Vol 32. No. 3 Spring 2008 | School of Law | SIU

Vol 32. No. 3 Spring 2008

INTRODUCTION

Peter C. Alexander and Stephen L. Wasby (489)

REMAKING THE BENCH: AN EXERCISE IN FUTILITY?

Kevin M. Scott and Rorie Spill Solberg (493)
Presidential historians, scholars of judicial appointments, and observers of the political process frequently point to the composition of the federal courts as an important legacy of any presidential administration. We argue here that several factors limit the ability of presidents to "remake" the federal judiciary in their image. In particular, we note that political factors, including composition of the Senate and the composition of any state's Senate delegation, as well as institutional factors, including new judgeships, the incentives judges face to remain in office or depart, are factors over which the president has, at best, limited influence, play a role in limiting the president's ability to shape the federal judiciary. Beyond these factors, the individual departure decisions of federal judges, over which the president has no direct control, also play a critical role in when vacancies are created which the president can fill. We explore the impact of these factors on the district courts of the Seventh Circuit and argue for a more limited reading of the president's ability to shape individual courts or the judiciary more broadly. Articles Editor: Amber N. Jeralds.

CAREER STAGE AND DECISION MAKING ON THE SEVENTH CIRCUIT: A COMPARATIVE ANALYSIS

Erin B. Kaheny, Sara C. Benesh and Susan B. Haire (509)
Scholars have increasingly recognized the important role played by the U.S. Courts of Appeals and have thus investigated the determinants of circuit judge decisions, including those stemming from judicial selection strategies advanced by administrations seeking candidates to the bench who will share the policy views of the appointing president. A common, but untested, assumption is that the role of policy preferences remains constant over the course of a judge's tenure on the bench. The present analysis of decision making by judges of the U.S. Court of Appeals, Seventh Circuit considers whether appointees' voting behavior varies by early, mid, and late career stages. The findings indicate only partial support for career effects in judicial voting on this circuit. Further analysis of decision making on two additional courts of appeals suggest that the effects of career stages may be tied to judicial socialization into the norms of the circuit. Articles Editor: Jeffrey D. Wright

PANEL II-CASES

CHANGES TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT OVER A THIRD OF A CENTURY

Collins T. Fitzpatrick (527)
This paper discusses changes in the United States Court of Appeals for the Seventh Circuit in judges, staffing, rules, procedures, and technology as well as the increase in cases filed and the changes in the types of cases filed. Articles Editor: Ryan Straw.

STATE DOMINANCE OF A CIRCUIT: AN EXPLORATION

Jolly A. Emrey and Stephen L. Wasby (545)
The dominance of one state within a federal judicial circuit, or one district within that state, might affect development of the law of the circuit, because cases coming from that state or that district could serve to define the legal rule on an important issue for the circuit as a whole. In this article, we examine such a distribution of cases, by state and district, within the Seventh Circuit, with special attention to cases from the U.S. district courts in Illinois and particularly to those from the Northern District of Illinois. In particular, we look at appellate caseload filings; published and unpublished dispositions; en banc rulings and cases with dissents from denials of en banc rehearing; and Supreme Court rulings. The relative dominance of this state and district would be compared with the relative dominance of individual states and districts in several other circuits, including the Second Circuit, where New York, and the Southern District of New York, are dominant, and Ninth Circuit, where California is clearly the dominant state. Articles Editor: Luke M. DeSmet.

MEDIATION IN THE SEVENTH CIRCUIT COURT OF APPEALS

Joel N. Shapiro (569)
The Seventh Circuit's mediation program, now in its fourteenth year, gives litigants the opportunity to resolve appeals by agreement rather than by judicial decision. The Court chose to employ full-time staff mediators and to make mediation mandatory. In doing so, it created a program that met the Court's needs and reflected the Court's values. The mediators' approach to their work also reflects the ethos of the Court and contributes to the success of the program. Articles Editors: Natalie R. Gregory and Luke M. DeSmet.

PANEL III-OPINIONS

CITATION TO UNPUBLISHED ORDERS UNDER NEW FRAP RULE 32.1 AND CIRCUIT RULE 32.1: EARLY EXPERIENCE IN THE SEVENTH CIRCUIT

Hon. Diane S. Sykes (579)
Until January 1, 2007, the Seventh Circuit, like several of the other federal courts of appeals, enforced a rule to the effect that unpublished dispositions "shall not be cited or used as precedent" to or by courts within the circuit. That prohibition has now been nullified by Rule 32.1 of the Federal Rules of Appellate Procedure. Under Rule 32.1, promulgated by the Supreme Court after years of controversy, litigants are now free to cite and rely on unpublished dispositions in their briefs and arguments. In this paper, Circuit Judge Diane S. Sykes discusses the history of Rule 32.1 and addresses the early experience with the new permissive citation rule in the Seventh Circuit. Articles Editors: Jessica Reese and Luke M. DeSmet.

