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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 Schmutter:
Except that Lexis and Westlaw predate the World Wide Web by quite a few years, so if anything the argument would be that on-line research is responsible, not the internet.

Dan
5.4.2007 11:44am
OrinKerr:
Dan,

I'be switched "the Internet" to "online resources" in the post to accurately reflect the one sentence in the AP story.
5.4.2007 11:49am
Bored Lawyer:
Sounds like a bogus theory to me.

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.
5.4.2007 12:01pm
OrinKerr:
Bored Lawyer,

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.
5.4.2007 12:06pm
frankcross (mail):
I don't think the timing works. The steady decline in the docket was closely related to the ascension of Rehnquist, and the appointment of Scalia. Lexis and Westlaw had been around for a while.

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.
5.4.2007 12:11pm
Bretzky (mail):
Dan Schmutter:

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.
5.4.2007 12:37pm
Bored Lawyer:

Bored Lawyer,

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


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.
5.4.2007 12:41pm
JonC:
Another of C.J. Roberts's explanations for the shrinking docket is "the lack of any major legislation coming out of Congress in the last couple of decades." I wonder what others think of this theory; it sounds a bit odd to me. What is Roberts's definition of "major legislation"? Can it really be that Congress has passed no such legislation since 1987?
5.4.2007 12:44pm
Hattio (mail):
I think the better explanantion is that as the court has become more politicized (unfortunately), the judges have taken more time and care with each case, more effort has gone into the case (not necessarily from the lawyers trying, but from amici briefs) and the greater scrutiny has made the justices more careful, which leads them to take more time, which leads to less cases being taken.
5.4.2007 12:54pm
OrinKerr:
Bored Lawyer writes:
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.
I don't think that's accurate, at least in my experience. When I was a law clerk on the Third Circuit, it was pretty rare for the litigants to find the federal appellate cases that best supported their position. Some lawyers found most of the cases; many hardly found any; and I don't recall any that actually found all of them. As a clerk, I assumed that litigants could identify the general issue, and that I was the one best equipped to actually do the research and find the cases. Big firms did better than small firms and solo practictioners, but even the big firms missed lots and lots of major precedents on their side. Unfortunately, most appellate litigators just don't put the time and effort into legal research that you might hope and expect. That's why the switch from the books to Westlaw might make a big difference.
5.4.2007 1:05pm
David in NY (mail):
This is silly.

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?
5.4.2007 1:28pm
David in NY (mail):
Meant to hit preview above, honest, and would have corrected first line, third para. to say "if this is true" and in fourth para. "That is decision" to "That decision." Sorry.
5.4.2007 1:34pm
Will Schendel (mail):
I can flesh out the second reason that C. J. Roberts gave for the decrease in opinions (I'm a Fairbanks attorney who attended the speech): He said that the trend toward what he called "textualism" meant that earlier disputes about legislative history and purpose have been replaced by (presumably narrower) arguments about the meaning of the face of the statute.
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.
5.4.2007 2:47pm
Uber-Anon (mail):
I would dispute two of the points made in the post:

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.
5.4.2007 3:14pm
Just an Observer:
I realize that Lexis and Westlaw have improved their value-added services and software over time, but they have been widely available to practioners for several decades.
5.4.2007 3:25pm
tvk:
I don't get this reasoning. Assume for the sake of argument that in 1980 it was hard to find the relevant circuit precedent from other circuits. That would mean that it was harder for (1) the litigants below, (2) the court below, (3) the petitioner for cert. and (4) the Supreme Court clerk reading the petition to find the other circuit case that causes a split.

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.
5.4.2007 4:19pm
David in NY (mail):
OK, it seems generally agreed that Roberts' reason for fewer cert. grants is BS. So, the question is, What is the real reason and why is Roberts unwilling to say what it is?
5.4.2007 4:33pm
David in NY (mail):
Oh, there is that "everybody's a textualist now" and "legislative history and so on are irrelevant" angle that Will Schendel helpfully notes. Except that it's not really true (not even in the Supreme Court), and my bet is the statistics show it. If that were the reason, one would expect the percentage of statutory construction cases in the Supreme Court to be in decline, but not necessarily the percentage of other cases. I think that's not so, and perhaps the reverse.
5.4.2007 4:40pm
David in NY (mail):
Well, darn. Can't immediately turn up the recent percentage of statutory construction cases in the Court's docket. In 1992, Judge Wald counted for the 1991 term and concluded that for some time the percentage had hovered above 50%, in about 75% of which legislative history was used. I don't see later estimates of the percentage of all construction cases in the docket, but there may be something. If it's stayed the same or increased, I think that would tend to refute Roberts' hypothesis that the shift to textualism has reduced the number of conflicts.

Orin, isn't this a job for someone with a research assistant?
5.4.2007 5:08pm
Will Schendel (mail):
In a Q &A session this afternoon, here in Fairbanks, C. J. Roberts added that the Supreme Court has increased the % of reversals at the same time as it has decreased the number of opinions (and, per Chemerinsky, increased the average length of the opinions). He also said that all of the Justices agreed that 140 opinions/Term were too many and that they could hear more than 69 opinions/Term. He said that he did not favor changing the standards for granting cert just to keep the numbers up.

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.
5.4.2007 9:19pm
Dave N (mail):
I would agree that 140 seems like too many but 69 doesn't quite seem like enough for the Supreme Court's docket.

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.
5.4.2007 10:02pm
Dave N (mail):
That should have read "On the Court's website" with the link embedded. damn computers.
5.4.2007 10:04pm
Public_Defender (mail):
I think TVK is right. Increased access to opinions from other circuits and other state supreme courts would make it less hard for practitioners to identify the kind of conclicts that help get cases into the US Supreme Court.

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.
5.6.2007 11:58am