Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals

by Jonathan M. Cohen

Overview

Inside Appellate Courts is a comprehensive study of how the organization of a court affects the decisions of appellate judges. Drawing on interviews with more than seventy federal appellate judges and law clerks, Jonathan M. Cohen challenges the assumption that increasing caseloads and bureaucratization have impinged on judges' abilities to bestow justice. By viewing the courts of appeals as large-scale organizations, Inside Appellate Courts shows how courts have walked the tightrope between justice and efficiency to increase the number of cases they decide without sacrificing their ability to dispense a high level of justice.
Cohen theorizes that, like large corporations, the courts must overcome the critical tension between the autonomy of the judges and their interdependence and coordination. However, unlike corporations, courts lack a central office to coordinate the balance between independence and interdependence. Cohen investigates how courts have dealt with this tension by examining topics such as the role of law clerks, methods of communication between judges, the effect of a court's size and geographic location, the role of argumentation, the use of visiting judges, the significance of the increasing use of unpublished decisions, and the nature and role of court culture.
Inside Appellate Courts offers the first comprehensive organizational study of the appellate judicial process. It will be of interest to the social scientist studying organizations, the sociology of law, and comparative dispute resolution and have a wide appeal to the legal audience, especially practicing lawyers, legal scholars, and judges.
Jonathan M. Cohen is Attorney at Gilbert, Heintz, and Randolph LLP.

Product Details

ISBN-13:	9780472024032
Publisher:	University of Michigan Press
Publication date:	12/10/2009
Sold by:	Barnes & Noble
Format:	eBook
Pages:	248
File size:	5 MB

About the Author

Jonathan M. Cohen is Attorney at Gilbert, Heintz, and Randolph LLP.

Read an Excerpt

Inside Appellate Courts: the Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals

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By Jonathan Matthew Cohen

University of Michigan Press

Copyright © 2002 Jonathan Matthew Cohen
All right reserved.
ISBN: 0472112562

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Chapter 1 - The Bureaucratization of the U.S. Courts of Appeals

A "bureaucratic spectre" haunts the U.S. Courts of Appeals. Over the past forty years, the federal appellate courts have faced repeated barrages of criticism asserting that burgeoning caseloads have caused the court to become bureaucratized, crippling its ability to dispense justice. The threat of bureaucratization is that time pressure and organizational complexity will force judges to emphasize administration at the expense of adjudication and ultimately will cause a decline in the quality of the judicial product. To combat this bureaucratization, there have been numerous proposals to fundamentally change the appellate court system.

Yet the discussion of bureaucratization has been conducted under a veil of ignorance and misinformation. There are few empirically driven studies of the alleged bureaucratization, and the studies that exist have proven inadequate to provide an understanding of the court sufficient to assess potential problems. The bulk of books and articles have been written by court insiders, including judges, judicial clerks, and court personnel. These commentatorsrely on their personal backgrounds and view the ways of other judges through the filtered lenses of their own experiences. As Chief Justice William Rehnquist has said, "each [participant] is in a position to offer only a worm's-eye view of the [judicial process]."

As a result, not enough is known about the way that the court operates to adequately understand the way that it might respond to increasing external pressures such as increased caseloads or increased staff availability. To put it simply, the nature of the court as a complex organization remains a black box with respect to claims about the effects of external pressure. How is it possible to evaluate an alleged bureaucratization of the court without understanding the court's organizational character?

To fully understand how external pressures may affect the court and to evaluate potential changes in the judicial process, it is necessary first to understand how the court functions, what problems are inherent in the court's organizational structure, and what aspects of the court serve to ease these problems. And it is necessary to identify how the court's organizational features affect the ways that judges do their jobs. Only then is it possible to assess how external pressures and internal changes can affect judicial decision making and to assess proposals to alter the court system to accommodate increasing external pressures.

This book seeks to fill in the black box of the court's organizational character. By understanding the court as an organization, it becomes possible to better understand the threat of increasing external pressures and changes in the quality of the court's output and thus to better evaluate proposed changes in the court system designed to remedy those problems.

I. The Concept of Judicial Bureaucratization

What do students of judicial administration mean when they speak of the "bureaucratization" of the judiciary? In the past forty years, federal appellate courts have undergone a "slow, but cumulative, process of change." American courts have witnessed an increasing caseload almost overwhelming in its proportions. The increased demand on federal appellate courts has been accompanied by the addition of many new organizational actors, including increased numbers of law clerks, staff attorneys, and court administrators. Consequently, since at least 1960 there has been an increase in the demands placed on the federal courts, "coupled with a growing reliance on new forms of administration." Critics have termed this increased administrative reliance bureaucratization.

