Judicial priorities.

AuthorHuang, Bert I.
PositionContinuation of III. Revealing Priorities B. Reversals or Affirmances? through Conclusion: Spillovers in Judicial Choices, with footnotes, p. 1746-1770

Figures 4 and 5 correspond to Figures 2 and 3, respectively, showing changes within the distinct sets of civil and criminal cases. Evidently, the tendency of the courts to keep the volume of published affirmances in line with those of published reversals operates not only at the level of their total output, but also within both the criminal and the civil dockets. (110)

The data thus reveal an unanticipated constraint--a sort of superpriority--that seems to have operated not only at the aggregate level, but also within distinct categories of cases (and, as we will see, geographies). Why this seeming super-priority is so potent is the central mystery raised by this study. But its presence could clear up another puzzle: given the premise that the Illinois Supreme Court's new criteria would drive the selection of opinions for publication, one might not have expected to see so many affirmances survive the cut while reversals were allowed to drop as far as they did. Reversals address issues on which appellate guidance is usually necessary and over which judges have already reached contradictory conclusions. Wouldn't an appeals court, prioritizing this form of "selectivity," naturally protect the publication of such opinions and instead choose not to publish affirmances? (111)

The possibility of a super-priority helps explain why this intuitive expectation did not fully materialize: due to some external motivation, the volume of published affirmances was inflated to stay close to, or above, the volume of published reversals.

We emphasize here the possibility that affirmances were inflated, and not that reversals were suppressed, because four of the five districts remained under the official publication limits for most of the post-shock study period. There was thus no formal pressure from these caps requiring the suppression of either published affirmances or reversals (with the possible exception of the Fourth District, where the official cap seemed relatively closer to binding). It does remain theoretically possible, however, to imagine that reversals were suppressed; for example, if one supposes that the courts were setting an implicit cap for themselves only as to the publication of affirmances, then our data could be read as showing that the courts were then suppressing reversals to stay close to, or under, that number.

  1. The Five Districts

    Because the five judicial districts in Illinois varied in their starting points before the policy shock, in the caps assigned to them, (112) and in other characteristics such as population and case composition, we also broke down the data by district. Aside from our desire to see how regularly this pattern occurred from court to court, we were also concerned that the patterns observed in the aggregate might have been unduly influenced by a single dominant district (such as the First District, which includes Chicago) or by a set of similar districts (such as the Fourth and Fifth Districts, which include more rural portions of southern Illinois). In fact, the pattern persisted across all the districts and, in some cases, even operated at the level of individual judges. (113)

    The First District, the largest of all five districts, showed a pattern that largely mirrored our aggregate results: a wide gap between published reversals and affirmances in each case category prior to the rule change, followed by a precipitous drop in published affirmances but falling only to the level of published reversals (which also fell, but not as sharply).

    In the Second District, as in our aggregate results, the gap between published affirmances and reversals narrowed after the rule change, but the two categories alternated in outpacing each other.

    A further breakdown of the Second District's data into criminal and civil dockets more clearly reveals what was happening. Figure 7A shows that, in the Second District's criminal cases, the number of published affirmances closely tracks the number of published reversals in each six-month period following the rule change. It is only in the civil docket that the court seemed more willing to allow the number of published reversals to noticeably exceed affirmances in some periods.

    Figures 8 and 9 show that the Third and Fourth Districts also exhibited patterns consistent with the hypothesized super-priority. In the Third District, published affirmances were already declining before the policy shock. The decline was apparently intentional, as this court seems to have anticipated the changes to Rule 23. (114) Nonetheless, both affirmances and reversals dropped sharply at the moment of the policy shock. What is notable here is not the anticipatory decline of published affirmances, but that quantity's sudden leveling and mirroring of the post-shock levels of published reversals.

    The results in the Fourth District also reflect key characteristics of the dominant pattern. First, there is a sharp fall in both reversals and affirmances at the point of the policy shock that closes the original gap between them. Beyond that point, the number of published affirmances tended to stay close to, or else to exceed by a small margin, the number of published reversals.

    Like the other districts, the number of published affirmances in the Fifth District tracks the number of published reversals. But the Fifth District differs from its counterparts in one notable aspect: The "tracking" behavior is not limited to the time period following the rule change. Rather, the Fifth District seemed to have kept a fairly even balance of published affirmances and published reversals even before the policy shock. This close tracking throughout the study period is evident even in the publication patterns of certain individual judges. (115) By the end of the study period, however, the close tracking seen in the Fifth District falls apart; at that point, more than any other district, the Fifth District no longer held published affirmances at approximately the level of published reversals.

  2. Interpretations and Implications

    Our observations of how the Illinois appellate courts triaged their opinion-writing reveal not only which types of opinions the courts prioritized for publication but also suggest what these courts saw as being at stake in their publication choices. Our findings also suggest that these courts understood that their "medium" of judicial expression was not confined to the immediate content of their written opinions--but rather extended to the visible corpus of their decisions taken as a whole.

    1. Observing the Triage

      Consider first the basic criminal-civil comparison. Our data show that the share of criminal opinions deemed sufficiently low-priority to be cut from publication under the new rules was greater than the share of civil opinions. (116) This differential ran against our original expectations; we had predicted that the importance of public reasoning about criminal punishment would lead the courts to more avidly protect the publication of those opinions. (117) But there were also good reasons, as noted above, to expect that these courts might instead favor civil opinions for preservation: These criminal appeals may have raised repetitive issues or turned on factual matters subject to high levels of deference, whereas the civil docket may have been more varied and thus may have raised more new or unsettled legal issues requiring appellate explication.

      It is a more obvious case that reversals should have been favored over affirmances for protection from the publication cuts, as was observed: Reversals present cases in which judicial colleagues have already disagreed and on matters in which the lower courts evidently require further guidance. Thus, reversals seem naturally more likely to survive under the more selective standards for publication, which focus on precedential value. (118)

      What such a simple story of priorities among types of cases cannot easily explain, however, is the pattern seen in Figures 2 to 10: Across districts and across categories, immediately after the policy change, the number of published affirmances and reversals each fell from different levels and yet landed at virtually the same place, and then stayed roughly balanced. What could account for this unexpected, persistent pattern?

      One explanation might be that such a balance is a natural byproduct of the newly selective criteria for publication: these courts began to limit publication to mainly "hard cases," (119) which one might expect to fall roughly half as reversals and half as affirmances. (120) We find this possibility intriguing, but it cannot be a complete account of our observations. (121) The reason is that our findings reflect more than a rough balance between affirmances and reversals. What we seem to see, in many time periods--across districts, case types, and even some individual judges--is a tight tracking pattern, suggesting the active, continuous management of the balance. Furthermore, under a basic hard cases explanation, we should also expect deviations due to noise to favor reversals as often as affirmances--but instead, the data show that where they diverge, affirmances outpace reversals much more often than the other way around.

      It remains possible, of course, that these courts began by largely limiting their publications to hard cases--but also actively sought to prevent the volume of published affirmances from falling noticeably below the volume of published reversals. Although future work more closely analyzing the content of these published opinions may shed more light on the extent to which these courts were publishing mainly the hard cases, (122) some further clues from our current data also suggest that the hard cases explanation is not the whole story. (123) One might assume, for instance, that the presence of a concurrence or dissent serves as a signal of a hard case. (124) We found a greater incidence of such separate opinions among reversals than we...

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