ISSN 1062-7421
Vol. 12 No. 7 (July 2002) pp. 373-376

INSIDE APPELLATE COURTS: THE IMPACT OF COURT ORGANIZATION ON JUDICIAL DECISION MAKING IN THE UNITED STATES COURTS OF APPEALS by Jonathan Matthew Cohen. Ann Arbor: The University of Michigan Press, 2002. 231 pp. Cloth $55.00. ISBN 0-472-11256-2.

Reviewed by Don Songer, Department of Government and International Studies, University of South Carolina.

Professor Cohen argues that the most significant and persistent questions regarding the administration of justice in the United States are related to the dilemma of how a system "constitutionally constructed to favor individual, solitary, and sage like decision making" can continue to function effectively in an era of exploding caseloads. This book is his attempt to assess the answers that have traditionally been offered to address this dilemma and to provide his own insights into the problems created by the caseload "albatross." Specifically, the book utilizes an "organizational-behavior perspective" to explain empirically how the
increasing caseload burden, the increasing complexity of the cases, and changes in the process of decision making (such as increased reliance on clerks and other staff) have affected the ways in which judges make decisions.

The starting point for the analysis is the assertion that the central organizational dynamic is the balance between the autonomy of the individual judges and the high degree of interdependence among judges that forces them to compromise and work to achieve collective goals. This dynamic flows from the basic organization of the courts of appeals that include decision making by panels of judges (usually three judges) and the fact the judges also operate within a small chamber's group including their clerks and other staff. Although drawing on analogies between appellate courts and the typical multidivisional organizations in our economic
system, Cohen notes that the tension between autonomy and interdependence is complicated in the courts of appeals because there is no central administrative office to coordinate the interaction among the judicial chambers.

The central thesis of this analysis is that while the unique organization of the courts creates a critical tension between autonomy and interdependence, organizational features of the appellate courts serve to maintain an effective balance between those forces. Consequently, Cohen concludes that we should not rush into the adoption of any of the radical structural changes, but instead should encourage the courts to continue to experiment, circuit by circuit, with incremental modifications in court organization.

In the first chapter, the author lays out the evidence for the view that courts have been faced with the twin pressures of increasing caseloads and the increasing complexity of the average case. These problems have led many scholars to fear that the courts are becoming increasingly bureaucratized-an outcome that Cohen's literature review suggests is widely seen as

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very undesirable. When a court becomes bureaucratized, it moves away from what Cohen believes is widely perceived to be the normative ideal of the isolated judge making solitary decisions on individual cases and instead begins to dispense "justice" in a manner that resembles the mass production of industry.

To assess the extent to which the courts have become bureaucratized and to assess the consequences of any increase in bureaucracy, Cohen conducted interviews with between 35 and 40 judges (he never says exactly how many). About two-thirds of these interviews were with judges on the Ninth Circuit, supplemented by interviews with eight judges on the Seventh Circuit, two or three on the District of Columbia Circuit, and one from the First Circuit. Judges were promised anonymity and therefore the names of judges interviewed are not provided and no quotations are attributed to any specific judge. The interviews consisted of "open-ended questions and discussions." The text briefly describes the general areas covered in the interviews, but specific questions are not provided. The extent to which all of the judges were asked the same or very similar questions is not clear from the description in chapter 1. The author supplemented these
interviews with his observations from a year long clerkship for a Ninth Circuit judge, six weeks of observation of clerks in the Seventh Circuit, and ten weeks as an observer within the chambers of one of the D. C. Circuit judges' chambers. Most of the description and analysis in the book is derived from a synthesis of the author's personal observations and his interviews with judges. Although quotations from some of the interviews are frequently used anecdotally to illustrate the larger points being made, there is little attempt to quantify the responses to any interview questions, and there is little explicit discussion of whether conclusions are based on the author's observations versus the interview answers or the extent to which one would draw similar or different conclusions from these two basic sources of his information.

After chapter 1 lays out the nature of the problem to be investigated and the methods used, the next chapter further describes the organizational character of the courts of appeals. The courts are briefly viewed from four perspectives: the rational-goal approach, small group theory, the court viewed as small independent law firms, and the courts as a multidivisional organization. The threat of bureaucratization is then discussed again in light of each of these conceptions of courts. The
second chapter concludes by stating the hypothesis that three broad categories of organizational facets serve to maintain the balance between autonomy and interdependence: formal features, structural features, and cultural/institutional features. The remainder of the book is organized around the discussion of each of these features and how they work to maintain the balance.

