A cool new article from Marin Levy, comparing how appellate courts manage cases–including scheduling cases for oral arguments, issuing published or unpublished opinions, and the role of staff attorneys to screen cases. Here is the abstract:
Case management practices of appellate courts have a significant effect on the outcome of appeals. 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oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts.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, based on qualitative research in the form of interviews of appellate judges, clerks of court, court mediators, and staff attorneys. A 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 practice is more defensible than in substantive and procedural law, but that current practice can and should be improved through increased transparency and information sharing between the circuits.
And from the paper:
As these practices are rarely written down or publicly available,9 this Article reports and explores a new dataset, culled from in-person interviews with federal appellate judges, clerks of court, chief circuit mediators, and senior staff attorneys. A thorough account of case management, bolstered by statistical evidence from the Administrative Office of the United States Courts, reveals the great extent to which these practices vary across circuits. When it comes to deciding whether a case will go to oral argument or be decided solely on the briefs, in some circuits this decision is made by a staff attorney, in others, by a judge.10 When it comes to which cases will be directed into a mediation program, in some circuits nearly all civil cases are sent, in others, a subset of cases are selected by the court.11 When it comes to how many cases will actually go to oral argument, in some circuits this percentage is as high as 44.4% and in others as low as 13.1%.12 And when it comes to how many cases are decided by unpublished order, in some circuits this percentage is as high as 93.0% and in others as low as 62.3%.13
I am quite interested in the data set she assembled (“All interview notes are on file with the Duke Law Journal.”)
My own information on these practices has come from qualitative research—primarily through a series of interviews of judges, clerks of court, chief circuit mediators, directors of staff attorneys offices, and supervisory staff attorneys, conducted between March of 2010 and April of 2011.53
53 The goal of speaking to members of the Clerk’s Office and the staff attorneys office was to gather information about the various docket management practices. I selected the people I interviewed by first contacting the Clerk of Court and, if possible, speaking to him or her, and then speaking to whomever he or she recommended (such as directors of the staff attorneys offices or supervisory staff attorneys). The goal of speaking to one or two judges from each circuit was less to learn about specific practices and more to learn what individual judges thought of the case management practices of their circuits generally. For this portion of the project, I simply contacted several judges in each circuit and met with those who had availability (although I did try to balance meeting with active and senior judges, judges who had been appointed by Democrat and Republican Presidents, and at least one female judge). I fully recognize, however, as Judge J. Harvie Wilkinson has stated, that “[n]o one judge can truly hope to speak for the court” and that each “may have a slightly different view about the circuit.” See J. Harvie Wilkinson III, The Fourth Circuit and Its Future, 61 S.C. L. REV. 415, 416 (2010)
Although I tailored my questions to each interviewee, my general approach in each interview was the same. I first asked a set of questions about the specific practices of the interviewee’s circuit, and then asked a set of questions about the interviewee’s views on the practices of his or her circuit—specifically about which practices worked particularly well and which could stand to be improved. With rare exception,54 all of the initial interviews were conducted in person, and lasted between half an hour and two hours. I then conducted follow-up interviews—often as many as three or four—by telephone, over electronic mail, and in person to verify the information that I had collected. I assured each person I interviewed that I would not directly quote him or her without explicit permission—this is why, with few exceptions, I attribute my findings to “a judge” or “a senior member of the Clerk’s Office” or “a senior staff attorney” from a specific circuit.55