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Access to Intermediate Appellate Courts

Abstract and Keywords

The formal organization of court systems and jurisdictional rules established by legislatures often determine which litigants will have their cases reviewed by an appellate court. While some procedural obstacles are straightforward in their application, others require judicial interpretation with research findings suggesting that judges’ policy goals are related to decision-making on threshold issues. Even if there are no jurisdictional constraints, some losing litigants weigh the costs and benefits of pursuing an appeal. Still, filing an appeal does not guarantee full consideration of the issues raised by an appellant. Caseload pressures have contributed to screening procedures that result in only a minority of cases being closely scrutinized by an appellate panel. This chapter examines research on this winnowing process that characterizes litigant access to intermediate appellate courts.

Keywords: access, courts, courts of appeals, intermediate courts, U.S. courts, jurisdiction, appeal, case screening, threshold issues

Introduction

The rule of law presents an empty promise without access to courts that can enforce it. This is true both at the trial and appellate levels. In most court systems in the United States, trial court decisions are first reviewed for defects by intermediate appellate courts. And, with relatively few cases heard by the U.S. Supreme Court or state courts of last resort with discretionary dockets, intermediate appellate courts also play an important policy-making role in the judicial hierarchy.

Yet even in light of the importance of access to these courts, rarely do their decisions to consider or dismiss an appeal capture the attention of scholars or those in the media. Ask yourself, when was the last time you turned on your favorite television evening news show, and the commentator began the broadcast by saying something like, “Today in Atlanta, the U.S. Court of Appeal for the Eleventh Circuit dismissed the appeal of an indigent state prisoner for failure to state a substantial federal question.” Not only would it be astounding if any network news show featured such an event as its lead story, it would be quite rare for you to find even a two-column-inch story about such an event on page 17 of any newspaper in the country. We argue in this essay that such decisions are important and examine this infrequently studied topic, with particular attention to the U.S. Courts of Appeals.

Although the public is largely unaware of these courts, the U.S. Courts of Appeals figure prominently in judicial policy-making—a point emphasized by J. Woodford Howard over three decades ago. As one of the first political scientists to study these courts, Howard argued that, “even passing familiarity with federal circuit courts … suggests that they are important power centers in the American polity. As courts of last resort in the vast majority of federal cases … they shoulder heavy responsibilities in enforcing national law, declaring federal rights, and holding bureaucrats to account” (p. 150) (1981: xvii). In the years since the landmark study by Howard, the substantive responsibilities of the courts of appeals have grown and their role as the court of last resort has expanded exponentially. In recent years, fewer than three-tenths of 1 percent of appeals court decisions are reviewed by the Supreme Court.

Although the jurisdiction of these courts is largely mandatory, cases heard by three-judge panels on the U.S. Courts of Appeals, particularly those that result in a “published” opinion, are not representative of all disputes filed in federal district court. In some federal circuits, over half of appeals filed are terminated for procedural reasons. For example, the appellate court may not have jurisdiction or a litigant lacks standing to appeal. Of those appeals that are heard on the “merits,” only a minority will be closely scrutinized during oral argument. We argue here that understanding access to these courts therefore requires a perspective that takes into account this winnowing process.

Our essay begins with a consideration of the barriers to access created by the formal organization and jurisdictional rules established by Congress for the federal courts. While some procedural obstacles are straightforward in their application, others require judicial interpretation. As discussed further below, research finds that judges’ policy goals may affect decision-making on these threshold issues. Because access to these courts is an option pursued by some litigants and not others, we then turn to a discussion of the decision to appeal. And, because filing an appeal does not guarantee full consideration of the issues raised by an appellant, we also examine how circuit rules and norms shape screening procedures that result in only a minority of cases being closely scrutinized by an appellate panel. Finally, we consider how this winnowing process that characterizes access to these courts potentially allows stronger, more experienced parties and their counsel to prevail in shaping the court’s issue agenda and policy outcome. In the final section, we conclude with a brief discussion of promising lines of inquiry on the topic of access to appellate courts in the United States.

The Structure of Courts in the United States

The structure of the federal court system is not specified in the Constitution. Instead, that document confines itself to the general proposition that there will be a single Supreme Court and “such inferior courts as Congress may from time to time establish.”1 Instead of creating a single national appellate court below the Supreme Court, Congress decided to establish a system of geographically delineated regions called “circuits” in which a court of appeal sits to hear appeals from trial (district) courts in the same region. Thus, the U.S. Courts of Appeals are currently divided into twelve geographically defined circuits.2 From time to time throughout history, Congress has altered the organization of the circuits and may increase (or decrease) the number of judgeships assigned to each. As its name suggests, the Court of Appeals for the District of Columbia (p. 151) hears appeals that originate in the nation’s capital, either in the District Court of the District of Columbia or from many federal administrative agencies with offices located in the capital. The remaining eleven numbered circuits hear appeals contained within their geographic regions that follow state boundaries, typically three to nine states plus districts in various U.S. territories (e.g., Guam, Puerto Rico). In some cases the decision of a three-judge panel may be reviewed en banc by (usually) all of the active judges for that circuit. A litigant who loses in a federal court of appeals may file a petition for a writ of certiorari, asking the Supreme Court to review the case.