The bottom line for me is that this is a book that I would strongly recommend to anyone who is interested in the workings of appellate courts in the U. S. (and I think the detailed descriptions would also provide an interesting baseline for comparison for those interested in a broader comparative perspective). I believe that the analysis fails to provide a completely satisfactory answer to the questions that are designed to orient this book. In particular, in the first chapter the author promises a dynamic explanation of change over time, but in fact there is little evidence of how the courts have changed in response to changing caseloads and changes in complexity. Nevertheless, I found the substantive chapters (chapters 3-6) to be a

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rich source of description and insight into the working of the modern courts of appeals. There is simply more detail of the inner workings of the court and a more nuanced discussion of the judicial process than I have found in most other treatments. I felt that I learned a lot about the courts of appeals from this book and found it to be a valuable resource as I prepared for my own set of interviews with appellate judges.

In spite of my view that this is a very valuable book, it has some limitations and shortcomings that readers should keep in mind. First, the author appears to be largely unaware of most of the recent empirical work on appellate courts. Very limited reference is made to any of the empirical literature and that work does not appear to have guided his research design.

I also believe that the author should be more cautious about many of his generalizations. As noted above, the bulk of the data on which this book is based is derived from the Ninth Circuit, and it is reasonable to be concerned that the Ninth Circuit may not be typical of other circuits in many respects. My impression was often that this was a book with a focus on the Ninth Circuit and brief comparisons to two other circuits. For example, there is considerable discussion of the practice, common in the Ninth Circuit, of sharing among the three judges on a given panel of a bench memo written by a clerk from a single chamber who is chosen in advance. At times the discussion gives the impression that this is a common practice across the courts of appeals, even though it is noted briefly that the Seventh Circuit does not use the practice at all and the D. C. Circuit uses the practice only rarely. My own interviews suggest that this sharing of a bench memo is not used in the First, Third, or Tenth Circuits. So rather than being a common practice, this procedure may be largely limited to the Ninth Circuit, but that is not the impression that this book gives. Compounding this problem of overgeneralization, it is often difficult to fully evaluate the conclusions of the author because usually only summary, interpretive conclusions of the author are presented. Most of the time it is not clear whether the particular phenomenon being discussed is common to each of the three circuits, or whether there was unanimity among the judges interviewed in support of the author's conclusions, or to what extent the conclusion was based only on the author's observations or only on interview responses or whether the interviews and the participant observations led to the same conclusions.
For example, on page 180 the author concludes that, "even when a situation arises in which a judge recognizes that at least one other member of a panel has a similar political interest in not following the formal rules, the judges are likely to follow the formal rules." One might surmise that this conclusion is based solely on interview responses (since the author apparently was not able to observe panel conference sessions), but the text does not say so. Nor are we told how many judges were asked about such a situation and how many judges agreed with the conclusion (or if there was not unanimous support for this conclusion, was the level of support different in different circuits). The data gathered for this book would make it possible to write something like "only three of thirty-two judges who were asked indicated they would ever consider departing from the formal rules even when it served their political interest," but a statement in such a form is virtually never provided.

As indicated above, the analysis fails to shed as much light as it might on the question of how the courts have maintained

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the balance between autonomy and interdependence in the face of increasing case loads, because if often fails to investigate how the process has changed over time. For example, chapter 3 on the formal features of the courts of appeals has one of the most insightful and interesting discussions I have read of the way the doctrine of stare decisis works in practice and the way this formal doctrine's application is affected by the views of judges on the possibility of review and reversal by the Supreme Court. However, there is almost no indication of how any of this has changed over time. For example, the author concludes that neither the possibility of being reversed by the Supreme Court nor the possibility of being appointed to the Supreme Court affects the way the judges apply precedent. Yet, there is no indication of whether either of these tendencies has become more prominent as the objective probability of both reversal and elevation has decreased over time or whether these are long term features of the way appeals court judges go about their business.

In summary, this is a book that has a wealth of fascinating information, perspectives, and interpretations of how the courts of appeals operated at the end of the Twentieth Century. However, readers should be somewhat cautious about the generalizations and conclusions drawn.

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Copyright 2002 by the author, Don Songer.