Federal Courts Of Appeals Research Articles

Protecting microbes and mathematics

The concept of intellectual property is taking hold. A new Federal appeals court is expanding the power of patents. Billion-dollar infringement cases are making their way through the lower courts, e.g., Kodak is being sued by Polaroid. This short article, reprinted by permission from The New York Times, 13 May 1990, discusses the idea and the belief held by some that the new court is biased.

HIGH COURT RULING ON CHILD ABUSE REJECTS LIABILITY OF LOCAL OFFICIALS

The Supreme Court ruled 6-3 that the Constitution doesn't give an abused child the right to sue local officials for failing to protect the child from physical harm by a parent. In an opinion written by Chief Justice William Rehnquist, the high court said the 14th Amendment guarantee of "due process" doesn't require state or local officials to protect individuals against "private violence." The justices affirmed a federal court's dismissal of a lawsuit filed by the guardian and mother of a Wisconsin boy, Joshua DeShaney, who was beaten into a coma by his father in 1984 when the boy was four years old. The boy suffered permanent brain damage, leaving him retarded. The father was later convicted of child abuse. For two years before the beating that caused the coma, county social-service workers and other local officials received reports from the father's second wife and from local hospitals of signs of child abuse. But officials found no basis to take the boy from his father. The boy's mother and guardian then sued the county officials; their case was dismissed by a federal district appeals court. The chief justice said there is "natural sympathy" for the boy, but added, "It is well to remember . . . that the harm was inflicted not by the state of Wisconsin but by Joshua's father." He said that local officials may have failed to act but that didn't make them liable. Moreover, he said, if they had acted too soon, the father might have sued to block their interference.

Prohibition on Charges for Services of Assistant Cataract Surgeons Upheld by Federal Court of Appeals

A recent decision of the US Court of Appeals in Washington, DC (the DC Circuit) could have major implications for the role of government in medical decision making. Specifically, in the case of New York State Ophthalmological Society v Bowen , 1 the court held that the constitutional right of personal privacy does not extend to a Medicare patient's interest in using private funds to pay for the services of an assistant surgeon during cataract surgery. It therefore upheld a federal statute that makes it unlawful for a physician to charge a Medicare patient for the services of an assistant cataract surgeon (CAS) without prior government approval. BACKGROUND Before 1987, Medicare reimbursed patients for the use of a CAS if such use was the 'generally accepted procedure among ophthalmologists in the local community.' 1(p1381) However, based on the experiences of nine states in which regional carriers had restricted CAS reimbursement, the

Correctional Case Law: 1988

For the eighth consecutive spring issue, the Review presents a selective survey of reported federal court decisions which addressed issues arising in the institutional corrections and detention settings. The present survey concentrates upon the federal courts of appeals, although some district court cases have been summarized where their importance or uniqueness appeared to merit attention. The reader is reminded, as always, that the cases surveyed do not serve as binding precedent beyond their respective jurisdictions, and that some of the decisions are being appealed and are therefore subject to possible modification or reversal.

The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals

Since 1976, every federal appellate court has adopted rules that limit the publication of opinions.1 As a result, only a minority of the federal courts of appeals publish even half of their decisions on the merits.2 Although withholding opinions from publication is meant to reduce or eliminate their applicability to litigation, the large body of unpublished decisions creates a variety of incentives for those litigants who have unusual access to these opinions to use them. The policies reflected by the publication plans do not anticipate these sorts of incentives. Although the rules adopted by the courts of appeals attempt to curtail litigant use of unpublished opinions, the controls do not work because these mechanisms restrict only certain uses usually of the most overt kind such as citation. Not only do the appellate rules fail to destroy the usefulness of unpublished opinions, they also exacerbate the advantages that the selective publication plans give frequent litigants. This article discusses the courts' adoption of the limited publication plans and analyzes the methods used by the courts to discourage the use of unpublished opinions. It also discusses the results of a survey conducted to determine if, and how, government litigants some

Recent Legal Developments

For the sixth consecutive year the Review offers a selective survey of developments in correctional law. Summaries of lower federal court cases are presented in three sections. Summarized in Section I are selected decisions drawn from reporters published subsequently to the cut-off date for cases included in the previous summary. Section II consists exclusively of summaries of significant cases decided by federal courts of appeal during 1986. Section III provides brief notations on selected federal district court cases from 1986. The reader is reminded that these decisions do not serve as binding precedent beyond the jurisdictions in which they were decided. Some of the decisions are being appealed and thus are subject to modifications or reversals. Section I was prepared by students in the Criminal Justice degree programs at Georgia State University, with primary responsibility having been assumed by members of the Phi Omega Lambda Chapter of Lambda Alpha Epsilon. Sections II and III were prepared by James L. Maddex, Jr., Professor of Criminal Justice and Legal Studies at Georgia State University.

