Panel Effects and Opinion Crafting in the US Courts of Appeals

Purpose – To alert companies and individuals subject to regulation and investigation by the US Securities and Exchange Commission (SEC) of potential arguments to enforce time limits on enforcement actions that have heretofore commonly been ignored. Design/methodology/approach – Analyzes two cases - one recently decided and one pending - in US Courts of Appeals, explains significance of issues at stake. Findings – The Courts of Appeals for District of Columbia Circuit has recently reviewed, and the Court of Appeals for the 11th Circuit will soon decide whether statutory timing provisions effectively remove SEC power to bring enforcement actions past their deadlines, at least in some circumstances. Practical implications – Depending on the outcomes of the cases, companies and individuals may gain a new procedural defense or two against SEC enforcement actions. They may also expect the SEC to respond by more actively seeking tolling agreements, and/or being more cautious in issuing Wells notices. Originality/value – Guidance based on pending decisions interpreting US securities law, may bring regulatory adjustments to agency practice and procedure.

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Party Capability and the US Courts of Appeals: Understanding Why the “Haves” Win

Journal of Law and Courts ◽

10.1086/684487 ◽

2016 ◽

Vol 4 (1) ◽

pp. 65-102 ◽

Cited By ~ 7

Author(s):

John Szmer ◽

Donald R. Songer ◽

Jennifer Bowie

Keyword(s):

Courts Of Appeals ◽

The Us ◽

Party Capability

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Panel Composition and Judicial Compliance on the US Courts of Appeals

The Journal of Law Economics and Organization ◽

10.1093/jleo/ewm026 ◽

2007 ◽

Vol 23 (2) ◽

pp. 421-441 ◽

Cited By ~ 54

Author(s):

J. P. Kastellec

Keyword(s):

Courts Of Appeals ◽

The Us

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The Differential Effect of War on Liberal and Conservative Judges on the US Courts of Appeals

Journal of Law and Courts ◽

10.1086/690048 ◽

2017 ◽

Vol 5 (1) ◽

pp. 1-31 ◽

Cited By ~ 2

Author(s):

Susanne Schorpp ◽

Rebecca Reid

Keyword(s):

Differential Effect ◽

Courts Of Appeals ◽

The Us

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Politics, Identity, and Class Certification on the U.S. Courts of Appeals

Michigan Law Review ◽

10.36644/mlr.119.2.politics ◽

2020 ◽

pp. 231

Author(s):

Stephen Burbank ◽

Sean Farhang

Keyword(s):

African Americans ◽

Strong Association ◽

Product Liability ◽

Racial Diversity ◽

Class Action ◽

Courts Of Appeals ◽

Access To Justice ◽

Procedural Law ◽

Panel Effects ◽

The Impact

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of two women (but not one), is associated with procertification outcomes. Our results show that, contrary to conventional wisdom in scholarship on diversity on the Courts of Appeals, the impact of diversity extends beyond conceptions of “women’s issues” or “minority issues.” The consequences of gender and racial diversity on the bench, through application and elaboration of certification law, radiate widely across the legal landscape, influencing implementation in such areas as consumer, securities, labor and employment, antitrust, insurance, product liability, environmental, and many other areas of law. In considering possible explanations for our findings on the procertification preferences of women and African Americans, we note that class action doctrine, as transsubstantive procedural law, traverses many policy areas. As strategic actors, it would be rational for judges to take into consideration how class-certification doctrine in a case that does not implicate issues on which they have distinctive preferences might affect certification in cases that do. Alternatively, or in addition, our results may be the first evidence that transsubstantive procedural law affecting access to justice is itself a policy domain in which women and African Americans have distinctive preferences. In either case, the results highlight the importance of exploring the effects of diversity on transsubstantive procedural law more generally. Our findings on gender panel effects in particular are novel in the literature on panel effects and the literature on gender and judging. Past work focusing on substantive antidiscrimination law found that one woman can influence the votes of men in the majority (mirroring what we find with respect to African Americans in class-certification decisions). These results allowed for optimism that the panel structure—which threatens to dilute the influence of underrepresented groups on the bench because they are infrequently in the panel majority—actually facilitates minority influence, whether through deliberation, cue taking, bargaining, or some other mechanism. Our gender results are quite different and normatively troubling. We observe that women have substantially more procertification preferences based on outcomes when they are in the majority. However, panels with one woman are not more likely to yield procertification outcomes. Panels with women in the majority occur at sharply lower rates than women’s percentage of judgeships, and thus certification doctrine underrepresents their preferences relative to their share of judgeships and overrepresents those of male judges.

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Of Whites and men: How gender and race impact authorship of published and unpublished opinions in the US courts of appeals

Research & Politics ◽

10.1177/2053168018762869 ◽

2018 ◽

Vol 5 (1) ◽

pp. 205316801876286 ◽

Cited By ~ 2

Author(s):

Elizabeth A. Tillman ◽

Rachael K. Hinkle

Keyword(s):

Demographic Characteristics ◽

Federal Courts ◽

Courts Of Appeals ◽

Stare Decisis ◽

Disadvantaged Groups ◽

Original Dataset ◽

The Us ◽

Us Supreme Court ◽

Empirical Tests ◽

Circuit Courts

While authorship assignment has been studied extensively in the US Supreme Court, relatively little is known about such decisions in the intermediate federal courts. Moreover, what we know about circuit courts relates only to published opinions (those which constitute precedent under the doctrine of stare decisis and, thus, influence policy). Little is known about authorship of less influential unpublished opinions. Distinguishing between the costs, benefits, and risks inherent in authoring published versus unpublished opinions, we develop and test theoretical expectations about how demographic characteristics of opinion assignors and assignees influence authorship across opinion type. We conduct empirical tests using an exhaustive original dataset containing all authored dispositive circuit panel opinions issued in 2012. The results reveal that White and male judges are more likely to assign White and male judges to write published opinions and less likely to assign them to write unpublished opinions. The substantive sizes of the discrepancies are somewhat modest, but our results indicate that judges from historically disadvantaged groups have fewer opportunities to shape policy and they shoulder a disproportionately larger share of the routine chore of resolving individual cases.

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