ADVOCACY THROUGH BRIEFS IN THE U.S. COURTS OF APPEALS

Susan B. Haire and Laura P. Moyer (593)
Counsel in appellate litigation play an important role in shaping a court's issue agenda by defining the context for their judicial audience. Through appellate briefs, advocates can provide clear cues in a complex decision making environment. This paper evaluates the role of advocates in the U.S. Court of Appeals for the Seventh Circuit by examining the characterization of issues offered in appellate briefs against the issues addressed in the court's decisions. Specifically, in an environment in which attorneys are expected to frame the issues on appeal and judges are expected to respond to those issues, what accounts for judges addressing some issues while suppressing others? The analysis indicates that approximately one-fifth of the issues raised by appellants are not addressed by the court. Furthermore, litigant resources appear to affect the success of advocates with respect to the judicial treatment of issues and case outcomes. Articles Editors: Christopher M. Blaesing and Luke M. DeSmet.

THE "NON-BANC EN BANC": SEVENTH CIRCUIT RULE 40(e) AND THE LAW OF THE CIRCUIT

Hon. Michael S. Kanne (611)
In most of the federal courts of appeals, a three-judge panel must follow decisions of prior panels except when an intervening Supreme Court decision requires a different result. However, under Seventh Circuit Rule 40(e), a panel may directly overrule a prior decision if the panel circulates a draft opinion to all active judges and "a majority of them do not vote to rehear en banc the issue of whether the [new] position should be adopted . . . ."
This paper will discuss the Seventh Circuit's experience under Rule 40(e) and its implications for stare decisis and "the law of the circuit." The paper will also consider objections by a D.C. Circuit judge to her court's analogous practice, the "Irons footnote." The procedure, she said, "has evolved from an expedient device to reconcile inconsistent circuit holdings into a summary method of overruling unambiguous circuit precedent, without any of the safeguards or formalities attending the en banc process. A three judge panel determines that full court consideration is warranted and non panel members concur without benefit of briefing or argument. The resulting decision is then announced by footnote. Reasoned decision making and stare decisis call for a more deliberate process." In re Sealed Case No. 97-3122 (In re Sealed Case II), 181 F.3d 128, 145 (D.C. Cir. 1999) (Henderson, J., concurring). Articles Editor: J. Matthew Thompson.

"THE LAW OF THE CIRCUIT" REVISITED: WHAT ROLE FOR MAJORITY RULE?

Arthur D. Hellman (625)
Two features define the ordinary course of adjudication in the federal courts of appeals. First, cases are heard and decided by panels of three judges selected at random from among a larger number of eligible judges. Second, decisions of those panels are binding on later panels unless overruled by the Supreme Court or by the court of appeals sitting en banc. One consequence of these arrangements is that binding circuit law can be established by a panel whose views do not represent the views of a majority of the circuit's active judges.
Two prominent appellate judges have offered competing perspectives on the prospect of minority control of circuit law on an important issue. Former Chief Judge Douglas H. Ginsburg of the District of Columbia circuit has endorsed the premise that "the majority should rule." In contrast, former Chief Judge James R. Browning of the Ninth Circuit has championed an approach that he refers to as "panel autonomy." Taking these competing perspectives as its starting point, this article examines the role of majority rule in the development and application of the law within the federal judicial circuits. Articles Editor: Andrew J. Fisk.

PANEL IV-HIERARCHY/CONSTRAINTS

SUPREME COURT REVERSALS: EXPLORING THE SEVENTH CIRCUIT

Stephen J. Wermiel (641)
Legal commentators and Supreme Court watchers continue to focus on statistics showing reversal rates for the U.S. Court of Appeals and to draw conclusions about the circuits, especially the Ninth Circuit, from the statistics. This essay argues that this focus is misplaced because it ignores the increased rate at which the Supreme Court is reversing all lower courts, downplays the high reversal rates for most other circuits including the Seventh, and gives no weight to how media coverage and scholarly commentary fuel the problem by lionizing circuit judges. Articles Editor: Ryan Straw.

GVRS AND THEIR AFTERMATH IN THE SEVENTH CIRCUIT AND BEYOND

Sara C. Benesh (659)
In 2000, the U.S. Supreme Court decided Apprendi v. New Jersey, and in 2004, Blakely v. Washington, both of which concerned state court sentencing procedures. However, the Court did not make clear whether or not these precedents extended to federal court sentencing. The Seventh Circuit, in U.S. v. Booker (2004), reasoned that these decisions must hold also for federal sentencing, hence reversing the elevated sentence imposed by the judge under the preponderance of evidence standard, and remanding it to the Wisconsin district court for resentencing. The Supreme Court granted cert to U.S. v. Booker (along with a First Circuit case, U.S. v. Fanfan) to resolve the question, siding with the Seventh Circuit. It then proceeded, in record numbers, to issue Grant, Vacate and Remand dispositions of sentences across the country. The question in this article is, was the High Court effective in changing sentencing law across the country? Articles Editor: Amy R. Ragan.

