Law Commons^™

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Rethinking Standards Of Appellate Review, Adam Steinman

Indiana Law Journal

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Statutory Interpretation And The Rest Of The Iceberg: Divergences Between The Lower Federal Courts And The Supreme Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding—based on a study of 40 years of cases from all …

Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected …

Statutory Interpretation And The Rest Of The Iceberg: Divergences Between The Lower Federal Courts And The Supreme Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding—based on a study of 40 years of cases from all …

Competing With The “Patent Court”: A Newly Robust Ecosystem, Arti K. Rai

Faculty Scholarship

In a provocative address, Chief Judge Wood of the Seventh Circuit Court of Appeals suggests exposing the Court of Appeals for the Federal Circuit, created in 1982 to hear all appeals from patent cases, to competition from sister appellate courts. This response, published as part of a Symposium on Chief Judge Wood's address, argues that competition is indeed desirable. Whether such competition is best provided by other appellate courts is unclear, however. The more tractable approach is to improve competitive input from sources that have already emerged. These include dissenting Federal Circuit judges, parties and amici who are not "patent …

Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl

Faculty Publications

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected …

Reply: Exploring Panel Effects, Pauline Kim

Scholarship@WashULaw

This Reply responds to methodological criticisms of an earlier empirical study of panel effects on the United States Court of Appeals, Deliberation and Strategy on the United States Courts of Appeals, which appeared in the University of Pennsylvania Law Review. That study found that federal appellate judges appeared to be more or less open to influence by their panel colleagues depending upon how the preferences of the panel members align with the preferences of the circuit as a whole. On the other hand, their willingness to avoid dissents and go along with their panel colleagues seemed unaffected by their relative …

'The Law Of The Circuit' Revisited: What Role For Majority Rule?, Arthur D. Hellman

Articles

In April 2017, the Fourth Circuit Court of Appeals announced that the full 15-judge court would convene to hear the challenge to President Trump’s executive order “to protect the Nation from terrorist activities by foreign nationals admitted to the United States.” This was a significant departure from the usual practice in the federal courts of appeals. Initial en banc hearing is extremely unusual, and rehearing en banc after a panel decision is almost as rare.

Ordinarily, two features define the ordinary course of adjudication in the federal courts of appeals. First, cases are heard and decided by panels of three …

The View From The Trenches: Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur D. Hellman

Articles

In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants' comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference.

First, the participants in the earlier conference apparently assumed …

The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer

Faculty Publications

No abstract provided.

Extrinsic Evidence And Statutory Interpretation: Judicial Discretion In Context, W. H. Charles

Dalhousie Law Journal

... the Supreme Court of Canada recently signalled an increasing receptiveness to the use of extrinsic materials in the Anti-Inflation Reference. Accordingly, I expect that we will see an increasing use by appellate courts of extrinsic evidence. ' This prediction was made by the Honourable Brian Dickson, a Justice of the Supreme Court of Canada, in an address in 1979. His statement concerns a problem that has haunted Canadian, English, and commonwealth courts for years, namely, how far beyond the actual words of the statute itself is it permissible for courts to roam in their efforts to interpret legislation? Put …

Book Review Of Courts Of Appeal In The Federal Judicial System: A Study Of The Second, Fifth, And District Of Columbia Circuits, Peter G. Fish

William & Mary Law Review

No abstract provided.

Appellate Court Articulation Of General Standards Of Conduct: Effective Guidance Versus Impotent Verbalism, Arthur W. Phelps

Faculty Publications

No abstract provided.

Common Mistakes In Appellate Procedure, A. J. Stevenson

Indiana Law Journal

No abstract provided.

The Proper Function Of An Appellate Court, Edson R. Sunderland

Indiana Law Journal

No abstract provided.

Getting Into The Higher Court, Sumner Kenner

Indiana Law Journal

No abstract provided.