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Panel Assignment in the Federal Courts of Appeals

52 Pages Posted: 30 Nov 2017  

Marin K. Levy

Duke University School of Law

Date Written: November 25, 2017

Abstract

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 significant 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 of five circuit courts, including in depth interviews with thirty-five judges and senior administrators, I show that strictly random selection is a myth, and an improbable one at that—in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to “mix up” the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way.

These findings pose an important challenge to the widespread assumption of panel randomness and reveal key normative questions that have been largely ignored in the literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is problematic about non-random methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and the myriad other court practices that rely, to some extent, on randomness.

Keywords: judges, courts, federal courts, judicial administration, panel assignment

Suggested Citation

Levy, Marin K., Panel Assignment in the Federal Courts of Appeals (November 25, 2017). 103 Cornell Law Review 65 (2017). Available at SSRN: https://ssrn.com/abstract=3077345

Marin Levy (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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