Vol. 5 No. 5 (May, 1995) pp. 161-163

ON APPEAL: COURTS, LAWYERING, AND JUDGING by Frank M. Coffin. New York: W. W. Norton & Company, 1994. 373 pp.

Reviewed by Lawrence Baum (Ohio State University)

During his career as a judge on the federal court of appeals for the First Circuit, Frank M. Coffin has written a good deal about courts and judging. Now, as a senior judge, Coffin offers ON APPEAL as "a summing-up of the thoughts and insights of nearly three decades of observing lawyers and working with judges." (xv) He explicitly aims this discussion at several audiences: college students and the "lay citizen" in general, law students and practicing lawyers, judges, and journalists.

The book's scope is quite broad. A chapter and appendix compare appellate practices in different legal traditions and summarize the historical development of "the appellate idea." Another chapter discusses the relationship between state and federal judicial systems. The final chapter on the future of appellate courts makes a number of recommendations to the other branches about matters such as diversity jurisdiction and court funding. But the bulk of the book examines the appellate process, focusing on lawyers' advocacy, judicial decision-making, and writing of opinions. In each of these areas Coffin makes use of relevant scholarship, but his most important sources are his own experiences and perceptions. He seeks to describe and explain appellate practices and processes; he also offers a variety of prescriptions for lawyers and judges.

Political scientists are not one of the primary audiences for whom Coffin is writing. However, I think that the book has something to offer to scholars who are interested in appellate courts. As Coffin demonstrates, the account of an experienced and perceptive judge can tell us a good deal about the work of judging.

For political scientists, the most relevant chapters of the book are those that examine aspects of appellate decision-making. Understandably, Coffin does not take a social scientist's approach to analysis of judging; just as understandably, he is inclined to present the process of reaching decisions in a positive light. But he says a number of noteworthy things about decision-making on a federal court of appeals.

For one thing, he presents detailed descriptions of what he does as a judge. His discussion of how he goes about writing opinions, for instance, is unusually rich. More broadly, he gives a sense of the routine of an appellate judge's work. Thus the book is a good resource on the "how" of appellate decision-making.

Beyond those descriptions, Coffin provides a number of insights about decision-making on his court. Let me note some of the insights that I found particularly interesting:

-- Coffin examines the principles that structure his choices as a decision-maker. In chapter 12 he briefly discusses the impact of various legal schools of thought, such as positivism and realism, on his judgments. Chapter 14 offers a detailed discussion of the values that influence Coffin in "hard cases" involving individual rights. (Taking a

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position similar to that expressed by some other judges on federal courts of appeals, Coffin argues that differences in judges' values concerning public policy are relevant to only a minority of cases, those that he calls "hard.") These discussions are not meant to give a full explanation of Coffin's votes and opinions, but they suggest how one judge uses general premises as bases for judgments. Scholars who are interested in the content and impact of judges' value systems will find this material particularly interesting.

-- Coffin emphasizes the presumption against concurring opinions and dissents on his court. He reports that "In over a quarter of a century I have authored over 2300 opinions; in that period I have written only twenty-seven dissents and twenty-one concurrences." (225) He contrasts this presumption with practice on the current Supreme Court. As I read Coffin's account, his court is similar to the pre-1940 Supreme Court in an important respect: the norm of consensus is strong enough to make judges' votes quite imperfect indicators of their underlying preferences. If the First Circuit is typical, the resulting gap between preferences and votes (or opinions supported) creates a substantial complication for analysis of decision-making on the courts of appeals.

-- Coffin reports that the names of participating lawyers and district judges influence his reactions when he begins to study a case, because he recalls the quality of their work in past cases. If the district judge in a case has suffered frequent reversals in his court, for instance, "I cannot help approaching an appeal from such a judge with a slight skepticism." (111) Later he indicates that he has analogous reactions to individual administrative agencies. Some scholars have provided evidence that Supreme Court justices react in similar ways to the identities of lawyers and interest groups associated with cases. In conjunction with those findings, Coffin's account underlines the relevance to judges of accumulated information about participants in litigation.

-- The book discusses in considerable detail the roles taken by law clerks in decision-making, particularly in the writing of opinions. In the process, Coffin provides particularly clear evidence for the importance of law clerks to decisions. He also offers more specific insights about matters such as the criteria he uses in assigning cases to clerks for opinion drafting.

-- Coffin provides several pieces of evidence about the impact of growing workloads and increasing size on appellate judging. He notes that time considerations affect the thoroughness of opinion-writing, and he argues that the growing number of judges on his court has reduced collegiality to a significant degree.

Also relevant to political scientists are Coffin's discussions of judicial accountability and independence. He is a strong advocate of maximum independence. He disapproves of judicial elections and of what he calls legislative "micromanagement" of the courts, and he sees underfunding of state courts as a condition that weakens judicial independence. He expresses considerable concern about the growth and strengthening of judicial disciplinary systems as a potential threat to independence; that concern suggests the depth

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of judges' desire to maintain their freedom from what Coffin calls "surveillance of judges' conduct." (312) Coffin's strong emphasis on independence, hardly unusual among judges, is a reminder that we need to take judges' desire for autonomy into account as a motivation that affects their relationships with higher courts and with institutions in the other branches.

In discussing the actual level of accountability in the judiciary, Coffin takes a striking position. Pointing to his experience as a former member of Congress and federal administrator, he concludes a survey of the three branches with the statement that "when rhetoric is put aside, the judiciary is, in its own matrix of mechanisms, at least as accountable as its sister branches." (244) Readers will not necessarily be convinced by Coffin on that point, but they will find his argument interesting.

As noted earlier, one of Coffin's intended audiences is college students. I think that his book merits consideration as a supplementary text for courses that emphasize judging and judicial decision-making. His descriptions of a judge's work provide useful specificity, and he gives readers a good sense of how he perceives the job of a court of appeals judge. His explanation of appellate decisions from a judge's perspective can help to stimulate thinking about this subject. Students (and other readers) will appreciate the humility that runs through the book. And one great virtue of the book is that the writing is clear and interesting.

Copyright 1995