LEGAL ASPECTS OF RESERVOIR RELEASES

ABSTRACT The primary goal of the Clean Water Act is “to restore and maintain the chemical, physical and biological integrity of the nation's waterways.” One measure of that integrity is the dissolved oxygen content of water, which can be dangerously altered by the structure of dams and hydroelectric plants. However, two federal courts of appeals have held that Congress did not intend to regulate the destructive discharges of dams under the Clean Water Act. This paper briefly describes the relationship between dissolved oxygen and water quality and explains how dams and hydroelectric facilities pollute the surrounding waters. The paper concludes that the erroneous decisions of the two circuit courts are serious threats to the economic viability and biological integrity of the nation's waterways. Actions by both Congress and the Environmental Protection Agency are suggested.

First Amendment Rights of Government Employees: A Primer for Public Officials

In 1967 the United States Supreme Court, in Keyishian v. Board of Regents, rejected on First Amendment grounds the premise . . that public employment may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action.' Keyishian dealt with the narrow issue of what have come to be known as loyalty oaths (i.e., a denial, disclosure, or renunciation of membership in a subversive organization) imposed as a precondition of public employment. Nevertheless, in the years since 1967 the general principle as to the sanctity of the constitutional rights, and in particular the First Amendments rights, of public employees set forth in that landmark case has been substantially expanded by the federal judiciary. Among the many offspring of Keyishian, none has attracted more attention, or caused more alarm in the public administration community, than the U.S. Supreme Court's decisions in Elrod v. Burns and Branti v. Finkel.2 The present and potential impact of those two cases on the institution of patronage employment and the public personnel management process would be difficult to overestimate. However, the question of the effect of the First Amendment rights of government employees on the public personnel management function extends well beyond the issues raised by Elrod and Branti. To operate effectively in the public sector today, wellinformed public officials must have an understanding of the full range of the limitations placed upon their authority in personnel-related matters by the 1st Amendment to the Constitution. Accordingly, it is the primary purpose of this article to provide a comprehensive working guide, based on relevant decisions of the U.S. Supreme Court and those of the various federal circuit courts of appeals, to principal First Amendment rights of public employees. Because the scope of the analysis below is limited to the constitutional rights of

Law-medicine notes. Exclusive hospital-medical service arrangements for anesthesiology: antitrust consequences.

HOSPITALS throughout the United States have long been making various types of exclusive service arrangements with physicians and other suppliers of goods and services. These arrangements have generally been encouraged by the health-planning agencies when hospital costs have been reduced or the quality of services has been improved. In recent years, however, the heavy shadow of the antitrust laws has fallen over these practices. The shadow took on substance last year when the federal court of appeals found an exclusive arrangement for anesthesiology services in a New Orleans hospital to be an illegal tying agreement — a per se violation . . .

Between Legal Realism and Neutral Principles: The Legitimacy of Institutional Values

It is a challenging invitation to participate in Berkeley's Centenary Lectures dealing with the nature of the rule of law. My perspective is that of the judge. So when I venture to offer some thoughts about the rule of law, I focus on law as it is pronounced by judges. The matter I will explore is the age-old inquiry as to what it is that a judge is doing when he or she endeavors to a case, especially a close case presenting a choice between two plausible, indeed, respectable, contentions of law. In considering this topic already pondered by so many, the most I can expect is to illuminate some small aspect of the matter. It would be presumptuous to claim to be doing more. So, despite the breadth of the topic, my concern will be rather narrow-a modest effort to suggest some of the considerations that I believe judges have in mind when they decide issues of law, especially nonconstitutional issues. To confine my focus primarily to nonconstitutional issues is admittedly to withdraw from the great debates that have raged concerning the nature of the adjudication process as practiced by the Justices of the Supreme Court. I think my narrower focus is justified by several considerations. First, the body of decisional law that constrains all judges other than Supreme Court Justices is dominated in important respects by the authoritative pronouncements of the Court. For the Justices, their own rulings are precedents available for refinement, reconsideration, and, on occasion, rejection. For the rest of us, they are precedents to be followed. Second, adjudication of constitutional issues, especially by the Supreme Court, involves consideration of a range of values of constitutional dimension, far broader in scope than the concerns that bear on most of the nonconstitutional questions adjudicated in the federal courts of appeals, the federal district courts, and the state courts. Finally, the day-to-day activity of judges serving on these courts is largely devoted to nonconstitutional business; it is therefore worth considering what influences these decisions, even if such inquiry sheds

