Court Of Appeals Judges Research Articles

‘Uncommonly Silly Law’ and Hollow Men: A Critique of the Legalistic Interpretation of Time-Limit Clause by the Kenyan Court of Appeal

The constitution of kenya calls for a shift from literal interpretation to a realist-cum- value oriented approach to statutory interpretation and eschews a positivist interpretation that would view the constitution as value-less or value neutral. The minimalist approach that was in the pre-2010 era (the ‘mechanical or phonographic’) is therefore not in line with the demands of our constitution. By dint of Article 10, judges are not subordinated to the legislature and not merely programmed to pronounce the law like music lyrics. The paper will however show that the court of Appeal judges in Aprim Consultants reduced themselves to mere hollow men empty of the pursuit of substantive justice. Primarily, the paper critiques the way the Court of appeal interpreted a time limit clause to cause an injustice. The paper applauds the approach followed by the High Court which gives effect to the constitutional values and access to justice

Bail pending appeal in Uganda

Article 23(6) of the Constitution of Uganda (1995) provides that an arrested person is ‘entitled’ to apply to court for bail. However, it is silent on the issue of bail pending appeal. Bail pending appeal is provided for in the Magistrates Courts Act, the Judicature Act and the Criminal Procedure Code Act. Although the Supreme Court, the highest court in Uganda, provided criteria for granting bail pending appeal, some high court and Court of Appeal judges, who are bound by the decisions of the Supreme Court, have ignored these criteria. There are conflicting high court, Court of Appeal and Supreme Court judgments on the questions of whether art 23(6) is applicable to bail pending appeal and whether the right to be presumed innocent is applicable to a person who is applying for bail pending appeal. There are notable controversies in the rich jurisprudence of the Supreme Court on bail pending appeal. In October 2020, one of the justices of the Supreme Court held that the Supreme Court does not have the jurisdiction to grant bail pending appeal and that Rule 6(2)(a), which empowers the Supreme Court to grant bail pending appeal, is unconstitutional. In November 2020, another Supreme Court justice granted an applicant bail pending appeal without even referring to her colleague’s decision which held that the court did not have jurisdiction to grant bail pending appeal. This article examines the jurisprudence developed by the courts of Uganda on the subject. The discussion focuses on the following issues: courts with jurisdiction to grant bail pending appeal; the right to bail pending appeal; the presumption of innocence and bail pending appeal; and conditions for granting bail pending appeal.

Bostock, LGBT Discrimination, and the Subtractive Moves

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.

Free Speech in Public Employment: Has the Supreme Court Clarified Matters? An Empirical Analysis of the Impact of Lane v Franks

AbstractWe employ a counterfactual treatment effect analysis to evaluate whether U.S. Courts of Appeals judges have changed their propensity to vote against plaintiffs in public employment free speech disputes following the Supreme Court’s 2015 Lane v Franks decision. In order to ensure a like-for-like comparison of votes before and after the Lane decision we employ a variant of the “straddle” approach, which entails identifying cases caught in the crosshairs of the upper court’s ruling and then comparing the votes with those of cases already decided. Our results underscore the importance of paying close attention to selection effects when evaluating the impact of legal changes on judicial behavior.

What influences the influence of U.S. Courts of Appeals decisions?

In this exploratory study, we develop models of factors that influence the citation or influence of judicial opinions written by U.S. Courts of Appeals judges. Prior studies of citation patterns in the U.S. Courts of Appeals largely focus on the judge's career as the unit of analysis. Not surprisingly, this research suggests judge-level factors tend to influence the degree to which judges' opinions are cited in subsequent decisions. Utilizing a dataset with a random sample of individual cases as the unit of analysis, we compare the effects of judge, panel, and case factors. Overall, while several case-level factors influence the number of citations a case receives, few judge- and panel-level variables affect citation rates. The findings suggest that opinion citation models based on judge- and/or panel-level attributes alone miss the influence of case attributes on citation rates. [ABSTRACT FROM AUTHOR]

