PDF《THE CIRCUIT COURTS》

LEVY IN PRINTER PROOF 10/13/2011 9:48:38 AM THE MECHANICS OF FEDERAL APPEALS: UNIFORMITY AND CASE MANAGEMENT IN THE CIRCUIT COURTS MARIN K.

LEVY? ABSTRACT 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oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions―decisions that exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts.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. Copyright ?

2011 by Marin K. Levy. ? Lecturing Fellow, Duke University School of Law. J.D., Yale Law School, 2007. Thanks to Kate Bartlett, Will Baude, Joseph Blocher, Jamie Boyle, Curt Bradley, George Brell, José A. Cabranes, Josh Chafetz, Glenn Cohen, Emily Coward, Heather Gerken, Michael Goldsticker, Ilan Graff, Chris Griffin, Lisa Griffin, Mitu Gulati, Larry Helfer, Robert Jaspen, Robert Katzmann, Jack Knight, Frank Levy, Bill Marshall, Jon Newman, Judith Resnik, Lauren Stephens-Davidowitz, Kate Stith, Katherine Swartz, Neil Vidmar, Marcia Waldron, and Ernie Young, as well as to the participants of the Duke University School of Law Faculty Workshop for helpful comments on an earlier draft. Special thanks to the judges, clerks of court, chief circuit mediators, and senior staff attorneys of the D.C., First, Second, Third, and Fourth Circuits who generously let me interview them and without whom this Article could never have been written. All views expressed herein, as well as any errors and solecisms are, of course, my own. LEVY IN PRINTER PROOF 10/13/2011 9:48:38 AM

316 DUKE LAW JOURNAL [Vol. 61:315 TABLE OF CONTENTS Introduction

316 I. A Background on Circuit Case Management

320 II. The Case-Management Practices of Five Circuits.325 A. General Figures and Statistics

328 B. Initial Screening.333 C. Mediation.340 D. Nonargument-Track Cases and the Role of Staff Attorneys.344 E. Sittings and Argument.355 F. Publication of Dispositions

360 G. Additional Practices.364 III. Explaining the Variation.366 A. Differences in Dockets

366 B. Differences in Priorities.368 C. The Dynamic Interplay Between Dockets and Priorities.373 D. The Role of Path Dependence

375 IV. Is Disuniformity Problematic?377 V. A Call for Greater Information Sharing and Transparency ........383 A. Information Sharing.384 B. Transparency

387 Conclusion.390 INTRODUCTION Twenty-five years ago, then-Chief Judge Wilfred Feinberg of the Court of Appeals for the Second Circuit wrote: [J]udicial administration continues to be the stepchild of the law. This comparative inattention is odd, since the way that courts operate has a significant, possibly even dominant, influence on the quality of justice that can be obtained from them.