The Evolution of Litigation in the Federal Courts of Appeals, 1895-1975

This article examines the business of three United States Courts of Appeals over the course of their history. The courts selected for study were the northeastern Second Circuit, the deep south Fifth Circuit, and the west coast Ninth Circuit. A random sample of 50 cases was drawn for each circuit for every fifth fiscal year beginning with 1895 and ending with 1975. The sample years were aggregated into four time periods: 1895-1910, 1915-1930, 1935-1955, and 1960-1975. The business of the three circuits was found to have changed substantially from the 1895-1910 time period to the modern period. In the earlier years the circuits had small proportions of criminal cases—with the exception of the Second Circuit—a significant portion of real property cases, substantial proportions of business cases, and significant proportions of tort cases. By the 1960-1975 period a sizable proportion of the business of all three circuits was devoted to criminal and other public-law type cases; there were negligible proportions of real property cases, relatively small proportions of business cases, and even smaller proportions of tort cases. Public disputes replaced private disputes as the major source of the courts' business, and over time there has been a convergence among the circuits in the mix of cases coming to them.

Patterns of Compliance With U.S. Supreme Court Rulings: The Case of Libel in Federal Courts of Appeals and State Supreme Courts

The structure of the American legal system is based upon the principle of federalism. This structure has an inherent tension. The federal and state judiciaries are essentially separated in their jurisdictions; yet, they are also linked by the requirements of the U.S. Constitution as well as U.S. Supreme Court rulings in cases arising from these requirements. Accordingly, while state judiciaries are sovereign in some matters, the supremacy clause makes the Constitution's requirements and the interpretations of them by the Supreme Court supreme. This tension invites examination of the ways in which state courts and lower federal courts resolve cases similar to those decided by the U.S. Supreme Court. Therefore, researchers have sought to clarify the nature of the judiciaries' relations and behavior by analyzing the impact of U.S. Supreme Court rulings on other courts.' Some efforts have been directed toward ana-

Patterns of Compliance with U.S. Supreme Court Rulings: The Case of Libel in Federal Courts of Appeals and State Supreme Courts

Patterns of Compliance with U.S. Supreme Court Rulings: The Case of Libel in Federal Courts of Appeals and State Supreme Courts

Race Bias in the Administration of the Death Penalty: The Florida Experience

T WICE in the past fifteen years, federal courts of appeals I have been urged to reverse death sentences on the ground that the death penalty was administered along racially discriminatory lines. The first time, in Maxwell v. Bishop,' a petitioner submitted data to show discrimination against black offenders. The second time, in Spinkellink v. Wainwright,2 a petitioner submitted data to show bias against murderers of white victims. The Spinkellink data indicated that such offenders were substantially more likely to end up on death row than were murderers of black victims. Both times, the courts refused to find proof of racial discrimination. Data that have since become available, provided by the criminal justice system itself, make it clear that both kinds of discrimination existed.

IMPLICATIONS OF PERFORMANCE APPRAISAL LITIGATION FOR PERSONNEL ECISIONS

Eight prescriptions for performance appraisal systems are considered in the context of case law at the Federal Supreme and Appeals Court level. Numerous cases are cited involving organizations that have violated one or more of the prescriptions. Implications for personnel decision making are discussed.

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.