Collegial Decision Making in the U.S. Courts of Appeals

In July 2017, I participated with a number of other judges from various courts in both civilian and common law jurisdictions in a conference at All Souls College, University of Oxford, on “Collective Judging in Comparative Perspective.” The purpose of the conference was to explore the internal decision-making processes of modern collegiate courts in a comparative perspective. Participants were asked to share and discuss their respective views from the bench, focusing on procedural rules and conventions within their own judicial systems to facilitate comparative discussion of the themes which arise. In preparation for the conference, I asked every Circuit Chief Judge to fill out a questionnaire regarding how her or his court pursues decision making. After completing my research on collegial decision making and reviewing the survey forms, I wrote this paper, entitled “Collegial Decision Making in the U.S. Courts of Appeals.” In the paper, I note that too often commentators attempt to equate the decision-making practices of the U.S. Courts of Appeals with those of the U.S. Supreme Court. This is a mistake because our organizational structures and judicial responsibilities are strikingly different. And, unlike the Supreme Court, most of the decisions issued by the Courts of Appeals are unanimous. For the terms between 2011 and 2016: The Courts of Appeals issued over 172,000 total decisions on the merits. Only 1.3% of these decisions included a dissent. Less than 1% of the total decisions included a concurring opinion. And 90% of our “published” decisions were issued without a dissent. During the same time period: 56% of the decisions issued by the Supreme Court included a dissent; 40% of the signed decisions included a concurring opinion; and only 46% of the Supreme Court’s decisions were unanimous. The extraordinarily high number of unanimous decisions issued by the Courts of Appeals says a lot about our decision making. This paper explains how Court of Appeals judges pursue their decision-making responsibilities. In particular, the paper considers the methods and quality of collegial decision making in addressing the following questions: What procedures and policies do the courts follow to facilitate decision making? Do decision-making practices facilitate genuine and effective efforts by the judges to reach unanimous decisions? How should we measure the quality of the decisions rendered by the Courts of Appeals? The paper also considers the effects of collegiality on collegial decision making, addressing the need for collegiality; how a court instills and maintains collegiality; and the potential threats to collegiality. The survey responses from the Chief Judges are included in the paper, along with ample data confirming that very few dissenting and concurring opinions accompany the decisions issued by the U.S. Courts of Appeals.

Electoral Cycles among US Courts of Appeals Judges

We find field evidence consistent with experimental studies that document the contexts and characteristics making individuals more susceptible to priming. Just before US presidential elections, judges on the US courts of appeals double the rate at which they dissent and vote along partisan lines. Increases are accentuated for judges with less experience and in polarized environments. During periods of national unity—wartime, for example—judges suppress dissents, especially if they have less experience or are in polarized environments. We show that the dissent rate increases gradually from 6 percent to nearly 12 percent in the quarter before an election and returns immediately to 6 percent after the election. If highly experienced professionals making common-law precedent can be politically primed, it raises questions about the perceived impartiality of the judiciary.

Eight Justices are Enough: A Proposal to Improve the United States Supreme Court

Ever since Justice Scalia passed away last February, the Supreme Court has been composed of eight Justices equally divided among Republicans and Democrats. This paper argues that Congress should permanently set the number of Justices at eight and require that at all times there are four Republicans and four Democrats on the Court. A permanent, evenly-divided Court will work harder to reach narrower decisions in its hardest cases and will be less able to impose its ideological agendas on the American people while at the same still have the tools necessary to maintain the supremacy and uniformity of federal law. To the extent the Justices do deadlock on a case, the issues will be resolved by court of appeals judges who are much more politically, educationally, and geographically diverse than the Justices.This proposal to limit the Court's power, unlike abolishing term limits or requiring a super-majority of Justices to strike down laws, does not require a constitutional amendment (the original number of Justices was six). Although the President could nominate any person he desires, even if it disrupts the Court's balance, the Senate could refuse to confirm any nominee who would lead to one of the political parties having a majority of Justices on the Court. This paper spells out the details of this proposal and explains both how it could be easily implemented and why it benefits both political parties, the Congress, the President, and the American people.Preexisting intellectual commitments or interpretative theories have not and cannot limit the Court's power. It is well past time to experiment with structural changes that will make it more difficult for the Justices to strike down state and federal laws based on ideological disagreement instead of a demonstration of clear inconsistency with the Constitution.

