Federal Appellate Courts Research Articles

Case Vectors: Spatial Representations of the Law Using Document Embeddings

Recent work in natural language processing represents language objects (words and documents) as dense vectors that encode the relations between those objects. This paper explores the application of these methods to legal language, with the goal of understanding judicial reasoning and the relations between judges. In an application to federal appellate courts, we show that these vectors encode information that distinguishes courts, time, and legal topics. The vectors do not reveal spatial distinctions in terms of political party or law school attended, but they do highlight generational differences across judges. We conclude the paper by outlining a range of promising future applications of these methods.

Choice of Law in the American Courts in 2017: Thirty-First Annual Survey

This is the Thirty-First Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States. Its purpose remains the same as it has been in the previous 30 years: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2017 and posted on Westlaw by December 28, 2017. Of the 1,432 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law.

Selected Recent Major Federal Environmental Decisions, 2018

This paper describes selected environmental decisions issued by U.S. Supreme Court and federal appellate courts during the the 2017-18 term, focusing on the Takings and Due Process Clauses, and the Endangered Species Act, National Environmental Policy Act, and Safe Drinking Water Act.

Gathering and Examination of Evidence in Russian and American Constitutional Litigation

This article attempts to critically assess the gathering and examination of evidence in Russian and American constitutional litigation. With references to case law of the Russian Constitutional Court and the United States Supreme Court, the author demonstrates that the properties of judicial review of legislation have significantly shaped the basic elements of constitutional fact-finding. The general idea of the article is that owing to the practice of «in-house» re-search conducted by the Russian Constitutional Court, constitutional justice in Russia tends to be inquisitorial, whereas judicial review of legislative actions exercised by American trial courts basically complies with the adversarial principle. At the same time when it comes to constitutional litigation in federal appellate courts and the United States Supreme Court, one can observe a clear deviation from the adversarial principle and notice investigative traits that appear to be at odds with the American concept of justice. Also in both countries there exists a similar negative trend associated with constitutional reasoning based on evidence that was not tested by parties in the course of constitutional proceedings.

Law and the Epistemology of Disagreement

This Article identifies an anomalous discrepancy between law and epistemology and proposes a way to fix it. Our legal system relies on decisions of multimember tribunals, which include juries, state and federal appellate courts and supreme courts. Members of those tribunals often disagree with each other on matters of fact. When this happens, the system settles the disagreement by applying head-counting rules: the unanimity or supermajority requirement for jury verdicts and the majority rule for judges’ decisions. Under these rules, jurors can return an agreed-upon verdict even when their reasons for supporting that verdict are inconsistent with one another. Similarly, judges are authorized to deliver any decision so long as it is supported by a majority of the panel. Disagreements among judges and jurors are consequently ironed out instead of being accounted for as a factor that reduces the reliability of the contested decision. By adopting these rules, our legal system allows jurors to convict the defendant when six of them believe the incriminating account provided by one witness, while rejecting as incredible the testimony of another prosecution witness, and the remaining six jurors form a diametrically opposite view of the two witnesses’ credibility. Moreover, the system authorizes appellate courts to determine by a narrow 2-1 majority that a violation of the accused’s constitutional trial right was “harmless beyond a reasonable doubt.” Likewise, it accords the status of an unreservedly binding precedent to a 5-4 decision of the United States Supreme Court that determines the meaning of a statutory or constitutional provision. These rules are fundamentally incompatible with the epistemological principles of rational fact-finding. The epistemology of disagreement has recently given rise to a simple, yet powerful, analytical insight: when a person makes a factual finding based on all available information and then realizes that an equally informed and honest individual — an “epistemic peer” — arrived at a different conclusion, she ought to scale down her level of confidence in her own opinion. A peer’s disagreement is evidence writ large that a person cannot rationally ignore or discount. Rather, she must give it weight and revisit her original opinion. Under this epistemological mandate, jurors’ guilty verdict cannot be considered unanimous when their reasons contradict each other; a dissent by a single appellate judge should preclude her two colleagues from making a finding that must satisfy the “beyond a reasonable doubt” standard; and a precedent laid down by a narrow majority of the Supreme Court Justices should remain open to reconsideration. When truth is important and the cost of error is high, law and epistemology should work in tandem. Our legal system therefore will do well to heed the lessons of epistemology.

APA's amicus curiae program: Bringing psychological research to judicial decisions.

