U.S. Government Litigation Strategies in the Federal Appellate Courts

Abstract

I examine the decisions of the Department of Justice appellate sections and the Office of the Solicitor General to appeal unfavorable U.S. court of appeals decisions to which the federal government is a party during 1993 and 1994. I hypothesize that factors relating to the cost, reviewability and likelihood of victory in the appeal will be influential in the government's decision, and that the influence of each of these types of factors will vary depending upon the actor making the decision. Multivariate analysis supports these hypotheses, indicating that those factors which have been shown to influence both the Court's decision to grant certiorari and its decisions on the merits also operate in the government's decision to bring an appeal. Overall, my research suggests that the case selection process has a substantial influence on the success of the United States in the federal appellate courts.