Appellate Law & Practice

This blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy. Please send your news and views to Appellate [at] gmail [dot] com. We also welcome new contributors. Email us if you are interested.

Saturday, November 27, 2004

The Appellate Practice Bookworm

Over this long thanksgiving weekend, we should give thanks that it will be over soon, and we can get back to real law stuff. Not just blogs and academic papers.

From SSRN, we have Steven Shavell, The Appeals Process and Adjudicator Incentives, Harvard Law and Economics Discussion Paper No. 485. http://ssrn.com/abstract=623284

In this article, Professor Shavell claims that the appeals process is great because…

[i]t leads to the making of better decisions, because it constitutes a threat to adjudicators whose decisions would deviate too much from socially desirable ones. Further, it yields this benefit without absorbing resources to the extent that adjudicators can anticipate when appeals would occur and would thus make decisions to forestall the actual occurrence of appeals.

It is a good paper, and a good read (and if you grit your teeth and think of England, the math is not that hard), but he seems to be pretty naïve about the process of decision-making in trial courts. A lot of decisions made by trial-level judges are not made simply to avoid a reversal, they are made to generate a clear record for the court of appeals, to lower the chance of a remand.

Next he seems to forget that many appeals come about after jury trials, and perfunctory motions for new trials. (And, in some cases, appeals are mandatory.) Since those motions basically preserve the record, most of the time they are denied. Indeed, at that point a trial-level judge has a disincentive to grant the motion as, he will likely have to sit though another trial again, thereby pissing everyone off at him.

The article does not deal with the issue of standards of review, and the ability that trial judges have to “set issues” up for appeal, generate clear or ambiguous records, or insulate the record from appeal.

However, if people were to take this seriously, maybe this article will provide another good reason to do away with S-cases under 26 U.S.C. § 7463 in the Tax Court or at least make them subject to appeal.

Anyway, read it. Now. While it is hot. When you are done with that read more Rehnquist gossip at SLP here.

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