Freakonomics: A Rogue Economist Explores the Hidden Side of Everything.

• Date: 22 March 2006
• Author: Baker, Thomas E.
• Published date: 22 March 2006
• Author: Baker, Thomas E.

Some of you have read the New York Times bestselling book titled Freakonomics. (1) The authors explain Freakonomics this way:

[T]he everyday application of Freakonomics ... has to do with thinking sensibly about how people behave in the real world. All it requires is a novel way of looking, of discerning, of measuring. This isn't necessarily a difficult task, nor does it require super-sophisticated thinking. (2) I want to take this approach to understanding the long-term trends in the "supply and demand" for appellate decisionmaking between the last National Conference on Appellate Justice and this one. I want to reflect on the so-called "crisis of volume."

Beginning in the 1960s and continuing for the next three decades, nearly everyone affiliated with appellate courts--judges, lawyers, litigants, legislators, experts, and scholars--were all shouting, "The sky is falling!" and insisting that judges should run for their lives. (3) This was particularly true of the United States Courts of Appeals. A series of commissions, committees, study groups, conferences, and symposia predicted that the rapidly increasing number of cases was about to overwhelm the federal appellate court system and that only radical structural reforms could save it. (4)

Over the last ten years or so, however, the doomsday clamor has died away and the sense of urgency has disappeared. But the caseload did not subside--appellate demand did not decline. Indeed, it continued to grow apace. Furthermore, there was no radical structural reform. Yet, today the courts of appeals are not hopelessly backlogged. There is no panicky sense of being overwhelmed. Everything seems to be "business as usual," at least on the surface.

I have been "thinking sensibly" about these questions lately because I have been working with Professors Dan Meador and Joan Steinman on a casebook about appellate courts that chronicles this period. (5) I have reviewed all the literature and studies on appellate courts over the last twenty years or so.

My assigned role today is "commentator," so I made a list of ten "comments." Some are tentative. Some are obvious. None of them is super-sophisticated. Together they help us make sense of what happened and what did not happen--in effect, how people actually behaved in the real world--since the so-called "crisis of volume" and possible reforms were debated at the 1975 Conference.

COMMENT 1 : THERE REALLY WAS NO CRISIS. IT WAS A FALSE ALARM.

Maybe so. Some judges and commentators took this position all along. (6)

But there is no denying the statistics. There was an exponential increase in the total number of filings in state and federal appellate courts as well as in the ratio of appeals per judge. Something was going on and the courts reacted to it, as I will describe. (Interestingly, during roughly the same period, the federal rate of appeals rose by a factor of five times--from one appeal out of every forty district court decisions to one out of eight.) (7)

"Crisis" is an overused word. Increasing appellate caseloads were nothing new in the 1970s and 1980s. But what was new at the time was the widespread belief that the court system was on the verge of breakdown and collapse. You can recapture the sense of the times if you go back and review some of the studies and reports. Many in this room participated in those efforts: the Freund Committee, (8) the Hruska Commission, (9) the Estreicher and Sexton study, (10) various ABA committee reports, (11) the Federal Courts Study Committee, (12) the Federal Judicial Center Report, (13) the Long Range Plan of the Judicial Conference, (14) and the White Commission, (15) to mention a few.

There is one methodological problem that has never been overcome: We only measure appellate demand quantitatively, not qualitatively, and so the statistics do not tell us enough of what we really would like to know. But I do not have a solution to this problem. Over the years the FJC and the National Center for State Courts and others have tried to come up with qualitative models for measuring appellate workload--trying to figure out how to weight appeals by complexity and difficulty and judicial effort. Our models are still rather crude. For example, we do not have a good statistical model for determining when a new judgeship is needed. Periodically, we just increase the threshold number. We cannot agree on a maximum size of an appellate court--how many judges is "too many"--or even whether there is a maximum at which diseconomies of scale become unacceptable. (16)

COMMENT 2: THERE WAS AN OVERSUPPLY OF APPELLATE DECISIONMAKING CAPACITY IN THE COURT SYSTEM BEFORE THE "CRISIS OF VOLUME."

My second comment is somewhat related to my first. It may be that in the good old days--often nostalgically identified as the Learned Hand Era--judges did not work as hard as judges work today. (17) Alternatively, if they were working hard, then the judges of that bygone era were lavishing too much time and attention on cases. Every appeal was afforded a lengthy oral argument and an elaborate published written opinion, and so forth. Appellate processes were excessive and inefficient. Judgepower was being wasted. Judges were spending an inordinate amount of their own time on individual appeals, performing time-consuming tasks that need not be performed by judges in the first place. Then, when the "crisis" hit, the judges ratcheted up their individual efforts and at the same time placed a premium on streamlined, more efficient appellate procedures. (18)

An important supply-side variable that deserves mention is developments in technology. Think what it would be like to be an appellate judge without Westlaw, Lexis-Nexis, e-mail, and word processing, even if you are a Learned Hand. Those are all inputs that have contributed greatly to increased efficiency in chambers today. (19)

COMMENT 3: IN THE AFTERMATH OF THE "CRISIS OF VOLUME," THERE SIMPLY IS MORE "JUNK"--MORE UNWORTHY APPEALS--IN THE APPELLATE SYSTEM THAN THERE WAS FOUR DECADES AGO.

The statistical breakdowns into categories of appeals bear this out. The Warren Court's constitutionalization of criminal procedure resulted in making every state conviction into a federal habeas corpus case. Interpretations of the Eighth Amendment opened the courts to prisoners' challenges of prison conditions, sometimes in appropriate and well-founded cases, but not infrequently in meritless challenges. Also during that era, Congress...