Showing papers in "Washington Law Review in 1999"

The Dynamics and Determinants of the Decision to Grant En Banc Review

Abstract: The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en bane review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article attempts to address these normative arguments over the legitimacy of the en bane process by determining the positive causes of the decision. The Article proposes a hybrid model of the decision to grant en bane review, derived from the legal, attitudinal, and hierarchical theories of judicial behavior, and tests it empirically against nearly 1000 cases from three circuits. The model accurately predicts the decision to grant en bane review in nearly ninety percent of the cases. This Article concludes that three factors-reversal of a lower court or agency ruling, filing of a dissent, and a liberal panel ruling-largely account for which panel decisions will be reheard en bane. The U.S. Courts of Appeals, which effectively have become the courts of last resort for most litigants and the source of doctrinal development for most legal issues,' decide the vast majority of cases by way of panels. * Associate Professor of Law and Adjunct Assistant Professor of Political Science, University of Missouri. B.A., B.S., Southern Methodist University, 1989; J.D., Stanford University, 1992. Earlier versions of this paper were presented at the 1998 Conference on the Scientific Study of Judicial Politics and at the 1998 Meeting of the Law & Society Association. I thank Lee Epstein, Joel Grossman, Chris Guthrie, Valerie Hoekstra, Bruce Kobayashi, Bob Lawless, Leandra Lederman, Ronald Mann, Lynn Mather, Adam Pritchard, Bob Pushaw, Jeff Raehlinski, Michael Solimine, Maxwell Steams, Steve Wasby, and Chris Wells for their thoughtful feedback and guidance. My thanks also to participants in a faculty workshop at George Mason University School of Law for their valuable comments. I am grateful to Mo Mitra-Edwards and Becky Williams for their excellent research assistance. I gratefully acknowledge the generous financial support provided by the Missouri Law School Foundation. The title of this Article is derived from a book chapter on Supreme Court certiorari decisions by Richard L. Pacelle, Jr., The Dynamics and Determinants of Agenda Change in the Rehnquist Court, in Contemplating Courts 251 (Lee Epstein ed., 1995). 1. In the 1996-1997 term, the U.S. Supreme Court decided 101 cases, compared to the more than 25,000 cases decided by the U.S. Courts of Appeals; fewer than 4% of the parties who sought a definitive ruling from the Court by way of a writ of certiorari were able to obtain it. The Supreme Court's 1996 Term, IIl Harv. L. Rev. 51, 435-36 (1997) (reporting Supreme Court figures); 1997 U.S. Jud. Conf. Ann. Rep. Table B-1 (reporting court of appeals figures). As can be seen by comparing these figures, the actual rate of Supreme Court review of lower court rulings is in fact lower than its rate of certiorari grants, as petitions seeking certiorari are filed from only a fraction of circuit court decisions. A study of three circuits estimated that the rate of Supreme Court review of circuit court holdings is only .5%. See Sue Davis & Donald R. Songer, The Changing Role of the United States Courts of Appeals: The Flow of Litigation Revisited, 13 Just. Sys. J. 323, 335 (1988Washington Law Review Vol. 74:213, 1999 Acceptance of the panel practice is in part a product of the availability of review of selected panel rulings by the court's full membership, termed "en banc" review.' At the behest of a judge or a party and with the concurrence of a majority of the circuit's active membership, all active members of the court, as well as any senior judge from the circuit who was a member of the original panel, will sit to decide an appeal en banc. The en banc court's ruling becomes the circuit's decision in the case, and the court vacates any earlier panel decision. Circuit courts rarely invoke the en banc procedure; courts of appeals resolve fewer than one percent of their cases en banc. 5 89); see also J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth, and District of Columbia Circuits xvii, 9-10, 23-56 (1981) (examining role of circuit courts of appeals "[a]s courts of last resort in the vast majority of federal cases, and as primary organs of judicial review of federal administrative agencies"); Donald R. Songer, The Circuit Courts ofAppeals, in The American Courts: A Critical Assessment 35 (John B. Gates & Charles A. Johnson eds., 1991) (discussing methodology and implications of Songer's work with Davis). 2. This Article deals solely with en bane rehearings by U.S. Courts of Appeals of general jurisdiction. The Federal Circuit also has en bane power. Fed. R. App. P. 35. Federal district courts have also heard cases en bane, although very rarely. John R. Bartels, United States District Courts En Banc-Resolving the Ambiguities, 73 Judicature 40, 40 (1989) (identifying en bane hearings in 38 reported decisions and nine unpublished decisions from 1928-1989). State supreme courts that normally sit in divisions also retain the en bane hearing option, as do some state intermediate appellate courts and at least one state trial court. See, e.g., Daniel J. Meador et al., Appellate Courts: Structures, Functions, Processes, and Personnel 397-98 (1994) (discussing varying approaches at intermediate level); A. Lamar Alexander, Jr., Note, En Banc Hearings in the Federal Courts of Appeals: Accommodating Institutional Responsibilities (pt. 1), 40 N.Y.U. L. Rev. 563, 566-67 (1965) (explaining that state supreme courts that normally sit in divisions continue to review certain matters as entire body); John J. Connolly, Comment, Maryland's Right ofin Banc Review, 51 Md. L. Rev. 434 (1992) (describing Maryland's constitutional right to en bane review at trial court level). 3. 28 U.S.C. § 46(c) (1994); Fed. R. App. P. 35. 4. See, e.g., 1st Cir. R. Int. Op. P. X(D); 4th Cir. R. 35(c); 5th Cir. R. 41.3; 6th Cir. R. 14(a); 10th Cir. R. 35.6; 1 1th Cir. R. 35-11. 5. The extremely low relative number of en bane decisions has been observed in studies focusing on different periods spanning the life of the intermediate appellate system. See, e.g., Sheldon Goldman & Tom Jahnige, The Federal Courts as a Political System 23 (3d ed. 1985) (observing that use of en bane procedure is "rare"); Howard, supra note 1, at 42, 193 (reporting that en bane cases comprise fewer than one percent of all cases from 1965-1967); Richard A. Posner, The Federal Courts: Challenge and Reform 133-34 (1996) (reporting that only 78 en bane decisions were rendered out of more than 25,000 decisions on merits in 1993); Sheldon Goldman, Voting Behavior on the United States Courts ofAppeals Revisited, 69 Am. Pol. Sci. Rev. 491, 493 n.7 (1975) (finding that en bane cases amounted to less than 1% of circuit caseload from 1965-1971); Michael E. Solimine, Ideology and En Banc Review, 67 N.C. L. Rev. 29, 46 (1988) (reporting for 1980-1987 period that approximately .5% of caseload of courts of appeals were en bane decisions); Alexander, supra note 2, at 564, 608 (finding that only 423 cases were decided en bane by all circuits from 1940-1964 and that 1.5% of decisions rendered in 1964 were en bane).

