Monday, August 8, 2011
Professor Marin Levy (Duke University) has posted on SSRN a draft of her article, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, which is forthcoming in the Duke Law Journal. Here’s the abstract:
Case management practices of appellate courts have a significant effect on the outcome of appeals. 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oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts.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, based on qualitative research in the form of interviews of appellate judges, clerks of court, court mediators, and staff attorneys. A 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 practice is more defensible than in substantive and procedural law, but that current practice can and should be improved through increased transparency and information sharing between the circuits.