Another important characteristic of the U.S. judicial system is the existence of a “dual” court system consisting of both state and federal courts. Most state court systems are structured like the federal system (trial courts, intermediate appellate courts, and a court of last resort), but some are not. Forty of the fifty states have intermediate appellate courts. In most of these states, the intermediate court is a “single” court; however, about one-third follow the federal model and have separate intermediate appellate courts with regional coverage. In a few states, there are separate intermediate courts for criminal and civil appeals.3

Although the U.S. Supreme Court has declined to hold that constitutional due process includes a right of appeal, the federal court system and forty-seven states provide for appeals as of right in civil and criminal cases (Robertson 2012).4 In 2010, 75 percent of the judicial caseload in state intermediate appellate courts involved appeals of right (LaFountain et al. 2012). As we discuss below, however, mandatory jurisdiction does not guarantee that a litigant’s claims will be fully addressed by an intermediate appellate court.

Jurisdiction as a Constraint on Access

The most basic constraint on access to intermediate appellate courts is subject matter jurisdiction. Rules of jurisdiction are generally established by state and federal constitutions and statutes.5 In contrast to the police powers exercised by state courts, federal courts are courts of limited jurisdiction. They can hear cases involving the interpretation or application of the U.S. Constitution, statutes passed by Congress (or the regulations of federal agencies created by statute), federal treaties, and executive agreements between the president and other heads of state. In addition to cases that implicate federal law, U.S. courts may also resolve cases that involve state law where the U.S. government is a party, or where the court has diversity jurisdiction.6 In addition to hearing appeals from federal district courts, judges on the U.S. Courts of Appeals (excluding the federal circuit) review decisions by administrative agencies and the Tax Court.

While the exercise of jurisdiction described in the previous paragraph appears on the surface to be straightforward and clear, a few complications in practice should be noted. First, in the increasingly inter-dependent society of the twenty-first century, facts and circumstances that give rise to a lawsuit may simultaneously implicate both state and federal civil law. For example, an allegation of gender discrimination in employment (p. 152) matters generally would raise a question under Title 7 of the federal Civil Rights Act, but the same allegation might also lead to a lawsuit under state tort law. In such cases plaintiffs may bring a suit in either state or federal court in which both the state and the federal question will be settled. If a single action violates both state and federal criminal law, however, the two levels of government, as distinct sovereigns, may prosecute the defendant in both state and federal courts.

A further complication results from diversity of citizenship cases. Relief for claims brought under state law are typically obtained in a state court that applies state law to the issues before it. However, if the plaintiff and defendant are citizens of different states, either party may pursue the case in federal court.7 In other areas, litigants may also have a choice of forum. For example, federal tax litigants can pursue disputes against the government in multiple forums and select those arenas that will be more receptive to their claim (Howard 2007).

A third complication is that states generally have exclusive jurisdiction to prosecute violations of their state’s criminal laws. Most state criminal prosecutions are not reviewable in any federal court.8 However, the provision in the Constitution preserving habeas corpus allows federal courts to review state criminal proceedings. If a state criminal defendant who exhausted all state appeals and, while confined to a state prison, alleges that the conviction was illegal because a federally protected right (e.g., the right to counsel) was violated, the prisoner may file a petition for a writ of habeas corpus from a federal district court. While such a petition is classified as an original civil action in federal court, it amounts to allowing a federal district court to review state court rulings in criminal cases. The district court decision to grant or deny the habeas petition is then reviewable in the U.S. Courts of Appeals. During the 1990s the number of habeas corpus petitions filed in federal district courts equaled or slightly exceeded ten thousand cases. This volume translates into about 4 percent of the entire federal district court civil caseload (Hanson and Daley 1995). Since these decisions are potentially appealable to the U.S. Courts of Appeals, habeas corpus relief has always provided a forum for federal circuit courts to review state criminal court proceedings.

In 1996, however, access to federal courts to review state court criminal convictions was severely limited by the Antiterrorism and Effective Death Penalty Act (AEDPA). Among other provisions, the law limits both the procedural and substantive scope of the writ. Procedurally, it bans successive petitions by the same person, requiring defendants to consolidate all claims into one appeal. Substantively, it narrows the grounds on which successful habeas claims can be made, allowing claims only to succeed when the convictions were contrary to “clearly established federal law” or an “unreasonable determination of the facts in light of the evidence” (28 U.S.C. § 2254). As interpreted by the U.S. Supreme Court, the Act placed a significant restriction on federal courts’ power to grant habeas writs to state prisoners (Shargel and Fernich 2002). In the same year (i.e., 1996), Congress placed further limits on prisoners’ access to the federal courts when it passed the Prison Litigation Reform Act (PLRA).

Other rules governing access to intermediate courts are constantly subject to modification by legislators.9 For example, fourteen measures to curb diversity jurisdiction (p. 153) passed the House of Representatives between 1875 and 2004 (Curry 2007). While most believe that the original provision was intended to protect commercial interests from being sued by plaintiffs in states hostile to those interests, since the nineteenth century congressional modifications to diversity jurisdiction have largely been in response to judicial workload concerns and center on restricting federal court access by raising the amount in controversy (Curry 2007). In addition to promoting judicial efficiency, Congress has passed measures that restrict or expand access to the federal courts for reasons of political control (Gillman 2002; Smith 2006; Chutkow 2008). For example, in 1875, a Republican-led Congress was pursuing a policy agenda focused on economic nationalism. As part of this agenda, a lame-duck session of Congress passed a removal statute that facilitated moving civil litigation involving national commercial interests out of state courts and into the federal court system made up of appointees who shared their views (Gillman 2002). As long as Republicans occupied either one house of Congress or the presidency, the removal statute could not be changed (Gillman 2002). More recently, members of Congress interested in greater protection for the environment successfully pushed for changes to federal court jurisdiction to include citizen suit provisions that permit individuals to use the courts to enforce environmental regulations (Smith 2006).