The dangerous patient exception to the psychotherapist-patient privilege: the Tarasoff duty and the Jaffee footnote.

Abstract: With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confidential statements by patients to psychotherapists for the purpose of seeking treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California, have also adopted some form of duty by psychotherapists to breach confidentiality and warn potential victims against foreseeable violence by their patients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception to confidentiality. This Article argues that exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality. Whether or not a Tarasoff duty to warn existed at an earlier time, exception to the evidentiary privilege should be made only where psychotherapists' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would apply only in proceedings for the purpose of protecting patients or third parties, such as restraining order hearings or proceedings to hospitalize patients. Language: en

Truce in the Salmon War: Alternatives for the Pacific Salmon Treaty

Abstract: The 1985 Pacific Salmon Treaty was heralded as an end to the ongoing international dispute between the United States and Canada over Pacific salmon fishing rights. The Treaty, however, failed to define adequately the principles and processes for allocating salmon harvests between the two countries. The parties to the Treaty have been unable to reach consensus on annual salmon harvests since 1992, fueling a growing conflict which has threatened to spill over to issues beyond the fishery dispute. This Article examines the historical context of the \"salmon war,\" highlighting changes in international law and domestic politics that affected the formation of the Treaty. The Pacific Salmon Treaty established a framework for the parties to cooperate in the management of salmon stocks, but did not define several key principles and created a cumbersome voting mechanism. These deficiencies have resulted in annual negotiations that are fraught with conflict, leading to a breakdown in the Treaty process. This Article analyzes several alternatives for solving this current crisis. The parties could submit the annual allocation decisions to an international arbitration board that would have the power to bind both sides. Each country could agree to compensate the other country monetarily for interceptions of the other's salmon stocks. The Treaty could also be revised to provide for a default allocation scheme if the parties fail to reach agreement on annual fishery regulations. Finally, the United States and Canada could create an international market of individual salmon quotas. As this Article was being revised for publication, the United States and Canada entered into an historic agreement designed to end the Pacific salmon war. The Epilogue at Part VI of this Article discusses the new agreement and its future implications for Pacific salmon For several years, a quiet war has been waged between the western states of the United States and Canada's westernmost province. This simmering dispute between these essentially friendly neighbors is over the conservation and allocation of a precious resource-the Pacific salmon. Battles have been fought in the media, in the courts, and on the water, with each side claiming hollow victories. The casualties in this war, however, have been the salmon. Although Pacific salmon originate in the Northwest's freshwater rivers, they spend most of their lives swimming in the North Pacific Ocean off the Alaskan and Canadian coasts. Many species of salmon must run the gauntlet of three distinct fisheries-Alaska, British Columbia, and Washington/Oregon-throughout their long migration cycle. During their ocean voyage, the salmon from different localities intermingle. For example, sockeye and pink salmon from British This Article was selected as the winner of the Ambrose Gherini prize for best paper in international law or conflicts of law at Yale Law School. Washington Law Review Columbia's Fraser River, chinook and coho from Washington's Columbia River, and chum from the transboundary rivers such as the Stikine all migrate through the Gulf of Alaska.' Because salmon from various regions intermingle across political jurisdictions during their ocean migration, fishermen cannot easily target fish of a particular species or national origin.2 American fishermen inevitably catch salmon originating in Canadian rivers and Canadian