PDF《THE CIRCUIT COURTS》

1 Both of these observations―that judicial administration is a critical component of the American justice system and that it is often overlooked―remain just as true, and just as troubling, today. 1. Wilfred Feinberg, Unique Customs and Practices of the Second Circuit,

14 HOFSTRA L. REV. 297,

298 (1986) (footnote omitted) (quoting Note, The Second Circuit: Federal Judicial Administration in Microcosm,

63 COLUM. L. REV. 874,

874 (1963)) (internal quotation marks omitted). LEVY IN PRINTER PROOF 10/13/2011 9:48:38 AM 2011] THE MECHANICS OF FEDERAL APPEALS

317 First, the decisions that appellate courts make about how to review their vast caseloads shape the consideration that appeals receive and may even affect their outcomes. Determinations about case management―including whether a case will receive oral argument or will be decided solely on the briefs, whether its disposition will be drafted by judges and their law clerks or by staff attorneys, and whether it will be resolved by a published opinion or by an unpublished, nonbinding order―are therefore an essential part not just of judicial administration, but of justice itself.

2 Second, despite its critical importance, case management has often been overlooked by the academy. Most scholars are unaware of how cases move from filing to disposition in the individual courts of appeals.

3 Of the few scholars who have written in this area, most have focused on specific case-management practices―for example, on the benefits or drawbacks of holding fewer oral arguments or publishing fewer opinions.

4 No one outside of the judiciary has undertaken the essential task of examining how these practices fit together within each circuit and how the circuits'

practices compare.

5 2. See Robert A. Katzmann &

Michael Tonry, The Crisis of Volume and Judicial Administration, in MANAGING APPEALS IN FEDERAL COURTS 1,

4 (Robert A. Katzmann &

Michael Tonry eds., 1988) ( The discipline recognizes that organizational structure and process may affect outcomes, that it is important to understand the internal and external forces that bear upon the workings of the judicial system. Arrangements have much to do with determining how and by whom policy is made, with significant ramifications for litigants, the public, and the judicial system itself. ). 3. Indeed, two scholars of appellate courts describe the process by which the majority of appeals are handled as a black box. David C. Vladeck &

Mitu Gulati, Judicial Triage: Reflections on the Debate over Unpublished Opinions,

62 WASH. &

LEE L. REV. 1667,

1674 (2005). 4. Some individual case-management practices have been examined extensively. On the use of screening mechanisms, see, for example, Charles R. Haworth, Screening and Summary Procedures in the United States Courts of Appeals,

1973 WASH. U. L.Q. 257. On the matter of forgoing oral argument, see, for example, Robert J. Martineau, The Value of Appellate Oral Argument: A Challenge to the Conventional Wisdom,

72 IOWA L. REV.

1 (1986). And on the use of unpublished opinions, see, for example, Vladeck &

Gulati, supra note 3;

and Johanna S. Schiavoni, Comment, Who'

s Afraid of Precedent? The Debate over the Precedential Value of Unpublished Opinions,

49 UCLA L. REV.

1859 (2002). 5. Some scholars have studied the practices and case statistics of individual circuits. See, e.g., David R. Stras &

Shaun M. Pettigrew, The Rising Caseload in the Fourth Circuit: A Statistical and Institutional Analysis,