memorandum of Law" in "The United States Court of Appeals for Public Opinion," the document is a cheeky, well-written explanation of the access problems with the PACER system. The memorandum notes the outdated and rudimentary technical interface, fee and access barriers, and "the almost universal condemnation of PACER from the outside world." It suggests a "national strategy of litigation, supplication, and agitation." The last of these proposes a May 1 day of PACER protest, including various means to bring public dissatisfaction with PACER to the federal courts' attention.
Second, Eric Segall has a post on Dorf on Law examining the U.S. Supreme Court's the Court’s "complete lack of transparency across the range of its official duties." Leading with the example of the court's direct communication with the public timed for 6 p.m. New Year's Eve, the post also examines the courts lack of advance notice of when its decisions in cases will be published, the lack of televised coverage, and other limitations on the Court's transparency.
Third, William Baude has a new piece up on SSRN, Foreword: The Supreme Court's Shadow Docket, which examines "the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity." Ultimately, after review, Baude concludes, "if there is a problem at the Supreme Court, it may be the opposite of the usual narrative. It is on technical procedural and administrative questions when the spotlight is off that the Court’s decisions seem to deviate from its otherwise high standards of transparency and legal craft." This seems consistent with what Circuit judges and federal court scholars have said for years about unpublished opinions.
hat tip on that last item to the Legal Theory Blog.
Thursday, November 20, 2014
In a new post on the Maryland Appellate Blog, Steve Keppler offers a useful reminder about federal judicial vacancy problem and offers some proposals for addressing it. As he suggests, "the next six months provide a window of time when Congress can reform judicial policy for the next president — before we have much of an idea who the next president will be."
- Create New Judgeships for the Next President to Fill
- Encourage More Appellate Judges to Take Senior Status and to Maintain a Higher Workload.
- Don’t Make Consensus Nominees Wait for Floor Votes.
The first has the support of the Judicial Conference, which issued a set of Judgeship Recommendations to that effect. The second is a reform of an already growing practice of employing senior judges in a more active role. The third recommends a change to Senate practice that would encourage the President to nominate consensus nominees. All interesting proposals with some opportunity to side-step political barriers and address the issue.
You can read details of these proposals at the Maryland Appellate Blog: Three Things Congress Should Do in 2015 About Judges.
Sunday, November 9, 2014
Following up on my earlier post regarding the Nevada ballot question regarding the addition of an intermediate appellate court in Nevada, voters in that state approved the measure by only a slight margin. Ballotpedia has this summary. This move leaves only nine states without an intermediate appellate court.
Seah Whaley of the The Las Vegas Review Journal reports that legislative appropriation is underway and seems uncontroversial. Applications for newly created judgeships are being taken by the Nevada Commission on Judicial Selection with interviews planned for early December and appointment by the Governor in early 2015. The court will sit in both Carson City and Las Vegas.
Appeals will apparently still be filed with the Nevada Supreme Court, which will then assign some cases to the intermediate appellate court. This strikes me as an unusual arrangement.
Wednesday, September 24, 2014
My experience with Nevada courts is limited to involvement with some cert petitions from the Nevada Supreme Court to the U.S. Supreme Court, but my sense is that the Nevada Supreme Court is overworked and could use the relief and reflection that an intermediate appellate court could provide. I'd be interested in opinions of Nevada appellate attorneys.
Friday, September 12, 2014
Professor Joel Schumm noted on The Indiana Law Blog that the Indiana Supreme Court recently rejected a proposal to permit citation of memorandum decisions for as "persuasive precedent." The Indiana high court rejected even this compromise position without a single dissenting vote, making this the official Indiana position for the foreseeable future.
The proposal, which had the support of three sections of the Indiana Bar, is consistent with the modern trend of allowing citations of all court opinions. For example, Federal Rule of Appellate Procedure 32.1 permits citation of all opinions issued after its passage. By rejecting the proposal, the Indiana Supreme Court continues to support "a rule that defies the modern reality of 'memorandum decisions' being easily accessible." I would add that it defies the historical reality: denying precedential value to some of a court's decisions flies in the face of the common law system. It also denies the practical reality that both judges and lawyers recognize the value of all decisions and will find ways to cite them regardless of the written rules. The federal appellate system's experience with a citation bar should be Exhibit A.
