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

The Futility of Appeal: Disciplinary Insights into the Affirmance Effect on the Unitest States Courts of Appeals

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases)

Joining Forces: The Role of Collaboration in the Development of Legal Thought

For every reason to believe that collaboration has been influential... there is a countervailing reason to believe that it has played a minor role in the evolution of legal thought. It may be easy to bring to mind a handful of prominent collaborations, but most law review articles seem to be written by one author (notwithstanding their lengthy acknowledgment footnotes, suggesting that even single-author works are shaped by the insights and input of multiple scholars). And while it is true that legal scholars often collaborate on their practically oriented works, scholarly articles might not be well suited to collaboration

The Threes : Re-Imagining Supreme Court Decisionmaking

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court. Consistent with this Constitutional silence, the Court\u27s look, shape, and behavior have adapted to changed circumstances. For example, the Court\u27s membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court\u27s jurisdiction has changed, first expanding, then contracting, and then shifting. The Court\u27s caseload, which is now almost entirely discretionary, was once almost entirely mandatory. And the Court has altered its courtroom practices in a variety of ways; for instance, the Court once allowed advocates, who rarely submitted briefs, to present oral arguments that lasted for days! These examples tell us something important about the past, present, and future of the Supreme Court. The current Court may consist of nine members who decide a small number of discretionary appeals en banc, but this was not always so, nor need it be so in the future. So, in light of the many important roles the Court plays in our constitutional democracy, how should it conduct its affairs? In this Essay-the first in a series of essays designed to reimagine the Supreme Court-we argue that Congress should authorize the Court to adopt, in whole or part, panel decisionmaking. We recognize, of course, that this proposal is likely to elicit a visceral reaction. If your politics skew left, you might tremble at the thought of Justices Scalia, Kennedy, and Thomas deciding Grutter, or Justices White and Rehnquist deciding for a divided panel that a woman does not have the right to choose. If your politics skew right, you might fear a world in which the inconvenient truth is not an Academy Award-winning documentary, but rather a decision by Justices Stevens, Souter, and Ginsburg to send Al Gore to the White House. Whatever counterfactual you find troubling, your visceral reaction probably reflects two presumed costs associated with a move to a panel system: the prospect of different outcomes and the prospect of lower-quality decisions

Joining Forces: The Role of Collaboration in the Development of Legal Thought

For every reason to believe that collaboration has been influential... there is a countervailing reason to believe that it has played a minor role in the evolution of legal thought. It may be easy to bring to mind a handful of prominent collaborations, but most law review articles seem to be written by one author (notwithstanding their lengthy acknowledgment footnotes, suggesting that even single-author works are shaped by the insights and input of multiple scholars). And while it is true that legal scholars often collaborate on their practically oriented works, scholarly articles might not be well suited to collaboration

The Threes : Re-Imagining Supreme Court Decisionmaking

In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decision making... With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries--including Grutter , Roe , and Bush v. Gore --would have come out the same way if the Court had decided them in panels rather than as a full Court

Induced Litigation

If justice delayed is justice denied, justice is often denied in American courts. Delay in the courts is a ceaseless and unremitting problem of modem civil justice that has an irreparable effect on both plaintiffs and defendants. To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more effectively and efficiently. By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely fashion; appellate judges should be able to review briefs, hear oral arguments, and issue opinions expeditiously; and the crippling delay that often hobbles litigants and lawyers should give way to the speedy (or at least speedier) resolution of disputes