LAW & ECONOMICS WORKSHOP
presents
Marin Levy
Duke Law School
Tuesday, September 12, 2017
4:10 – 5:45
Jackman Law Building, Room J225
78 Queen's Park
It is common knowledge that the United States courts of appeals typically hear cases in panels of three judges, and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews with thirty-five judges and clerks of court, I show that strictly random selection is a myth, and an improbable one at that—in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to “mix up” the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way. These findings pose an important challenge to the widespread assumption of panel randomness, and reveal key normative questions that have been largely ignored in the literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is worrisome about non-random methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and other court practices that rely, to some extent, on randomness.
Marin Levy is an associate professor at Duke Law School, having joined the faculty in 2009 after serving as a law clerk to Judge José A. Cabranes of the United States Court of Appeals for the Second Circuit. Prior to her clerkship, she was an associate at Jenner & Block LLP in Washington, D.C. Her principal academic interests include civil procedure, judicial administration, remedies, and federal courts. Her work has been published or is forthcoming in the Yale Law Journal, the University of Chicago Law Review, the Cornell Law Review, and the Duke Law Journal, among others. Levy is also a co-author of Federal Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (2nd ed.) with Judge Harry T. Edwards and Linda A. Elliott. Levy received her J.D. in 2007 from Yale Law School, where she was the Editor-in-Chief of the Yale Law & Policy Review. She is a 2004 graduate of the University of Cambridge, where she earned an M.Phil in the History and Philosophy of Science and Medicine. Levy received a B.A. in Ethics, Politics, and Economics and in English from Yale College in 2003, graduating cum laude with distinction in both majors.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