Joel Schumm's blog post offers Indiana lawyers some creative ideas for how to deal with the restriction. I find all of them to be fair game, but then, I question whether any U.S. court has the authority to: 1) bar citation of its own opinions or 2) strip a decision of precedential value at the time of its issuance. Such actions seem to run afoul of various constitutional provisions and the fundamental nature of judicial power.
The late Judge Richard S. Arnold predicted that the federal rule against citation was doomed to fail. He recognized, long before others did, that judicial decisions were the very stuff of our system of justice. There is no substitute for them, and they are the kind of information that even a gag rule cannot fully suppress. He was right. In the federal system, unpublished opinions were routinely cited by both advocates and courts, and ultimately, the citation ban was abolished as untenable and undesirable.
One can hope that Indiana's Supreme Court will come to a similar conclusion the next time it confronts the issue. For now, however, Indiana appellate advocates will have to contend with Appellate Rule 65. I predict that Indiana appellate decisions marked "not for publication" will continue to be cited by advocates and judges alike, and the more that courts decide to sanction lawyers for violation of Appellate Rule 65, the louder opposition to the rule will grow.
Thursday, August 21, 2014
Howard Bashman has a new post on How Appealing examining the new proposal to reduce the word limit for principal briefs in the U.S. Courts of Appeals. The proposal is to reduce the current 14,000 word limit to 12,500. Allegedly, the current 14,000 word limit was based on a misunderstanding about how many words fit on a printed page.
Is this a beneficial reduction that will promote concision and clarity? Or another limitation on the role of advocacy before the courts of appeals?
The preliminary draft of proposed changes and call for comments is available here, and Howard invites comments, pro or con, through his site. This seems to me to be yet another procedural reform that streamlines, and arguably reduces, appellate advocacy and judicial consideration. I welcome your thoughts on the issue as I consider whether to comment.
Friday, August 1, 2014
Helen A. Anderson at University of Washington Law has a new article on SSRN: Frenemies of the Court: The Many Faces of Amicus Curiae. Given the rise in the number of amicus briefs, the phenomenon seems ripe for closer scrutiny. Anderson does just that by breaking up the singular concept of an amicus curiae brief into types that can be examined separately.
Amicus curiae occupy a unique place in the courts: non-parties who are nevertheless advocates, who are not bound by rules of standing and justiciability, and who can present the court with new information and arguments. Amicus participation has increased dramatically in recent years, and threatens to alter the adversarial process. Yet scholars and courts treat amicus curiae as a single category, not fully recognizing that this friendly term actually covers several very different types, ranging from court appointed advocates of a particular position, to friends of a party (sometimes paid by the party), to persons or groups who just missed qualifying as interveners.
To understand the reality of amicus practice, this article develops a taxonomy of amicus based on the relationship to the court and the parties. The article supports this taxonomy with a look at the history of amicus, and a survey of the rules and judicial attitudes in different jurisdictions. I also explore the persistence of a myth that amicus should be “disinterested,” a myth that has led to confused reasoning about the proper role of amicus.
The modern increase in friend of a party amicus has taken us far from the origins of amicus as one with special expertise or knowledge relevant to the litigation. The article concludes that the Supreme Court’s open-door amicus policy should not be mindlessly copied by our other courts. Friend of a party briefs by ambitious law reform and business advocates may exert great influence, particularly on elected courts. The growth in amicus briefs can lead to distorted views of appellate decision-making, so that a court’s work is seen more like legislation and amicus briefs more like lobbying. To preserve the usefulness of the amicus institution, courts should exercise their gatekeeping authority.
What do you think? Is the increasing amicus briefing giving appellate courts a more legislative, lobbying-susceptible character?
August 1, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Friday, July 11, 2014
Marin K. Levy (Duke) has a new article, Judging Justice on Appeal, 123 Yale L. Journal 2386 (2014), a review of the 2012 monograph, Injustice on Appeal: The United States Courts of Appeals in Crisis by William M. Richman and William L. Reynolds.
Richman and Reynolds are well-known and prolific authors on the federal appellate courts and the caseload crisis that dominated the late-twentieth century. As Levy explains:
Over the past thirty years, no one has contributed more to this field than two court scholars together—William M. Richman and William L. Reynolds. Through a series of critical articles, Richman and Reynolds were able to pinpoint the precise effects of the caseload crisis, both on litigants and the system as a whole. Furthermore, they were able to show the interplay of these various effects, providing a holistic account of the problem in a way that no one else had done. Their recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, stands as a culmination of their earlier work, bringing together vital analysis of the caseload crisis, the ways in which appellate review has suffered as a result of that crisis, and potential solutions. More broadly, Injustice on Appeal stands as one of the most comprehensive and thoughtful accounts of the largest problem facing the federal judiciary today.