An important part of the American Psychological Association's (APA) mission is to advance psychological science "to promote health, education, and public welfare." Organizations with powerful influence on human welfare include state and federal appellate courts, especially the U.S. Supreme Court. Initially, APA's amicus briefs focused on issues of importance to both individual psychologists and public policy. As the program evolved, APA increasingly focused on informing the courts about psychological science relevant to important legal issues, including criminal, civil, juvenile, education, disability, and human rights law. These briefs, and the science that supported them, consistently challenged stereotypical beliefs of laypeople with solid, easily understood empirical research. APA impartially advocates for the use of psychological science research findings by the courts, not on behalf of parties. Volunteer experts, including representatives of relevant APA divisions, participate in creating APA briefs. On occasion, other scientific organizations may join with APA in its filings. The measure of an amicus brief is broader than citations in appellate decisions. Although APA's briefs have been cited many times by courts, a broader impact of APA briefs is seen by references to psychosocial research provided by APA in decisions where its briefs were not specifically cited. APA briefs are being read and are affecting major legal decisions. For APA, the relevant question is not whether its briefs "prevailed" in a case but whether the court was able to render a more informed decision. An important benefit of APA's amicus program has been advancing both the reputation of psychological science and APA. (PsycINFO Database Record

State Court Papers in the United States: A 50-State Guide

This study grew out of my on-the-job blogging. At both the Charleston School of Law and the J. Rueben Clark Law School, I read every opinion from the state and federal appellate courts with jurisdiction over South Carolina and Utah respectively, summarizing the binding authority and posting those summaries online at the Barrister blog and the Binding the Law blog. This has served as excellent current awareness and bar preparation service to the law school communities and a research tool to the legal community generally.

Major Federal Environmental Decisions, 2017

This paper describes key environmental decisions issued by federal appellate courts and the SCOTUS during the 2016-17 term, focusing on the ESA, NEPA, and the standing doctrine.

Why and How the Supreme Court Should Have Decided O’Bannon v. NCAA

Despite requests by both parties, the U.S. Supreme Court refused to grant a writ of certiorari in O’Bannon v. NCAA, the first federal appellate court decision holding that an NCAA student-athlete eligibility rule violates Section 1 of the Sherman Act. The Ninth Circuit ruled that NCAA rules prohibiting intercollegiate athletes from receiving any revenue from videogames and telecasts incorporating their names, images, or likenesses unreasonably restrain economic competition among its member universities in the college education market in which these athletes purchase higher education services and sell their athletic services, which violates federal antitrust law. Circuit court rulings conflict regarding whether student-athlete eligibility rules are commercial restraints subject to the Sherman Act, and lower courts have inconsistently interpreted and applied NCAA v. Board of Regents of University of Oklahoma, the Supreme Court’s only intercollegiate athletics antitrust law precedent. The Supreme Court’s refusal to resolve this conflict continues the significant judicial confusion regarding how antitrust law constrains the NCAA’s governance of intercollegiate athletics, which has evolved into a multi-billion-dollar part of the entertainment industry with millions of fans and more than 460,000 student-athletes. Its decision not to do also creates uncertainty regarding how lower courts will resolve pending antitrust challenges to other NCAA amateurism rules and input market restraints such as limits on the duration and maximum number of athletic scholarships per sport as well as transfer rules. This article makes some recommendations for applying Section 1 to NCAA student-athlete eligibility rules and input market restraints, which will better promote consumer welfare, protect student-athletes’ economic rights, and permit the NCAA to promote the unique features of intercollegiate sports without unwarranted judicial micromanagement.

When Divergent Regulation Turns Reserve Banks into Policymakers

This article describes the emerging between regional Federal Reserve banks as they are faced with questions regarding banks serving state-licensed marijuana businesses. The article provides detailed background on the legal conflicts that result from the movement by some states to legalize both recreational and medicinal marijuana businesses while federal law prohibits financial institutions from serving them.The focus of the article then shifts to the Federal Reserve System, which has become a critical player in the financial regulatory response to marijuana banking because of the regional Feds' gatekeeper role in the payment system. The article provides new analysis of recent court rulings regarding the Kansas City Fed’s blocking of a Colorado credit union organized to serve marijuana customers from accessing the payment system and how that contradicts actions taken by the San Francisco Fed, which has generally allowed access to financial institutions serving marijuana firms. The article concludes by analogizing the opposing actions of the two reserve banks to a circuit split as it occurs between federal appellate courts and concludes that although it was not the intent of Congress to provide individual reserve banks policy-making authority, once that authority is recognized, it may extend beyond marijuana.

