Bottom-Rung Appeals

March 1, 2023

There are “haves” and “have-nots” in the federal appellate courts, and the “haves” get more attention.  For decades, the courts have used a triage regime under which they distribute judicial attention selectively:  some appeals receive a lot of judicial attention, and some appeals receive barely any.  What this Article reveals is that this triage system produces demonstrably unequal results, depending on the circuit handling the appeal and whether the appellant has counsel or not.  Together, these two factors produce significant disparities:  in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a similarly situated, represented appellant in another circuit.  Compounding that, in most federal circuits, thousands of decisions issued annually in unrepresented appeals—especially those involving incarcerated persons—are not available on free court websites.  That renders some decisions functionally unusable by those facing the greatest barriers to accessing justice in federal court.

This Article both unearths these systemic inequities and calls for greater attention to their consequences.  These disparities not only threaten dignitary harm to litigants, but they also risk a disparate impact on the development of the law.  The courts—and Congress, if need be—should realign the existing triage regime to prioritize procedural justice values alongside efficiency.  At a minimum, this Article argues for transparency reforms to better assess the effect of the federal appellate triage regime on marginalized litigants.  More controversially, it also argues that Congress should establish minimum and uniform standards for federal appellate decision-making.

March 2023

No. 4