What Matters: Agreement between U.S. Courts of Appeals Judges

Federal courts are a mainstay of the justice system in the United States. In this study, we analyze 387,898 cases from U.S. Courts of Appeals, where judges are randomly assigned to panels of three. We predict which judge dissents against co-panelists and analyze the dominant features that predict such dissent with a particular attention to the biographical features that judges share. Random forest, a method developed in Breiman (2001), achieves the best classification. Dissent is predominantly driven by case features, though personal features also predict agreement.

Sclerotization of the Judiciary: Judicial Exits from The U.S. Courts of Appeals Are Politically Motivated

Using data from 1802 to 2004, I show that U.S. Courts of Appeals judges are less likely to retire in each of the three quarters preceding a Presidential election when the party of the President at the time the judge leaves is different from the party of the U.S. President who appointed the judge. Judges are more likely to resign in each of the four quarters after a Presidential election, when the party of the President at the time the judge leaves is the same as the party of the President that appointed the judge. My results suggest that 13% of retirements and 43% of resignations are politically motivated. Previous research has not found political cycles because they relied on judges’ self-reports or conducted yearly rather than quarter-to-election analysis. I also show that these political cycles have increased in recent years, which may raise concerns about the political evolution of the judiciary.

What Matters: Agreement between U.S. Courts of Appeals Judges

What Matters: Agreement between U.S. Courts of Appeals Judges

What Matters: Agreement between U.S. Courts of Appeals Judges

Federal courts are a mainstay of the justice system in the United States. In this study, we analyze 387,898 cases from U.S. Courts of Appeals, where judges are randomly assigned to panels of three. We predict which judge dissents against co-panelists and analyze the dominant features that predict such dissent with a particular attention to the biographical features that judges share. Random forest, a method developed in Breiman (2001), achieves the best classification. Dissent is predominantly driven by case features, though personal features also predict agreement.

Party Capability and the US Courts of Appeals

AbstractWhile many studies have examined party capability theory, few have empirically examined the potential causal mechanisms underlying the theory. We do this by combining quantitative analyses with qualitative data drawn from interviews with over 60 US courts of appeals judges. We find that the “haves,” or repeat players, hire better lawyers and that these lawyers independently contribute to the success of the repeat players. We also find that the advantages of the haves extend to all parties, though to a lesser extent than the advantages enjoyed by the US government. These results remain robust after controlling for ideology.

Employee Fiduciary Accountability

Recent judgments of the English Court of Appeal have disturbed the conventional view that employment is a status fiduciary relation. Regrettably the analytical departure (specifically the denial of status accountability) was not grounded in sound principle or authority, and fresh uncertainty has been introduced into the law. The matter is significant obviously because employees and employers require a lucid regulation to materially inform their actions. I review the case law to confirm that the fiduciary accountability of employees previously was recognised as status-based. I then identify the trial judgment that crystallised the break from convention and explain why the analysis in that judgment is deficient. I proceed to demonstrate that subsequently certain Court of Appeal judges bypassed the prior jurisprudence, uncritically incorporated the deficient reasoning and failed to identify any other satisfactory justification for the denial of status accountability. Throughout the discussion I will weave in the views of commentators, both to evaluate the policy considerations thought to be relevant and to illustrate the apparently weak comprehension in the employment context of the contours of fiduciary accountability.

Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues?

In this article, we consider whether personal relationships can affect the way that judges decide cases. To do so, we leverage the natural experiment of a child's gender to identify the effect of having daughters on the votes of judges. Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and this is the first article to show that empathy may indeed be a component in how judges decide cases.

Strategy and the Decision to Dissent on the U.S. Courts of Appeals

Though there has been a substantial amount of research on the strategic behavior of legal actors, the literature is rife with conflicting findings. We contribute to this debate by examining whether U.S. court of appeals judges dissent for the purpose of inviting en banc and/or Supreme Court review. We consider key challenges associated with the empirical modeling of strategic behavior related to the selection of an appropriate unit of analysis for study and the consequences of introducing multicollinearity into statistical models. We explore these issues by examining the dissenting behavior of court of appeals judges from 1970–2002. Our findings indicate that court of appeals judges strategically dissent, and that this behavior is seldom captured by traditional quantitative analyses of judicial behavior. Though our focus is on court of appeals judges, we are confident our conclusions inform studies of strategic behavior in a variety of contexts.

