Everyone knows panel assignments are random, and everyone is wrong

Duke law professor Marin Levy has posted a new Cornell Law Review article on SSRN entitled “Panel Assignment in the Federal Courts of Appeals.” I first saw it on How Appealing, where Howard Bashman describes it as interesting and important, and I heartily agree. Levy has written many valuable law review articles (a phrase I sometimes think of as oxymoronic) on how federal courts function, and this is another gem.

While I encourage you to read the article in full, I’ve collected here for busy Third Circuit junkies all the CA3-specific parts. Note these are based on interviews with 3 judges and a senior member of the clerk’s office in 2012 and 2013, so as Levy notes they may not reflect current practices. Note also that she used male pronouns for everyone to preserve anonymity.

Here are the Third Circuit references:

  • “There, information was collected from judges about dates that should be blocked out—for a conference or vacation—and that information was inputted into a computer program that ultimately created a calendar to be approved by the chief judge.”
  • “A senior member of the clerk’s office in another circuit said that information was collected regarding when senior judges wanted to sit, and then that information was factored into the creation of panels.”
  • “A judge of another circuit said that in his court, no two judges were permitted to sit together more than twice in the same sitting period so that all the judges got to know one another.”
  • “In another circuit I was informed that this practice had been in use in the past, depending upon the chief judge. Specifically, I was told that some chief judges would accommodate a judge who said he would not sit with another judge, whereas other chief judges would not.”
  • ” From time to time, some circuits hold special sessions of court—either at a district court in a city outside of the designated locations for oral argument or at a law school within the circuit. Of the five circuits surveyed here, all but the D.C. Circuit reported having held special sittings in the recent past. . . . a senior member of a clerk’s office in one circuit stated that judges were not picked specially for these panels . . . .”
  • “One Third Circuit judge referred to the computer program that the court employed to help set panels but noted that he did not know precisely how the program worked.”

Am I a bad person because now the only thing I want to know is what judges refused to sit together?