Numerous lawyers, judges, and academic commentators have condemned bureaucratization as harmful to the federal appellate judiciary. Judge Patrick E. Higginbotham, for example, has decried bureaucracy as the "carcinoma of the federal judiciary." Judge Robert S. Thompson has called the costs of bureaucratization "unacceptable." Former Solicitor General Wade McCree has asserted that bureaucratization's costs to the quality of justice are "too high."

Nevertheless, even as it is condemned as harmful, the concept of bureaucratization remains elusive. Commentators generally do not mean bureaucracy in the technical organizational sense. Rather, bureaucracy and bureaucratization refer to the lay concept of bureaucracy as demarking an impersonal, inefficient, delay-encumbered organization.

At the core of the concerns about bureaucratization rest certain assumptions about how courts should operate. Those assumptions regard courts as simple triadic structures in which a neutral third party resolves conflicts between antagonistic parties. This triadic structure acts as a "prototype" of the court in which judges have a high degree of independence from external influences. In that prototypical court, each judge makes decisions alone, in isolation from organizational and political influences. Judicial actions "are defined in terms of the actions, judgment and explanations not of a committee, but of an individual." In that idealized court, judges agonize in isolation in an attempt to "find" the right resolution to the conflicts before them--they do not "create" the law. This judicial independence enables judges to maintain the legitimacy necessary for the success of the judicial enterprise.

When a court becomes bureaucratized, it moves away from the prototypical court in which decisions stem from the "agony of a lonely isolated judge." Rather, decisions stem from a businesslike mass production. The threat of bureaucratization is that courts will undergo "an equivalent of the industrial revolution" in which they will become the "appellate counterpart of the assembly line." A bureaucratized court no longer functions as a collection of "professionally and collegially controlled, semifeudal domains of judges," but rather acts as a modern administrative agency concerned less with justice and more with speed, efficiency, productivity, simplification, and cost-effectiveness in the delivery of judicial services.

Consequently, a bureaucratized court is depersonalized. Instead of providing the best quality of justice, the bureaucratized court must balance the quality of justice dispensed against the time and cost of each case. As a result, bureaucratization brings about increased hierarchical structure, overspecialization, rigid rules and regulations, impersonality, resistance to change, and delegation of adjudicative duties to judicial staff. In a bureaucratized court, judges' administrative responsibilities overwhelm their adjudicative ones, and the rationality of organizational efficiency overwhelms the goal of reasoned justice.

II. The Crisis of Volume as the Cause of Bureaucratization

Bureaucratization remains a salient concern because its perceived causes appear to be on the rise. Court observers commonly claim that increases in case volume, case complexity, and the nature of the caseload have forced the courts to become more administrative and more bureaucratic. As these causes continue to increase, judges must rely more heavily on their staff and on the court's bureaucratic safeguards to keep pace.

As Chief Justice Warren Burger observed, in modern courts, "the function of judges is to deliver the best quality of justice at the least cost in the shortest time." For judges, the "overriding responsibility [is] to decide cases" and the overriding restraint is time. As a result, judges must learn to employ time "effectively and efficiently" without sacrificing the personal attention that legitimizes the judge as a neutral decision maker. Yet in recent years, a vastly increasing caseload has forced judges to increase the number of cases they decide without increasing the time in which to decide them.

Consequently, "[h]owever people may view other aspects of the federal judiciary, few deny that its appellate courts are in a 'crisis of volume' that has transformed them from the institutions they were even a generation ago." Indeed, many legal scholars have decried the caseload stress as having the potential to damage the court system. Chief Justice Burger insisted in his 1971 State of the Federal Judiciary message that "we cannot keep up with the volume of work" for which the Court had become responsible. Yet in the nearly thirty years since his statement, the caseload has continued to steadily increase. Thomas Davies calls the caseload stress "a fact of life in today's appellate courts." Solicitor General McCree called the recent increase in federal litigation "staggering." Judge Richard Posner asserts that the caseload increase constitutes a potentially devastating blow to the appellate judicial process.

The common perception that the caseload has been increasing is far from illusory. Since at least 1960 there has been an "explosion" in the quantity of cases coming to the federal courts. As Judge Posner explained, "The increase in cases filed in the district courts, however dramatic, was dwarfed by the increase in cases filed in the courts of appeals--from 3,765 in 1960 . . . to 29,580 in 1983--an increase of 686 percent." This increase has continued steadily since Judge Posner first published these figures. In 1988 there were 37,524 appeals filed. By 1992 47,013 appeals were filed, and, by 1993 50,224 appeals were filed. By 2000 filings in the U.S. Courts of Appeals attained a record high of 54,697 appeals. (See table 1.)