Responses of Federal District Judges to Court of Appeals Policies: An Exploration

EPMPIRICAL research on the implementation of judicial policies has contributed substantially to our understanding of the American judicial process. But its contributions are limited by the narrowness of its focus. Typically, studies have examined response to single dramatic decisions of the Supreme Court on constitutional civil liberties issues. Few studies examine response to policies made by courts other than the Supreme Court, non-civil liberties policies, or judicial policies established in series of little decisions rather than single major rulings.1 This paper reports a study of response to judicial decisions that differs from most of the existing research in each of the respects that has been noted. The policies with which it is concerned are the policies of the federal courts of appeals on the legal standard of patent validity between the late 1930s and the early 1970s, policies which differed among circuits and which changed over time in particular circuits. The question that it seeks to answer is the extent to which this variation in policy at the appellate level can help to explain policy variation in the federal district courts, the direct subordinates of the courts of appeals. This question differs substantially from the question of compliance that is central to most studies of response to judicial decisions. The findings of this study will tell not about compliance with individual rulings but about the more diffuse impact of appellate policies on the corresponding policies of lower courts. Because of this different perspective, the study may be able to shed some new light on hierarchical relationships within the judiciary. Patent policy is a relatively obscure field, so a brief description of the courts' role in this field will be helpful in understanding the analysis to follow.2 Patent litigation generally involves disputes between patent owners, patentees, and alleged or potential violators of their patent rights. Most cases are actions for patent infringement, violation of the rights of exclusivity attached to a patent. Of the issues that may arise in patent cases, the most significant for public policy is the validity of the patent in question. Most defendants in patent suits raise as a defense the claim that the patented invention fails to meet the statutory requisites for the receipt of patent rights in effect, that the Patent Office erred in issuing a patent. The federal patent statute provides judges with general criteria for the determination of validity, but these criteria leave room for considerable discretion; a court may interpret the criteria to demand a rigorous or a lenient standard of validity. The courts'

Resolution of Appellate Litigation

Appellate courts—both state and federal—have experienced dramatic increases in court business since 1960. A popular policy for meeting this demand has been to encourage litigants to end their disputes short of decision by the judges. This article reports the results of the first controlled experiment in the federal appellate court system to test the efficacy of two innovative court procedures designed to meet the litigation explosion swamping the federal courts of appeals: court-supervised confer ences with appellate advocates and court-issued orders to control the speed of the appellate process in individual cases. Both procedures are radical departures from traditional practice. The results from the experiment indicate that the procedures did not significantly reduce appeals, produced negligible improvement in case quality, and had mixed effects in expediting the appellate process. The evidence from the experiment weakens the theory that gave birth to the policy. Nevertheless, further controlled experimentation under different conditions is essential in order to deter mine whether and to what extent the policy can be effective.

Police Response to Appellate Court Decisions: Mapp and Miranda

Policy Studies JournalVolume 7, Issue s1 p. 425-431 Police Response to Appellate Court Decisions: Mapp and Miranda Lawrence Baum, Lawrence Baum LAWRENCE BAUM teaches political science at Ohio State University. His current research includes an historical and comparative study of the federal courts of appeals. He is also interested in regulation of access to the courts and in the behavior of specialized courts.Search for more papers by this author Lawrence Baum, Lawrence Baum LAWRENCE BAUM teaches political science at Ohio State University. His current research includes an historical and comparative study of the federal courts of appeals. He is also interested in regulation of access to the courts and in the behavior of specialized courts.Search for more papers by this author First published: December 1978 https://doi.org/10.1111/j.1541-0072.1978.tb01788.xCitations: 1Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Citing Literature Volume7, Issues1December 1978Pages 425-431 RelatedInformation

The Civil Appeals Management Plan: An Experiment in Appellate Procedural Reform

Today, it is common to point to the dramatic growth in the business of federal courts over the last fifteen years.' While growth in court business is nothing new,2 the increase in the workload of the federal courts of appeals during the last two decades has been unprecedented.3 Demands for the services of the federal appellate courts seem to have outstripped the available supplies. In an effort to deal with the problem, the United States Court of Appeals for the Second Circuit, under the direction of Chief Judge Irving R. Kaufman, decided to experiment with an idea that might avoid both the Scylla of taking appellate shortcuts 4 and the Charybdis of increasing the number of judges beyond its present, and perhaps optimal, level 6 of nine active appellate judges. In Judge Kaufman's experience, many of the civil cases appealed to the Second Circuit seemed amenable to resolution short of a decision on the merits by a panel of appellate judges. Although no court of appeals had ever made efficacious and systematic use of preheating conferences to encourage informal dispute resolution, rule 33 of the Federal Rules of Appellate Procedure seemed to provide sufficient authority for court-ordered settlement discussions at the appellate level.6 Judge Kaufman reasoned that intervention