Thursday, March 30, 2017

Should the Supreme Court Have a “Lottery Docket?”

The proposal:

We propose Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term.


It signals to circuit courts that their decisions are unreviewable — and thus unaccountable — in unimportant cases. And it passes over many cases that are important in a less narrow sense. . . .

More fundamentally, we question the premise that only “important” cases deserve the Court’s attention. The legal system would be improved if every Term, the Supreme Court were forced to decide some unquestionably unimportant cases — run of the mill appeals, dealing with the kinds of legal questions that the lower courts resolve every day. Over the long run, a lottery docket would offset the pathologies of the certiorari system without depriving the Court of its ability to resolve questions that have divided the lower courts.

Whether the Court adopts the proposal (I doubt it, though some state supreme courts might consider it), the proposal encourages us to think about the shortcomings of the current certiorari system.

You can read more here, Daniel Epps & William Ortman, The Lottery Docket, forthcoming in the Michigan Law Review.

While we’re considering proposals for improving Supreme Court practice, let me shamelessly promote my article, Louis J. Sirico Jr. A Proposal for Improving Argument before the United States Supreme Court, 42 Pepp. L. Rev. 195 (2014) (here). I mailed reprints to all the SCOTUS Justices, and two of them we kind enough to send me letters saying that they had received the copies. Maybe other appellate courts will consider my proposal.


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