ORGANIZATIONS, COMPLEXITY, AND DECISION MAKING IN THE U.S. COURTS OF APPEALS by LAURA MOYER (Under the Direction of Susan B. Haire) ABSTRACT By all appearances, United States Courts of Appeals represent a unified front in creating national legal policy. Yet these twelve circuits differ substantially with respect to a number of organizational characteristics and practices that influence the legal outcomes they render. Because the majority of cases heard by the Courts of Appeals will not be heard by another court, these differences may impact thousands of litigants every year if they influence judicial decision making processes. This dissertation examines whether and how the variation in organizational characteristics of the circuits influences the clarity and consistency of legal outcomes in the United States Courts of Appeals. I am particularly interested in how such organizational characteristics serve to mitigate or exacerbate complexity in the circuits’ decision making environment. The findings suggest that the theoretical perspective offered by the bounded rationality account is useful in aiding our understanding of judicial behavior in the Courts of Appeals, especially when considered alongside other models of cognition and decision making. INDEX WORDS: U.S. Courts of Appeals, judicial decision making, federal courts, organizational theory, complexity, judges ORGANIZATIONS, COMPLEXITY, AND DECISION MAKING IN THE U.S. COURTS OF APPEALS by LAURA P. MOYER B.A., Emory University, 2000 M.P.A., University of Georgia, 2004 A Dissertation Submitted to the Graduate Faculty of The University of Georgia in Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY ATHENS, GEORGIA 2008 © 2008 Laura P. Moyer All Rights Reserved ORGANIZATIONS, COMPLEXITY, AND DECISION MAKING IN THE U.S. COURTS OF APPEALS by LAURA P. MOYER Major Professor: Susan B. Haire Committee: Damon Cann John A. Maltese Hal G. Rainey Jeffrey L. Yates Electronic Version Approved: Maureen Grasso Dean of the Graduate School The University of Georgia May 2008 DEDICATION To Ray, for his patience and understanding, and to my family, big and small, for their enduring love and support. iv ACKNOWLEDGEMENTS Many people provided support, assistance, and friendship to me during the writing of my dissertation. I am especially indebted to Susan Haire, whose constant advice and feedback helped me stay on track, and to my committee: Damon Cann, John Maltese, Hal Rainey, and Jeff Yates. Arnie Fleischmann also helped me through the early stages of my project, wrote letters on my behalf, and was generous with his friendship and his advice. The late Susette Talarico introduced me to a body of literature that became essential to the project, and was unshakable in her enthusiasm and encouragement during my entire time at Georgia. Hester Nguyen, Geneva Bradberry, and the Daley-Bailey family helped me coordinate my trips to Athens to present early versions of my project and assisted me in pulling the many pieces of my project together. Steve Wasby and Joan Grafstein assisted me in securing interviews with appeals court judges, and the Graduate School provided me with funds through the Dean’s Award for Social Sciences that allowed me to conduct interviews and make site visits to federal courthouses. I also received the benefit of software and travel support from the Department of Political Science and the Clute- Nigro Fund. Finally, I would like to acknowledge the Graduate School for their support through the Dissertation Completion Award, which enabled me to devote an entire academic year to working on my research. v TABLE OF CONTENTS Page ACKNOWLEDGEMENTS.............................................................................................................v CHAPTER 1 INTRODUCTION .........................................................................................................1 2 REVIEW OF THE LITERATURE .............................................................................17 3 CIRCUIT BEHAVIOR................................................................................................40 4 PANELS ......................................................................................................................89 5 APPELLATE ADVOCACY.....................................................................................147 6 JUDGES.....................................................................................................................164 7 CONCLUSIONS AND DIRECTIONS FOR FURTHER STUDY...........................214 BIBLIOGRAPHY........................................................................................................................237 APPENDICES .............................................................................................................................257 A TABLE OF CONCEPTS, VARIABLES, INDICATORS AND HYPOTHESES ....257 B INTERVIEW PROTOCOL.......................................................................................272 vi Chapter 1: Introduction “By virtue of jurisdiction and administrative independence, no two Courts of Appeals are alike.” —J. Woodford Howard (1981, 8) On October 12, 1977, the United States Supreme Court heard oral arguments in Bakke v. Regents of California, the first case before the court to address directly the issue of affirmative action policies in higher education admissions. Allen Bakke, a thirty-five- year-old white male, had been rejected twice in his applications for medical school at the University of California at Davis and believed that he was sufficiently highly qualified to be admitted. His suit challenged the admissions practice of the medical school, which separated applicants into either a general admissions pool or a special admissions pool, the latter of which had lower academic standards and was for non-white applicants only. The university argued that it reserved sixteen out of the one hundred places in the entering class for minority students in order to address long-standing societal discrimination that had kept minorities from becoming doctors. The Supreme Court announced its ruling in the case eight months later, in June 1978. The opinion was badly fragmented, with six different justices filing opinions and none of those opinions garnering more than four votes. Justice Louis Powell’s plurality opinion struck down the California program as unconstitutional, rejecting the rationale that addressing broad societal discrimination could be a compelling interest sufficient to 1 warrant differential treatment under the Equal Protection Clause of the Fourteenth Amendment. However, his opinion did suggest that the goal of diversity in higher education might pass constitutional muster, so long as there were no fixed quotas and race was viewed as a “plus” factor in admissions. Two decades later, similar challenges by white plaintiffs to public law school admissions practices appeared in the lower federal courts. In Hopwood v. Texas (78 F.3d 932, 5th Cir. 1996), the University of Texas law school denied admission to Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers, four borderline applicants who argued they would have been admitted had they been considered under the standards for minority applicants. The Fifth Circuit sided with the plaintiffs and ruled that “any consideration of race or ethnicity by the law school for the purposes of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment” (78 F.3d. at 944). In other words, the court rejected the state’s argument that Justice Powell’s statement on diversity as a compelling interest was, in fact, controlling precedent. Four years after Hopwood, another group of white plaintiffs denied admission to the University of Washington law school sued, claiming discrimination under the Equal Protection Clause. However, in Smith v. University of Washington (233 F.3d 1188, 9th Cir. 2000), the U.S. Court of Appeals for the Ninth Circuit rejected the plaintiffs’ claims and accepted diversity as a permissible rationale for an affirmative action admissions policy. Noting that Bakke had yet to be overruled, the panel concluded: “at our level of the judicial system, Justice Powell’s opinion remains the law” (233 F.3d at 1201). 2 This conflict between the circuits was settled three years later in the companion cases, Gratz v. Bollinger (539 U.S. 244) and Grutter v. Bollinger (539 U.S. 306). However, the Supreme Court is not able to resolve all such conflicts across the circuits, given the tremendous volume of litigation dealt with by the federal courts of appeals. The implications of this are quite immense: simply put, litigants who raise the same legal questions may receive a different answer depending on which circuit they ask. Examples like the aftermath of Bakke v. Regents of California beg the question, how do we account for differences in legal outcomes across circuits? A cursory examination of the Fifth and Ninth Circuits during the time of their opinions yields some interesting observations. In Hopwood, the panel that issued the decision was comprised of three Republican nominees, all of whom were white men: Jerry Smith, Jacques Wiener, and Harold DeMoss, Jr. While a majority of judges in the Fifth Circuit voted against rehearing en banc, seven judges joined in a vigorous dissent from the failure to grant rehearing. These dissenters included a white woman, a Hispanic man, and an African-American man, and six of the seven were appointed by Democratic presidents (Carter