ISSN 1062-7421
Vol. 11 No. 1 (January 2001) pp. 20-24.

CONTINUITY AND CHANGE ON THE UNITED STATES COURTS OF APPEALS by Donald R. Songer, Reginald S. Sheehan and Susan B. Haire. Ann Arbor: The University of Michigan Press, 2000. 179 pp. Cloth $44.50. ISBN: 0-472-11158-2.

Reviewed by Christopher P. Banks, Department of Political Science, The University of Akron.

Although the study of law and courts in political science is preoccupied with analyses of the Supreme Court of the United States, scholars increasingly have diverted their attention to the U. S. Courts of Appeals. There is good reason to do so since the middle tier is often the place of last resort for litigants because the Supreme Court exercises little supervision over appellate rulings (Howard 1981). Although Howard's COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM (1981) has inspired subsequent scholarship on circuit courts, CONTINUITY AND CHANGE ON THE UNITED STATES COURTS OF APPEALS (2000) is "the first detailed analysis of the United States Courts of Appeals Data Base, the richest and largest database ever assembled for the study of American courts" (p. 20). The multi-user database, which was principally constructed by Donald Songer with National Science Foundation funding over several years, consists of a sample of 15,315 published decisions from the circuit courts from 1925 to 1988. Thus, although CONTINUITY AND CHANGE offers some insights as to the role appeals courts play in society, its strength is that it is a useful primer for those who wish to use the database for further study.

After a brief sketch of the database and the modern function of the intermediate level in chapter 1, the authors analyze the judicial selection characteristics (chapter 2), judicial business (chapter 3), judicial litigants (chapter 4) and judicial decision-making (chapter 4) of circuit courts. The main theme throughout is the paradox of continuity and change: whereas circuit courts have adapted to different social, political and legal changes that underscore their traditional function of error-correction,
circuit courts have also evolved into significant policymakers, especially in civil rights and governmental regulation. The authors use the contradiction to make sense of what the courts do in terms of their membership, agenda, litigants and legal outcomes.

Chapter 2 presents a composite of the staffing characteristics that comprise the courts of appeals bench over time. This portrait reaffirms the conventional view that presidents try to pack the bench and also that appeals courts mostly consist of white Protestant males. The authors reiterate that the appointing power is constrained by senatorial courtesy and congressional legislation that controls the number of authorized judgeships. Descriptive statistics are employed to show, however, that the recent appointments are more diversified in their initial professional experience, which may be attributable to a more specialized legal environment. By profiling the
circuit membership by partisan appointment, the ideological variation of each is outlined to

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suggest that partisanship is likely to contribute to more circuit court conflict and provide an incentive to forum shop.

Chapters 3 and 4 introduce social development theory for the purpose of explaining the composition and significance of the courts of appeals' business and litigants. Although the theory is not fully elaborated, the authors employ the data to assert that caseloads and litigants are influenced by changes occurring in the broader social context. By analyzing the subject matter and legal issues of appeals over time, chapter 3 argues that circuit courts more routinely confront complex constitutional and statutory claims, thus expanding their agenda opportunities to make policy in civil liberty, regulation and diversity of citizenship (or state law) cases. As a result,
the courts' agenda has increasingly shifted from resolving private economic disputes to deciding public law appeals.

In that social development theory relates to why Americans are litigious, it also assists in discerning who are active participants in the middle tier. Thus patterns of litigation and the participation (and success) rates of specific litigants are examined in chapter 4 to suggest that rising caseloads and changes in the external political and legal environment have impelled individuals (who have less money and less litigation experience than repeat players) to seek relief in public law disputes increasingly in circuit courts. However, before World War II, businesses (and to a lesser degree, governments) were the main litigants. Even though appeals courts have become more of a participatory forum for hearing rights disputes, the authors nonetheless confirm prior studies indicating that individuals, or the poorly
financed and less experienced "have nots" of litigation, cannot compete with the superior resources and experience of government, the "haves" of litigation.

Chapter 5 synthesizes these arguments by offering three general conclusions about appellate decisionmaking. First, although the rate of appellate reversal of district court rulings has remained relatively stable (about 26 to 31 percent), there is more dissensus in and between the circuits over time. Especially there is an upward trend to conflict, with it becoming more conspicuous after the New Deal (rising from roughly 3 percent in the 1920s to about 9 percent in the 1980s) (p. 105). Second, although partisanship and its impact on judicial voting has varied over time, it is a factor that principally influences voting patterns after World War II (p.
129). This development may be consistent with the changes in the issue agenda (p. 139). Third, regional variation among appeals courts did not account for policy differences over time, especially in civil rights and liberties and criminal cases. Hence "circuits are not good proxies for regions in the study of judicial behavior on the lower courts" (p. 129). This finding implies that policy conflict is more nationalized in that political differences are becoming institutionalized on the national
presidential and party level.

As the conclusion tells us, the changes mentioned above must be juxtaposed against a number of stable principles that help define the role of modern circuit courts. Despite a changing political, legal and social environment that accentuates increasing caseloads and finite judicial resources, the error correction function of courts of appeals remains intact, as does their institutional capability to act as the final arbiter of disputes in key areas of public policy. Although appeals courts have been
increasingly been a forum for

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individual litigants who press complex constitutional and statutory claims, the harsh (and extant) reality remains that individuals invariably lose against government and corporate litigants that have superior litigation and financial resources. Although court membership changes over time, and although what judges adjudicate is a bit
more diverse in terms of their specific subject matter in distinct time periods, presidents still try to pack the courts with appointees who tend to be homogenous in their personal attributes and, when confirmed, generally utilize partisanship as a means to generate political conflict or favorable policy outcomes.

