Vol. 13 No. 1 (January 2003)
Making Law in the United States Courts of Appeals, by David E. Klein. New York: Cambridge University Press, 2002. 180 pp. Hardback 0-521-81023-X $55.00, Paperback 0-521-89145-0 $20.00.
Klein has written one of the most complete and rigorous accounts of lawmaking at the Courts of Appeals level to date, and his study is certain to have an impact on the field of judicial behavior generally, and on the study of the U.S. Courts of Appeals specifically. In this review, I summarize and highlight Klein’s major findings and then spend a little time noting some things that might be considered in future work in order to build on the already strong analysis offered by Klein.
By examining instances of rule-making in areas of law lacking in Supreme Court guidance, Klein examines an aspect of Courts of Appeals decision making that is not often studied by scholars. Most of the extant empirical research on the Courts of Appeals focuses on the more usual situation in which a Circuit judge finds herself – a situation in which there is Supreme Court precedent to take into account – and finds that the lower court does indeed heed the preferences of the Supreme Court most of the time. Klein asks, however, what happens when that judge finds herself in a new area without the guidance of her much-heeded principal. How does she make decisions then? Klein finds, using empirical and interview evidence, that while she takes into account the decisions of her circuit court colleagues, she does not try to anticipate the behavior of her boss should her boss review her decision.
Klein structures the analysis in the book around the competition among various goals pursued by judges. He identifies several such goals relevant to his inquiry: promoting policies consistent with a judge’s policy preferences; reaching decisions that are legally sound; maintaining coherence and consistency in the federal law; and limiting time spent deciding any one particular case, all of which are supported both by the literature on judicial behavior and by his interviews with Courts of Appeals judges (p. 11). He argues that these goals do indeed conflict with one another at times and that different goals are operative in different cases for different judges at different times. He then offers several hypotheses related to these goals that he tests via use of a dataset containing 81 new legal rules developed in 60 cases treated in 300 subsequent cases in the areas of antitrust, search and seizure, and environmental law, from 1983 to 1995. Relating to policy preferences, he hypothesizes that rule adoption will be affected by the ideological distance between the judge and the rule; relating to making legally sound decisions, he posits that adoption will be more likely for rules authored by prestigious judges, rules written by expert judges, and rules established in cases without a dissent. With regard to generating consistent law, he hypothesizes that adoption will be more likely when more circuits have adopted the rule; and relating to limiting the time spent deciding, he suggests that prestige, expertise, and the number of other circuits adopting the rule will affect the likelihood of adoption even more when the decision is more difficult for the judge.
One might take issue with Klein’s selection of cases, due to the problem of missing subsequent cases that should have treated a rule but either ignored it or were unaware of it, or due to the exclusion of subsequent positive treatments of a rule from a judge’s own circuit. However, Klein’s finding, for example, that a subsequent circuit is more likely than not to adopt the rule espoused by a colleague in an earlier decision is surely convincing, as are most of the findings from the empirical analysis.
Indeed, Klein finds support for all of his hypotheses about factors increasing or decreasing the likelihood of rule adoption. Greater ideological distance between a rule and the judge considering adoption reduces the likelihood that the judge will adopt the rule. The more prestigious the rule’s author (measured with reference to the relative number of mentions by name a judge gets in his or her colleagues’ opinions), the more likely the treating judge will adopt the rule. The more expert a rule’s author in the issue area (measured with reference to the relative number of majority opinions authored by the judge in the issue area), the more likely a later judge will adopt the rule. All of these findings, through various specifications and careful methodological decisions, seem reasonable.
Three other conclusions warrant some additional comment. First, Klein finds that the more circuit support for a rule (measured by use of residuals from a regression of adoption on those variables antecedent to it), the more likely a given judge will adopt it. The two-step regression makes good sense in terms of dealing with the indirect effects of some of the independent variables on the adoption of the rule by other circuits, which then affects the likelihood of adoption by a subsequent judge. But, it might be the case that the ideological direction of the rule adopted will interact with the number of circuits adopting it to disproportionately influence a like-minded judge. In other words, one could hypothesize that liberal judges will be driven to adopt liberal rules with wide support and conservatives to adopt conservative ones. While Klein does control for ideological distance between the rule and the treating judge, this interactive specification may be fruitful to explore. This would suggest that ideological goals are pursued not only directly, but also through disproportionate attention to the behavior of like-minded colleagues.
Second, Klein finds that when the decision announcing a new rule is accompanied by a dissent, the rule is less likely to be adopted by subsequent courts. Reasons for this relationship abound, and Klein does well to explain those possible motivations. However, it seems to me from his discussion that a concurrence might similarly affect rule adoption, especially when the concurrence specifically criticizes the rule and/or its rationale. Klein does not test for this potential influence.
