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

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

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

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

Court Fixing

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge\u27s background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed that the individuals best able to fulfill their policy goals were law faculty who had demonstrated intellectual support for the president\u27s perspective. This Article will demonstrate FDR\u27s and Reagan\u27s appointments of academics substantially contributed to their ultimate success in fixing the courts to adopt their respective-and sharply contrasting-perspectives on law. By selecting legal scholars, the presidents were certain as to the ideological positions or preferences of their nominees. Moreover, former law professors selected by such means are more likely than other judges to pursue single-mindedly their views and to seek to influence other judges and courts to adopt these perspectives. This Article pays particular attention to judges on U.S. Courts of Appeals of general jurisdiction. Franklin Roosevelt was the first president to recognize the potential importance of the circuit courts to his programs and to take an active role in the selection of lower court judges. Today, a president will, and should, focus a great deal of attention on the individuals appointed to the courts of appeals. These courts are of critical importance, because they make and interpret the law for their respective regions with little review by the Supreme Court. The sometimes controversial Ninth Circuit, for example, decides more than 9000 disputes each year with only a handful reconsidered by the Court, leaving in place the circuit\u27s key rulings in such crucial areas as criminal law, intellectual property, and immigration rights. The Article proceeds as follows: Part I examines systematically the relative influence of personal attributes, social background, and ideological perspectives on judicial decision-making. Part II builds a theoretical model of how the academic experience could create an individualistic judge, one who is more active and independent than her colleagues. Part III tests empirically the hypotheses that are part of this model. The Article concludes by reflecting on the implications of the results

Book Review: U.S. Energy and Environmental Interest Groups by Lettie Wenner

Interest groups have played a dominant if not determinative role in the greening of America. Thus, that Lettie Wenner, a political scientist who has devoted much of her career to studying environmental issues (The Environmental Decade (1982) and One Environment Under Law (1976)), should publish a compendium describing such groups is an occasion for optimism. And, indeed, she does provide a useful reference tool for those seeking basic descriptions of these groups; yet, unfortunately, she does not offer a thorough or critical understanding of how they operate

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