What influences the influence of U.S. Courts of Appeals decisions?

Abstract

In this exploratory study, we develop models of factors that influence the citation or influence of judicial opinions written by U.S. Courts of Appeals judges. Prior studies of citation patterns in the U.S. Courts of Appeals largely focus on the judge’s career as the unit of analysis. Not surprisingly, this research suggests judge-level factors tend to influence the degree to which judges’ opinions are cited in subsequent decisions. Utilizing a dataset with a random sample of individual cases as the unit of analysis, we compare the effects of judge, panel, and case factors. Overall, while several case-level factors influence the number of citations a case receives, few judge- and panel-level variables affect citation rates. The findings suggest that opinion citation models based on judge- and/or panel-level attributes alone miss the influence of case attributes on citation rates.

Appendices

Appendix 1: U.S. Court of Appeals primer

1.1 Structure

Like most former British colonies, the U.S. has a primarily common law judicial system. Within that framework, judicial power is divided between the national and state governments. The U.S. Constitution created a single national court of last resort, the Supreme Court of the United States. It also empowered the U.S. Congress to create lower courts. While there are some limited subject matter courts designed to handle complicated specialties like tax, trade, and patent litigation, most federal cases are processed through a three-tiered hierarchy with general jurisdiction over “federal questions”—disputes that arise under color of U.S. national law. Additionally, the general jurisdiction courts may hear so-called “diversity jurisdiction” cases: important²¹ issues of state civil law involving opposing parties that reside in different states.²²

The U.S. District Courts are the courts of first instance. Each state (and some territories, like Puerto Rico) has at least one District Court, and no District Court crosses state boundaries. Appeals from District Court cases are heard by the U.S. Courts of Appeals.²³ The Courts of Appeals are divided into 12 geographic circuits.²⁴ The circuits are not divided equally. Tremendous variation exists with respect to the geographic scope of the circuit, caseload, number of sitting judges, and backgrounds of the judges (see Bowie et al. 2014; Haire and Moyer 2008).

Each circuit has jurisdiction over appeals from the District Courts within its boundaries. The First through Eleventh Circuits include the 50 states and territories, while the District of Columbia, home of the U.S. Capital, Washington, has its own Circuit. In general, the losing party at the District Court has a statutory right to appeal to the appropriate Court of Appeals. Similarly, after an adverse decision by the intermediate appellate court, litigants may appeal to the U.S. Supreme Court. In most instances, however, the litigant must petition the Court to hear the case. While the Court processes almost 10,000 petitions per term (October–June), fewer than 100 petitions are granted.

1.2 Selection

Judges serving on all three levels are first nominated by the President, and then ideally confirmed by a majority vote in the Senate. In practice, a single Senator from the state in which the vacancy occurred can block a lower court nomination. As such, following a norm often labelled “senatorial courtesy”, the President typically consults with the home-state Senators during the selection process (Steigerwalt 2010). While the confirmation of Supreme Court nominees has been contentious at different points in time, nominations at all levels are now routinely politicized. Once confirmed, however, federal judges serve for life. The U.S. does not have a mandatory retirement age, and only a handful of judges, almost all from the U.S. District Courts, have been removed from office for misconduct.

The politicization of the selection process routinely leaves more than a dozen of the 167 seats open on the 12 regional circuit courts of appeals (Bowie et al. 2014). Combined with rising caseloads, the appeals courts have turned to creative mechanisms for staffing the benches. Some circuits have to rely heavily on judges selected from pools of retired judges from the circuit or the Supreme Court, visiting judges from other circuits, and even district court judges.

1.3 Process

Federal Rules of Appellate Procedure guarantee that the Courts of Appeals process cases fairly uniformly. However, within that broad framework, differences in formal local circuit rules, standard operating procedures, norms, leadership, and composition ensure significant variations in procedure and behavior (Bowie et al. 2014). With that in mind, we can make some generalizations about circuit court procedures. The lower court loser, or appellant, initially files a notice of appeal and then a written brief typically arguing that the District Court judge made one or more legally incorrect decisions at trial. The lower court victor, or appellee, then files its own legal brief.

At this point, most circuits have staff attorneys process the cases. In some instances, to help manage the caseload, the staff will recommend an expedited process. The cases are then assigned randomly to three judge panels. Each panel preprocesses the cases to determine which will require oral arguments. The judges then meet for a fixed period of time (maybe a week or two) to hear oral arguments and confer. During the post-oral argument conferences, they vote on the outcome of the case. Between strong norms of collegiality and consensus, combined with a docket often full of easy cases, the panel vote is usually unanimous. The most senior active judge on the panel in the majority then assigns one judge to write the opinion of the court. After all the cases assigned to the panel have been decided, the judges will return to their individual offices which are often dispersed across the circuit.

While a single judge is typically assigned to write the opinion of the court, the final product is influenced by multiple actors. First, while it varies for different judges, many rely on law clerks (typically recent law school graduates serving a 1-year term) to write the first draft (Bowie et al. 2014). Second, the panel continues to interact. The opinion author circulates the drafts to the other panelists and frequently incorporates their edits into the final product.

The final decision of the court is then published in an official reporter or the appendix to the reporter. This is a recent phenomenon. In the 1960s, faced with rising caseloads, the circuits began to distinguish between opinions with precedential value that had to be published and those without precedential value. The latter were distributed to the parties and maintained by the circuit, but they were not published and distributed to law libraries. Now cases deemed to have precedential value are published in the Federal Reporter, while the remaining cases, often decided by a short per curiam (unsigned) opinion, are published in the Federal Appendix. The latter are often called “unpublished” opinions, the correct nomenclature is “unreported”. Until 2007 most circuits prohibited citations to unreported cases.

After the case is decided, the losing party has at least three alternative routes to appeal the decision, though none of the appeals are guaranteed. They may petition the panel to rehear the case, petition the circuit to hear the case en banc (all the judges on the circuit meet to decide the case), or they can petition the Supreme Court. All three types of petitions are rarely granted, ensuring that the panel decision usually stands.

Appendix 2

See Table 4.

Table 4 Variance inflation factors greater than 3