As table 1 indicates, a greater number of cases has meant that although Congress steadily has increased the number of federal appellate judges, the caseload per judge and the caseload per panel have continued to grow. A mere increase in the number of cases a court must consider, however, does not necessarily indicate an increase in judicial workload. As Judge Posner has pointed out, "if an increase in case filings were associated with a decrease in the difficulty of the average case, the figures of caseload growth would exaggerate the actual increase in the workload of courts." Thus, trends in case complexity may be more important than trends in case volume.

Although empirical measurement of the complexity of individual appeals is less direct than measurement of case volume, it is possible to identify three general underlying factors that indicate the level of case complexity: diversity of the cases on the docket, the complexity of the individual cases heard, and the uncertainty or unpredictability of the cases that might come before the court. As Judge Posner has shown, each of these three dimensions indicates that the courts of appeals face not only a larger caseload but also a more complex one.

Recent developments in caseload composition suggest that this trend will continue. There have been substantial increases in some of the most complex types of cases, such as civil rights claims, personal injury/product liability claims, and prisoner petition appeals. For example, the number of civil appeals has grown substantially, from 11,162 in 1978 to 35,426 in 1997, an increase of nearly 300 percent.

In addition, there have been major changes in the substantive nature of the cases coming before the courts of appeals. For example, the number of appeals of criminal cases has grown from 4,487 in 1978 to 10,740 in 1997, an increase of almost 200 percent (although criminal appeals peaked in 1993 at 11,885). This increase reflects that only convictions could be appealed before 1987, while both convictions and sentences subsequently could be appealed. Nevertheless, between 1988 and 1997 criminal appeals increased from 6,012 to 10,653, averaging an increase of approximately 5 percent each year (although a slight decrease in criminal appeals occurred between 1993 and 1997, with a decline of approximately 9.6 percent).

With few exceptions, scholars accept that the caseload increase has caused the bureaucratization of the courts. McCree asserts that "bureaucratic justice" exists as an accommodation of increasing caseloads. Judge Harry Edwards sees it as "plain that judicial staffs have been enlarged in order to deal with the explosion in federal litigation."

III. The Perceived Consequences of Bureaucratization

Court observers define bureaucratization as harmful to the judicial process, depersonalizing the judiciary, causing judges to spend less time on adjudicative duties and to focus less attention on opinions, and provoking judges to work less collegially. While some judges and commentators claim that these harmful consequences already have come to pass, others warn that continuing bureaucratization potentially will have these effects. Either way, the vast increase in caseload already has produced concern among federal appellate judges. In a 1992 survey of 129 active circuit judges and 59 senior circuit judges conducted by the Federal Judicial Center, 33.5 percent of respondents stated that the volume of civil cases presented a large problem to the judiciary, 37.2 percent of these judges stated that the volume of criminal cases presented a large problem, and 34.6 percent considered the volume of criminal cases to be a grave problem. The study further found that 62.3 percent of the judges considered the increasing complexity of the federal caseload to be problematic. As a result of the caseload, 52.2 percent of the surveyed judges felt that delegation of judges' work to nonjudge personnel had become a problem, 70.8 percent felt that judges have insufficient time for judicial case preparation, and 57.4 percent felt that the impact of the workload on collegiality was problematic. This section considers these perceived consequences of bureaucratization.

The Delegation Dilemma: Increased Reliance on Staff

Bureaucratization commonly is thought to have transformed the judicial process into an administrative process in which judges function as little more than staff managers and opinion editors. The size of the judiciary has increased enormously in the past thirty years. In 1974, there were 97 authorized judgeships. That number jumped to 132 in 1979 and to 156 in 1985. In 1991 the number again increased to 167, where it has remained. Thus, in less than twenty years, the number of judges increased by 72 percent. In 1981 Congress created two new circuits, carving the new Eleventh Circuit out of what had previously been the Fifth Circuit and establishing the Court of Appeals for the Federal Circuit, an appellate court of specialized jurisdiction. Congress currently is considering splitting the Ninth Circuit to create a new Twelfth Circuit. At the same time, the size of judges' personal staffs have increased from one secretary and two clerks to two secretaries and three clerks. Today, federal appellate judges may have as many as four clerks. These trends show no signs of slowing.