Threshold Issues and Judicial Decision-Making

In addition to the constraints created by legislative enactment of jurisdictional statutes, other threshold issues may prevent judges from considering the merits of a litigant’s claim. The most prominent constraint is the requirement that a concrete controversy exist between parties with real, conflicting interests that may be remedied through court order. Further, the courts can only entertain cases brought by litigants with proper standing, requiring that the plaintiff must have suffered a direct and significant injury in fact. Third, courts will not hear cases that have become moot because the original controversy—through intervening factors or the passage of time—no longer exists (e.g., a suit for divorce becomes moot if the defendant spouse dies). In some cases, litigants must exhaust administrative remedies before pursuing a claim in the judiciary. Courts also may decline to hear an appeal if a litigant has not complied with other procedural requirements, including those associated with the timeliness of a filing. Taken together, these threshold issues allow courts to dispose of a case without considering the substantive legal merits of the claim.

Recent Supreme Court decisions illustrate how judges themselves can modify rules relating to access. For example, the Supreme Court expanded access in two challenges to executive power during the Bush administration, holding that federal courts had habeas corpus jurisdiction over detainees at Guantanamo Bay.10 In another decision that had the effect of restricting access to the legal system, the Supreme Court held that a group of women comprised of potentially 1.5 million plaintiffs was too large to certify as a class in an employment discrimination claim filed against Wal-Mart.11 In these examples, (p. 154) support for access was strongest among liberal justices whereas conservatives adopted positions that limited access.

Because these procedures promote judicial discretion (i.e., whether to address the merits of an appeal), scholars argue that they allow for judicial policy-making opportunities in courts with mandatory jurisdiction (Kaheny 2011; Braselton 2014). Several studies have examined the relationship between judicial ideology and decision-making on threshold issues in the federal circuit courts (Pierce 1999; Staudt 2004; Cross 2007; Fix and Randazzo 2010; Kaheny 2010, 2011; Braselton 2014). When addressing threshold issues that relate to standing, mootness, timeliness, or the statement of a proper claim, courts of appeals judges are more likely to address the merits of the claim when the substantive ideological outcome of a pro-access vote was consistent with their ideological preferences (Kaheny 2010: 150). The same study, however, did not find a relationship between judicial policy preferences and voting on other procedural issues that relate to proper forum (Kaheny 2010). Judges are also sensitive to the preferences of Congress and the executive branch when dealing with threshold issues (Braselton 2014). On questions of national security, one study found that federal judges use threshold questions to avoid resolving challenges to executive branch actions (Fix and Randazzo 2010).

Access and Litigant Decisions to Appeal

Assuming that a court has jurisdiction, access to that court is primarily driven by the decision of a litigant to pursue a case. In the federal system, Federal Rules of Appellate Procedure (FRAP) and each circuit’s internal operating procedures lay out the steps and requirements for dissatisfied litigants seeking to overturn or modify the decision of an administrative agency or federal district court. Once the lower court enters a judgment, the losing party can initiate the process by filing a notice of appeal that includes the payment of docketing fees, unless the appellant is granted permission to proceed in forma pauperis. Transcript requests associated with the preparation of the record represent an additional cost for litigants. Given the legal and court costs involved, it is not surprising that only a minority of cases are appealed. In a study of federal court filings from 1988 to 2000, 10.9 percent of all criminal and civil cases filed in federal district court were appealed; the appeal rate was much higher—about 40 percent—for cases that were tried (Eisenberg 2004). By comparison, in an analysis of state court civil trials in torts and contracts from 2005 to 2010, 12 percent of losing litigants appealed to an intermediate appellate court (Cohen 2013).

When evaluating whether to pursue a case, including an appeal, parties engage in a decision-making calculus that is believed to take into account who is likely to win and lose (Priest and Klein 1984). If litigants are rational, they will settle simpler cases where both sides anticipate a clear winner (and loser). The remaining cases that are tried in (p. 155) court are typically less predictable. After a trial court has decided, the losing litigant, if rational, will make a decision to appeal based on her assessment that the lower court has committed reversible error. One study of criminal cases appealed to the U.S. Supreme Court provides support for the contention that litigants consider the odds of winning when deciding to appeal (Songer, Cameron, and Segal 1995).

