« Ind. Decisions - Fed. District Court grants PPINK summary judgment on its equal protection claims re statutory abortion clinics requirements | Main | Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP) »

Thursday, December 04, 2014

Ind. Courts - More on "Seventh Circuit Motions Panels Seizing Merits Cases?"

Updating this brief post from Tuesday, Alison Frankel, in her Reuters "On the Case" column today, asks: "Are judges in the 7th U.S. Circuit Court of Appeals quietly taking advantage of their unusual assignment system to effect particular results?" Here is a sample:

But in a new working paper for a forthcoming issue of the U.C. Davis Law Review, a law professor at the University of Georgia contends that 7th Circuit judges can indeed manipulate the circuit’s unusual assignment system to set precedent in areas they want to influence. In “Superstar Judges as Entrepreneurs: The Untold Story of Fraud-on-the-Market,” the professor, Margaret Sachs, examines how Judges Posner and Easterbrook set precedent on class certification in securities class actions, especially after Rule 23 of the Federal Rules of Civil Procedure was changed to permit interlocutory appeal of class certification decisions from trial courts. All 17 of the 7th Circuit’s first reported opinions on interlocutory class certification appeals, according to Sachs, were written by Judge Posner or Judge Easterbrook. She says that dominance is anything but a coincidence.

Sachs argues that the two judges were able to shape precedent in part by retaining merits appeals of cases they agreed to hear as motions judges. Eleven of the 7th Circuit’s first 17 opinions on interlocutory class certification, she said, came in cases in which either Posner or Easterbrook served on a motions panel and went on to hear the merits of the case. In any federal circuit except the 7th, Sachs said, that would not have been possible. “If the motions panels had instead surrendered the appeals for reassignment to merits panels, the prevailing pattern in every other circuit, some percentage of the merits panels would almost certainly not have included Judge Easterbrook or Judge Posner,” she wrote.

Sachs calls Posner and Easterbrook superstars, but she nonetheless finds “worrisome” their apparent exploitation of the assignment system. “Judges Easterbrook and Posner typically presented an efficiency rationale,” she wrote. “While plausible as far as it goes, this rationale fails to take account of the arguable appearance of impropriety that the retention creates. Indeed, when deciding to grant a petition, the motions panel may develop a view about how the appeal should be resolved. Retaining the appeal for decision enables the motions panel to make that resolution the law of the circuit.”

There’s no federal policy against the self-selection that 7th Circuit motions panels can engage in, Sachs says, but all of the other circuits and considerable academic research support the entrenched practice of selecting appellate merits panels randomly.

[h/t: How Appealing]

Posted by Marcia Oddi on December 4, 2014 09:35 AM
Posted to Ind. (7th Cir.) Decisions