103 Cornell L. Rev. 65 (2017-2018)
Panel Assignment in the Federal Courts of Appeals

handle is hein.journals/clqv103 and id is 71 raw text is: 





      PANEL ASSIGNMENT IN THE FEDERAL
                  COURTS OF APPEALS

                          Marin  K. Levyt


        It is common knowledge  that the federal courts of appeals
    typically hear cases in panels of three judges and  that the
    composition of the panel can have signiftcant consequences for
    case  outcomes  and for  legal doctrine more generally. Yet
    neither legal scholars nor social scientists have focused on the
    question of how judges are selected for their panels. Instead,
    a substantial body of scholarship simply assumes  that panel
    assignment  is random.
        This Article provides what, up until this point, has been a
    missing account of panel assignment. Drawing  on a multiyear
    qualitative study offive circuit courts, including in-depth inter-
    views  with  thirty-five judges and senior administrators, I
    show  that strictly random selection is a myth, and an improb-
    able one at that-in many   instances, it would have been im-
    possible as a practical matter for the courts studied here to
    create their panels by random draw. Although the courts gen-
    erally tried to mix up the judges, the chiefjudges and clerks
    responsible for setting the calendar also took into account vari-
    ous other factors, from collegiality to efficiency-based consid-
    erations. Notably, those factors dtffered from one court to the
    next; no two courts approached the challenge of panel assign-
    ment  in precisely the same way.
        These ftndings pose an  important challenge to the wide-
    spread  assumption of panel randomness  and  reveal key nor-
    mative  questions  that have  been  largely  ignored in the

    t Associate Professor of Law, Duke University School of Law.
    Thanks to Will Baude, Kate Bartlett, Stuart Benjamin, Joseph Blocher,
Pamela Bookman, Jamie Boyle, Curt Bradley, Josh Chafetz, Guy Charles, Adam
Chilton, Kevin Clermont, Michael Dorf, Josh Fischman, Tracey George, Mitu Gu-
lati, Jack Knight, Grayson Lambert, Maggie Lemos, Alistair Newbern, Stephen
Sachs, Neil Siegel, Jed Stiglitz, Brad Wendel, Albert Yoon, Ernie Young, as well as
to the participants of the Cornell Law School Faculty Workshop, the Duke Law
Faculty Workshop, the New Voices in Civil Justice Workshop at Vanderbilt Law
School, and the Law & Economics Workshop at the University of Toronto Faculty
of Law. Thanks also to Chantalle Carles, Stewart Day, Matt Koerner, and Eliza-
beth Plaster for excellent research assistance, and the editors of the Cornell Law
Review for outstanding editorial assistance. And a special thanks to the judges
and senior administrators of the D.C., First, Second, Third, and Fourth Circuits
who generously let me interview them and without whom this Article could never
have been written. All views expressed here, as well as any errors and solecisms
are, of course, my own.


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