As judges use a greater number of staff members--in particular, law clerks--to keep up with the increasing caseload, commentators have expressed concern that the judges must spend more time supervising their clerks and consequently have less time to perform their proper judicial function. The result, some critics assert, is that judges begin to fall into a "judicial torpor" in which they delegate their decision-making power to clerks. These critics aver that when this delegation occurs, judges may become increasingly intellectually lazy, relying on the clerks to rationalize any decisions the judges render. Such commentators argue that when judges rely on clerks for their reasoning, judicial decisions become increasingly arbitrary and opinions become decreasingly precise.

The view is that when judges do their own work, they must be concerned with how each point may be justified. With clerks to assist them, however, judges may act as arbitrarily as they please and then rely on clerks to prepare opinions that "really are just briefs to support a predetermined result." This can hurt the quality of justice because it allows judges to make decisions without needing to consider justifications and thereby precludes an important opportunity for judges to be convinced of the error of their first positions.

These criticisms manifest in the concern that judicial decisions will be more politically motivated and have fewer political checks. The concern is that law clerks will have too much political influence on the way that judges make decisions, leading to an increasingly politicized judiciary. The clerk is increasingly seen as a "legal Rasputin," whispering answers into judges' ears for judges to repeat as their own.

Some observers have suggested that the substantial role of the clerks may allow them to carry significant influence into the judicial process. This potential influence has motivated concerns that clerks inject political and socioeconomic influence into judicial decisions. For example, in 1957, a young William Rehnquist, fresh from clerking for U.S. Supreme Court Justice Robert H. Jackson, asserted that because law clerks tended to be more liberal than the judiciary as a whole, their effect would be to liberalize the judiciary. Therefore, because of a clerk's biases and because of significant clerk influence, the judiciary might become more politically motivated and less legally regulated. This political concern still remains at the heart of the clerk debate.

Overreliance on law clerks may have a "big impact" on the final judicial opinion. First, as discussed earlier, this overdelegation enables judges to make decisions without carefully considering the logical or legal reasons for doing so. While judges traditionally have had to agonize over how a decision can be justified, now they merely can decide the case and ask their clerks to agonize over justifications. Second, delegating the initial opinion-drafting responsibility to clerks may seriously and adversely affect the opinions' clarity and style. Judge Posner, for example, perceives clerk-drafted opinions to be stylistically uniform, colorless, and longer, with superfluous arguments, citations, and quotations. As a consequence, Judge Posner worries that clerk-drafted opinions will be less clear and will lack the greatness that marked the opinions of the great jurists of the past. Finally, Judge Posner worries that the perception that clerks draft opinions will threaten the credibility of judicial opinions.

The Collegiality Question: Relationships among Judges

A second concern is that bureaucratization will undermine the collegiality of appellate courts. Unlike trial courts, appellate courts make decisions in panels of three or more judges. Therefore, the ability of appellate judges to work collectively--to share ideas and work together to produce one decision of the court--becomes very important. Accordingly, appellate judges must adjust their behavior to the fact that they can only adjudicate cases collectively. Appellate judges deliberate together, join together in opinions, and make choices as a group.

The term collegiality contains two separate but related significances. First, collegiality may refer to little more than civility. In that sense, a collegial court is one where its members speak to one another politely and maintain an air of civility in opinions. A second significance of the term collegiality is the more technical and more historically accurate sense in which the court acts as a single unit. In that latter sense, the aim of a collegial court is "to produce performances that could in principle represent the unenhanced effort of a single person, but to bring that performance closer to the ideal." A collegial court's trademarks are "collaboration and deliberation" resulting from a "shift in the agency of performance from the individual to the group."

Thus, collegiality is not synonymous with multimember decision making. Instead, collegiality refers to the continuous, open, and intimate relationship judges share with one another. A collegial court is marked by a lack of competition, pettiness, and enmity, and is measured by cohesiveness, friendliness, and mutual respect. Collegiality is important because it promotes judicial efficiency and a better judicial work product. When a judicial opinion represents a unified and collegial court, it produces clearer and weightier precedent. If a court produces fragmented decisions marked by numerous separate opinions, the circuit's precedent becomes murky.

A common criticism of the institution of law clerks is that they hurt collegiality by isolating judges. As judicial staffs grow, judges will become insulated from their colleagues, dealing with their staffs instead of with other judges, thereby "promot[ing] contentiousness" in courts because "[y]oung, headstrong law clerks are less likely than their judges to be willing to compromise." As a consequence, judges are less likely to be convinced of their colleagues' positions, and opinions become fragmented and unclear.

