Judicial priorities.

• Author: Huang, Bert I.
• Position: Introduction into III. Revealing Priorities B. Reversals or Affirmances?, p. 1719-1746

INTRODUCTION I. THE POLICY SHOCK A. Earlier Forms of Decision B. The New Constraints C. Implementing the Change II. CONSTRUCTING THE DATA III. REVEALING PRIORITIES A. Civil or Criminal? B. Reversals or Affirmances? C. The Five Districts D. Interpretations and Implications 1. Observing the Triage 2. Concerning Appearances 3. Collegiality and the Judicial Audience CONCLUSION: SPILLOVERS IN JUDICIAL CHOICES INTRODUCTION

Imagine this thought experiment:

A new procedural rule caps the raw number of judicial opinions that an appeals court can publish every year. The new cap is roughly half of what the court was publishing before. As this court's judges begin to triage their opinion-writing, which types of opinions will they continue publishing? Which will they give up? Will the court more readily forgo publishing its affirmances, which are often "easy cases"? Will it nonetheless strive to continue publishing its reversals, which are often "hard cases"--and which offer the lower courts more urgently needed guidance? Once the rule takes effect, less case law will be made--but which topics will be most affected? Which subject areas will turn out to be higher or lower priorities for this common law court? Strange as it might seem, such a policy shock in fact occurred. In an unprecedented move, (1) the Illinois Supreme Court in the mid-1990s imposed hard caps on the state's appeals courts, drastically reducing the number of opinions they could publish, (2) while also narrowing the formal criteria for opinions to qualify for publication. (3) As Part I describes, the high court explained that the amendment's purpose was to reduce the "avalanche of opinions emanating from [the] Appellate Court," (4) which was causing legal research to become "unnecessarily burdensome, difficult and costly." (5)

This unusual and sudden policy shift offers the chance to observe the priorities of a common law court in its production of published opinions. The method we introduce here can be seen as a sort of revealed-preferences approach: (6) when forced to choose, which types of opinions were these courts more likely to continue publishing, and which types were they more likely to abandon? (7)

Our method, which seems straightforward, has turned out to reveal more than we expected: it has uncovered more than the simple priorities raised in the thought experiment above. One especially surprising pattern forces us to develop new theories about how higher-level judicial priorities--such as a concern for outward appearances--compete for influence over judicial choices.

We began by constructing two datasets. As Part II explains, the first dataset contains all cases available on Westlaw from the five districts of the Illinois appeals courts in the time period selected for study. (8) Second, to reduce concerns about possible effects of the changing composition of the courts over time, we identified a stable sample of judges who were members of these courts for at least three years before the policy change and who continued to sit for at least three years afterwards--that is, for the entirety of the study period. Our second dataset consists only of opinions authored by these judges. (9)

The new opinion-writing constraints hit these courts hard. All five districts immediately complied, dropping below their respective caps. Figures 1 through to show these dramatic drops both in the aggregate and in each district. (10) This sudden curtailment of publication is also clearly seen in our stable sample of judges. (11) To see which types of cases the judges prioritized for publication, we divided the data between civil and criminal cases, as well as between reversals and affirmances, (12) and compared the numbers and rates of published opinions among the resulting groups. (13)

We observe first that as these courts were forced to triage, they seemed to favor civil cases over criminal cases--cutting back the publication of opinions less among civil cases than among criminal cases. Although the districts varied in their reactions, (14) the decline in the number of published criminal opinions (a sixty-three percent drop) was greater in the aggregate than for civil opinions (a forty-four percent drop). (15) A natural interpretation is that a greater share of criminal than of civil opinions were deemed sufficiently low priority to be dropped from publication: as the bar for publication was raised--whether by the caps, by the new formal criteria, or by both--the share of formerly publishable opinions disqualified by this higher bar was greater among criminal than among civil cases. (16)

One might have guessed to the contrary (as we did) that these courts would instead favor criminal cases for publication, (17) given the importance of public reasoning in decisions about criminal punishment. (18) But predicting the opposite would also have been sensible: criminal appeals may raise similar or repetitive issues, while the civil docket consists of a more varied portfolio of areas of law, each needing an independent body of precedent. (19) Also, there may have been a wider range of acceptable reasons to publish criminal opinions before the rule change than after the new rules narrowed the official criteria for publication. (20)

We encountered something more puzzling, however, in our comparisons of reversals and affirmances. As one might have expected, these courts seemed to favor reversals over affirmances; we observed greater drops in the publication of opinions affirming lower court decisions than of opinions reversing the lower court. (21) By virtually any account, reversals should be more deserving of publication: they often raise harder issues (in fact, different judges have already disagreed), and they address issues on which the lower courts evidently need guidance. (22) No doubt many affirmances also lay down useful precedent, and some reversals fix fact-bound errors of little interest to case law. (23) But it would not have surprised us to see the number of published reversals barely budge and thereby see most of the policy's impact fall on affirmances. Instead, the data show a sizeable drop in the publication of reversals: in the five districts taken together, less than thirty percent of reversals were published after the policy change, compared to over fifty percent before.

Looking into this question further led us to notice a striking and surprising pattern, one that is found in each of the five districts, and in both the civil and criminal dockets. Before the policy shock, published affirmances greatly outnumbered published reversals (24)--yet when both collapsed under the new constraints, they tended to land at virtually the same level. (25) Moreover, the volume of published reversals and of published affirmances remained roughly similar thereafter, often as if tracking each other. This pattern is evident in Figures 2 through 10.

This unexpected pattern, which appears across districts and across categories of cases, invites hypothesis. One possibility is that the new rules led these courts to limit publication to mainly the "hard cases"--cases in which the law is indeterminate--and that such cases might be expected to fall roughly half as reversals and half as affirmances. Closer analysis of the content of these published opinions, in future work, may shed more light on this theory.

But a rough balance is not all that we see: Figures 2 through 10 show...