Marin Levy’s Judging Justice on Appeal in YLJ

Professor Marin Levy has a superb review of Injustice on Appeal: The United States Court of Appeals in Crisis written by my colleague William Reynolds and William Richman. Professor Levy is spot on when she says that “[o]ver the past thirty years, no one has contributed more” to the study of the federal judiciary and its crisis of its crushing workload “than two court scholars together—William M. Richman and William L. Reynolds.” As she notes: “Through a series of critical articles,Richman and Reynolds were able to pinpoint the precise effects of the caseload crisis, both on litigants and the system as a whole. Furthermore, they were able to show the interplay of these various effects, providing a holistic account of the problem in a way that no one else had done.” In her view, their “recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, stands as a culmination of their earlier work, bringing together vital analysis of the caseload crisis, the ways in which appellate review has suffered as a result of that crisis, and potential solutions. More broadly, Injustice on Appeal stands as one of the most comprehensive and thoughtful accounts of the largest problem facing the federal judiciary today.”Injustice on Appeal

In her review published in the Yale Law Journal, Prof. Levy concludes:

The story of Injustice on Appeal is one of ever-shrinking resources—the courts of appeals have had to perform the same set of critical functions with fewer and fewer means per appeal to do so. Yet there is another story here as well about the resources of the academy. Legal scholars in general spend a great deal of time devoted to theory and doctrine. And yet, we spend relatively few resources on studying the institutions that make up our legal system, particularly on the twin positive and normative questions about how they actually function and how they should function. Richman and Reynolds’s work serves as a call to arms for the academy to take up these critical inquiries.

Ultimately, Richman and Reynolds have provided a great deal for court scholars following in their wake. They have carefully and thoughtfully delineated the largest problem facing the federal judiciary in the past several decades—one that affects tens of thousands of litigants each year. With the quality of overall judicial review in doubt, it is for the academics to carefully study—using both qualitative and quantitative tools—the use of court practices. From judicial voting rules to visiting judges, from mediation to staff organization, there are numerous areas ripe for academic review about how to improve judicial review. In Injustice on Appeal, Richman and Reynolds have laid the groundwork; it is up to the next generation of court scholars to find the way.

Professor Levy has made her own formidable contributions to the discussion that Profs. Reynolds and Richman have been engaging in for a better part of 30 years. Her work includes “Judging the Flood of Litigation,” 80 U. Chi. L. Rev (2013), “Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals,” 82 Geo. Wash. L. Rev. 401 (2013), “The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts,” 61 Duke L. J. 315 (2011), and “The Costs of Judging Judges by the Numbers,” 28 Yale L. & Pol’y Rev. 313 (2010) with Kate Stith & Judge José A. Cabranes. Those interested in figuring out how to solve the problems facing the judiciary will do well to follow her work.

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1 Response

  1. GCW321 says:

    I haven’t read the book yet, but I read Prof. Levy’s review. One question I had was whether Reynolds & Richman are right in their diagnosis of the unofficial two-track system of appellate review. Judging from the book review, it appears that Reynolds & Richman assume that if a case is resolved without oral argument and without a precedential opinion, then it must have received comparatively cursory judicial review.

    I’m not sure that assumption is accurate. Based on my experience as an appellate clerk, I’d guess that most cases (pro se cases perhaps excepted) receive roughly the same level of review — and it is only at the conclusion of that review that the judges decide that the case does not merit argument or a published opinion. That is, the clerks and judges scrutinize each case, and only upon finding that a case doesn’t present any particular close or unsettled issues do they decide that summary disposition is warranted. The fact of summary disposition doesn’t necessarily indicate lesser scrutiny on the front end.

    Of course, I’m basing that on my own limited experience. But I’d be curious to know if Reynolds & Richman have data to back up their claims, or are largely inferring a system of lesser review from the ultimate disposition of the cases.