Marin K. Levy, Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, 81 Geo. Wash. L. Rev. 401 (2013), available at SSRN.
The federal appellate caseload has grown from 73 cases per active judgeship in 1950 to 330 cases today. Scholars have criticized the heavy caseload and the techniques that appellate judges have developed to manage it, such as using staff attorneys and issuing unpublished opinions. Such techniques, they have argued, create a “bifurcated” system of justice with a “separate and unequal” track for certain types of cases, such as immigration cases, cases with pro se parties, social security cases, and certain types of criminal cases. They advocate systemic reforms that would alleviate this disparate treatment.
In her recent article, Judicial Attention as a Scarce Resource, Marin Levy undertakes a different task from that of scholars calling for systemic reform. While she does not necessarily dispute the need for such reform, she takes as her premise that, in the short term, the judicial system will remain relatively unchanged. Her project, then, is to examine how well judges are working within current constraints and to consider how their work might be improved.
To that end, Levy’s thoughtful and pragmatic article applies resource allocation theory to judicial caseloads. She characterizes judicial attention as a scarce resource and suggests that we should evaluate whether that resource is allocated in a desirable way by examining the judicial “outputs” of error correction and law development. While acknowledging other possible judicial outputs, such as cost containment and institutional legitimacy, Levy sets these to one side because they are less widely accepted by judges and scholars.
Examining the appellate courts’ case management practices, Levy concludes that the courts, by and large, do a pretty good job of maximizing the two outputs of error correction and law development given the reality of scarce attentional resources. Regarding the error correction output, she concludes that the categories of cases typically routed to a nonargument track are either less likely to contain errors (for example, because they have already been reviewed by a body with expertise, such as the Board of Immigration Appeals) or are more likely to be frivolous in the first place (for example, many pro se cases). And with respect to the law development output, she explains that the categories of cases least likely to require law development are those in which the law is already relatively clear and which tend not to present novel issues. Perhaps unsurprisingly, the categories of cases that require less attention to maximize each output tend to overlap.
There is a great deal to admire in Levy’s work. The lens of resource allocation, coupled with the notion of judicial attention as a scarce resource, contributes significantly to the understanding of the functioning of the judiciary. Levy’s careful cataloging of the factors that make cases worthy of enhanced or diminished review offers a plausible defense of the way that federal appellate judges currently spend their time. She is appropriately modest about this conclusion, acknowledging that it rests on certain assumptions and suggesting ways that those assumptions might be tested. And the article’s conclusion offers a balanced and pragmatic discussion of how judges might improve their review of cases that, realistically, will receive less attention under current conditions.
Levy’s resource allocation model provides a useful foundation for a more nuanced examination of the work of appellate courts. Does it matter, for example, if the appellate outputs are not neatly segregable from one another? A court that goes out of its way to correct a perceived error may actually develop bad law—we are all familiar with the truism that hard cases make bad law—and a court that develops bad law may in turn be perceived as an illegitimate institution. Further refinement of Levy’s model might take into account some of the ways in which these outputs overlap, at some times reinforcing one another’s effects and at others negating those effects.
We might also wish to take more explicit measures to ensure that focusing on resource allocation does not mask other systemic problems. Consider the much-criticized backlog of immigration cases, many of which, scholars have argued, deal with laws that are unwise, disparately enforced, or both. If the federal courts allocate fewer attentional resources to immigration cases—perhaps appropriately, under Levy’s model—they may fail to make the public aware of both the type and magnitude of “bad” immigration law. Indeed, the problem extends further: the buffer of staff attorneys and the insulation from public scrutiny that unpublished opinions provide may make it easier for judges themselves to ignore the concerns that disfavored categories of cases tend to raise. Ideally, the resource allocation model would expose rather than hide these concerns. Perhaps the model could be expanded to recognize that an additional valuable output of appellate courts is to inform the public about such systemic problems.
These preliminary thoughts as to how Levy’s model might be refined are really a testament to the overall value of the model itself. The gift of her article is that it gives us a way to think about how judicial output should look now, in our current, imperfect system. In so doing, she lays the groundwork for fruitful exploration of these important and timely issues, while at the same time leaving open the door for us to think about what we might wish to keep from the current system as, perhaps, we evolve toward a better one.