Federal Appellate Research Articles

Exploring the influence of wealth on judicial decision making

AbstractObjectiveAttention to levels of socioeconomic inequality has given rise to work investigating its potential to influence political actors and, thus, policy outcomes. These studies have focused on elected actors in legislative contexts. Ours fills this gap by assessing the consequences of a judge's wealth on decision making.MethodsWe obtain data on federal appellate judges’ wealth and explore its influence in cases involving economic issues. We estimate logit models controlling for other factors and include fixed effects for circuit, specific issue area, and year of the decision. The models consider both the main effects of wealth and its potential interaction with judicial ideology to influence decision making.ResultsWe find no direct relationship between a judge's wealth and her decision making in economic cases. However, wealth interacts with ideology to exert a significant influence on decision making; here, greater wealth amplifies the ideological predilections of more conservative judges.ConclusionsThis is the first study to document a link between wealth and the choices judges make on the bench. It adds a new dimension to the ways economic inequality can influence political actors and raises new questions about the mechanisms by which such inequality is consequential for elite political behavior.

The impact of the #MeToo movement on language at court A text-based causal inference approach.

This study assesses the effect of the #MeToo movement on the language used in judicial opinions on sexual violence related cases from 51 U.S. state and federal appellate courts. The study introduces various indicators to quantify the extent to which actors in courtrooms employ language that implicitly shifts responsibility away from the perpetrator and onto the victim. One indicator measures how frequently the victim is mentioned as the grammatical subject, as research in the field of psychology suggests that victims are assigned more blame the more often they are referred to as the grammatical subject. The other two indices designed to gauge the level of victim-blaming capture the sentiment of and the context in sentences referencing the perpetrator. Additionally, judicial opinions are transformed into bag-of-words and tf-idf vectors to facilitate the examination of the evolution of language over time. The causal effect of the #MeToo movement is estimated by means of a Difference-in-Differences approach comparing the development of the language in opinions on sexual offenses and other crimes against persons as well as a Panel Event Study approach. The results do not clearly identify a #MeToo-movement-induced change in the language in court but suggest that the movement may have accelerated the evolution of court language slightly, causing the effect to materialize with a significant time lag. Additionally, the study considers potential effect heterogeneity with respect to the judge's gender and political affiliation. The study combines causal inference with text quantification methods that are commonly used for classification as well as with indicators that rely on sentiment analysis, word embedding models and grammatical tagging.

Mapping the Geometry of Law Using Natural Language Processing

Judicial documents and judgments are a rich source of information about legal cases, litigants, and judicial decision-makers. Natural language processing (NLP) based approaches have recently received much attention for their ability to decipher implicit information from text. NLP researchers have successfully developed data-driven representations of text using dense vectors that encode the relations between those objects. In this study, we explore the application of the Doc2Vec model to legal language to understand judicial reasoning and identify implicit patterns in judgments and judges. In an application to federal appellate courts, we show that these vectors encode information that distinguishes courts in time and legal topics. We use Doc2Vec document embeddings to study the patterns and train a classifier model to predict cases with a high chance of being appealed at the Supreme Court of the United States (SCOTUS). There are no existing benchmarks, and we present the first results at this task at scale. Furthermore, we analyze generic writing/judgment patterns of prominent judges using deep learning-based autoencoder models. Overall, we observe that Doc2Vec document embeddings capture important legal information and are helpful in downstream tasks.

Driving Efficiency and Public Confidence: Integrating Quality Management Practices in the Federal Appellate Court System

Driving Efficiency and Public Confidence: Integrating Quality Management Practices in the Federal Appellate Court System

A Survey of the Literature on Federal Appellate Practice and Procedure

This is a survey of the literature related to appellate practice and procedure before the United States Courts of Appeals for the benefit of lawyers and judges and scholars. It is reproduced with permission from THOMAS E. BAKER, A PRIMER ON THE JURISDICTION OF THE U.S. COURTS OF APPEALS (Fed. Jud. Ctr. 3d ed. 2023) available at: https://www.fjc.gov/content/379899/primer-jurisdiction-us-courts-appeals-third-edition). This origin explains the scattered references in the entries to “this Primer.”

Who Shapes the Law? Gender and Racial Bias in Judicial Citations

In this letter, we assess whether the contributions of judges from underrepresented groups are undervalued or overlooked, thereby reducing these judges’ influence on legal policy. Drawing on an original dataset of discretionary citations to over 2,000 published federal appellate decisions, we find that the majority of opinions written by female judges receive less attention from other courts than those by similarly situated men and that this is largely attributable to disparities in citing Black women and Latinas. We also find that additional efforts by Black and Latinx judges to ground their opinions in precedent yield a much lower rate of return in subsequent citations by outside circuits than comparable work by white men and women judges. This suggests that, despite gains in diversification in the federal judiciary, stereotypes about social identities will play a powerful role in determining whose ideas receive recognition.

