Appellate Panels of One

Abstract

Appellate review can be understood as an opportunity to correct errors made by lower courts and, by virtue of their multi-member panels, as a way to benefit from the wisdom of crowds. Appellate panels of three judges, and then a larger Supreme Court of nine, are likely to interpret, apply, or advance law more correctly, or simply better, than a single lower-court judge whose effort is under review. Appellate review can also be understood as relying on more experienced or otherwise superior decision-makers or as designed to make law more uniform, inasmuch as lower court decisions on many matters will converge as they follow precedents. It has also been understood as a way to take advantage of the knowledge that litigants themselves have about lower court errors.
Appellate review is surely a means of encouraging more careful work by lower courts; people are often more careful when they know that their work can be reviewed or observed by superiors or well-regarded peers. Finally, appellate review may be of great value (even) when it affirms a lower court, because each step adds to the development of a lasting precedent. Most of these perspectives have counter parts in other settings where the familiar question of when to seek and pay for a second opinion arises. But most second opinions, whether sought before agreeing to a medical procedure or contracting for an auto repair, are given by a single analyst, while appellate review in the federal and most state systems normally involves three jurists, and then yet more in the event of a further appeal.

This Essay examines the logic of second and third opinions – even without the added complexity introduced by the precise cost of review (in the form of time or money) – and reaches several counterintuitive results. Most appellate processes should be restructured so that one judge alone reviews the lower court. Only if this single appellate judge disagrees with the lower court, should one more judge enter the fray, and even that may be wasteful. Legal questions that are appealed will normally be decided by 2-0 or 2-1 decisions, involving just one or two appellate judges in addition to the lower court judge.