Suchergebnisse

During the 1996 term, the United States Supreme Court made a candid confession about its voting practices. In Seminole Tribe of Florida v. Florida, the Court overruled Pennsylvania v. Union Gas Co. and recognized that when a justice defers to the majority against his or her own reasoning inconclusive precedent results. Union Gas was particularly unusual because Justice White switched his vote to assure a result in a three-remedy case where none of the three remedies had the support of a majority. In Seminole Tribe, the Court admitted Union Gas "has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality." Accordingly, the Court recognized the problems created when a justice votes against his or her own reasoning to ensure a result. While scholars frequently have analyzed the strategic voting practices of legislators, similar analysis of voting on judicial panels is relatively new. Frank Easterbrook was the first scholar to apply Arrow's Theorem systematically to the Supreme Court's voting practice, and several scholars followed his lead. After Justice White's vote in Union Gas, Professor John Rogers warned the Court against abdicating its role as a reasoned decision maker. He concluded, however, that the contradictory vote in Union Gas was aberrational. More recently, Professors David Post and Steven Salop published an article encouraging multimember courts to abandon their traditional practice of outcome voting and instead to adopt a system of issue voting.' Shortly thereafter, Professors Lewis Kornhauser and Lawrence Sager urged appellate courts to adopt neither outcome voting nor issue voting as a rule. Rather, they suggested appellate courts should take a metavote on whether outcome or issue voting should control each case." Professor Maxwell Stearns advanced the debate over appellate court voting in a trilogy of articles published over the past two years. These articles apply social choice theory to the ...

ABSTRACTThis paper describes a case assignment (calendaring) algorithm for a multi‐judge appellate court system. In the algorithm, cases of unequal work content are selected for assignment to one of m panels (or clusters) from a set of N available cases. Each panel of cases is heard by a team of three judges. Each appellate case has an estimated work load and a priority ranking based on the type of appeal and filing date with the court. The algorithm balances both the total work load and the number of cases assigned to each panel while insuring that the highest priority cases are assigned to those available. The assignment problem is normally capacity constrained in that not all of the N cases can be assigned to one of the m panels on the monthly calendar. The algorithm is based on a neighborhood search and bounding principle that continually improves upon an initial feasible solution. Empirical results are presented to demonstrate the effectiveness and efficiency of the algorithm.

Selection of federal appellate court judges is now extremely controversial. Slowed nominee processing, accusations and countercharges between Democrats and Republicans, as well as "paybacks," have characterized appointments since 1990. One tenth of the 179 active circuit judgeships authorized by the United States Congress are perennially vacant, and substantial numbers of these positions can remain open for years. The Senate Judiciary Committee increasingly votes along straight political party lines, and Democratic senators even relied on filibusters to deny nominees positions on the United States Courts of Appeals for the District of Columbia Circuit as well as the Fourth, Fifth, and Ninth Circuits. The existence of numerous, protracted vacancies, therefore, has detrimentally affected the whole appointments process, appellate courts and judges, entities and individuals working on selection, and attorneys and parties who take appeals to the regional circuits. For example, lengthy openings have postponed case resolution and frustrated the goal of inexpensive and equitable appellate disposition, while vacancies forced the Sixth and Ninth Circuits to cancel oral arguments, imposing unnecessary expenditures and delay. The complication's persistence appears to have undermined respect for all three federal government branches, most significantly the institutions of the presidency and the Senate, but even the judiciary. These propositions mean that federal appeals court appointments merit scrutiny, which this Article undertakes. The initial Section discusses the reasons why many circuit judgeships have lacked occupants for extensive periods and finds that several phenomena have contributed to the appellate court dilemma. An important factor is that the regional circuits are the courts of last resort for their geographic areas, in particular when treating modern policy issues such as abortion and federalism, because the Supreme Court hears so few appeals. Similarly cogent is the prevalence of divided government: until recently, during the past two decades, one political party has controlled the Executive Branch and the other the upper chamber. I find Democratic and Grand Old Party ("GOP") presidents and senators have almost identical responsibilities for the conundrum. They assumed remarkably analogous stances when each occupied the White House and possessed a Senate majority, while either could have improved the circumstances by exercising the requisite political will. Part II evaluates appellate court selection since January 2002. This analysis reveals that phenomena-which include stalled nominee consideration, divisiveness, and partisan wrangling-that have been manifested for more than a decade continued to pervade appointments and may even have intensified. One trenchant illustration was the 2002 Judiciary Committee rejection of Judges Priscilla Owen and Charles Pickering for the Fifth Circuit, with ten Democrats voting against and nine Republicans favoring the jurists-although the full Senate might well have confirmed them. The concluding segment of the Article offers proposals for the future, which should rectify or ameliorate the current situation.

Case name: Bereston v. UHS of Delaware Inc., et al., No. 15‐CV‐244 (D.C. Cir. 03/08/18).

Therapeutic jurisprudence has multiple possibilities, provided it does not add another layer of cost, delay, and time to the process. First, we should see "a reduced number of cases for the appellate court to decide, fewer remands and secondary appeals, the streamlining of appeals through partial resolution of issues, the satisfaction of parties' underlying needs and interests, and the reduction of the time a case spends on appeal." Second, the outcome does not have to become part of the case law that applies to similar cases, possibly establishing negative precedent. Third, mediation allows personal healing and the development of positive, achievable values. Respect for the law and the legal process can develop in a distrustful culture.