fishermen likewise take American fish.3 A catch of another country's fish is called an \"interception. ' 4 Due to the transboundary nature of their respective salmon resources, the United States and Canada have always had a common interest in the management of Pacific salmon.5 Salmon interceptions have been the subject of discussion between the United States and Canada since the early part of the century.6 If one country harvests too much of the other country's stocks, the home country's management plans may be frustrated.7 Uncontrolled interceptions may also jeopardize the support needed for salmon enhancement programs, because nations are less likely to fund investments in habitat protection and restoration if the fish produced by such programs will ultimately be caught by fishermen of other nations! Interceptions encourage overharvesting and discourage investment in conservation.9 To prevent conflict and enhance resource management, countries should coordinate their fishery management and conservation plans to discourage interceptions. 1. The Pacific Salmon Treaty defines \"transboundary river\" as \"a river that rises in Canada and flows to the sea through the United States.\" Treaty with Canada Concerning Pacific Salmon, Jan. 28, 1985, U.S.-Can., art. I, para. 7, T.I.A.S. No. 11,091 (entered into force Mar. 18, 1985) [hereinafter Pacific Salmon Treaty]. These rivers include the Stikine, Taku, and Alsek, which originate in northwestern Canada and flow through Alaskan territory before entering the ocean. See id. 2. See Daniel D. Huppert, U.S./Canada Salmon Wars: Why the Pacific Salmon Treaty Has Not Brought Peace, New Directions in Marine Affairs (Univ. of Wash. Sch. of Marine Affairs ed.), Jan. 1996, at 2. 3. See id. 4. See Pacific Salmon Comm'n, Pacific Salmon Commission 5 (1988) [hereinafter PSC Brochure]. 5. See Sen. Don Young, U.S. House Subcommittee Focuses on Pacific Salmon Dispute (Sept. 18, 1997) (press release) (on file with author) [hereinafter Young Press Release]. 6. See PSC Brochure, supra note 4, at xi.

A Federal Appellate System for the Twenty-First Century

Abstract: In December 1998, the Commission on Structural Alternatives for the Federal Courts of Appeals issued a report and recommendations for Congress and the President. The commission resulted from ongoing controversy over splitting the U.S. Court of Appeals for the Ninth Circuit The commissioners clearly suggested that the circuit remain intact but proposed three regionally based adjudicative divisions for the appeals court. However, the commission did not adduce persuasive empirical evidence that the Ninth Circuit experiences difficulties that are sufficiently problematic to warrant treatment, particularly with the essentially untested divisional arrangement Accordingly, the Ninth Circuit should continue to experiment with promising measures. The Commission on Structural Alternatives for the Federal Courts of Appeals recently issued its report on the intermediate appellate courts and recommendations for their improvement and submitted the report and suggestions to Congress and the President. 1 This commission, which Congress authorized the Chief Justice of the United States to appoint a year ago, had an invaluable opportunity to assess the appeals courts and develop helpful proposals for change and, thus, to influence appellate justice as the twenty-first century opens. The commission resulted from lengthy, continuing controversy over the advisability of dividing the U.S. Court of Appeals for the Ninth Circuit. The commissioners clearly and strongly rejected the idea of splitting the Ninth Circuit and endorsed the alternative of creating adjudicative divisions for the Ninth Circuit now and for the remaining circuits as they increase in size. The publication of the commission's report and recommendations is significant because the appeals courts are at a critical juncture. The federal appellate system has served Congress, the federal courts, and the nation very well for more than a century. However, the circuits have experienced a striking increase in appeals, which has transformed the courts since the 1970s; this crisis of volume could threaten the system. * Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. I wish to thank Peggy Sanner for valuable suggestions and Eleanor Davison for processing this piece. Errors that remain are mine. 1. Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report (Dec. 1998), available in [hereinafter Commission Report].