Posted by Jonathan Adler:
Would a Smaller Ninth Circuit Get Reversed Less Often?
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184202767
Vanderbilt law professor [1]Brian Fitzpatrick looks at the U.S. Court
of Appeals for the Ninth Circuit (where he clerked), and how it fared
before the Supreme Court this past year.
The 9th Circuit, which hears appeals in federal cases in the
Western United States, is the largest of the 13 such courts, with
28 active judges and more than 20 part-time senior judges. The 9th
Circuit is almost three times the size of an average court of
appeals, and its jurisdiction stretches from Alaska to Arizona, an
area comprising nearly one-fifth of the American population.
The 9th Circuit also has a long-running streak as the most
overturned, which went unbroken this year. The Supreme Court
reviewed 22 cases from the 9th Circuit last term, and it reversed
or vacated 19 times. By comparison, the Supreme Court reviewed only
five cases, vacating or reversing four, from the next-busiest court
of appeals, the 5th Circuit based in New Orleans.
In other words, although the 9th Circuit decided only one-third
more appeals on the merits than the 5th Circuit, it was reversed
nearly five times more often.
Noting the Ninth Circuit's high rate of reversal is nothing new. What
Fitzpatrick adds, however, is an explanation of how the Ninth
Circuit's large size may contribute to the high reversal rate.
Specifically, he argues that as the number of judges on the Ninth
Circuit increases, the likelihood that it will issue outlier opinions
increases.
Consider a hypothetical court of 28 judges (the number of active
judges currently on the 9th Circuit), in which six of the judges
are extreme. The probability of such a court randomly selecting a
panel with at least two extreme judges is almost 11%. But if it
were divided into two courts � each with 14 judges, three of whom
are extreme � that probability falls to 9%.
A difference of 1% or 2% may not seem like much, but the 9th
Circuit decides more than 6,000 cases every year. This means that
if the 9th Circuit is anything like my hypothetical court,
splitting it in half would save 60 to 120 appeals a year from being
decided by panels with a majority of extreme judges.
On this basis, Fitzpatrick concludes that as long as the Ninth Circuit
remains disproportionately large, it will continue to issue "extreme"
opinions at a disproportionate rate, and "it is likely to continue
being disproportionately reversed by the Supreme Court."
References
1.
http://www.latimes.com/news/opinion/la-oe-fitzpatrick11jul11,0,6274474.story?coll=la-opinion-rightrail
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