Appellate cases often live or die by the standard of review that the appellate court applies to the decision of the lower court. In some cases, a
clear error will be necessary to reverse a decision, whereas in other instances, the appellate court might give no deference to the holding of the court below, deciding on its own accord the legal issues presented. And while we might argue 'til the cows come home about what exactly vaguely phrased standards such as
arbitrary and capricious actually mean, most people would probably agree that whatever the meaning of the standard, that it would not—and should not—change depending on whether an appeal was decided in 1999 or 2009. But what if that was the case? That perturbing possibility is exactly what Professor Bert Huang considers in his new paper, Deference Drift? Evidence from a Surge in Federal Appeals, which he presented at last week's meeting of the Public Law & Legal Theory Workshop.
Prominent judge have suspected a
deference drift of sorts in federal appellate courts—a situation, in essence, in which courts have dealt with rapidly growing caseloads by increasingly deferring to the rulings of lower courts, thereby resulting in fewer reversals. That notion, of course, should be troubling to anyone concerned with coherence, consistency, and stability in jurisprudence.
Suspicions of docket crowding causing deference drift, however, cannot substitute for empirical evidence. In his paper, Professor Huang used a recent event—the flood of cases from the federal immigration agency to federal circuit courts of appeals starting in 2002—to analyze the effect of docket crowding on appellate decisions. Because immigration appeals since 2002 have slammed the Second and Ninth Circuits while leaving the other circuits relatively unfazed, a natural opportunity for comparison presented itself. By focusing, moreover, on civil appeals (which were relatively steady over the same time period) rather than surging agency cases, Professor Huang was able separate cause from effect.
The results do not seem to bode well for the consistency-minded. Whereas drops in reversal rates were visible after the surge of immigration appeals in both the Second and Ninth Circuits, the same phenomenon was not observed in the other circuits. One implication is that de facto circuit splits in the standards of appellate review, driven by variation in caseload, might be causing appeals across many areas of law to be treated differently in different circuits.
The paper and its results prompted many questions. What, if anything, wondered one faculty member, had practicing lawyers done in response to this phenomenon? Had they, for instance, altered their litigation strategies to use more attention-grabbing—and therefore, risky—arguments? The answer: based on number of filings and trade literature, it did not seem like lawyers were widely aware, if at all, of these very recent changes in reversal rates, but it would be hard to know about briefing strategies with certainty without painstakingly looking through a large sample of briefs.
Docket overcrowding is neither a new phenomenon nor a new realization. But as this paper shows, it is also not merely a problem of procedure. With empirical reasons to suspect caseload having substantive impact on appellate review, Congress would do well to consider alleviating the pressure on the most heavily affected circuits.