Precedent, Judicial Power, and the Constitutionality of "No-Citation" Rules in the Federal Courts of Appeals

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.” The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate process in which judicial staff attorneys resolve appeals without oral argument or meaningful judicial oversight. For the system’s most vulnerable participants, the promise of an appeal as of right often becomes a rubber stamp: “You lose.” This work examines the product of that second-class appellate justice system by filling two critical gaps in the existing literature. First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume. Second, it examines the output of the second-tier appellate justice system from the perspective of the litigants themselves. Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions.

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Of Whites and men: How gender and race impact authorship of published and unpublished opinions in the US courts of appeals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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Customary International Law and U.S. Judicial Power

The Restatement and Beyond ◽

10.1093/oso/9780197533154.003.0011 ◽

2020 ◽

pp. 251-264

Author(s):

Thomas H. Lee

Keyword(s):

United States ◽

Human Rights ◽

Foreign Policy ◽

International Law ◽

Foreign Relations ◽

The United States ◽

Federal Courts ◽

Judicial Power ◽

Customary International Law ◽

The Third

This chapter describes specific points of divergence between the Third and Fourth Restatements of the Foreign Relations Law of the United States regarding how U.S. courts should engage with customary international law. The Third Restatement, adopted in 1987, envisioned U.S. courts fluent in and engaged with international law, deploying a U.S. foreign relations jurisprudence in dialogue with international law and lawyers. Customary international law was a central feature of this vision because it was the prime pathway for human rights litigation in federal courts when U.S. treaty-based human-rights initiatives had stalled. Appearing thirty years later, the Fourth Restatement exhibits a fundamentally different orientation toward customary international law. Customary international law is no longer embraced as it was in the Third Restatement as an opportunity to play offense, to advance the international law of human rights. That vision inspired a reaction among some U.S. legal scholars who questioned the U.S. federal law status of customary international law and the legitimacy of U.S. judges advancing the customary international law of human rights. The Fourth Restatement seeks a middle ground by defending against this revision of customary international law’s status role in the United States, concerned that the revisionist view might encourage and provide cover for U.S. courts to dismiss cases and claims with foreign policy ramifications that they should be adjudicating. The approaches of the two Restatements, taken together, have contributed to the disengagement of U.S. judges from customary international law altogether, to the detriment of U.S. conduct of foreign policy and contrary to the original constitutional specification of the judicial power of the United States as reflected in Article III, the Judiciary Act of 1789 that established the federal courts, and early historical practice.

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An Abandoned Jurisprudence

Antonin Scalia and American Constitutionalism ◽

10.1093/oso/9780197508763.003.0009 ◽

2020 ◽

pp. 201-224

Author(s):

Edward A. Jr. Purcell

Keyword(s):

Twentieth Century ◽

Federal Courts ◽

Judicial Power ◽

Warren Court ◽

Historical Practices ◽

The U.S

This chapter examines Justice Antonin Scalia’s views on Article III of the U.S. Constitution and the nature of the federal judicial power that it established. One of Scalia’s principal goals was to limit severely the power of the federal courts and to undo many of the decisions of the Warren Court, including their ability to create implied private causes of action, and the chapter argues that in pursuing that goal Scalia departed from originalist views and that the arguments he advanced were themselves self-contradictory. The chapter shows, moreover, that originalist doctrines and historical practices actually contradicted his claims about limits on the federal judicial power. Further, the chapter argues that his views were based not on originalist ideas but on the twentieth-century positivism associated with Erie Railroad v. Tompkins, and that in Sosa v. Alvarez-Machain, he explicitly acknowledged that his positivist ideas were not the ideas of the Founders. The chapter concludes that in this area, Scalia simply abandoned originalism and did so, once again, to achieve his own ideological and political goals

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Cases Without Controversies

10.1093/oso/9780197571408.001.0001 ◽

2021 ◽

Author(s):

James E. Pfander

Keyword(s):

United States ◽

The United States ◽

Federal Courts ◽

Judicial Power ◽

Habeas Corpus ◽

Federal Law ◽

Antebellum America ◽

Article Iii Courts ◽

The U.S ◽

Over Time

Cases Without Controversies: Uncontested Adjudication in Article III Courts offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties and rules out all forms of non-contentious jurisdiction. Said to rest on the so-called “case-or-controversy” requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, this book examines the way the Constitution’s meaning has changed over time and suggests an interpretive methodology that would allow the U.S. Supreme Court to take account of the old and the new in defining the contours of federal judicial power.

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