Harvard Law Review, Vol. 124, No. 5, p. 1109, March 2011
44 Pages Posted: 21 Feb 2011 Last revised: 11 Mar 2011
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.
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