The Akron Law Review symposium on federal appeals is out, exploring a variety of issues in appellate procedure and jurisdiction.
June 29, 2020
Updated to correct the publication dates in the article cites.
The Akron Law Review just published its symposium on federal appeals. The symposium collects contributions from Cassandra Burke Robertson & Gregory Hilbert, Andrew Pollis, Michael Solimine, Adam Steinman, Joan Steinman, and me. The in-person portion of the symposium was unfortunately canceled due to COVID-19. But it was a lot of fun working with the Akron Law Review and the other contributors to the symposium.
Below are abstracts from, and links to, the wonderful papers (and mine, too). All are well worth the read and very highly recommended. The entire issue is available here.
Andrew Pollis on Criminal Appeals and Anders
This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.
Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a sufficient advocate.
The system is broken, but the solution is simple: a multi-tiered process of counsel review. If three competent lawyers, adequately incentivized by compensation, all agree that there is no basis for appeal, the court should permit withdrawal and consider the right to appellate counsel satisfied. Lawyers need not betray the clients, and courts need not get involved. The client, while still lacking a lawyer willing to pursue the appeal, has nevertheless had a sufficient substitute for purposes of the right to appellate counsel.
Andrew S. Pollis, Fixing the Broken System of Assessing Criminal Appeals for Frivolousness, 53 Akron L. Rev. 482 (2019).
Joan Steinman on Signed and Separate Opinions
Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices’ assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.
In this piece, I offer my thoughts in response to these proposals.
I argue several reasons to doubt that a prohibition on publication of concurring and dissenting opinions (or a requirement that any publication of such opinions be separate in time and place from the Court’s opinion or “naked” decision) would result in the Court deciding more cases than it currently decides or would lead to more agreement among the Justices. I explain why I believe the concerns about ill effects of separate opinions are not empirically well grounded, and why concurrences and dissents have significant salutary effects that their critics do not sufficiently appreciate. My article also argues that Professor Sherry’s proposal, requiring action by Congress, would violate the First Amendment rights of the citizenry and the Justices, and would likely affect the processes by which the Court makes, as well as explains and justifies, its substantive decisions, thereby violating separation of powers. Professor Orentlicher’s proposal to require unanimous decisions would moot a number of the problems with Professor Penrose’s and Professor Sherry’s proposals. But the degree to which unanimous decisions would be attainable, and at what costs, remain very open questions.
Open debates do far more for the Court’s legitimacy than purportedly univocal utterances and silenced disagreements (even if feasible) ever could do. Separate opinions demonstrate that the process of decision making is legitimate, and thereby both help to insulate the Court from political attacks and give hope to those who oppose particular results that those results someday may be reversed. Thus, the respectful airing of differing, even opposing, views is far more desirable than hiding Justices’ differences of opinions.
Joan Steinman, Signed Opinions, Concurrences, Dissents, and Vote Counts in the U.S. Supreme Court: Boon or Bane? (A Response to Professors Penrose and Sherry), 53 Akron L. Rev. 525 (2019).
Cassandra Burke Robertson & Gregory Hilbert on Appealing Judicial Disqualification
Adjudication by an impartial decision maker is one of the cornerstones of due process. The interest is so fundamental that constitutional due process guards against even the appearance of partiality, and federal judges are statutorily required to disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned.” Courts and scholars alike have struggled with what it means to “reasonably question” a judge’s impartiality. That question has taken on greater salience in recent years, as deepening partisan divisions have increasingly led parties to express skepticism of judicial neutrality.
When a party files a motion to disqualify a judge based on the appearance of partiality, that motion is commonly ruled upon by the very judge whose impartiality is being questioned. The ability to appeal the denial of a disqualification motion therefore plays a key role in maintaining public confidence in the judiciary. Appellate review offers a third-party evaluation of the judge’s appearance of impartiality (often the first third-party review), and it brings in the benefit of a larger panel to evaluate the underlying ruling.
In spite of the importance of appellate review, the procedures by which judicial disqualification will be reviewed are far from clear. This Article explores the procedural aspects of appellate review of judicial disqualification orders and works to reconcile the current inconsistencies in federal practice. Ultimately, the article recommends that the federal courts standardize appellate review of disqualification orders to minimize confusion and promote confidence in an impartial judiciary.
Cassandra Burke Robertson & Gregory Hilbert, Judicial Disqualification on Appeal, 53 Akron L. Rev. 573 (2019).
Michael Solimine on Discretionary Appeals and the Collateral-Order Doctrine
Reserving appeals to final judgments has a long history in the federal courts, as do exceptions to that rule. The problem has less been the existence of the exceptions, but rather their scope and application. This article addresses two of those exceptions. One is permissive interlocutory appeals codified in section 1292(b) of the Judicial Code. That exception, requiring the permission of both the trial and appellate courts, has numerous advantages over other exceptions, has been frequently touted as such by the Supreme Court, and has been applied in several recent high-profile cases. In contrast, the collateral order doctrine, an ostensible interpretation of the final judgment rule of section 1291 of the Judicial Code, has long been the subject of persistent criticism. Courts have ameliorated the pernicious effects of the doctrine by narrowly interpreting it, and courts should continue doing that, and seriously consider abandoning the entire doctrine. This is especially true given the availability of permissive interlocutory appeals as a safety valve to the potential harshness of the final judgment rule.
Michael E. Solimine, The Renaissance of Permissive Interlocutory Appeals and the Demise of the Collateral Order Doctrine, 53 Akron L. Rev. 607 (2019).
Bryan Lammon on Discretionary Appeals
Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one opportunity in a civil action to directly petition the court of appeals for an immediate appeal. And third, experiment with these and other possible reforms in a few circuits to see how they work. These ideas are admittedly preliminary. But we should start thinking about what discretionary appeals might look like in the future and how we might move towards that future.
Bryan Lammon, Three Ideas for Discretionary Appeals, 53 Akron L. Rev. 639 (2019).
Adam Steinman on the Emoluments Appeals
This article—part of a symposium on federal appellate procedure—addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought immediate relief from the federal courts of appeals rather than allowing the litigation to proceed in the district courts. The lack of a traditional final judgment, however, prompted difficult jurisdictional issues for the D.C. Circuit and the Fourth Circuit.
In both cases, the relationship between appellate mandamus and the certification process set forth in 28 U.S.C. § 1292(b) has figured prominently. And both cases led to problematic decisions on this issue. The D.C. Circuit deployed an under-scrutinized but increasingly common tactic that this article calls a mandamus “nudge,” which ultimately persuaded the D.C. district court on remand to certify its orders for immediate appeal under § 1292(b) after initially refusing to do so. In the Fourth Circuit, the initial three-judge panel went even further—using mandamus to overturn the district court’s refusal to certify its orders under § 1292(b) and to treat the case as if the district court had provided the certification necessary for an immediate appeal. The en banc Fourth Circuit correctly rejected this move by the initial panel, but the issue is now headed for the Supreme Court.
Adam N. Steinman, Appellate Jurisdiction and the Emoluments Litigation, 53 Akron L. Rev. 659 (2019).