Neuropsychologist Experts and Civil Capacity Evaluations: Representative Cases.

Clinical neuropsychologists accept more forensic referrals now and spend more time in forensic consulting than ever before. Recent surveys show weekly hours devoted to forensic consulting increased 97% in the past decade. During the same time period, the number of board certified neuropsychologists more than doubled. Under recently published Specialty Guidelines for Forensic Psychology, clinical neuropsychologists practice forensic psychology when applying scientific, technical, or specialized knowledge of neuropsychology to the law to assist in addressing legal, contractual, or administrative matters. Among those increasingly varied forensic referrals, clinical neuropsychologists are conducting more civil competency and capacity evaluations. Representative cases from three jurisdictions demonstrate how neuropsychologists provide expertize in matters involving testamentary capacity, contractual capacity, business judgments, and job capacity. Case presentations illustrate some of the strengths and weaknesses of neuropsychological evaluation of civil capacities. The article concludes with a "battle of experts" case involving five neuropsychologists with opposing opinions recently heard in a Federal Appellate court. Implications for neuropschology training and forensic competencies are considered. In offering quality services to the legal profession, neuropsychologists support the truth-seeking function of the judiciary, promote justice, protect the profession, and serve public policy.

Don't Get Thrown Out On YourDerrière: Common Mistakes In Establishing Federal Subject-Matter Jurisdiction

IN federal court, subject-matter jurisdiction is a magic bullet. Jurisdictional problems are particularly pernicious (to the verdict winner) or useful (to the verdict loser) because they can never be waived, the court must address any potential jurisdictional defect it notices, and an incurable jurisdictional defect requires the judgment to be thrown out. We review some common defects in federal subject-matter jurisdiction and potential ways to fix them. (1) I. Why Defects In Subject-Matter Jurisdiction Can Destroy Your Victory (Or Save You From Defeat) courts are courts of limited jurisdiction [,] possessing that power authorized by Constitution and statute.... (2) At every stage of litigation, a federal court is required to confirm that it has jurisdiction, and to dismiss the claim if it lacks jurisdiction. (3) court generally may not rule on the merits of a case without first determining that it has subject-matter jurisdiction. (4) If it appears that the court lacks subject-matter jurisdiction, it must dismiss the action. (5) This rule holds even after final judgment has been entered and an appeal filed. federal appellate court is required to evaluate both its own jurisdiction and that of the district court. If the district court lacked jurisdiction, the appellate court must vacate the judgment: [E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it. And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit. (6) A litigant generally may raise a court's lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance. (7) Even if a jurisdictional defect is first discovered after trial or after judgment has been entered, it requires the case to be dismissed. (8) Jurisdiction cannot be created by consent or estoppel, or by 'the parties' litigation conduct.' (9) Even a party that initially brought the case to federal court can attack jurisdiction. (10) Federal district courts and courts of appeals take these requirements seriously. Federal Rule of Appellate Procedure 28(a)(4) requires appellants to explain why the district court and court of appeals have subject-matter jurisdiction. Many district courts and courts of appeals instruct their staff to confirm the court's subject-matter jurisdiction at the inception of a case. Indeed, it is not uncommon for a district court or court of appeals to issue a sua sponte order requiring the parties to explain why there is subject-matter jurisdiction, even when no one disputes it. Meticulous attention to the jurisdictional requirements is therefore critical. We outline some common pitfalls in pleading and establishing both diversity and federal subject-matter jurisdiction, and describe some ways to fix them. II. Diversity Jurisdiction A. Background Article III of the U.S. Constitution provides that the judicial power of the United States extends to, inter alia, controversies citizens of different and a state, or citizens thereof, and foreign states, citizens or subjects. (11) Pursuant to this provision, the diversity statute, 28 U.S.C. [sections] 1332, grants federal courts jurisdiction over suits in which the amount in controversy exceeds $75,000 and the dispute is between (a) citizens of different states, (b) citizens of a state and citizens or subjects of a foreign country (excluding lawful permanent residents domiciled in the same state), (c) citizens of different states in which citizens or subjects of foreign countries are additional parties, or (d) a foreign state as plaintiff and citizens of a state or of different states. …

