What is the meaning of an appellate court’s “reversal rate”? Opinions vary. (My view, expressed, succinctly, is “basically nothing.”) However conceived, we ought to at least be measuring reversal correctly. But two lawyers at Hangley Aronchick, a Philadelphia law firm, think that scholars (and journalists) have conceptualized reversal in entirely the wrong way.
According to John Summers and Michael Newman, we’ve forgotten that every case the Supreme Court takes implicitly also considers shadow cases from other circuits ruling on the same issue — that is, the Supreme Court doesn’t just “reverse” the circuit on direct appeal, it also affirms (or reverses) coordinate circuits while resolving a split. Thus, both our numerator and our denominator have been wrong. They’ve written up the results of this pretty interesting approach to reversal in a paper you can find blurbed here. Among the highlights: (1) reversal is less common that is commonly supposed; (2) the Court doesn’t predictably follow the majority of circuits; (3) there are patterns of concordance between circuits in analyzing issues; and (4) even under the new approach, the ninth circuit is still the least loyal agent of the Supreme Court.
I think that this method has real promise, and I bet that folks who are interested in judicial behavior will want to check it out.