For the most part, Levy's review agrees with Richman and Reynolds' evaluation of the recent history, and present problems facing, the federal judiciary. Chief among these problems are the continued high volume of cases in the federal appellate courts and the case management practiced by the federal courts over the last forty years to manage that higher volume. Where Levy parts ways with the book's authors is in the possible solutions to the federal courts' problems. While Richman and Reynolds prescribe large-scale changes, such as enlarging the federal judiciary, and look skeptically on the kinds of internal changes the courts have been doing for decades, Levy views the large-scale changes as unrealistic and smaller process changes as more fruitful.
As I discuss in my recent piece, Post-Crisis Reconsideration of Federal Court Reform, 61 Clev. St. L. Rev. 47 (2013), the federal courts over the last forty years have adopted many internal reforms to deal with the increase in caseload volume, but they have also left many proposed reforms on the table. Large-scale systemic reforms have been politically unpopular, and smaller scale internal reforms have raised questions about the quality of appellate justice. It is possible that the disagreement between the book's authors and Professor Levy is the difference between a normatively preferable approach, a systemic fix, and a more pragmatic solution, continuing case management reform.
I certainly agree with Levy that the area is ripe for the next wave of scholars, and I would add, reformers, to make a difference in the post-"caseload crisis" era. Richman and Reynold's latest work is a terrific collection and summarization of their extensive research and thoughtful commentary in the area, and Levy's review is a useful focus on solutions and an interesting challenge to the field.
I highly recommend both works to anyone interested in the appellate courts.
Tuesday, June 10, 2014
Above The Law just posted Benchslap Of The Day: The D.C. Circuit Calls Out A Top Law School. In a time when lawyers are criticized for being unprofessional, I think it might be time to question whether the benchslap itself is unprofessional. Perhaps there are other more productive ways to ensure professionalism without resorting to the humiliating and demeaning benchslap.
Monday, June 2, 2014
Adam Liptak has a terrific, if deeply disturbing, piece in the New York Times: Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing last week.
The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.
The article identifies a handful of cases that received more than typographical or editing changes. While none of the changes located actually reverse the Court's decision, some certainly alter substantive comments of the Court and involve language already under discussion by the bench, bar, and legal academia. These identified changes are almost certainly only the tip of the iceberg. The NYT piece is worth reading, and hopefully Lazarus' study will make some waves.
Sunday, May 18, 2014
Sunday, March 23, 2014
The Sixth Circuit Appellate Blog has an interesting piece on when it's acceptable for advocates and appellate judges to go beyond the appellate record to do internet research (or even live reenactments). I think that all such outside references present a problem, but the issues are different depending on whether the advocates or court is doing the extra-record research. When the parties make extra-record references, those references are subject to the adversarial process. As the Sixth Circuit Appellate Blog post notes, a motion to strike can be considered and pursued or waived depending on the importance of the content and egregiousness of the extra-record reference. When the court does its own research, whether that's internet research or live reenactments, the action is not subject to the adversarial process. A party's only recourse is to seek hearing en banc or Supreme Court cert, both exceedingly rare audiences to obtain.
As outside research becomes easier, particularly through the internet, the boundaries of such research should be carefully considered and enforced.
Monday, February 17, 2014
Catching up on some blog reading over the weekend, I noticed that the Sixth Circuit Appellate Blog has a recent post on the issue, Practitioner Perspective: Oral Arguments. How timely. The post is an interview with Sixth Circuit Appellate Blog Editors, Pierre Bergeron and Phil Calabrese, and it covers several different issues related to oral arguments. The pair gives some great advice, particularly on preparation and directness. As this blog has previously noted, appellate courts expect a high level of preparation and expect you to respond to their questions and address their issues. Being unprepared or unresponsive is a recipe for disaster.
What interested me most, though, were the first couple paragraphs about the importance of oral argument. As I'm sure my last post made clear, I think it's very important, and at a systemic level, it bothers me that both the number and duration of oral argument has been diminshed. So I was interested in the practitioner's perspectives:
What is your view on the current importance of oral arguments?
