En Banc Procedure 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 Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.”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 The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants.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 First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume.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 Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions.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Of Whites and men: How gender and race impact authorship of published and unpublished opinions in the US courts of appeals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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Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges

The Journal of Legal Studies ◽

10.1086/468022 ◽

1998 ◽

Vol 27 (2) ◽

pp. 271-332 ◽

Cited By ~ 187

Author(s):

William M. Landes ◽

Lawrence Lessig ◽

Michael E. Solimine

Keyword(s):

Citation Analysis ◽

Federal Courts ◽

Courts Of Appeals ◽

Judicial Influence

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What Is a Social Group in the Eyes of the Law? Knowledge Work in Refugee-Status Determination

Law & Social Inquiry ◽

10.1111/lsi.12369 ◽

2018 ◽

Vol 43 (04) ◽

pp. 1257-1278 ◽

Cited By ~ 2

Author(s):

B. Robert Owens

Keyword(s):

Social Group ◽

Asylum Seekers ◽

Knowledge Work ◽

Case Law ◽

The United States ◽

Federal Courts ◽

Courts Of Appeals ◽

Statutory Interpretation ◽

Refugee Status ◽

Legal Concepts

This article explores the settling and unsettling of legal concepts in relation to refugee-status determination. To gain admission to the United States, asylum seekers are required to demonstrate a well-founded fear of persecution on the basis of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Accordingly, many political asylum claims turn on the interpretation of “particular social group.” This article examines case law disputes in the federal courts of appeals over the meaning of that phrase and describes how statutory interpretation by judges has contributed to the persistence of such disputes over several decades since the passage of the 1980 Refugee Act. My analysis reveals the tensions between different forms of rationality at play in judicial statutory interpretation and applies the concept of legal settling to a new empirical domain.

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