Gender and Voting Decisions in the US Court of Appeals: Testing Critical Mass Theory

Although a wide body of research examines whether gender influences judicial decisions, past studies do not analyze whether a critical mass of female judges affects the voting behavior of the US court of appeals. To address this gap in the existing literature, I examine whether a critical mass of female judges influences the voting decisions of court of appeals judges in civil rights and economic activity cases. Providing support for critical mass theory, I find that female judges are more likely to vote liberally in civil rights and economic activity cases when there is a critical mass of female judges.

The June Surprises: Balls, Strikes, and the Fog of War

At first, few constitutional experts took seriously the argument that the Patient Protection and Affordable Care Act exceeded Congress's power under the commerce clause. The highly political opinions of two federal district judges - carefully chosen by challenging plaintiffs - of no particular distinction did not shake that confidence that the act was constitutional. This disdain for the challengers' arguments was only confirmed when the act was upheld by two highly respected conservative court of appeals judges in two separate circuits. But after the hostile, even mocking questioning of the government's advocate in the Supreme Court by the five Republican-appointed justices, the expectation was that the act would indeed be struck down on that ground. So it came as no surprise when the five opined the act did indeed exceed Congress's commerce clause power. But it came as a great surprise when Chief Justice John Roberts, joined by the four Democrat-appointed justices, ruled that the act could be sustained as an exercise of Congress's taxing power - a ground urged by the government almost as an afterthought. It was further surprising, even shocking, that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito not only wrote a joint opinion on the commerce clause virtually identical to that of their chief, but that in writing it they did not refer to or even acknowledge his opinion. Finally surprising was the fact that Justices Ruth Bader Ginsburg and Stephen Breyer joined the chief in holding that aspects of the act's Medicaid expansion were unconstitutional. This essay ponders and tries to unravel some of these puzzles.

Penny Darbyshire: Sitting in Judgment: The Working Lives of Judges

This book represents a massive undertaking by a single researcher over a period of almost 10 years. After conducting three pilot studies, Penny Darbyshire shadowed 40 judges for at least 4 days each, interviewed them, interviewed a further 37 others and had informal conversations with hundreds more during the course of the research. The bulk of the fieldwork was conducted during 2003–2005, with some observations continuing annually and information updated to 2011. Her sample encompassed salaried judges at all levels of the judicial hierarchy, from District Judges (Magistrates Courts) to Justices of the Supreme Court. Darbyshire’s professed aim in the book is ‘‘to paint a portrait of all types of judges and judicial work, including the routine’’ (2). In this she succeeds. The reader gains a clear picture of the different work of District Judges, Circuit Judges, High Court judges, Court of Appeal judges and Supreme Court judges, in criminal, civil and family jurisdictions. What all judges seem to have in common, according to Darbyshire’s account, is that they are hard working, enjoy their jobs, and are under-appreciated. They are nothing like the pompous, out-of-touch, sexist old fools of media caricature. Indeed, because of their constant exposure to the consequences of social exclusion and unhelpful government policies, they have more of a tendency towards left-liberalism (146). What the book also exposes is the creaking state of the justice system in England and Wales. With the exception of Supreme Court Justices, judges all endure buildings, facilities, staffing, IT provision and working conditions which are inadequate, sub-standard and woefully under-resourced. Their conduct of the business of the courts is also blighted by inefficiency of resource allocation; time-wasting, poor preparation and disregard for case management timetables on the part of lawyers; and increasing numbers of litigants in person.

Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts

In our continuing empirical study of religious liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. Holding other variables constant, the likelihood of success for non-Muslim claimants in religious free exercise claims was 38 percent, while the probability of success for Muslim claimants fell to 22 percent (with the disparity being even higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to receive accommodation that was enjoyed by claimants from other religious communities.Drawing on insights from legal studies, political science, and social and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society along with opposition to groups holding traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. As a new threat to religious liberty, the persistent uneasiness of many Americans about Muslims appears to have filtered into the attitudes of such well-educated and independent elites as federal judges.