In a system where rationality is assumed to guide litigant decisions, all (and only) cases with reversible error will be appealed. However, contrary to the study noted above, empirical research suggests that is not the case: bad case selection decisions are likely to be made when the stakes are high, costs are low, and there is a misunderstanding of the law (Eisenberg 2004). One study estimates an appeal rate of 20 percent in cases in which the trial court was correct; litigants are estimated to appeal only half of the cases in which the trial court erred (Eisenberg 2004). What accounts for a litigant irrationally appealing a case that will be lost at the appellate level? (This form of irrationality would include decisions to appeal “correct” trial court decisions or choosing not to appeal “incorrect” decisions). Research by behavioral economists suggests a confirmatory bias may lead litigants and counsel to make inaccurate predictions about the likelihood of success when such predictions support their own stake in the litigation (Loewenstein et al. 1993). Furthermore, according to “prospect theory,”12 decisions to appeal are also potentially subject to a framing effect, such that litigant decisions to appeal will differ depending on whether the potential outcome is viewed by the litigant as a “gain” or “loss,” with those perceiving losses more likely to pursue an appeal (Rachlinski 1996). This framing effect may also explain defendants’ higher appeal rate, when compared to plaintiffs. From this account, plaintiffs seeking monetary damages in litigation perceive these options as “gains” and will be more willing to settle a case that they could win on appeal (Rachlinski 1996). On the other side, defendants adopt a risk-seeking strategy because monetary damages are viewed as “losses,” leading them to appeal cases where the odds of winning are low (Rachlinski 1996).

The perception of potential gains and losses in appellate litigation may be different depending on whether the litigant is a repeat player or one-shotter (Galanter 1974). From this perspective, institutional litigants who have litigated and anticipate future litigation view the current case in the context of their broader litigation strategy across multiple cases. Therefore, a favorable outcome in a case is framed in terms of whether the decision establishes a favorable precedent for future litigation (Galanter 1974). Decisions to appeal, then, are considered more in terms of the effect the appeal is likely to have on the body of precedent that binds future cases. Studies on the efforts of the NAACP Legal Defense Fund and other organized interests to bring about policy change suggest these groups considered the implications of case selection decisions as part of an overall litigation strategy (Vose 1959; Kobylka 1987). The U.S. government represents a type of repeat player that not only writes many of the rules itself through statutory or regulatory law, but also successfully “plays for the rules” in the court system (Kritzer 2003; Kaheny 2010). Research consistently establishes the care with which case selection decisions by attorneys in the Solicitor General’s office result in their correctly identifying winning cases that enhance the credibility of the U.S. government as a litigant before the Supreme (p. 156) Court (Zorn 2002). The U.S. government’s high success rate over time in the U.S. Courts of Appeals suggests reinforcing effects: a “win” generates a favorable precedent that binds future appellate panels in that circuit as well as judges in district courts and officials in administrative agencies (Songer, Sheehan, and Haire 1999).

Unlike repeat players, so called one-shotters (i.e., those parties who litigate one rather than multiple cases), are willing to forego a potentially favorable rule if it means a better outcome in their own case (Galanter 1974; Albiston 1999). An individual one-shotter’s interest in winning the outcome of his or her case, rather than the establishment of a rule, leads to the “paradox of losing by winning” in which dispositions that favor an individual in settlement or trial are legally invisible (Albiston 1999). The absence of favorable individual one-shotter outcomes at the appellate level potentially contributes to a bias in legal doctrine that favors repeat players. For example, in an analysis of judicial interpretations of the Family Medical Leave Act (FMLA) during the early implementation phase of this remedial statute, Albiston concluded that the strategic settlement and rule-making opportunities in litigation contributed to a body of case law at the appellate level that favored employers (1999: 192). Some strategic litigants also avoid or pursue litigation in anticipation of other constraints stemming from their policy or political environment. These include organized interests that must consider how litigation decisions affect their ability to maintain group allegiance and support. For example, for symbolic reasons groups may decide to appeal a trial court loss that they expect to lose again at the appellate stage because their membership expects them to take a stand. Litigants may also take into account potential political backlash associated with positions taken in litigation. In an interview with one of the authors, a U.S. Department of Justice (DOJ) attorney described the following experience that we use here as an illustration. When she approached opposing counsel about a possible settlement, that attorney admitted (in confidence) that he realized that his client (a state agency) would likely lose if the case went to trial but his political superiors had made it clear that, given the political climate in their state, a settlement with the presidential administration would be politically unpopular. If they (the state agency) lost the case, they would appeal and lose again; the alternative, working out an agreement with administration officials from the opposing party, was not an option.

Resources potentially play a role in limiting access to the courts, particularly at the appellate stage where the costs of litigation can be substantial. In criminal cases, provisions for indigent defense have contributed to the establishment of public defender offices that are instrumental from the earliest trial stages through an appeal. The role of litigant wealth may play a larger role in civil cases. Scholarship on access to civil justice finds that it varies by social class with lower-income people less likely to pursue litigation (Sandefur 2008). To the extent that one-shot litigants have limited resources, case selection decisions, including the decision to appeal, may be left to lawyers, some of whom may employ a decision-making calculus that includes whether legal expenses will be covered. A study of the personal injury bar finds that lawyers’ case screening decisions are premised on whether the contingent-fee share of the client’s anticipated award will be sufficient to cover expenses (Kritzer 2004).