Pierre: For the average appeal, oral arguments are less important today than they used to be. And you see courts cutting back on the number of oral arguments in recognition of that fact, instead relying on the briefs. But the flipside of courts cutting back on the number of oral arguments is that when you are scheduled for oral argument it suggests some significance. So you could also view oral arguments today as being more important than ever because if the court schedules your case for argument then it has probably decided that something in the oral argument could help its decision.
I agree. As a descriptive matter, fewer oral arguments means that orality is less important to appeals than briefing. But when you are granted oral argument, it takes on greater importance than in the average appeal. It signals that oral argument may allow one to influence the court.
Going beyond the descriptive, oral arguments are important for several reasons, including providing litigants: 1) engagement in the decisionmaking process; 2) an opportunity to be heard; 3) an opportunity to affect the outcome; and 4) the opportunity to affect the scope or breadth of the decision, even if the outcome is unchanged. There are also benefits to the judiciary and legal system such as greater legitimacy, transparency, and judicial engagement.
Check out the whole post, it's a quick read with some good practitioner insights.
Thursday, February 13, 2014
Just over a year ago, Steve Wisotsky and I published an article documenting, and to be frank, bemoaning, the decline of oral argument in the federal courts of appeals. The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119 (2012). Oral argument is just one of a number casualties of the caseload crunch of the 1970s and 80s. Oral argument has gone from being routinely granted and thirty minutes per side to rarely granted and often fifteen minutes or fewer per side. This dramatic reduction coincides with an increase in early tracking of cases into those that receive more appellate process and those that recieve less. The decline oral argument also coincides with a significant decline in reversal rates across all categories of federal appeals. Sacrificing oral argument on the altar of efficiency both reveals and causes a significant diminishment of appellate values. Or so Steve and I argue.
So it was with great interest that I read Joshua Stein's article, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime, 14 J. App. Prac. & Process 159 (2013), in which he offers an idea for improving the quality of oral arguments. The abstract:
This article explores use of the tentative opinion, two types of which were pioneered by California appellate courts. In 1990, the Second Division of California’s Fourth District Court of Appeal (which sits in Riverside) began disseminating written draft opinions in advance of oral argument. The measure received acclaim from appellate advocates, but did not beget imitation by other courts. In late 2011, however, an appellate court in Los Angeles (the Eighth Division of the Second District) began issuing tentative opinions orally at the beginning of argument. This approach, referred to here as the “oral tentative,” represents an attractive alternative to the written version, which has failed to catch on in other courts.
I was only passingly familiar with this practice, so it was interesting to read about its use in two districts within the California appellate system. I'm not persuaded that it could, or should, be adopted more widely, though. Issuing a tentative opinion a week or so before the oral argument offers advocates the opportunity to tailor their oral arguments to the judge's concerns at cost of requiring courts to review the case in advance and write a tentative opinion. I understand how this benefits the advocate, and perhaps improves the quality of the oral argument, but it does so by shifting the cost of assessing the most important and persuasive arguments to the courts.
An oral tentative opinion, offered immediately prior to the argument, comes too late to offer advocates an ability to focus their oral arguments. I fail to see how a tentative opinion offered in the moments prior to the argument offers any significant advantage over a judge asking questions or even offering such opinions during argument. The only one that comes to mind is that the oral tentative time doesn't come out of the advocates' very limited oral argument time.
I come away thinking that these practices are a result of the California system's requirement that appeals be resolved within ninety days of submission. This "ninety-day rule" forces judges to issue opinions close on the heels of oral argument. Because the system forces judges to prepare a nearly final draft prior to the oral argument, there is little additional cost to distributing that in some form to the advocates. But for any system without such a built-in requirement, I'm skeptical of its utility or desirability. Still, I recommend Stein's article and invite your opinions on the practice.
February 13, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (0)
Monday, February 3, 2014
Is link rot destroying stare decisis as we know it? That's a great question. If appellate courts are citing to internet sources and those sources are disappearing (link rot), often within just a few years, that does seem to pose a problem for future litigants and courts in determining the basis for the earlier courts' decision.