Finally, the operationalization of decision difficulty is less than satisfying. Klein finds that the degree of difficulty increases, the more influential a prestigious rule author is on the adoption decision for a given judge. This makes good sense, until one finds that difficulty is operationalized only as the seniority of the deciding judge. It seems to me that using seniority may actually uncover a freshman effect rather than decision difficulty given that what may be happening is that freshmen are more easily impressed or influenced by their prestigious colleagues and less confident in their own reasoning than those more senior to them and so they more readily comply. This surely would make sense, but I think calling it a measure of decisional difficulty is somewhat misleading. It may indeed be the case that more difficult cases cause judges to rely more heavily on cues, but that kind of case difficulty is not measured here.
Klein then nicely considers interview evidence of the relationships uncovered by the empirical analysis, finding some support for those findings. The interviews do show one deficiency of the first part of the study though: that attributes of the rule itself are not considered. In many cases, the judges noted that some rules were just “better” than others. Some measure of the strength of the rule could have been considered by Klein to try to tap this dimension, but the choice not to engage in that sort of inevitably subjective coding is a reasonable one. This is surely a major factor in the judges’ adoption decision, though, that Klein’s empirical analysis is not able to test.
Klein concludes this first part saying, “we have very strong evidence that judges’ reactions to colleagues’ precedents are influenced by certain attributes of those colleagues and by the responses of other circuits to their rulings” (p. 105). He argues that this shows evidence of adherence to the goal of making good legal policy as well as maintaining consistency in the law. These are important and well-supported conclusions.
After establishing the correlates of rule adoption, Klein tests for the additional influence of the anticipation of Supreme Court reaction to the adoption decision. As noted in the introduction, he finds little evidence of any type of anticipatory behavior by the Courts of Appeals with respect to the possible actions of the Supreme Court. Klein tests for two possible realizations of that influence: the fear of reversal, and an attempt to decide the case as the Supreme Court would. To test for fear of reversal, Klein includes variables attempting to measure the increased likelihood of Supreme Court review (including amici participation, conflict, and issue attention). He finds no increased likelihood of conservative rule adoption in cases most likely to be reviewed by the conservative Court. To test the possibility that judges reference Supreme Court ideology to try to decide as they would, Klein also comes up empty. Measuring ideology as the addition of conservative justices Souter and Thomas, Klein finds that increasing Supreme Court conservatism has no effect on the probability that the circuit judge will adopt a conservative rule. Using the Baum adjusted percentage of conservative Supreme Court decisions in the prior year or even the prior two years (Baum 1988), both in the aggregate and in specific issue areas, Klein again fails to find any evidence of anticipatory behavior. It does not seem to be the case that Circuit judges worry much about possible Supreme Court reversal, nor do they attempt to put themselves in the High Court’s shoes when deciding cases in the absence of direct guidance. These findings are collaborated by Klein’s reading of circuit court opinions and by evidence gained through the interviews, clearly one of the major contributions of the study. While we generally know that the Courts of Appeals are faithful to Supreme Court precedent, Klein shows that the Circuits probably go no further than that.
Overall, one is immediately struck by the care taken in this research. Whenever possible, Klein employs several specifications and thinks hard about how the choices made may impact his results, carefully defending these choices. The book is also greatly strengthened by the combination of empirical and interview evidence. (And, of course, it is always fun to hear directly from the judges!) Because of the caution taken here, we can have a lot of confidence that the variables offered are indeed quite influential to judges in their rule adoption decisions. And the book certainly calls to mind many interesting research questions. While I take issue above with a couple of operationalizations and leave the book wishing I had heard a little more about why the Supreme Court decides to review certain cases treating or creating rules and ignores others, I was ultimately satisfied that the goals aspired to by Klein at the beginning of the book were largely achieved and I took away from the analysis a stronger understanding of circuit court behavior, at least in areas where they have the opportunity to create legal rules.
Perhaps most importantly from Klein’s perspective is that I walk away from this book taking the goal of making sound legal policy much more seriously. Through his empirical and interview evidence, I think Klein demonstrates fairly strongly that not only do these judges care about making policy in accordance with ideological goals, but they most certainly also care about pure legal goals in and of themselves. In Klein’s words, judges here see “legal soundness as a goal” not merely “as a constraint” (p. 141). This is a very large contribution, since the research on these courts that takes law seriously generally only does so as something judges try to get around—one of many constraints on their behavior. Klein argues very convincingly that the law itself is something these judges care very much about and that much of any adoption decision centers around how “good” a rule and its reasoning is. They are judges, after all, for a reason: they like the “’game’ of judging” (p. 12).
This book is a major contribution to the growing literature on the U.S. Courts of Appeals that should be read by all scholars interested in the Circuits, their relationship with the Supreme Court, and judicial behavior generally. Indeed, Klein’s book is one of the best systematic examinations of behavior on the U.S. Courts of Appeals to be produced and it is bound to make a substantial impact on the discipline. As Spaeth notes in his cover blurb, “’Outstanding’ and ‘path breaking’ are overused words; nonetheless they accurately describe this book.” I concur.
REFERENCE:
Baum, Lawrence. 1988. “Measuring Policy Change in the U.S. Supreme Court,” 82 AMERICAN POLITICAL SCIENCE REVIEW 905-12.
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Copyright 2003 by the author, Sara C. Benesh.