(p. 157) Although most believe that litigants’ counsel inform the bulk of case selection decisions by those who pursue their case at the appellate level, court statistics suggest otherwise, with a very large number of litigants who are not represented by counsel. According to figures from the Administrative Office of the U.S. Courts, in fiscal year 2013, 28,800 of the 56,475 appeals commenced were filed by pro se litigants. At least one reason for this increase is the large number of appeals filed by non-prisoner pro se litigants. Of the 28,800 pro se appeals filed in 2013, over a quarter involved non-prisoners. Although the cost of legal representation is an important factor in the decision of civil litigants to argue their own case, scholars speculate that there are other reasons contributing to this rise, including increased literacy and the availability of legal resources on the Internet (van Wormer 2007). Court officials cannot represent these litigants; however, they still must sort out whether there is merit underlying the claims raised in pro se appeals, compounding a judicial efficiency problem generated by the rising caseloads. Screening procedures designed to deal with these appeals, as well as others filed by litigants, varies across the intermediate appellate courts—a point we explore further in later sections of this chapter.

The Caseload Explosion and Access

As the discussion of appeal rates in the previous section indicates, the majority of losing litigants in trial courts do not file an appeal. Nevertheless, the number of appeals handled by intermediate appellate courts is extremely large. For state intermediate appellate courts, the number of incoming appeals between 2001 and 2010 averaged just under 200,000 cases per year (Court Statistics Project 2010). Growth in the caseload of the U.S. Courts of Appeals over the last fifty years has been substantial. From a caseload of fewer than 4,000 cases in 1960, the number of appeals filed in 2006 hit 68,313. In 2007, the number of filings in the U.S. Courts of Appeals dropped about 13 percent with only modest change in annual filings since that time. Over the same period, Congress increased the number of authorized judgeships from sixty-eight in 1960 to 167 at present. Combining these figures, we can compare the average annual filings per active judgeship in 1960 (59) with the figure for 2011 (338). The burden on these appeals courts has increased five-fold over the past fifty years.

Judges themselves have described the severity of the caseload crisis. In their research, one of the authors of this chapter interviewed over sixty current and former judges on the U.S. Courts of Appeals.13 All of the interviewed judges recognized the problem produced by rapidly increasing appeals and several labeled it “the biggest crisis” confronting the courts during their lifetime. The judges acknowledged that, over the past several decades, every circuit has taken steps to deal with the problem of increasing caseloads. These responses include the use of non-argument (i.e. screening and motions) panels, delegating some responsibilities for screening to staff attorneys and clerks, reducing the proportion of cases orally argued, increasing participation by those judges who sit (p. 158) by designation (federal district court judges and senior status judges), and limiting the number of published opinions (Hooper et al. 2011; Levy 2013). Despite their widespread use, case management methods have drawn opposition, particularly among legal academics. Critics suggest that these techniques correspond to two-tiered access to the circuit courts with “separate and unequal tracks” for litigants who launch appeals in the federal system (Vladeck and Gulati 2005; Levy 2013).

Since these measures are largely designed to reduce the number of cases that are given the “full treatment,” we describe here the traditional model that characterizes the processing of appeals in the federal circuit courts that are orally argued—the method used for most appeals in earlier eras, prior to the development of screening and case management techniques. After the case arrived in the office of the clerk of the court, the clerk assigned the case to a randomly selected panel of three judges on active service. The judges then spent several months studying the appellate briefs, transcripts of the record, and other case materials, often with the assistance of a memorandum of law written by one of their clerks, before scheduling an oral hearing in which each side was given time to argue the merits of their case. Shortly after the oral argument, the three-judge panel held a conference in which only the judges participated, made a tentative decision on the merits of the case, and assigned one judge to prepare a draft of the opinion of the court. After review by each judge and agreement reached on a final opinion, the parties were notified of the result and the opinion was published in the Federal Reporter.

Today, a relatively small number of appeals are processed under this traditional model. For those appeals that were addressed on the merits in 2013, less than one-fifth received an oral hearing and about 90 percent of the decisions are unpublished. Below, we describe current screening processes documented in other research and relayed in interviews conducted with appeals court judges. At the outset, we note that interviewed judges were in basic agreement that this caseload explosion required extensive screening of cases that permit the court to adopt time-saving methods of resolving their cases. And, judges seemed generally satisfied with the approaches taken by their court. However, when comparing across the circuits, there is no widespread agreement among interviewed judges on the desirability and effectiveness of screening methods.

Screening on the U.S. Courts of Appeals

In his widely read book on appellate courts, First Circuit Judge Frank Coffin offered the following advice to brief writers, “At the threshold, the brief must seek to persuade a seasoned if not cynical cadre of appellate court staff attorneys that the case does indeed deserve oral argument and should not be summarily affirmed or dismissed with a brief opinion” (1994: 108). Although scholars trace the use of staff attorneys to the 1970s, Congress officially authorized the creation of staff attorney offices in 1982 (Levy 2013). Our judge interviews emphasize the important role played by these lawyers. When asked about screening processes, a majority of those judges interviewed described the following process.

(p. 159) First, judges indicated that when a case is initially filed it goes to a senior staff attorney who takes a quick look at the case. If the staff attorney concludes that a case has an arguable issue (i.e., an issue without an obvious answer), it is forwarded to a three- judge panel randomly selected in the clerk’s office for further action,14 typically, an oral argument hearing and full consideration by the panel. However, the importance of a case is not always obvious. In that event, even if the clerk initially scheduled a case for oral argument, the panel may proceed to make a summary, “unsigned” decision.

The remaining cases are divided among the staff attorneys working for the circuit. These attorneys identify the “open and shut” cases (or, as one judge referred to them, the “slam dunks”). These include appeals with procedural defects (e.g., appeal “out of time,” a problem of mootness or standing, or a jurisdictional problem). If such a defect does exist, the attorney will propose procedural termination in the form of a summary disposition. In 2013, 35 percent of the appeals were terminated for procedural defects.