Arturo Torres, Associate Dean for Library and Information Technology and Professor of Law at the Texas Tech University School of Law, tackled this issue in: Is Link Rot Destroying Stare Decisis as We Know It? The Internet-Citation Practice of the Texas Appellate Courts, 13 J. App. Prac. & Process 269 (2012). The abstract:
In 1995 the first Internet-based citation was used in a federal court opinion. In 1996, a state appellate court followed suit; one month later, a member of the United States Supreme Court cited to the Internet; finally, in 1998 a Texas appellate court cited to the Internet in one of its opinions. In less than twenty years, it has become common to find appellate courts citing to Internet-based resources in opinions. Because of the current extent of Internet-citation practice varies by courts across jurisdictions, this paper will examine the Internet-citation practice of the Texas Appellate courts since 1998. Specifically, this study surveys the 1998 to 2011 published opinions of the Texas appellate courts and describes their Internet-citation practice.
While it appeared in the Journal's Fall 2012 issue, it just popped up on SSRN last month, which makes it current enough to discuss I suppose. The article does a careful and detailed empirical analysis of Texas Supreme and intermediate appellate courts' use of internet citations, citations to publicly available URLs, by court and overall. It then follows up on the internet citations used in these opinions and determines that, of internet citations used in the period between 1998 and 2011, nearly 40% of them no longer function. Table 10 on page 294 documents the link rot year over year, with citations in the late 90s and and early 2000s being mostly non-functional. In addition to documenting the link rot, the article also parses the data in a couple other interesting ways, showing us which courts are more likely to use internet citations and which domains (such as .com, .gov, etc.) are most cited.
In my estimation, the article doesn't really answer whether this admittedly frequent link rot does destroy stare decisis. To answer this question would require examining how the citations were being used and whether their absence affects our ability to understand and apply the cases. The answer may well be "yes," and its a problem that should be addressed regardless, but it may well be that a qualitative analysis of internet citation use proves the loss of these links to be insignificant. For example, if the appellate court gives the substance drawn from the source before citing it, it may often be the court's own adoption or application that matters, and not the availablility of the underlying source. For this or other reasons, link rot may have only a de minimis affect on stare decisis.
Finally, the author's data sorting methodology strikes me as a bit ironic, although this might just be my sensitivity to the issue of unpublished opinions in appellate courts. But given this article's concern with stare decisis, and its conclusion that link rot a priori erodes stare decisis, I was surprised that it completely omits unpublished decisions from the data set. It would seem to me that wholesale elimination of entire appellate opinions (especially in the large volume designated as unpublished) represents a more blatant affront to stare decisis.
Monday, January 27, 2014
Jeremy W. Bock, Assistant Professor of Law at the University of Memphis, Cecil C. Humphreys School of Law has a new paper up on SSRN, Restructuring the Federal Circuit. The abstract:
The de facto steward of U.S. patent law is the United States Court of
Appeals for the Federal Circuit, which is the exclusive appellate venue for
patent cases. As the perceived importance of the patent system has steadily
increased since the court’s formation in 1982, the Federal Circuit’s
performance has been closely followed by an ever-expanding group of
practitioners, academics, and other interested observers, who have not been
shy about pointing out the court’s deficiencies. Common complaints about
the Federal Circuit’s case law and the quality of its decision-making
include: panel-dependency, formalism, indeterminacy, and the over- or
under-enforcement of certain doctrines. The academic literature offers a
variety of proposals for remedying or compensating for the Federal
Circuit’s perceived shortcomings, such as having specialized patent trial
judges, expanding the number of circuit courts that hear patent appeals,
and modifying the Federal Circuit’s jurisdiction.
Compared to existing proposals, this Article takes a different approach
to analyzing the Federal Circuit’s problems by focusing primarily on the
judges themselves and their adjudicatory environment. Lessons from
cognitive psychology, management science, and the literature on judicial
behavior suggest that many of the complaints about the court are
potentially grounded in, or at least aggravated by, the expertise developed
by the judges and the internal dynamics of the court, which may adversely
affect the Federal Circuit’s ability to reconsider its precedents in a timely
manner. This Article explores how the Federal Circuit, in its current form,
may have difficulty self-correcting, and proposes that a solution may lie in
staffing the Federal Circuit with only district judges who serve staggered
terms of limited duration.
As an appellate court with specialized subject matter jurisdiction and an interesting mandate (create uniformity in the nation's patent law), the Federal Circuit occupies a unique position in our federal judiciary. It is also a rather recent creation, an early 1980s merger of the Court of Customs and Patent Appeals and the appellate division of the Court of Claims. As such, it is subject to considerable scrutiny and criticism, much of it regarding whether the court is working properly. Bock's article examines the Federal Circuit's operations through the lens of cognitive psychology and organizational behavior, and he offers an interesting proposal for reform.