In Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in The United States Courts of Appeals (Michigan 2002), Jonathan Matthew Cohen, a sociologist and practicing attorney, asks a question that has received scant attention in the academic commentary on appellate judging: If we accept the dominant conception of appellate court judging as a process of atomistic contemplation, how do federal circuit court judges continue to maintain high quality opinions in the face of pervasively growing judicial dockets? Cohen advances the provocative thesis that increasing workloads have not prevented appellate judges from producing high quality outputs, but rather, that the dominant image of appellate judging as an isolated contemplative task is conceptually flawed. A better approach, Cohen argues, is to compare the task of appellate court judging to production within a multi-divisional private firm. While Cohen recognizes the inherent limits of his analogy, and in particular, that unlike private firms, circuit courts lack a central coordinating authority, he nonetheless contends that it is more fruitful to consider the judges in the manner of workers in a complex organization than as autonomous actors reflecting in isolation on the legal issues presented on appeal. In this review essay, Stearns considers three complementary methodologies for analyzing appellate courts that yield insights of particular interest to lawyers and legal scholars. Such questions include how appellate courts transform preferences into doctrine; the nature of cases that are likely susceptible to further appellate process through en banc, mini-en banc, or Supreme Court review; and how best to evaluate appellate court opinions. While organizational theory provides a useful starting point, Stearns contends that insights drawn from other methodologies, including economics (demonstrating how decentralized informational processes can provide more meaningful data), probability analysis (demonstrating the quality of data drawn from subsets of a larger group), and social choice (demonstrating the nature and limits of group decision making), might prove more fruitful in evaluating at least some of these questions. Stearns concludes that a comprehensive understanding of federal appellate judging requires not only an understanding of the circuit courts' internal organizational structure, but also an analysis of the edifice of circuit court decision making from inside and out.
Abstract Dissatisfaction with the law of libel has been prevalent for some time. Critics have pointed to three areas in particular as requiring reform. First, they have said that rules of pleading in libel actions are unnecessarily arcane and that the interlocutory process is unduly complex. Secondly, it is said that awards of damages are out of proportion to the loss suffered. One consequence is that defendants have in general thrown more legal resources into litigation, which in turn has increased the costs penalty for the unsuccessful litigant. A third criticism is that the balance between plaintiff and defendant, both procedurally and in relation to the burden of proof, may be tilted too far in the plaintiff’s favour. (The suggestion that, perhaps, the burden of proof ought to be reversed and placed on the plaintiff has gained increased respectability, though it has not convinced everyone.) An important incidental effect of these deficiencies in the law, say critics, is that recourse to law is too complex and expensive. The result is that, at one extreme, the impecunious plaintiff may be deprived of a remedy and, on the other hand, with so much at stake financially for the unsuccessful defendant, the law may fetter freedom of speech.
Although lawyers made crucial contributions to the development of business, scholars have said little about their role. As the following article explains, lawyers fought restrictions on business growth, worked to make laws uniform, and helped to establish legal rules in the areas of corporate reorganization, finance, and regulation. Pioneering a new type of organization—the large firm—they moved beyond the realm of legal doctrine and acquired the political influence, local knowledge, and community connections needed to reform the nation's decentralized legal system in ways that fit the demands of national-scale business.
American History and Culture
Occupational and Professional Licensing Regulation
In its 1987 decision in Martin v. Ohio,' the United States Supreme Court again engaged in lawmaking for burdens of proof. Although the Court ratified the state's rule in this case,2 the Court has, in the past, prescribed different rules as requirements of due process.3 The Court has justified its lawmaking by asserting that the burden of proof should apportion the risks of error in a way that favors the more important interests at stake in the trial.4 If an erroneous finding of fact F would harm one set of interests more than an erroneous finding of not-F would harm the other, the burden of proof should lie with the party who alleges F, and the standard of proof for F should be high enough to reduce the risk of an erroneous finding proportionately. This idea is founded in Bayesian decision theory,5 in which it is formalized as a rule for choice in conditions of uncertainty. It is a cornerstone of the Court's
5 A similar distinction is made in Minnequa Cooperage v. Hendricks, 130 Ark. 264, 197 S.W. 280 (1917), where it was held that a statute providing for a three-fourths verdict'was unconstitutional though the parties "might have agreed that a less number than the whole might render a verdict."6 Various preliminary distinctions can be made at this point: The burdenof proof in criminal cases is greater than in civil cases; in civil cases life or liberty is not at stake and many more opportunities for compromise are present.7204