Choice of Law in the American Courts in 2015: Twenty-Ninth Annual Survey

This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States.This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2015, and posted on Westlaw by December 31, 2015. Of the 1,188 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law. The following are some of the cases discussed:--Three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;--A Second Circuit decision resuscitating for now that court’s theory that corporations are not accountable for international law violations under the Alien Tort Statute (ATS), and two decisions holding that the violations at issue did not “touch and concern the territory of the United States . . . with sufficient force”;--Two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;--Several cases refusing (and some not refusing) to enforce choice-of-law and forum-selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;--A New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York’s substantive successions statute;--Several cases involving the “chicken or the egg” question of which law governs forum-selection clauses;--A New Jersey decision ruling on actions for “wrongful birth” and “wrongful life,” and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;--The first case granting divorce to a spouse married under a “covenant” marriage in another state, and a Texas case recognizing a Pakistani talaq;--An Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject matter jurisdiction;--A Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and--A case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.

Heterogeneous Peer Effects on the Federal Appellate Courts

In this paper, I present evidence of heterogeneous peer effects in the federal appellate courts. Prior work on judicial decision-making offers convincing evidence that federal appellate judges are influenced by both personal ideology and the ideologies of the judges with whom they sit to decide cases. It is likely that such peer effects are heterogeneous: that is, that peer influence is not uniform across all judges and all cases. This work uses a random sample of roughly 10,000 federal appellate opinion published over four decades to examine heterogeneity in peer effects across several dimensions. In particular, I find that peer effects are heterogeneous by workload (stronger in court-years with more caseload constraints), by previous experience (stronger among appellate judges with no prior judicial experience), by tenure (stronger among judges in the middle of their careers), and by case type (stronger in cases that are more ideologically-charged). The results paint an incomplete picture of the reasons for panel effects and suggest that many mechanisms might be at play.

Video Games and the Right of Publicity

The right of publicity—the right to control commercial uses of one’s identity—stands in an ambiguous relationship to First Amendment free speech interests. This article explores the origins of the publicity tort, including its recent expansion into domains formerly thought to be protected by the First Amendment. The article then analyzes two questionable rulings from federal appellate courts in 2013. Both cases held that the First Amendment did not protect a video game maker using the personae of college athletes. These rulings carry serious implications not only for video game creators but also for a variety of media entities.

Trailblazers and Those That Followed: Personal Experiences, Gender, and Judicial Empathy

This article investigates one causal mechanism that may explain why female judges on the federal appellate courts are more likely than men to side with plaintiffs in sex discrimination cases. To test whether personal experiences with inequality are related to empathetic responses to the claims of female plaintiffs, we focus on the first wave of female judges, who attended law school during a time of severe gender inequality. We find that female judges are more likely than their male colleagues to support plaintiffs in sex discrimination cases, but that this difference is seen only in judges who graduated law school between 1954 and 1975 and disappears when more recent law school cohorts of men and women judges are compared. These results suggest that the effect of gender as a trait is tied to the role of formative experiences with discrimination.

'Not Reasonably Debatable': The Problems with Single-Judge Decisions by the Court of Appeals for Veterans Claims

The U.S. Court of Appeals for Veterans Claims (CAVC) has statutory authority — unique among the federal appellate courts — to allow individual judges to decide appeals. As the CAVC completes the first quarter century of operations since its creation, this article examines the court’s use of this authority. Based upon two years of data developed and analyzed by the authors, this article concludes that outcome variance in single-judge decisions is a serious problem at the CAVC. Not only is there a substantial difference in the outcomes of appeals assigned to the different judges, but there are clear examples of decisions that violate the court’s precedent against deciding novel issues or debatable cases by a single judge. Based upon the more than 4,000 decisions reviewed, it is recommended that substantial changes must be made in how the court exercises single-judge authority. Alternatively, this authority could be abolished altogether so that the CAVC decides all appeals by panel, as is done by the other federal appellate courts. The near-term goal of reform should be to increase the percentage of the CAVC’s opinions that are published from the current average of under two percent to at least twelve percent (the average for federal courts of appeals). Increasing the number of precedential decisions will not only ensure fairness to all of the veterans appealing to the court, but will also improve the guidance provided to the Department of Veterans Affairs because it would resolve more legal issues and also demonstrate how the court believes the law should be applied to difficult or new fact patterns.