In one interview, a judge described how the staff prepares a list of such cases to dismiss to include a memo explaining the rationale for the disposition. These memos are circulated to all judges in the circuit. A single judge can then put the case back in for assignment to a panel. But if there is not an objection to the summary disposition, a staff attorney then prepares a draft of a proposed opinion disposing of the case without argument. Formal approval is routinely given, resulting in the issuance of a formal disposition in a short “unpublished” opinion.

After screening out candidates for procedural termination, staff attorneys in multiple circuits prepare a list of cases that they believe warrant consideration by a panel of judges, but do not require oral argument. In preparing this list, staff attorneys pay particular attention to habeas petitions and pro se cases.15 A 2000 FJC study reported that, with the exception of the Second Circuit, courts rarely allow a pro se litigant to argue orally (McKenna et al. 2000). Interviews with judges and court personnel also suggest that they are more likely to include on the non-argument list social security claims and immigration appeals. In 2002, the decision to reduce the backlog of cases in the Bureau of Immigration Appeals contributed to a flood of appeals in the U.S. Courts of Appeals, particularly the Second and Ninth Circuits. Although the numbers have receded somewhat, immigration appeals continue to make up a significant portion of the docket. In response, one circuit created nonargument panels for immigration cases and identified specific staff attorneys (with expertise in this area) to be involved in the screening process (Palmer et al. 2005). Judge interviews also described a process whereby cases identified as candidates for “nonargument” are circulated to all judges in the circuit with a memo recommending the disposition of the case (usually a dismissal or affirmance) with a provision that allows for a single judge to put the case back on the argument calendar.

All interviewed judges held the view that a decision to grant oral argument is the responsibility of three-judge panels. Although a staff attorney may recommend a case for nonargument, the panel may decide otherwise after examining the full case file. FRAP 34 requires the courts to allow oral argument unless the three-judge panel unanimously decides that oral argument is unnecessary for one of the specified reasons (p. 160) (p. 161) (e.g., the appeal is frivolous or the dispositive issues have been authoritatively decided). One judge explained that judges on that circuit will always grant oral argument “if we think there is a chance for reversal or if the appellant really needs to be heard … We want to make sure that the loser feels that he has had a fair shake.”

Table 7.1 2013 case management and workload statistics by circuit

Circuit

Appeals filed (actions per panel)

Procedural terminations (actions per panel)

Merits terminations (actions per panel)

% of merits terminations after an oral hearing

Written, signed decisions (per active judge)

% unpublished

All

1,037

361

631

18.3

59

88.2

DC

278

116

128

41.8

20

54

First

788

253

450

26.9

44

65.3

Second

1,153

601

714

27.9

215

88.4

Third

838

260

615

7.7

136

93.8

Fourth

994

223

737

10.9

43

93.9

Fifth

1,316

476

746

16.2

19

91.4

Sixth

934

311

664

16.8

47

90.5

Seventh

816

312

472

35.7

47

66.5

Eighth

774

153

588

16.5

37

76

Ninth

1,320

522

744

20.4

14

91.9

Tenth

518

175

356

24.3

89

81.9

Eleventh

1,564

606

960

10.8

17

94

Note: Data are from the Administrative Office of the U.S. Courts, figures for calendar year ending December 2013; percentage unpublished figures are from Table S-3, for fiscal year ending September 2013.

FRAP 34 establishes the default—an oral hearing—with specific exceptions. Within these parameters, circuits have developed internal operating procedures and norms that reflect on differences among the courts of appeals when comparing oral argument rates. As the data in Table 7.1 suggest, the proportion of cases orally argued varies substantially by court. Oral argument was more frequent in the DC and Seventh Circuits. Comments of several interviewed judges from the Seventh Circuit suggest that this reflects a deliberate choice. As Bowie et al. (2014) report, one judge commented, “We have a strong preference for oral argument” and then accurately noted (with considerable pride), “I believe we have the highest rate of oral argument of any circuit.”16

A recent statistical analysis confirms the process described by judges and other court personnel. The study found that oral argument was substantially more likely when the panel’s workload was relatively light, when the case was complex (e.g., multiple issues or cross appeals), when there was a “paid” appeal (rather than a pro se appeal), in politically salient cases (e.g., a case involving a constitutional issue or one in which amici curiae participated) and when local circuit rules were more supportive of granting oral arguments (Bowie et al. 2014). Although oral argument provides an opportunity for judges and counsel to clarify issues, the brief provides the baseline for judges’ questions. Given the emphasis on the appellate brief, we consider more closely in the next section how the content of these briefs shape the opportunities for litigants seeking access to the issue agenda in intermediate appellate courts.

Access and Merits Panels: Appellate Briefs and Information

As the sections above suggest, case screening procedures result in a select number of appeals getting the “full treatment,” including oral argument. Information provided by litigants and their lawyers, through appellate briefs, may be important in determining the degree to which one’s case will be scrutinized by the court. FRAP 28 provides guidance to litigants on the organization of appellate briefs that are expected to identify the issues to be addressed by the court along with the arguments in support of the litigant’s position. The submission of briefs is a sequential process that is initiated by the appellant. These briefs address an important informational need for judges and their staff. As noted by one prominent appeals court jurist, a judge has “very little time to spend on each case and … lacks specialized knowledge of most of the cases that comes before him. The judge so circumstanced is very badly in need of the advocate’s help” (Posner 1999: 3). Those briefs that persuade staff attorneys and judges on screening panels that (p. 162) the issues raised merit further consideration are those where the appellants’ advocate(s) successfully framed questions for the court.

