Precedent, Predictability, and Federal Appellate Structure

The Ninth Circuit Court of Appeals is by far the largest of the federal appellate courts. The court’s cases are ordinarily heard and decided by panels of three judges selected at random from an array of 29 active judges, 12 or more senior judges, and scores of visiting judges. In March 2017, a subcommittee of the House Judiciary Committee held a hearing on “ideas for restructuring the Ninth Circuit.” Proponents of restructuring argued that the size of the circuit, with so many judges responsible for the decisions, results in “the loss of predictability.” One of the Ninth Circuit’s own judges told the subcommittee that “because of its size,” the Ninth Circuit “is not and cannot be a reckonable court.” Are these assertions correct? No one would argue that appellate outcomes can be made entirely predictable. Some kinds of unpredictability are inherent in a common-law system of adjudication. Others, though perhaps not inherent, derive from established practices that, realistically, must be taken as a given. But proponents of restructuring argue that appellate outcomes are more unpredictable in the Ninth Circuit than in other, smaller circuits. This article reports the findings of an empirical study designed to test that assertion. When we look at the decisions of the courts of appeals, we know their actual outcomes. How can we identify the cases whose outcomes were unpredictable ex ante? The answer is that we cannot. What we can do is to analyze a subset of those cases that is representative of the entire group – cases with dissenting opinions. The existence of a dissent tells us that the outcome was attended by at least some degree of contingency. The grounds of dissent enable us to determine whether that contingency can be linked to circuit size. Disagreement within a panel does not implicate size if, for example, the majority and the dissent each rely on a different Supreme Court precedent. Or if the judges disagree over whether the district court’s findings of fact were clearly erroneous. Dissent implicates circuit size only if the disagreement suggests incoherence or inconsistency in the law of the circuit. Drawing on my prior work, I have identified four situations in which disagreement within a panel would signal possible instability in the law of the circuit. In the most acute of these, the majority and the dissent each identify a different in-circuit precedent as being directly on point. If critics of the “jumbo” court are correct, we would expect to find that, in cases with dissents, Ninth Circuit judges argue substantially more often than judges elsewhere that circuit precedent requires a particular outcome. Instead, we find that there is no meaningful difference between the Ninth Circuit and other circuits in the tendency of judges to invoke the compulsion of in-circuit precedent. This finding, reinforced by prior research on intracircuit conflict, suggests that actual or arguable clashes between circuit decisions contribute no more to unpredictability in the Ninth Circuit than they do in smaller circuits. The study also addresses another controversy over the relationship between predictability and appellate structure. Distinguished participants in the legal system have argued that the law is unnecessarily unpredictable because of a dearth of nationally authoritative precedents. To test this assertion, I examined the actual treatment of out-of-circuit precedent in cases with dissents; I then considered how that treatment might altered under a hypothetical regime of national stare decisis. I found that in the overwhelming majority of instances in which the outcome of an appeal is debatable among jurists of reason, the court can decide either way without rejecting any precedent from another circuit. By the same token, a regime of nationwide stare decisis would not alter the element of contingency that those appeals present. The study encompassed all cases with dissenting opinions in calendar year 1993 – a total of 771 cases and 828 distinct issues.