“In a Religious Celebration”? The Religious Defense of LGBT Rights in U.S. Federal Courts

ABSTRACT This article advances scholarship on the relationship between sexuality, religion, and the law within the United States by analyzing case summaries and court opinions of the federal appellate cases decided between 1990 and 2020 that involve a religion-based claim being used to advance or defend gay and lesbian rights. Contrary to dominant public narratives that position religion uniformly in opposition to progressive sexual values, these cases show how Americans’ religious beliefs and practices include diverse sexual identities. We find that the courts’ reactions to such cases, however, illustrate the tension within legal discourse and hesitancy for the courts to equate religious and moral values with affirming LGBT identities, people, and rights. Our findings suggest that the courts and litigants define what religion is—and what it is not—by positioning it in relation to sexuality.

Art, Music, & Mashups: A View from the Bench on Creativity and Copyright

Creativity has captured human fascination for centuries. It has been said that “[t]here is little that shapes the human experience as profoundly and pervasively as creativity.” But what is creativity? Is it pure originality? Divine inspiration? Clever assimilation of existing ideas? Despite creativity’s central role in human progress, the term eludes finite definition.
 To Plato, creative inspiration was divine. In contrast, Kant thought that creative geniuses were not divinely inspired but born with a particular quickness of mind that fostered brilliance and innovation. T.S. Eliot recognized the critical role of borrowing in creative work, quipping, “[i]mmature poets imitate; mature poets steal; bad poets deface what they take; and good poets make it into something better, or at least something different.”
 In psychology, a leading theory of creativity requires inspiration from existing concepts. In his “associative theory” of creativity, Sarnoff Mednick posits that most of us have predictable, stereotypical associations with a given stimulus, while the creative among us are able to retrieve remote associations. For instance, although most associate “table” with “chair,” the creative might proffer “leg” or “food.” Defining creativity as a framework of novel associations between existing concepts, Mednick distinguishes originality from creativity, finding the former of little import.
 However different theorists and disciplines might define creativity, its outcomes are varied, enduring, and ever evolving. Creativity has brought us everything from Rodin’s sculptures and Van Gogh’s paintings to Newton’s scientific discoveries, from musical scores and movies to computer code.
 Where, then, does the law intersect with creativity? The United States Constitution directs Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Born from that critical clause is the American approach to copyright. Recognized by the U.S. Supreme Court as “the engine of free expression,” copyright law enriches “the general public through access to creative works.”
 To illustrate how copyright law fulfills its aims through the lens of art, music, and “mashups,” I invite you to accompany me on a short tour of copyright law’s dance with creativity by offering select examples from federal appellate decisions and a view from the bench.

Challenges in Substantive Due Process Litigation

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, for the most part, substantive due process litigation in the federal courts is litigation under Section 1983. As a result, substantive due process litigation is subject to the doctrinal challenges that apply to Section 1983 litigation more generally. This Article takes stock of these challenges and develops an account of the intersection between substantive due process rights and Section 1983 litigation. It considers four challenges for civil rights plaintiffs common to many cases filed under Section 1983: standing to seek injunctive relief, the qualified immunity defense, the policy or custom requirement for municipal liability, and availability of attorneys’ fees under 42 U.S.C. § 1988. Drawing on both quantitative and qualitative information from the dataset, this Article suggests that each of these areas also presents a challenge for plaintiffs seeking to vindicate substantive due process rights. Further, the vagueness and breadth of many substantive due process rights compounds the challenges presented by Section 1983 litigation in other contexts. This Article concludes by briefly considering the implications of its findings for lawyers, courts, and future researchers.

Preserving the Public Trust: A Quality Management Framework for Federal Appellate Court Operations

Preserving the Public Trust: A Quality Management Framework for Federal Appellate Court Operations

Managing Out the Federal Appellate Judge

Managing Out the Federal Appellate Judge

A Survey of the Literature on Federal Appellate Practice and Procedure

A Survey of the Literature on Federal Appellate Practice and Procedure

Discretion and Deterrence in Tax Sentencing After Rita, Gall and Kimbrough–Opportunities for Alternative Sentences and Potential Abuse

In 2007, the 3rd Circuit, on appeal, vacated and remanded the nonincarceration sentence of criminal tax defendant William Tomko Jr. in an opinion notable for its outrage and disgust at the sentencing court's order of probation and home confinement (in a luxurious home built with the proceeds of Tomko's criminal tax evasion). In 2008, the District of Columbia Circuit, on appeal, affirmed a non-incarceration sentence for criminal tax defendant Gus Gardellini, in an opinion that permitted Gardellini to serve his term of probation at his then-current home in Belgium, and noted that he had already "suffered substantially" due to his prosecution. The Tomko court was convinced that deterrence of similar tax crimes required incarceration and the Gardellini court noted with approval the sentencing court's belief that publicity was a sufficient deterrent to potential criminal tax offenders, and maintained that a focus on deterrence above all other sentencing factors was a mistake.Aside from the individual characteristics of the offenders and judges, and the passage of one year, what accounted for the dramatic turn-about in federal appellate sentencing review (and the growing number of sentencing, and sentencing appeal, opinions in 2008 sharing Gardellini's flexibility)? The answer resides in the Supreme Court's 2007 and 2008 sentencing guidance that enhanced judicial discretion and allowed for this dramatic change in sentences upheld on appeal.

PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases.

Posttraumatic stress disorder (PTSD) is commonly used as a mitigating sentencing factor, although how successfully it is used varies. In cases involving the death penalty, use of a PTSD diagnosis as a sentencing mitigating factor has been considered in the postconviction appeals process. This article analyzes a decade of American federal appellate case law regarding postconviction claims of ineffective assistance of counsel by capital defendants in regard to investigating and litigating trauma and PTSD. We found a high tolerance by the courts for deficient investigating, ruling against the petitioner in 20 of 23 (87%) of identified cases. The article discusses how these situations might be avoided and explores the critical role of forensic psychiatrists and mitigation specialists in investigating and presenting trauma to the court.

Assessing President Obama's Appointment of Women to the Federal Appellate Courts

Abstract A major legacy of the Obama presidency was the mark he left on the federal courts with respect to increasing judicial diversity. In particular, President Obama's appointments of women to the federal judiciary exceeded all previous presidents in terms of both absolute numbers and as a share of all judges; he also appointed a record-setting number of women of color to the lower federal courts. In this Article, I take an intersectional approach to exploring variation in the professional backgrounds, qualifications, and Senate confirmation experiences of Obama's female appeals court appointees, comparing them with George W. Bush and Bill Clinton appointees. These data reveal that women of color appointed by Obama differ from both white women and minority men in terms of ABA ratings, the types of professional experiences they bring with them, and whether they were confirmed by a roll call vote.

Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey

This is the Thirty-Fourth 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. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 33 years: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2020 and posted on Westlaw by December 31, 2020. Of the 1,373 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 in particular choice of law.

Factors affecting judicial review of regulatory appeals

The relationship between the executive and judiciary branches on regulatory matters in developing countries is a subject that has not been explored much. This paper explores factors affecting judicial decisions in the regulatory field, aiming to fill this gap. The content of 1353 judicial reviews of appealed decisions issued by nine Brazilian regulatory agencies, judged by two federal appellate courts from 2010 to 2019, were analyzed. Data analysis used logistic regression with decision ruling in favor or against the agency as the dependent variable, and length of the proceedings, regulatory agency, subject of the decision, grounds of the court ruling, and amount in dispute as independent variables. The results show that: a) length of the proceedings had a relevant impact on the court behavior; b) courts are more likely to issue rulings against the regulatory authorities when reviewing procedural issues and on subjects involving norms and price-setting regulatory tasks; c) the electricity authority was the only regulatory body that had results that were statistically significant and it was found that appeal rulings were more likely to be against that body.

Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey

This is the Thirty-Fourth 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. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 33 years: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2020 and posted on Westlaw by December 31, 2020. Of the 1,373 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 in particular choice of law.

Rebuilding the Federal Circuit Courts

The conversation about Supreme Court reform—as important as it is—has obscured another, equally important conversation: the need for lower federal court reform. The U.S. Courts of Appeals, in particular, have not seen their ranks grow in over three decades. Even then, those additions were stopgap measures built on an appellate triage system that had outsourced much of its work to non-judicial decisionmakers (central judicial staff and law clerks). Those changes born of necessity have now become core features of the federal appellate system, which distributes Article III resources—including oral argument and judicial scrutiny—to a select few. This work begins to reimagine the courts in a time of surplus, not scarcity, and it offers a comprehensive framework for identifying why, where, and how to add judges to the federal appellate courts. The existing distribution of judicial resources has created a problem: the courts have relied too much on procedural shortcuts that permit them to be highly selective in deciding which cases receive judicial attention. Some quantitative evidence—review rates from the U.S. Supreme Court from unpublished lower court decisions—and some qualitative evidence—the attitude of appellate judges themselves—support that observation. Ultimately, the distribution of appellate resources has been uneven across the country in ways that have a disparate impact on communities of color and poor communities. To redress these systemic deficits, this works urges Congress to engage in lower court reform by adding judges to the most under-resourced federal appellate courts. In so doing, it offers a framework for identifying under-resourced courts that would ensure periodic and consistent congressional review of judicial needs. These measures consider indicia of over-delegation, population growth, and caseload demands—all while incentivizing courts not to over-rely on procedural shortcuts in the first place.

Some Thoughts on Supplemental Authorities Under Federal Rule of Appellate Procedure 28(J) and Related Musings

This essay--prompted by my work directing Georgetown Law's Appellate Courts Immersion Clinic--discusses letters filed under Federal of Appellate Procedure 28(j). A Rule 28(j) is the federal appellate rules' principal mechanism for bringing supplemental authorities to an appellate court’s attention after the briefs have been filed. This essay covers (1) the Rule's basic attributes; (2) whether a 28(j) letter may be adversarial; (3) the types of authorities that may be--and should be--cited in a 28(j) letter; (4) proper timing for the filing of a 28(j) letter; (5) when and how to respond to a 28(j) letter; and (6) what you should do when a 28(j) letter is inadequate to fully discuss a new and pertinent legal development.