Appellate Courts Inside and Out
While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court’s proverbial “last word.” It is tempting to treat the federal circuit courts as a set of mini-Supreme Courts to which a massive body of available scholarship can readily be applied. But this would be a mistake. The courts of appeals are unique institutions, sandwiched between the Supreme Court and the district courts, which operate on the front lines of federal court litigation. As such, the federal appeals-courts warrant – indeed demand – independent analytical treatment. It is against this background that students of the federal judicial process must heartily welcome Jonathan Matthew Cohen’s study of the United States Courts of Appeals.