A few days ago I stumbled across The Journal of Law, an online periodical founded in 2011 that bills itself as “an incubator of a sort, providing legal intellectuals with something akin to what business schools’ incubators offer entrepreneurs.” While this unconventional upstart may look like a law review, it's "really a bundle of small journals, all published in one volume.”
Earlier this month one of the mini journals, the Journal of Legal Metrics, published an article entitled “Appellate Review,” which outlines “an improved metric of appellate review – one which measures circuit court performance by compiling data on the Court’s resolution of circuit splits.” The authors, Tom Cummins (a law clerk in the E.D. Mich.) and Adam Aft (a law clerk for the Fifth Circuit), argue that the frequency with which the Supreme Court agrees with a particular circuit’s position in resolving a circuit split paints a more comprehensive picture of a circuit’s performance than “simply calculating how frequently the [Supreme] Court affirms [a circuit court's] judgment below.”
Last December CircuitSplits.com launched its “Conflict Resolution” infographic series in which I wrote about the “number of insights that might be gleaned from examining the circuit splits recently resolved by the Supreme Court.” For more on that series, click here.
So, after crunching the numbers, what did the authors discover? Here are the highlights based on the Supreme Court's October term 2010. I've highlighted the top-performing circuit in green and the bottom-performing circuit in red under each of the competing metrics.
1. Traditional Metric: Direct Affirmance Rate
% Affirmed by Direct Review (#Aff'd/#Decided)
- 1st Circuit: 100% (2/2)
- 2nd Circuit: 25% (1/4)
- 3rd Circuit:40% (2/5)
- 4th Circuit: 50% (2/4)
- 5th Circuit: 20% (1/5)
- 6th Circuit: 17% (1/6)
- 7th Circuit: 40% (2/5)
- 8th Circuit: 25% (1/4)
- 9th Circuit: 21% (5/26)
- 10th Circuit N/A (0/0)
- 11th Circuit: 33% (1/3)
- D.C. Circuit: N/A (0/0)
- Average: 28% (22)
(Check out page 4 of SCOTUSblog's OT2010 stat pack here for the full "circuit scorecard.") Now compare the affirmance rates above with, what the authors refer to as, each circuit's "parallel review affirmance rates":
2. New Metric: Parallel Affirmance Rate
% Affirmed by Parallel Review
- 1st Circuit: 86%
- 2nd Circuit: 60%
- 3rd Circuit: 78%
- 4th Circuit: 67%
- 5th Circuit: 79%
- 6th Circuit: 50%
- 7th Circuit: 62%
- 8th Circuit: 50%
- 9th Circuit: 60%
- 10th Circuit 100%
- 11th Circuit: 45%
- D.C. Circuit: 33%
- Average: 64%
So what do these numbers mean? The article offers several noteworthy takeaways:
- The Supreme Court sided with the approach taken by the majority of circuits in 90% of the circuit splits.
- "The Fifth and the Tenth Circuits . . . were affirmed substantially more frequently than their peers" under the parallel-affirmance metric.
- "[U]nexpectedly, the questions that divide the circuits are not ones that particularly divide the Court. While the Court split five-four in 20 percent of its seventy-five merits opinions in 2010, it resolved no circuit split by a five-to-four decision. And it affirmed a startling 70 percent of the circuit splits either unanimously or eight-one (11 percent higher than generally observed in the 2010 term)."
- "[O]n parallel review, the average affirmance rate more than doubles, from 28 to 64 percent."
- "The Fifth Circuit, which was affirmed only 20 percent of the time on primary review (resulting in the second lowest affirmance rate), was vindicated 79 percent of the time on parallel review (resulting in the third highest affirmance rate)."
- "Our observations from the 2010 term . . . were consistent with the observations from the 2005-2008 terms."
I highly recommend reading the entire article when you have a chance, which you can find here: Cummins, Tom and Aft, Adam, Appellate Review (February 7, 2012). Journal of Law, Vol. 2, (Journal of Legal Metrics, Vol. 1), No. 1, 2012 . Available at SSRN: http://ssrn.com/abstract=2001093.
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