IV. The Organizational Black Box: Organizational Mediation of Judicial Decision Making

Ultimately, the concern over bureaucratization is that its effects will reduce the court's ability to determine the "right" answer and to explain that answer in a relatively clearly reasoned judicial opinion. As discussed previously, commentators generally believe that bureaucratization has caused, or soon will cause, a decline in the quality of the judicial product. Indeed, this conclusion has a certain logical appeal. It seems sensible that increasing the caseload burden while increasing the court's administrative aspects should result in a decrease in the amount of each judge's attention a case receives and ultimately in the quality of that judge's decision.

Nevertheless, it is not entirely clear that, even to the extent that there has been increasing bureaucratization, there has been any change in the quality of the judicial product. Measuring the quality of justice and the judicial product is an extremely difficult endeavor, and there have been almost no systematic empirical studies to establish whether this perceived effect of bureaucratization has come to pass. A small number of authors, including Heydebrand and Seron in their groundbreaking study of the federal district courts, have attempted to draw conclusions from quantitative empirical trends in such areas as the delay between the filing of a case and that case's termination, the frequency and effects of plea bargaining, dismissals, and the use of juries. Yet there have been almost no attempts to demonstrate empirically whether the quality of appellate justice has suffered as a result of the caseload crisis.

Because of the widely held perception of a decline in the quality of the appellate judicial product and regardless of whether such a change actually has taken place, politicians, pundits, and scholars have recommended revolutionary changes to the courts, ranging from dividing courts into smaller subunits to adding a new level to the federal judiciary to creating new courts with limited substantive jurisdiction. These palliatives are sold as being both necessary to avoid a caseload disaster and effective in doing so. Yet these recommendations cannot be evaluated without a firm understanding of how the appellate courts function as organizations.

It is known that the caseload has been increasing and has become more complex. It is known that the courts produce a greater number of decisions in the same amount of time, and some observers believe that this increase has resulted in a decline in the quality of justice. What is not known is precisely what happens between the inputs to the court (a case is filed) and the court's output (the court issues its decision). Without understanding how the court's organizational nature affects the way that judges make their decisions, it is impossible to understand how changes in the court's organizational nature will affect the judicial process and, ultimately, how such changes may affect the quality of justice. Indeed, it is not surprising that, without a more detailed account of how the court functions organizationally, the perception remains widely held that the departure from the ideal type of the solitary judicial sage has caused a decline in the quality of how courts function.

The organizational nature of the court can define an individual judge's ends and shape the means by which judges strive to accomplish those ends. Thus, the organizational nature of the court serves as a significant source of mediation between the increasing caseload and its consequences. This should be no surprise, as it has long been understood that extrinsic factors such as the court's organizational structure act as an important mediator between the law and the way that cases are resolved.

By "organizational nature," I mean both the organization's formal and informal aspects that affect the decision-making process. By "formal aspects" I follow Lauren Edelman in referring to the "configuration of offices and positions and the formal linkages between them (the 'organizational chart') as well as to formal rules, programs, positions, and procedures." "Informal aspects" refer to "the actual communication channels between offices and positions, the actual behavior of individuals who occupy them, and informal norms and practices."

To fully understand the relationship between the inputs, such as the caseload explosion, and the outputs of the court, such as the collegiality or the clarity of the judicial opinion, it is necessary to understand the court's organizational nature and what problems are inherent in its structure. It is necessary to identify how the court's organizational features affect the ways judges do their jobs. Only then is it possible to assess how external pressures and internal changes can affect judicial decision making and to assess proposals to alter the court system to accommodate increasing external pressures.

This book aims to fill in the black box of the court's organizational character, providing a theoretical framework within which to understand the court as an organization. This framework will help to better understand the threat of increasing external pressure and to better evaluate proposed changes in the court system designed to remedy those problems.



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Table of Contents

Contents Preface and Acknowledgments List of Tables Chapter 1. The Bureaucratization of the U.S. Courts of Appeals Chapter 2. The Organizational Character of the U.S. Courts of Appeals Chapter 3. The Formal Features of the U.S. Courts of Appeals Chapter 4. The Internal Structure of the Appellate Judicial Chambers and the Role of the Law Clerk Chapter 5. Structure and the Interaction among Judicial Chambers Chapter 6. Organizational Culture in the Appellate Judicial Process Chapter 7. Tilting the Balance: Organizational Behavior and Organizational Change in the U.S. Courts of Appeals Index