An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review

Commentators have theorized that several factors may improve the process, and thus perhaps the accuracy, of appellate review: (1) review by a panel of judges, (2) subject-matter expertise in the area of the appeal, (3) other lawfinding ability, (4) adherence to traditional notions of appellate hierarchy, and (5) the judicial independence of appellate judges. The considerable discussion that has expounded upon these theories has occurred in a vacuum of abstract generalization. This Article adds a new dimension by presenting the results of an empirical study of bankruptcy appellate opinions issued over a three-year period. The federal bankruptcy appellate structure provides certain litigants the choice to appeal, in the first instance, to one of two distinct appellate tribunals-district courts and bankruptcy appellate panels (BAPs)-whose structural features differ with respect to the theorized qualities of appellate review. As BAPs appear to have more of the features identified as improving the quality of appellate review, the study tests the theory through various hypotheses that focus on the perception held by other federal courts within the bankruptcy appellate structure of the quality of appellate review provided by these distinct appellate tribunals. The data show that, as measured by (1) circuit court affirmance rates and (2) the citation practices of other federal courts to the appellate opinions issued by BAPs and district courts, BAPs have been perceived to provide a better quality of appellate review. Having unearthed some evidence that supports the theoretical notions underlying the quality of appellate review, this Article concludes that commentators and policymakers ought to be encouraged to explore further, in a more detailed manner, the question of how appellate structure can be designed to produce better results. INTRODUCTION What is the ideal structure for appellate review? Without providing a definitive answer to the question, commentators have suggested several factors that may improve the process, and thus perhaps the accuracy, of appellate review. First, it is said that panels of judges are preferable to review by a single judge. Second, expertise in the relevant area of law is a benefit. Third, other indicia of lawfinding ability-such as the ability of lawyers and judges to focus on legal issues without the distraction of factual conflicts and the amenability of judges' schedules to careful contemplation and reflection-contribute to the quality of appellate review. Fourth, a court's adherence to traditional notions of appellate hierarchy, as exemplified by following its earlier precedents, has been deemed to produce better results. Finally, it is said that the independence of appellate judges-that is, the extent to which job features such as life tenure and a guaranteed salary tend to insulate judges from pressures to decide cases or issues one way or another-is of value. In this Article, we endeavor to evaluate empirically the relative quality of appellate review. To do this, we rely upon data obtained from the appellate review of bankruptcy matters. The current federal bankruptcy appellate structure provides an excellent setting in which to study appellate review because it offers litigants two paths for obtaining appellate review. First, after the bankruptcy judge issues a ruling, litigants may have the district court-in the person of a single district judge-review that ruling. Alternatively, the parties may agree (in circuits that have them) to have the bankruptcy judge's ruling reviewed by a panel of bankruptcy judges-a so-called "bankruptcy appellate panel" or "BAP." Further appeal in both caseswhether from the district court or the bankruptcy appellate panellies with the proper federal circuit court of appeals. We have collected data on affirmance rates in and citation rates to appellate bankruptcy opinions. Analyses of the data generally-and analyses of the citation data in particular-support the notion that BAP decisions in our study are perceived to be of greater quality than are district court decisions. …