Historians and political scientists have noted that appointments of judges to the U.S. Courts of Appeals are not determined by senatorial courtesy alone. What has not been adequately explained is why and when a president defers to a senator's choice rather than seek to control the selection. This article attempts to understand the politics of federal appellate court appointments. The author first identifies a major change in the work of the courts of appeals during the years 1900-1945—the growth in review of the actions of newly created federal regulatory agencies. Then, by examining Justice Department files and presidential correspondence, he discoveres three patterns of appointment emerging in the same period. The patterns vary with presidential perceptions of the role of the federal government and of the courts of appeals' ability to affect accomplishment of administration goals. Appointments during the first years of the presidencies of Theodore and Franklin Roosevelt and during the Harding and Coolidge administrations were dominated by patronage concerns. Those administrations yielded to the recommendations of senators and demonstrated no interest in the policy-making potential of these courts. In the two other patterns the White House played a more active role, with senators more often deferring to the president's selection. Concerns about professionalism dominated selections in Taft's and Hoover's administrations: because they recognized the policy importance of those judgeships but saw the role of government as limited, they sought judicial craftsmen who would make policy only incrementally. Policy concerns dominated selections during Wilson's administration and the latter years of both the Roosevelts' administrations: Justice Department officials screened nominees to determine their policy orientation, because federal appellate court judgeships were perceived as crucial policy positions that could affect the president's ability to implement his reform programs.

This study examines the exercise of prosecutorial discretion in two areas: the decision to initiate prosecution by indictment (in lieu of a preliminary hearing) and the decision to reinitiate prosecution by indictment after preliminary hearing discharge. To explore concerns about prosecutors’ use of the grand jury to pursue prosecution in cases with insufficient evidence to convict at trial, the author studied prosecutors’ practices in murder cases in Cook County, Illinois. To gather the information the author collected disposition data for prosecutions initiated by grand jury and by preliminary hearing, interviewed prosecutors, and examined prosecutors’ case documents indicating reasons for declining or pursuing prosecution of discharged cases. The data show similar conviction rates for prosecutions initiated by grand jury and those by preliminary hearing but a significantly lower rate for prosecutions reinitiated after discharge. Three reasons for the latter finding are discussed: special evidentiary characteristics of reinitiated cases, seriousness of the offense studied, and prosecutors’ special motivations and practices in serious cases. The author suggests that although prosecutors typically are constrained by practical, organizational, professional, and ethical concerns, they may in extraordinary situations reinitiate prosecution of weak cases. In light of the study's findings, the author assesses several proposals to eliminate or restrain prosecutors’ power to reinitiate.

This article explores First Amendment theory and the role of the media in generating police accountability through public understanding of police organizations. We argue that free speech theory can and should look beyond “abridgment” issues and raise questions about the civic responsibility of the press to inform the public about key governmental institutions. The media's concern with crime news, we found, vastly overshadows its coverage of the police us a complex, in-teresting, and expensive governmental agency. Reporting about police institutional patterns and policies contributes more toward fulfilling First Amendment values-not only that of “checking” police excesses, but of facilitating the goal of enlightened citizen participation in local government.

Those who won our independence believed…that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject.

The “litigation explosion” has been a frequent topic of concern in both academic circles and the popular press. This idea draws its polemical power from the assumption that litigation rates were lower in the past. But we presently know little about long-term trends in court activity. This article is a critical review of the existing literature on long-term litigation trends and the social development model which scholars have posited to explain changes in litigation patterns. Whether courts are indeed facing imminent crisis because of an explosion is still very much an open question; the extant literature offers no proof of an explosion. The available data do suggest, however, that previous studies may have been overly optimistic in expecting litigation trends to follow any single pattern. The questions about litigation rates will remain open until we are able to gain a fuller understanding of the trends in court activity over time.

What does it mean to talk about the “cost of civil justice”? What can be done to bring down that cost? This article addresses these two important questions. Drawing on data collected by the Civil Litigation Research Project, the authors first examine the components of cost and then present an extensive analysis of what is by far the dominant element of the cost equation-legal services. The analysis of the cost of legal services examines the amount of time lawyers devote to cases and the rates they charge for their time. The major factors influencing time include adversariness, stakes, litigant goals, and court (federal versus state); hourly rates appear to be determined primarily by the legal services market. The article closes with a discussion of the implications of the results of the analysis for reforms of the civil justice system that might seek to lower the cost of justice.

This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920. The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections. These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making. Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence.

Civil rights litigation undertaken by lawyers associated with interest groups, particularly the NAACP and the NAACP Legal Defense and Educational Fund (LDF), is of ten described as planned” litigation. This article examines litigation by these organizations from the late 1960s through the early 1980s to explore the extent to which “planned litigation” is planned. The author interviewed both staff attorneys for organizations participating in race relations litigation and “cooperating attorneys” associated with such organizations.

