Did Online Resources Help Cause A Decline in the Supreme Court's Docket?:
According to the Associated Press, Chief Justice Roberts delivered remarks at the Alaska Bar Association annual convention that included an interesting theory for what has contributed to the decline in the Supreme Court's docket in recent years: thanks to on-line resources, lawyers and lower courts can find existing lower court precedents more easily, resulting in fewer circuit splits for the Supreme Court to resolve. The AP story doesn't give the details of the argument — it only has a sentence on it — but the idea seems plausible to me. It's much easier to find relevant lower court caselaw on Westlaw or LexisNexis than it was to find those cases using just the books. That may mean that lawyers and law clerks are more likely to find the right cases, circuit courts and state supreme courts are more likely to consider them, and the law is more likely to end up being uniform across different jurisdictions. Thanks to How Appealing for the link.
Dan
I'be switched "the Internet" to "online resources" in the post to accurately reflect the one sentence in the AP story.
The only differences of opinion the Supreme Court is interested in are between Circuits and, less often, state courts of last resort. Those have always been prominently reported in the Federal Reporter and the regional reporters and widely available for many decades.
I think the point is not so much whether they were "available" in an abstract sense so much as whether actual lawyers in actual cases were going to find them.
Plus, I question whether there are fewer circuit splits today. If you look at the data on dockets, the Court takes about as many circuit splits, with the smaller docket, as it did in the past, with a larger docket. The reduction is in cases that don't have obvious circuit splits.
Is it possible that the delay between the implementation of Lexis and Westlaw and the decrease in the docket could be partly explained by comfortability with and ability to use the technology? My grandmother still to this day does not use an ATM because she just doesn't want to take the time to learn how to use it (although, she is good with the e-mail). We may just now have a generation of lawyers and judges who are both comfortable with using the technology and who also know how to use it properly.
I understood the point, but do not buy it. In most cases, if you are filing a brief in a federal court of appeals or a state court of last resort, you are going to do pretty thorough research. You might miss an opinion by the County Court of South Succotash. But I doubt you would miss an opinion from another federal circuit or a state court of last resort.
Besides, it is not only the litigants who are researching the issue, it is also the clerks for the judges -- at least three for federal appeals courts, and more likely five to seven for state courts of last resort.
1. Legal research was not so hard in the old days, and courts were good at it.
2. Finding more cases makes fewer conflicts? How so? I don't even think it's logical.
3. On third thought, it is is true, that might be very, very bad. If the idea is that in the old days the second or third court to hear an issue might overlook the first one or two and reach a different decision, it's a little hard to credit on its face. But if true, what it suggests is that the "snowball effect," subsequent courts following the first without much thought, has become the norm, thus reducing conflicts. If so, this is very, very bad. In fact, if true, it would be one strong justification for the Court to abandon its insistence on a conflict as the sine qua non of certworthiness.
I note this against a background in criminal law, where the snowball effect is quite pronounced. Because, in this area, one side (the "criminals," duh...) is de facto disfavored by the courts (and often does not have the best appellate counsel), the initial circuit decision on an issue does not necessarily get the most thorough analysis. That is decison is apt to be adopted by the circuits, one after another, and the snowball rolls along. Of course, because there's no split in the circuits, nobody can get to the Supreme Court to fix the problem when there is one.
I always thought this situation might be due to the idealogical make-up of the courts. But now I see that computers are to blame for the lack of splits in the circuits. Who knew?
Roberts' remarks last night came after a morning session by Prof. Erwin Chemerinsky (reviewing Supreme Court opinions of the present Term) in which he (EC) observed that the length of USSCt opinions was inversely related to their number, and (humorously) urged the attendees to quiz Roberts about the causal relationship.
1. I'm not sure that having access to vastly greater numbers of lower court precedent creates less circuit splits as opposed to more. Before lexis/westlaw, the best way to find the "rule" and any relevant precedent was to use a treatise. Both attorneys would take the cases out of the applicable sections of the treatises and then argue over their application. Those cases would in turn get cited by the court and become more established within the caselaw.
With lexis/westlaw, however, there are countless more citations available, making it more likely the court will find some justification to rule contrary to the established rule--thus creating more circuit splits.
2. On a strictly empirical note, I too am skeptical that there are less circuit splits today then twenty years ago. I guess that all comes down to what exactly you define as a circuit split that merits Supreme Court action.
C.J. Robert's theory only makes sense if somehow the Supreme Court once had a comparative advantage in finding lower court authority (and splits within that authority), and that comparative advantage has now diminished. I don't see anything to suggest this.
Orin, isn't this a job for someone with a research assistant?
On other issues: He said that he personally values the avoidance of deciding unnecessary issues more than he values providing guidance on those issues to lower courts. And Roberts said that when he thought he was about to take O'Connor's seat, he intended to refuse to join the cert pool, but (for unstated reasons) changed his mind when he was named Chief Justice.
I am guessing that Roberts joined the cert. pool after taking over as Chief because the administrative duties take the time he was planning on using for indidivudally reviewing cert. petitions.
I would rather the Court provide guidance to lower courts than have it decide unnecessary issues. Heck, just this week it decided that a police video could overcome the opposing side's factual allegations in deciding a motion for summary judgment. Now THAT was certainly important. I bet that case helped clear a lot of cases in the lower courts' dockets--though I acknowledge posting a police chase on the Court's http://www.supremecourtus.gov/opinions/06slipopinion.html was kind of cool.
Why does the US Supreme Court accept fewer cases? Let's see, maybe because the fewer cases they accept, the less work they have to do. But that's not an easy argument to make when you're bucking for a massive pay raise.