Panel Assignment in the Federal Courts of Appeals

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews with thirty-five judges and senior administrators, I show that strictly random selection is a myth, and an improbable one at that—in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to “mix up” the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way. These findings pose an important challenge to the widespread assumption of panel randomness and reveal key normative questions that have been largely ignored in the literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is problematic about nonrandom methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and the myriad other court practices that rely, to some extent, on randomness

Panel Assignment in the Federal Courts of Appeals

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews with thirty-five judges and senior administrators, I show that strictly random selection is a myth, and an improbable one at that—in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to “mix up” the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way. These findings pose an important challenge to the widespread assumption of panel randomness and reveal key normative questions that have been largely ignored in the literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is problematic about nonrandom methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and the myriad other court practices that rely, to some extent, on randomness

Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals

Federal appellate judges no longer have the time to hear argument and draft opinions in all of their cases. The average annual filing per active judgeship now stands at 330 filed cases per year — more than four times what it was sixty years ago. In response, judges have adopted case management strategies that effectively involve spending significantly less time on certain classes of cases than on others. Various scholars have decried this state of affairs, suggesting that the courts have created a “bifurcated” system of justice with “separate and unequal tracks.” These reformers propose altering the relevant constraints of the courts, primarily by increasing the number of judges or decreasing the judiciary’s caseload. These approaches, however, have not gained political traction thus far and seem unlikely to in the foreseeable future. This Article takes a realist approach and argues that we should recognize judicial attention for what it is — a scarce resource — and assess whether there is evidence that the courts are allocating that resource improperly. Loosely borrowing the framework of resource allocation from the political science and economics literatures, this Article considers how to apply the concepts of inputs and outputs to the work of the federal appellate courts, suggesting judicial attention as the input and a combination of error correction and law development as the output. It then makes the preliminary case that the courts’ case management techniques in fact largely comport with an output-maximization approach, while still limiting inequality of outputs across cases. This Article concludes that the courts’ overall strategy nevertheless presents opportunities for enhancement. It suggests several improvements, focusing on the review structure of cases that receive the least amount of judicial attention, to help ensure that all federal cases receive an appropriate form of appellate review

Spatially resolving the thermally inhomogeneous outer atmosphere of the red giant Arcturus in the 2.3 micron CO lines

The outer atmosphere of K giants shows thermally inhomogeneous structures consisting of the hot chromospheric gas and the cool molecular gas. We present spectro-interferometric observations of the multicomponent outer atmosphere of the well-studied K1.5 giant Arcturus (alpha Boo) in the CO first overtone lines near 2.3 micron. We observed Arcturus with the AMBER instrument at the Very Large Telescope Interferometer (VLTI) at 2.28--2.31 micron with a spectral resolution of 12000 and at projected baselines of 7.3, 14.6, and 21.8 m. The high spectral resolution of the VLTI/AMBER instrument allowed us to spatially resolve Arcturus in the individual CO lines. Comparison of the observed interferometric data with the MARCS photospheric model shows that the star appears to be significantly larger than predicted by the model. It indicates the presence of an extended component that is not accounted for by the current photospheric models for this well-studied star. We found out that the observed AMBER data can be explained by a model with two additional CO layers above the photosphere. The inner CO layer is located just above the photosphere, at 1.04 +/- 0.02 stellar radii, with a temperature of 1600 +/- 400 K and a CO column density of 10^{20 +/- 0.3} cm^-2. On the other hand, the outer CO layer is found to be as extended as to 2.6 +/- 0.2 stellar radii with a temperature of 1800 +/- 100 K and a CO column density of 10^{19 +/- 0.15} cm^-2. The properties of the inner CO layer are in broad agreement with those previously inferred from the spatially unresolved spectroscopic analyses. However, our AMBER observations have revealed that the quasi-static cool molecular component extends out to 2--3 stellar radii, within which region the chromospheric wind steeply accelerates.Comment: 10 pages, 9 figures, accepted for publication in Astronomy and Astrophysic

The Costs of Judging Judges by the Numbers

This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models. First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately. The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade discussions of judging, and could, if taken seriously, detrimentally alter the behavior of judges themselves

Involutions and the Gelfand character

The Gelfand representation of $\mathcal{S}_n$ is the multiplicity-free direct sum of the irreducible representations of $\mathcal{S}_n$. In this paper, we use a result of Adin, Postnikov, and Roichman to find a recursive generating function for the Gelfand character. In order to find this generating function, we investigate descents of so-called $\lambda$-unimodal involutions

The Mechanics of Federal Appeals: Uniformity and Case Management in The Circuit Courts

Case-management practices of appellate courts define the judicial review of appeals. The circuit courts constantly make 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—decisions that 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 using qualitative research from a series of interviews of appellate judges, clerks of court, court mediators, and staff attorneys. This 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 is more defensible than in substantive and procedural law, but that current practices can and should be improved through increased transparency and information sharing between the circuits