The importance of counsel in the preparation of an appellate brief has important implications for the screening process. Interviews with judges and studies on case management techniques highlight how pro se appeals are typically given less scrutiny than appeals filed by litigants represented by counsel. Being represented by an attorney does not, however, translate into a litigant’s claims being accorded the “full treatment. “ For those litigants whose cases were decided with published opinion, access did not always result in their claims being addressed by the court. In one study of the linkages between appellate briefs and issue agendas on the U.S. Courts of Appeals for two circuits, Haire and Moyer (2007) examined the issues identified by brief writers and compared them against those addressed in the court’s opinion. They found that courts routinely suppressed issues; however, suppression was more likely when the brief was submitted by an individual appellant or the appellant was represented by a single attorney. Additional studies suggest that legal resources associated with the experience of counsel and the size of the litigation team potentially affect the ability of a litigant to successfully persuade judges of the merits of their claim (Haire, Lindquist, and Hartley 1999; Szmer, Johnson, and Sarver 2007; Sisk and Heise 2015), including whether to adopt the advocate’s use of precedent (Moyer, Collins, and Haire 2013).

Discussion

For a variety of reasons, Congress has been unwilling to expand substantially the size of the federal judiciary to keep up with the increase in appellate filings. As a result, case management techniques in the U.S. Courts of Appeals are likely to be a permanent fixture in sorting out issues of litigant access. The utilization of these techniques is not limited to federal intermediate courts. State officials have also developed methods to deal with heavy caseloads in appellate courts (Marvell 1988; Binford et al. 2007). In the mid-1970s, a majority of cases heard in state appellate courts were orally argued; however, by 1984, the proportion of cases with oral argument dropped to 30 percent (Marvell 1988). In a 2005 survey of intermediate appellate court administrators, Binford et al. reported that “nonargument” dispositions were widespread with less than one tenth of cases orally argued in the surveyed courts. Similar to observations made about the federal court system, there is substantial variation in case management methods used across the states (Marvell 1988; Binford et al. 2007). Critics have raised normative arguments about these screening processes––including the question of whether judicial power has been delegated to staff. The empirical question of whether judicial “triage” techniques used to screen appeals contributes to an appellate body that performs poorly in detecting legal error has been evaluated and generally concludes that dispositions during periods of time marked by high caseloads (and responses to them, including the use of staff (p. 163) attorneys) are no worse than the “traditional” model of appellate justice in dealing with claims of legal error (Levy 2013).

Another criticism that has been leveled specifically at the decline in the proportion of orally argued cases is that the court’s legitimacy is undermined (Levy 2013). While it is doubtful that the vast majority of the general public is even aware that there has been a decline in the proportion of appeals that receive oral arguments, elites that are attentive to the courts, especially lawyers, may be concerned. What, if any, consequence flow from a potential decline in the legitimacy accorded by elites is a question that awaits future research.

Current research shows that one consequence of the screening processes employed by all circuits is that litigant access is unequal. Not only do different types of litigants have unequal access, but the likelihood of similarly situated litigants filing appeals that receive the “full treatment” varies across the circuits, a situation that has been characterized as the Balkanization of appellate justice (Lindquist 1996; Solimine 2004; Richman and Reynolds 1996; Sisk 1997). In one analysis focused on court-level causes of inequality in judicial treatment, Lindquist (1996) finds that larger circuits have lower rates of oral argument—a finding that continues to be supported as reflected in 2013 figures reported in Table 7.1. The composition of the docket is an important component as well. In those circuits where judges hear a disproportionate number of pro se appeals, oral argument is less likely. Our judge interviews also emphasized the importance of circuit norms surrounding oral argument. In those circuits where judges perceive oral hearings as important either as an aid in the decision-making process or enhancing the legitimacy of the institution, argument rates were higher. But, in spite of the insights generated by this line of research, we are far from a comprehensive understanding of when and why some litigants’ cases will receive the full treatment and others will not. Further research that builds on these studies and draws on interdisciplinary perspectives (i.e. organizational sciences and policy innovation) will help to flesh out why courts are more (or less) responsive to litigant appeals than others.

