Does familiarity breed contempt?
posted by Amanda Frost
I have been reading some interesting articles on the factors that contribute to a court’s or judge’s reversal rate. Because I live in, and litigate cases in, Washington, D.C., where the federal district and circuit court judges occupy the same building, I began to wonder whether there is any correlation between sharing a courthouse and the frequency with which the appellate court reverses the district court. Similarly, I would be interested to know whether workplace proximity affects the frequency with which the appellate court orders a district court judge to recuse him or herself from sitting on a case. The articles I have found do not address this question.
The federal courthouse in D.C. provides district and circuit court judges with lots of opportunity to interact in the elevators, cafeteria, parking lot, gym, and at various courthouse functions (for example, at the annual chili cook off organized by Judge Sentelle, or at the holiday caroling hosted by Judge Henderson). Would these sorts of frequent, casual social interactions change the way the appellate judges review their district court colleagues? I could see it cutting either way. On the one hand, the appellate judges might give a little more deference to that district court judge who seems friendly, sensible, smart, and always remembers to ask after the kids when they run into each other in the hallways. On the other hand, the water-cooler familiarity might lead appellate judges to view some of their lower court counterparts as less reliable and trustworthy than others. Although I doubt workplace proximity is a major factor in reversal rates, I would guess that it plays in a little at the margins.
Recusals present an even more interesting case. Unlike a reversal, ordering a lower court judge off a case is extremely unusual and something of an embarrassment for the judge. The appellate panel might hesitate a bit longer before taking that drastic step if they share a workplace with that trial judge. But then again, the federal appellate court in Washington, D.C. has demonstrated its willingness to take such action. Most recently, that court removed Judge Royce Lamberth from the “exceptionally contentious” litigation by Indian tribes charging the United States with violating its fiduciary duties as trustee of Indian lands. And it was front page news when the D.C. Circuit required District Court Judge Thomas Penfield Jackson to recuse himself from the Microsoft case after he granted interviews to the press about the case while it was pending.
I have located suprisingly few articles providing empirical data on reversal rates for courts of appeals, and none at all that consider whether sharing a courthouse affects the likelihood of reversal. If anyone knows of a source of information on this that I have overlooked, please let me know.
August 7, 2006 at 9:10 am
Posted in: Empirical Analysis of Law, Sociology of Law
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Responses (3)
Bob V - August 7, 2006 at 11:56 am
A related question (for which I believe I may have seen some empirical research) is whether this “proximity effect” works in cases where district judges are appointed to serve on an appellate panel (28 U.S.C. § 292).
Scott Moss - August 7, 2006 at 12:29 pm
One D.D.C. judge told me that years back, the D.C. Circuit judges had to stop going to the same dining room as the D.D.C. judges because one D.D.C. judge, the late Oliver Gasch, kept arguing with his appellate brethren/sisthren about their reversal decisions. Maybe the separate dining analogy is: Good fences make good neighbors?
Rumor - August 7, 2006 at 2:22 pm
Experience up here in Canada, where the Federal Court and it’s respective Appeal Court occupy the same building, suggests another factor you might not have considered: familiarity between the courts may not only breed respect for the lower court’s decisions, but also allow the appeal court to rely on familiarity and rapport to more easily overturn a lower decision, knowing that it won’t be taken to heart as much as if they courts did not know each other.
This is just an idle speculation, I don’t really have any data to back it up.
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