Remaking the United States Supreme Court in the Courts’ of Appeals Image

We argue that Congress should remake the United States Supreme Court in the U.S. courts\u27 of appeals image by increasing the size of the Court\u27s membership, authorizing panel decisionmaking, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court\u27s capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court\u27s decisionmaking capacity but also improve the Court\u27s composition, competence, and functioning

Courts of Good and Ill Repute: Garoupa and Ginsburg’s Judicial Reputation: A Comparative Theory

Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims to its masterful use of comparative case studies from around the globe. However, we also have questions about the ability of the theory to hang together in a unified manner and to do the work assigned to it

The New Old Legal Realism

Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the relevance of changes in the law. This new Old Legal Realist perspective suggests that social and economic factors play a more important role than case law in outcomes on the ground. Cases cannot have an impact, if the local social and economic variables are not aligned in a fashion that allows the impact to occur

Judicial Independence and the Ambiguity of Article III Protections

Is the federal judiciary truly an independent body? A quick glance at the Constitution would suggest the answer is yes. The Constitution provides for life tenure and a difficult removal process for federal judges that together, as the common wisdom goes, shield federal judges from the shifting winds of the more political branches and the public at large. The author of this essay argues, however, that on a closer examination of the protections provided for by the Constitution, judicial independence might be more mirage than truism. Threats to judicial independence arise not only externally through the actions of the other bodies of the federal government, but just as importantly, from within the judiciary itself The author focuses on these internal threats to judicial independence. First, judges are the children of an inherently political process: Judges are nominated by presidents, who by necessity must be political in their selection of judges, and the resulting confirmation process in the Senate is often a delicate, and sometimes brutal, political affair. The author proposes that judicial independence may be best served by divided government checking and balancing itself in the appointment process. Second, judges are often political creatures. They, as with most humans, have their own ideologies and ambitions, and the constitutional structure designed to maximize judicial independence may have the opposite effect of amplifying their political behavior. The author concludes that despite its flaws, Article III's judicial system is still a model system of dispute resolution

Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals

As the decisions of the United States Courts of Appeals become an increasingly important part of American legal discourse, the debate concerning adjudication theories of the circuit courts gain particular relevance. Whereas, to date, the issue has received mostly normative treatment, this Article proceeds systematically and confronts the positive inquiry: how do courts of appeals judges actually decide cases? The Article proposes theoretically, tests empirically, and considers the implications of, a combined attitudinal and strategic model of en banc court of appeals decision making. The results challenge the classicist judges, legal scholars, and practitioners' normative frameworks, and suggest positive theory's central function in the growing debate

An Empirical Study of Empirical Legal Scholarship: The Top Law Schools

Empirical legal scholarship is arguably the most significant emerging intellectual movement. Empirical legal scholarship (ELS), as the term is generally used in law schools, refers to a specific type of empirical research: a model-based approach coupled with a quantitative method. This paper ranks law schools based on their place in the ELS movement and offers an essential ranking framework that can be adopted for other intellectual movements. A revised version of the paper was posted on October 11. The updated tables reflect additional data

Other Disciplines, Methodologies, and Countries: Studying Courts and Crisis

How do governments and their citizens respond to fear and risk in times of crisis? Dr. Lee Epstein and Professor Christina Wells, in papers presented on the final symposium panel focus in particular on the Supreme Court\u27s response to government encroachment on individual liberties during a national emergency. Their work is made particularly timely by three Supreme Court decisions this past term. In this essay, I begin by framing the issue very briefly. I then argue that understanding this issue requires scholars to follow Epstein and Wells by looking to other disciplines, methodologies, and countries

Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals

As the decisions of the United States Courts of Appeals become an increasingly important part of American legal discourse, the debate concerning adjudication theories of the circuit courts gain particular relevance. Whereas, to date, the issue has received mostly normative treatment, this Article proceeds systematically and confronts the positive inquiry: how do courts of appeals judges actually decide cases? The Article proposes theoretically, tests empirically, and considers the implications of, a combined attitudinal and strategic model of en banc court of appeals decision making. The results challenge the classicist judges, legal scholars, and practitioners\u27 normative frameworks, and suggest positive theory\u27s central function in the growing debate

The Dynamics and Determinants of the Decision to Grant En Banc Review

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article attempts to address these normative arguments over the legitimacy of the en banc process by determining the positive causes of the decision. The article proposes a hybrid model of the decision to grant en banc review, derived from the legal, attitudinal, and hierarchical theories of judicial behavior, and tests it empirically against nearly 1000 cases from three circuits. The model accurately predicts the decision to grant en banc review in nearly ninety percent of the cases. This article concludes that three factors--reversal of a lower court or agency ruling, filing of a dissent, and a liberal panel ruling--largely account for which panel decisions will be reheard en banc