The Un-Precedented Tax Court

Around the turn of this century, a highly-charged debate erupted over unpublished federal appellate court opinions. Some argued that the common prohibition against citation to those opinions posed no constitutional problems, while others argued that no-citation rules improperly eliminated a significant check on the judicial power. This debate might have been expected to reach, but has not yet reached, issues related to the purportedly nonprecedential nature of most Tax Court opinions. Under court practices, Memorandum Opinions nominally lack precedential value. And by Congressional fiat, Summary Opinions cannot be cited as precedent. This Article explores the constitutional and practical problems raised by non-precedential Tax Court opinions. It argues that the Tax Court should abandon the nonprecedential designation of Memorandum opinions, especially because taxpayers, the IRS, Article III courts, and the Tax Court itself frequently treat those opinions as persuasive or binding authority. The Article also argues that Congressional control over the precedential status of Summary Opinions triggers separation of powers problems and that Congress should eliminate its restrictions on those opinions.

Fetal Viability and Twenty-Week Abortion Statutes

The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has ever offered a rationale for the viability rule, and the arguments recited in non-majority opinions are either conclusory or fail to distinguish viability from earlier lines that might be drawn. The most coherent academic attempt to justify the rule — Professor Laurence Tribe’s argument that a woman can “transfer nurture of [a viable] fetus to other hands” — rests on the erroneous assumption that a pregnant woman can arrange for premature delivery of any fetus that has crossed the viability threshold. The viability rule is arbitrary because the capacity of a fetus to survive outside the womb says nothing about the value of the fetus from the standpoint of the state or the burden of pregnancy on the mother, the two interests the rule purports to balance. The arbitrary character of the viability rule is highlighted by evidence that viability can vary for similarly-situated fetuses based on race, gender and irrelevant behavioral and environmental factors. This article contends that the viability rule provides too weak of a constitutional foundation to justify striking down all substantial abortion regulations twenty weeks after fertilization, when the risks of abortion outweigh the risks of childbirth.Over a third of the states in recent decades have enacted legislation restricting abortion after 20-weeks’ gestation. The United States House of Representatives has twice passed a federal 20-week bill and a number of presidential candidates have expressed support for such legislation. Since some fetuses at 20 weeks will be previable, such legislation offers an opportunity to revisit the duration of abortion rights. This article advances four arguments for the constitutionality of a 20-week statute, including three based on current case law or minor modifications to current case law. First, the risks of late-term abortions are so significant that most providers will not perform the procedure after 20 weeks’ gestation. A state should be allowed to adopt a 20-week statute to promote maternal health by channeling women toward safer alternatives like childbirth or earlier abortion. Second, given the uncertainty of viability determinations, a state should be allowed to adopt a 20-week statute to protect viable fetuses from being aborted based on erroneous findings of nonviability. Third, the Supreme Court’s decision in Gonzales v. Carhart allows states to regulate based on new state interests not previously recognized. Interests supporting a 20-week statute — such as drawing a clearer line between abortion and infanticide and preventing fetal pain — should not be subject to the viability rule, which was developed to measure the state interest in protecting fetal life.Fourth, if the Supreme Court finds these arguments unpersuasive, this article contends that principles of stare decisis would support reconsideration of the duration of abortion rights in a case involving a 20-week statute. A federal appellate court panel recently urged the Supreme Court to reconsider the viability line. Stare decisis principles support revisiting a rule applied in earlier cases where the justifications for the rule were “never explored or analyzed in detail.” The uncertainty of a viability determination makes it an unworkable line to regulate medical practice and it is doubtful that many women have relied on abortion rights lasting until viability, rather than a week or two earlier. Decisions in recent decades (including Gonzales) have weakened the doctrinal foundations of the viability rule and factual developments — such as improved information concerning the risks of late-term abortions — would support reconsideration of the rule in a case challenging a 20 week statute.

Retaining public value and public law value in outsourcing

We argue that the proliferation of governance in the public sector has raised questions regarding individual constitutional rights. While some proclaim cost savings and entrepreneurial solutions to vexing social ills, others suspect that these benefits donʼt outweigh the risk of diminished accountability and the loss of constitutional protection over public service production. We propose a new model to examine the relationships between direct government, governance, public value, and public law value. We apply this model to analyze two landmark Supreme Court cases and one contemporary federal appellate court case to explore the ongoing tension between the governance model and public service production. Our findings suggest that enforcible contract language and public-private entwinement can be used as tools to protect constitutional rights in the face of increasing pressure of governance approaches.