Elements of planned litigation discussed are litigating organizations’ choices—of areas of law on which to focus, of cases, of federal or state courts, and of amicus curiae participation—and the dynamics of litigation—including relations between staff and cooperating attorneys, litigators’ control of cases, and the effect of Supreme Court decisions on litigation strategy.

The interviews reveal that much interest-group civil rights litigation is not selected deductively on the basis of previously developed criteria but instead develops inductively from cases that come to the organizations and is affected by pressure and circumstance. Counter to the view, stemming from Brown v. Board of Education, that civil rights litigation is undertaken as planned “campaigns” based on “blueprints,” it appears that much about “planned” litigation is problematic, with many constraints imposed by the actions of others and by resource problems, with the result that many deviations from litigation strategy occur. Thus much “planned” litigation is responsive and reflexive and beyond litigators’ control.

Professor Whitford finds that the small-case procedure of the United States Tax Court, unlike most other small claims courts, provides a meaningful avenue of redress for taxpayers contesting small amounts and appearing pro se. The success of this procedure is attributed to the unique dispute “posture” of the Tax Court petitioner and to the extensive resources assigned to the small-case procedure by both the Tax Court and the chief counsel to the IRS. This special Tax Court invention is not likely to be replicated in courts of more general jurisdiction. Lack of political support will prevent allocation of resources sufficient to make pro se litigation work. The expenditure of such resources in the Tax Court apparently reflects a felt need to legitimate the tax system by providing fair disputing procedures.

Tests of statistical significance have increasingly been used in employment discrimination cases since the Supreme Court's decision in Hazelwood. In that case, the United States Supreme Court ruled that “in a proper case” statistical evidence can suffice for a prima facie showing of employment discrimination. The Court also discussed the use of a binomial significance test to assess whether the difference between the proportion of black teachers employed by the Hazelwood School District and the proportion of black teachers in the relevant labor market was substantial enough to indicate discrimination. The Equal Employment Opportunity Commission has proposed a somewhat stricter standard for evaluating how substantial a difference must be to constitute evidence of discrimination. Under the so-called 80% rule promulgated by the EEOC, the difference must not only be statistically significant, but the hire rate for the allegedly discriminated group must also be less than 80% of the rate for the favored group. This article argues that a binomial statistical significance test standing alone is unsatisfactory for evaluating allegations of discrimination because many of the assumptions on which such tests are based are inapplicable to employment settings; the 80% rule is a more appropriate standard for evaluating whether a difference in hire rates should be treated as a prima facie showing of discrimination.

Is it possible that jurors, in the process of evaluating the evidence against a defendant, act to some degree as legislators by assessing the soundness of policies they perceive the criminal law to be supporting? To test the hypothesis that jurors reflect public opinion in making such judgments, the author correlated changes in public opinion on war policy with fluctuations in the proportion of jury trial defendants found guilty of violating selective service laws.

It was found that juries convicted those accused of draft evasion at a higher rate when a war was in progress than during peacetime and that during the Korean and Vietnam wars the conviction rate was directly correlated with public approval of American military actions. A breakdown of regional differences showed that the South was somewhat more supportive of the Vietnam War and more prone to convict in selective service cases than the rest of the nation was, but the results of this comparative analysis were inconclusive. Although the correspondence between public opinion and verdict tendencies was far from perfect (perhaps in part because of the skewed composition of juries), the study does support the notion that jurors draw on prevailing popular sentiments about laws and the public policies the laws further.

What are the paths that lead to the state supreme court bench? If we can identify these paths, can we then determine that they produce distinctive patterns in a court3 decision making? Based on a study of 694 judges who sat on 16selected American state supreme courts between 1900 and 1970, this article finds that the appellate judiciary was drawn from a variety of legal and political backgrounds rather than from any single career line. The judges came from both non-elite and elite law schools. About half had no substantial lower court judicial experience. Over one-third had been public prosecutors, another third had held other elective political office, and only a small minority had practiced in multilawyer big-city law firms. The article reports changes over time in these and other judicial characteristics (such CIS age, turnover, political party affiliations) and describes interstate differences. Few significant statistical relationships are found, however, between the background characteristics of judges and selected characteristics of state supreme court opinions.

Recent research on lawyer-client relations has called into question the traditional image of the lawyer as the autonomous professional. This research note reviews this research and proposes a three-dimensional framework for interpreting lawyer-client relationships. The utility of the framework is illustrated using data collected through interviews with corporate lawyers and their clients in Toronto.