August 2014 Working Paper Round Up
A trio of cases were posted recently as working papers on SSRN dealing with various issues related to the operation of the U.S Court of Appeals:
The most recent is Andrew Hewitt Smith’s The Effect of Ideology and Proportionality of the U.S. Courts of Appeals on the Likelihood of Supreme Court Reversal (August 3, 2014) available at SSRN: http://ssrn.com/abstract=2475631. Abstract:
Although much work has been done on the interaction between the United States Courts of Appeals and the United States Supreme Court, few studies have examined how the ideological compatibility of the lower court and the proportion of cases heard from a federal circuit court affects the likelihood of the Supreme Court reversing that circuit. Using data from the Roberts Court (2005-2011), I examine whether greater levels of ideological disagreement and the proportion of appeals from a circuit that are granted certiorari affect the likelihood of Supreme Court reversal. I conclude that the proportion of cases reviewed by the Court does not significantly increase the likelihood of reversal, but greater ideological distance between the lower court and the Supreme Court significantly increases the likelihood of reversal.
Smith, a PhD candidate at the University of Tennessee, tests the interesting hypothesis of whether ideological distance between the appellate judges and Supreme Court judges affects the rate of reversal. The data-driven analysis turns on existing, and controversial, measures of judicial ideology, and reveals some interesting results. Examining decisions of the Roberts Court (which has seen a shifting membership throughout its six terms) does limit the results somewhat, but the results confirm earlier analyses and suggest further analysis of other panels of the Court may prove useful.
Second, Jeremy D. Horowitz’s posted an analysis based on an interesting and under-used source, dissents from denial of rehearings: Split Circuits: Analyzing Polarization on the U.S. Courts of Appeals Using Dissent from Denial of Rehearing En Banc Coalition Data (July 21, 2014) available at SSRN: http://ssrn.com/abstract=2469237. Abstract:
Are the federal courts of appeals polarizing along with the rest of the government and American society more generally? This paper explores that question by exploiting a novel source of data: dissents from denial of rehearing en banc (DDRs). A DDR is a published opinion, often attracting concurrences from other judges, in which a judge criticizes her court for choosing not to rehear a case — one the initial circuit panel ostensibly decided wrongly. DDRs have no precedential effect but offer a judge the opportunity to publicize her disagreement with the court’s result. As such, they are a pure expression of judicial preference. Using an original dataset of information collected from nearly 1,300 DDRs published between 1943 and 2012, I evaluate the ideological nature of DDR usage focusing specifically on two aspects of DDRs: the colleagues a judge joins with, and the panel authors she mobilizes against. I use these measures to examine the different patterns among the circuits, among different presidential cohorts, and in different decades to show trends in circuit court polarization and to explore the connection between polarization in the judiciary and in the elected branches. The paper finds that although the circuits vary widely in the way they use DDRs, a substantial number of them do so in a polarized fashion. Evaluating judicial cohort behavior over time indicates that the nominating presidents — more than the increasingly polarized environment in the Senate and the general public’s own tendency toward ideological division — are the primary force driving judicial polarization.
Another graduate student working paper, this time from University of California at San Diego, the article makes a compelling case for the revelatory power of DDRs. It is limited, as all work in this area, by challenge of establishing judicial political ideology for individual judges. That said, it takes the commonly accepted judicial ideology measurement and applies it sensibly. It builds on Horowitz’s earlier work, Not Taking “No” for an Answer, 102 Georgetown Law Journal 59 (2013), which also looks at the utility and meaning of DDRs.
Finally, Mark A. Lemley and Shawn P. Miller have posted If You Can’t Beat ‘Em, Join ‘Em? How Sitting by Designation Affects Judicial Behavior (June 12, 2014) as part of the Stanford Public Law Working Paper series. It’s available at SSRN: http://ssrn.com/abstract=2449349 or http://dx.doi.org/10.2139/ssrn.2449349 . Abstract:
Judges, lawyers, and scholars have long decried the high reversal rate district judges face in patent cases. Many have suggested greater district court specialization as a solution, and Congress in 2011 enacted legislation to promote such specialization. In this paper, we investigate the impact of a novel measure of experience – whether a district court judge has sat by designation on a Federal Circuit panel in a patent claim construction appeal – on the likelihood a district judge’s subsequent claim constructions are reversed. Before sitting by designation, judges who later do so actually have a slightly higher claim construction reversal rate than judges who never do so. After sitting by designation, the reversal rate of district court judges on subsequent claim construction appeals decreases by 50 percent. This decrease is not fully explained by other measures of experience, including the number of prior patent cases or years on the bench. Nor is it fully explained by the timing of the appeal, the particular district court judge or various other characteristics of the patents, the parties and the litigation. Our results suggest a simple way to reduce the reversal rate in patent and perhaps other sorts of cases. However, our evidence suggests this increased agreement is due to increased Federal Circuit trust in the decisions of individual judges who have sat by designation and not increased district judge understanding of claim construction.
This article makes a significant claim that the lower court judge’s rate of reversal drops due to greater trust of the appellate panels rather than the lower court judge’s better understanding of claim construction. Whether this greater trust is a legitimate or illegitimate reason to affirm a lower court’s decision is certainly an interesting question.