STATUTORY CONSTRAINT ON THE SEVENTH CIRCUIT: EXAMINING CONGRESSIONAL INFLUENCE

Kirk A. Randazzo (683)
This paper focuses on decision making in the Seventh Circuit Court of Appeals and focuses on a measure of statutory constraint to examine how much discretion Congress provides in the statutes it enacts into law. The basic argument is that ideological decision making by Seventh Circuit judges is contingent upon the level of discretion afforded by the law. The greater the level of discretion incorporated into a statute by Congress, the less constraint judges encounter when they decide cases; consequently the more likely those judges will be to vote according to their individual ideologies. Conversely, more detailed statutes will reduce the level of discretion afforded to judges, and consequently they will be constrained from voting ideologically. Using data on Seventh Circuit decisions from 1960 2002, the empirical results support the theoretical conceptualization of judicial behavior. If everything else is held equal, the judges will render decisions according to their ideological preferences. Yet, all things are not equal and the presence of legal factors, such as statutory constraint, limits the ability of some judges to rule ideologically. The findings also demonstrate that the presence of detailed statutory language can also facilitate the expression of ideological voting among other judges. Articles Editor: Jeffrey D. Wright.

COMMENTS

STATE AND LOCAL GOVERNMENT DOCUMENTS AS "PUBLIC DISCLOSURES" UNDER THE FALSE CLAIMS ACT: WALKING THE TIGHTROPE BETWEEN PARASITIC LITIGATION AND LEGITIMATE CLAIMS

Natalie R. Gregory (699)
The False Claims Act permits private informants to allege fraud against government contractors. To avoid parasitic lawsuits, the Act restricts individuals' right to bring suit by barring actions based on "publicly disclosed" information, thereby avoiding frivolous claims by requiring personal knowledge of fraud. The line between limiting unnecessary litigation and encouraging legitimate whistleblowers to come forth is blurred. While "public disclosure" clearly restricts suits based upon information disclosed via federal government-produced documents, questions remain regarding whether the bar limits suits based upon information found in nonfederal government-produced documents. This Comment addresses why state and local government documents are public disclosures that should bar private citizens from recovery.

PROTECTING OUR VULNERABLE CITIZENS: BIRTHRIGHT CITIZENSHIP AND THE CALL FOR RECOGNITION OF CONSTRUCTIVE DEPORTATION

Jessie M. Mahr (723)
Problems arise when illegal immigrants have children while in the United States. Since these children become citizens by virtue of birthright citizenship, this creates a dilemma. This article focuses on the rights of the citizen child when the illegal immigrant parent is deported, also known as constructive deportation. The statistics show that a large number of families are affected by this situation. Yet, the courts do not see this as a problem and force the families to make the hard choices between leaving the child in the United States or denying the child the benefits of its citizenship and taking the child with them. Courts overall do not recognize constructive deportation. The author will analyze why not recognizing constructive deportation is discriminatory and incorrect. Also, the author will propose some changes that can be made to deal with the concerns of constructive deportation while allowing the citizens to remain in the country.

CASENOTES

MURKY WETLANDS PROTECTION FOLLOWING RAPANOS V. UNITED STATES, 547 U.S. 715 (2006)

John S. Persell (749)
The U.S. Supreme Court potentially dealt a severe blow to wetlands protection under the Clean Water Act with its 2006 plurality decision in Rapanos v. United States. As administered by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, the jurisdictional extent of the Clean Water Act's wetlands protection provisions is now less clear. Congress ambiguously described the reach of the Clean Water Act as extending to all "waters of the United States." Rather than deferring to the Army Corps' interpretation of that phrase, as is appropriate under the Chevron doctrine, the Rapanos plurality chose to overlook the words' ambiguity and impose impractical permanency and surface connection requirements for wetlands to warrant protection under the Clean Water Act. Such requirements do not align with the scientific realities of wetlands and the water cycle in general.

This Casenote explains the wetlands protection process and summarizes previous U.S. Supreme Court precedent on the extent of federal jurisdiction under the Clean Water Act. This Casenote also provides details on the factual and procedural history of the Rapanos dispute. Finally, this Casenote analyzes the plurality's decision in Rapanos and considers the ramifications that decision could have for future wetlands protection.

TO DECIDE OR NOT TO DECIDE: IS THAT THE QUESTION? JURISDICTION OF IMMIGRATION APPEALS IN KAMBOLLI V. GONZALES, 449 F.3D 454 (2D CIR. 2006)

Jessica Rees (773)
In 2002, Attorney General John Ashcroft authorized "streamlining" regulations aimed at reducing a backlog of immigration appeals within the Department of Homeland Security. One of the most significant changes allowed single members of the Board of Immigration Appeals (BIA) to issue affirmances of lower immigration judges (IJ) without issuing a written opinion, giving the immigrants no explanation for the BIA's decision. Federal Circuit Courts are being bombarded with appeals from the BIA, effectively shifting the BIA backlog to the federal courts. One-sentence affirmances without opinion leave immigrants feeling like they did not have a hearing on the merits of their claim at the appellate level. As a policy-matter, and as a value judgment from a "nation of immigrants," the regulations themselves must be examined not just in terms of what rights can be afforded to immigrants, but what rights should be afforded to them.