CONTINUITY AND CHANGE reminds us that the federal circuit courts are political actors that consistently demonstrate their resilience and significance by adapting to different and conflicting political, legal and social milieus over time. What is less clear -- and what the book does cannot address because it primarily makes descriptive findings from a complex, random sample of published opinions -- are the specific reasons why. Presumably because this brief book is the first look at a large, multi-user dataset, with few exceptions (notably in chapter 5, pp. 123-125, where a multivariate model is used to test the effects of party and region on judicial voting) the authors do not use inferential methods to test or explain a number of propositions that arise from, and might account for, variations or trends in the data. At times, as where the authors identify the inconsistency of finding that "prior to 1946.in both civil rights and liberties and criminal cases, Republicans actually provided marginally greater support to the liberal position when compared to votes cast by Democrats" (pp. 114, 116), reaching a richer understanding of why this is so is frustrated by not taking the next analytical step that goes beyond surveying the literature or conveying what the data describes generally.

A related problem emerges too when the book introduces, but does not sufficiently explain, certain theories that purport to help support their data analyses. This is the case when social development (chapters 3 and 4) and communications (chapter 5) theory are respectively singled out as analytical frameworks for understanding the agenda, litigants or decision-making of circuit courts. Although these theories may be relevant, their explanatory power in relationship to the data is muted because the discussion of what they represent is underdeveloped throughout the book. Similarly the authors do not explore how their data corresponds to analogous judicial workload and management statistics published by the Administrative Office of U. S. Courts; or how their findings are connected to many of the issues
facing modern courts that are often referred to in the legal literature or by the courts themselves.

Juxtaposing their data against the Administrative Office of U. S. Courts statistics may have provided a better baseline or context to understand some of the workload trends (either generally or by subject matter) they observe from circuit court published opinions, as when, for instance, they discuss the "big picture" of judicial business (p. 54) over time or, more specifically, the increasing volume (and problem) of prisoner petitions as civil rights claims (p. 62). Since, prior to 1997, the
Administrative Office has classified prisoner petitions for both civil rights and conditions of confinement appeals under the category of "prisoner civil rights" (Miller 2000, p. 5 n. 1), it might have been useful to shed light on how the Appeals Data Base

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categorizations of similar data (i.e. "prisoner petitions," in civil rights type cases specified in Table 3.5, p. 62) relate or depart from what the government reports.

Likewise, linking their data to the LONG RANGE PLAN FOR THE FEDERAL COURTS (1995) or the FINAL REPORT OF THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS (2000) or, indeed, any of the several analogous government and scholarly studies summarized in Baker's RATIONING JUSTICE ON APPEAL (1994) could have put, for example, the key issue of whether the caseload crisis negatively affects the delivery of traditional appellate justice -- and whether intramural or structural reform is necessary) -- in perspective (Although the Final Report of the Commission probably would not have been available for review by the time of the book's publication, the transcripts of the hearings the Commission held probably
were since they were posted on the Commission's web-site well in advance as part of a notice and comment period that preceded the issuance of the final report). Extensive analysis of such an issue is not required, and the topic legitimately deserves more attention than it received since it is highly relevant to evaluating the role of circuit courts and whether they can remain viable, geographically-based institutions in an age of increasing legal specialization and administrative (and statutory) complexity. This policy question assumes even more significance, it seems, in light of the book's conclusion that nationally-oriented judges (who are operating in a more institutionally dynamic administrative state) are more apt to be tethered less to regional considerations in deciding certain types of appeals (pp. 141-143).

With so few books published on the subject more careful attention to placing the courts of appeals in contemporary focus is certainly worthwhile, especially if it is argued that they are susceptible to a myriad of social, political and social changes over time. Even so, CONTINUITY AND CHANGE remains a noteworthy book because it ably describes the scope of the United States Courts of Appeals Data Base to interested scholars and students and offers a fresh view of the overall significance of circuit court functions and judicial behavior. The book's findings, therefore, are not only an important affirmation of what we know about circuit courts, but they also are the first step in giving us some different longitudinal perspectives that allows for comprehending their present significance and, perhaps, what their role might be in the twenty-first century.

REFERENCES:

Baker, Thomas E. 1994. RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF THE U. S. COURTS OF APPEALS. St. Paul, MN: West Publishing.

Commission on Structural Alternatives for the Federal Courts of Appeals. 2000. FINAL REPORT OF THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS. Washington, D.C.: U. S. Government Printing Office.

Howard, J. Woodford. 1981. COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH AND DISTRICT OF COLUMBIA CIRCUITS. Princeton, N.J.: Princeton University Press.

Judicial Conference of the United States. 1995. LONG RANGE PLAN FOR THE

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FEDERAL COURTS. Washington, D.C.: Committee on Long Range Planning, Judicial Conference of the United States.

Miller, Marilyn J. 2000. CHANGING TRENDS IN PRISONER PETITION FILINGS IN THE U. S. COURTS OF APPEALS: A FACT SHEET. Washington, D.C.: Office of Human Resources and Statistics, Statistics Division, Administrative Office of the United States Courts.

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Copyright 2001 by the author, Christopher P. Banks.