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ABSTRACT When it comes to court packing, questions of "should" and "can" are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and [...]

Injustice on Appeal: The United States Courts of Appeals in Crisis BY WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS NEW YORK, NY: OXFORD UNIVERSITY PRESS, 2012, PP. 256. $89.50. REVIEW [...]

Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. Furthermore, there are political complications. Congress may be disinclined to authorize new judgeships, as has been the case for the past thirty years. But this does not mean that there is no smooth path to increasing judge power at the courts of appeals. Indeed, a promising possibility exists that rests almost entirely within the judiciary's control: raise the incentives (and lower the disincentives) for taking senior status. Currently, when a judge has satisfied the "Rule of 80" (meaning that the judge is sixty-five or older and his or her age plus years of service totals eighty or more), that judge can leave regular active service. The judge can elect to continue hearing cases and assist the court as a senior judge, but "going senior" also creates a vacancy that can be filled with another judge, thereby adding to the court's overall capacity. There are currently more than sixty judges who are eligible to take senior status, amounting to a third of all authorized federal appellate judgeships--the possible gains are considerable. This Essay begins the task of identifying and proposing stronger incentives for federal appellate judges to take senior status. As part of a larger research project on the internal operations of the federal courts of appeals, it relies upon interview data with judges and survey data from court administrators to identify the different ways senior judges are treated across the courts of appeals. These variations in practice are important to document, particularly since some of them were unknown even to members of the judiciary. But these variations also highlight possible changes that could improve the balance of incentives for taking senior status. Ultimately, the Essay's reform proposal involves modest changes that could create substantial benefits in terms of judge power. Its promise lies with appreciating the finer details of court administration, including which can feasibly be altered. Just as importantly, its promise lies with not relying upon the actions of the elected branches, but upon changes that can be made by the courts themselves. [ABSTRACT FROM AUTHOR]

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 nor 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. [ABSTRACT FROM AUTHOR]

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this "fact," and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels--such as courts might well want to take into account the scheduling needs of their judges--this assumption has never been tested. This Article is the first to do so, and it calls the assumption into question. To determine whether the circuit courts utilize random assignment, we have created what we believe to be the largest dataset of panel assignments of those courts constructed to date. Using this dataset, we tested whether panel assignments are, in fact, random by comparing the actual assignments to truly random panels generated by code that we have created to simulate the panel generation process. Our results provide evidence of nonrandomness in the federal courts of appeals. To be sure, the analysis here is descriptive, not explanatory or normative. We do not ourselves mean to suggest that strict randomness is a desirable goal and indeed note that there are many good reasons for departing from it. Our aim is to test an existing scholarly assumption, and we believe our findings will have implications for the courts, court scholars, and empirical researchers. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

The article offers information on a conference by the periodical, the Bolch Institute for Judicial Studies, and the Duke Center for Science and Justice, held at Duke Law School in Durham, North Carolina, in September, 2019. Topics include the contribution of the fines, fees and bail to cycles of poverty and criminalization; imposing mandatory fines and fees on the indigent; and nationwide litigation challenging fines-and-fees practices such as the Equal Protection and Due Process Clauses.