Abstract

http://ssrn.com/abstract=1761067
 
 

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Lightened Scrutiny


Bert I. Huang


Columbia Law School; Harvard Law School


Harvard Law Review, Vol. 124, No. 5, p. 1109, March 2011

Abstract:     
The current anxiety over judicial vacancies is not new. For decades, judges and scholars have debated the difficulties of having too few judges for too many cases in the federal courts. At risk, it is said, are cherished and important process values. Often left unsaid is a further possibility: that not only process, but also the outcomes of cases, might be at stake. This Article advances the conversation by illustrating how judicial overload might entail sacrifices of first-order importance.

I present here empirical evidence suggesting a causal link between judicial burdens and the outcomes of appeals. Starting in 2002, a surge of cases from a single federal agency flooded into the circuit courts. Two circuits bore the brunt, with their caseloads jumping more than forty percent. The other circuits were barely touched, by comparison. To sort cause from effect, I focus on outcomes not in the surging agency cases, but instead in a separate category: civil appeals. The two circuits flooded with agency cases began to overrule district court decisions less often -- in the civil cases. This evidence of evolving deference raises the possibility of "silent splits": divergences among the circuits in their levels of appellate scrutiny, due not to articulated disagreements but to variation in caseloads.

Number of Pages in PDF File: 44

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Date posted: February 21, 2011 ; Last revised: March 11, 2011

Suggested Citation

Huang, Bert I., Lightened Scrutiny. Harvard Law Review, Vol. 124, No. 5, p. 1109, March 2011. Available at SSRN: http://ssrn.com/abstract=1761067

Contact Information

Bert I. Huang (Contact Author)
Columbia Law School ( email )
435 West 116th Street
New York, NY 10025
United States
HOME PAGE: http://www.law.columbia.edu/fac/Bert_Huang
Harvard Law School ( email )
Cambridge, MA 02138
United States
HOME PAGE: http://www.law.harvard.edu//faculty/directory/11277/Huang/
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