The focus in judicial politics research on published decisions and litigants in those appeals has meant that we know less about the decision-making process when deciding to appeal and what to argue in that appeal (cf. Zorn 2002; Barclay 1999). Consequently, much of what we think we “know” about the role of litigant strength and decision-making on the courts of appeals may not be true at all; it may only reflect the nature of decision-making about a small, non-random proportion of the total decisional output of the courts. To address this issue, additional research is needed to evaluate whether patterns in outcomes of published decisions (who wins/loses) is reflected not only in unpublished decisions but also in screening decisions. A smattering of quantitative data and the results of judge interviews, some of which are excerpted above, suggest that the patterns of wins and losses is almost certainly different in published decisions than in appeals procedurally terminated or decided without oral argument. But, we need more systematic research to better understand why and how the patterns are different. Studies of the U.S. Supreme Court suggest that those who are successful in shaping the Court’s agenda may not be similarly successful in (p. 164) winning their case on the merits. But, the figures and studies reviewed above suggest that the opposite is true on the U.S. Courts of Appeals—that those who are successful in shaping the agenda are highly successful on the merits. If so, evaluating these institutional differences associated with different levels of courts in the United States is a project ripe for future study. Such research may also yield new insights on the causal mechanisms that underlie litigant success, including how the quality of appellate advocates may (or may not) affect case selection decisions, the persuasiveness of arguments made to the judges, and the interrelationships between these two. Future scholarship may heed approaches taken in recent research that draw on psychology to advance our understanding of influences associated with persuading a judicial audience (Braman 2009; Corley and Wedeking 2014) and the potential for implicit bias in the court (Guthrie et al. 2007).

More broadly, research on the impact of the political preferences of appeals court judges and the extent to which they engage in strategic calculations currently rest on analyses of decisions that survived litigant case selection decisions and judicial screening processes. At a minimum, large-scale empirical research is needed to determine whether findings are similar in unpublished cases. Given the reduction in the proportion of cases that are decided with published opinion over time, and extensive circuit-level differences in these rates, the failure to include unpublished decisions may have led us to make overbroad conclusions about the significance and causes of attitudinal voting. Similar concerns have led to calls for scholars to revisit existing approaches to the study of judicial preferences that currently overestimate the effect of liberal-conservative policy views in appellate court decision-making (Epstein and Knight 2013). Consistent with recent scholarship that focuses on how judges are motivated to allocate their time (Epstein, Landes, and Posner 2013), we believe that scholarly attention directed at explaining variation in judicial treatment to litigant claims may lead to the development of a “legal attitudinal” model to supplement—or replace—current understandings surrounding the “attitudinal” model.

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                                                                                                                      Notes:

                                                                                                                      (1.) U.S. Const. art. III, § 1.

                                                                                                                      (2.) For this chapter, we do not discuss the Federal Circuit because it is a unique court of appeal, with nationwide jurisdiction in international trade, government contracts, patents, federal personnel, veterans’ benefits, among others.

                                                                                                                      (3.) Oklahoma and Texas have separate courts of last resort for criminal and civil appeals.

                                                                                                                      (4.) The major exception is that, because of the constitutional prohibition of double jeopardy, the government may not appeal a criminal decision that resulted in a “not guilty” verdict for the defendant.

                                                                                                                      (5.) Neither Congress nor state legislatures may expand the jurisdiction of federal or state courts beyond the constitutional limits.

                                                                                                                      (6.) A federal court’s power to hear any case where the amount in controversy exceeds $75,000 and no plaintiff shares a state of citizenship with any defendant. See 28 U.S.C. Sec. 1332(a).

                                                                                                                      (7.) Congress has a long history of limiting federal court access in diversity cases (Curry 2007). The Judiciary Act of 1789 set the limit for federal jurisdiction to actions in which the amount in question was at least $500. That limit has been raised over time to the current requirement in which the dollar amount at stake must be at least $75,000.

                                                                                                                      (8.) Criminal defendants convicted in state court may appeal their convictions from the highest state court to the U.S. Supreme Court if and only if there is a “federal question”—which usually means only if the defendant alleges that their conviction was invalid because state officials violated one of the defendant’s procedural rights protected by the U.S. Constitution.

                                                                                                                      (9.) Including state legislatures with respect to access to state intermediate courts.

                                                                                                                      (10.) See Rasul v. Bush, 542 U.S. 466 (2004); Boumediene v. Bush, 553 U.S. 723 (2008).

                                                                                                                      (11.) See Wal-Mart Stores, Inc. v. Dukes 564 U.S. 338 (2011).

                                                                                                                      (12.) Developed by Kahneman and Tversky, prospect theory has its roots in behavioral economics where it has been employed to explain why people are risk-seeking to avoid losses but risk-averse when faced with options that will accumulate gains (Guthrie 2002: 1116).

                                                                                                                      (13.) The interviews were conducted between 2002 and 2011. By the terms of the interviews, the judges were told that no comments would be attributed to a judge by name or by any attributes that might permit expert observers to identity the judge. To avoid identification, all judges are referred to using masculine pronouns and are referred to by a letter (e.g., Judge D, Judge NN) which has no relationship to their name.

                                                                                                                      (14.) An FJC study found that staff attorneys play a role in screening for jurisdictional defects in a majority of circuits, although screening for argument/nonargument varies by circuit, with staff responsible for initial screening in the 1st, 4th, 6th, 7th, 9th, 11th, and DC circuits. Judges are responsible for initial case screening in the 2nd, 3rd, 5th, 8th, and 10th circuits.

                                                                                                                      (15.) Levy (2013) and Hooper et al. (2011) suggest that screening may also take into account Anders brief cases. Anders v. California 386 U.S. 738. In an “Anders” case, defendant’s counsel states that the defendant has no meritorious claims on appeal. As a result, a litigant may decide to appeal, but access to these courts is likely to be limited as a result of the contrary position of his lawyer.

                                                                                                                      (16.) At the time of the interview, this circuit had the highest rate of oral argument; however, we note that data from the Administrative Office of the Courts indicate that distinction more recently belongs to the DC Circuit.