6 novembre, 2006 18:02

Commentary: Examining the 'Predictive' Model of Judging

Howard J. Bashman

Special to Law.com

11-06-2006

Related: Bashman Archive

One regularly repeated refrain in the battle over judicial confirmations to U.S. Courts of Appeals is that those judges have the ability to implement their personal views of what the law should be, and that those views should therefore be ascertained and considered during the confirmation process. The extent to which federal appellate judges actually do exercise that ability is a question that can be debated endlessly but whose answer can never be definitively known.

A much more interesting question is: To what extent does the job of U.S. Court of Appeals judge, when properly performed, require those judges to implement their views of the law, as opposed to merely predicting how the applicable court of last resort would decide the issues presented in the case? I've concluded that federal appellate judges' role consists mainly of trying to predict how other courts would rule on the issues under consideration instead of implementing their own views of what the correct result would be as a matter of first impression.

Let's begin in the realm of diversity cases, which are federal court cases whose results are governed by state law. In these cases, it is a federal appellate judge's duty to predict how the governing state's highest court would rule on the issues presented. Sometimes, this task is made quite easy, because the state court of last resort has recently issued controlling precedent.

Other times, there is no precedent, so the federal appellate judge must predict how the state court of last resort would rule based on lower state court decisions and any other available state law adjudicative guideposts.

Finally, if controlling precedent exists from the state court of last resort but it is old or of dubious vitality, a federal appellate judge is entitled to predict that the relevant state court of last resort would depart from its earlier ruling and apply the predicted change in that state's law. Thus, in diversity cases, when applying state law, a federal appellate judge's job is entirely limited to predicting how some other court would rule.

By contrast, in cases whose outcomes are governed by federal law, U.S. Court of Appeals judges are sometimes permitted, or even required, to depart from their role as "predictors" of another court's ruling. However, for the most part in those types of cases, federal appellate judges are supposed to predict how the U.S. Supreme Court would rule on the issues presented for decision.

Just as state courts of last resort are the definitive expositors of the meaning of the law of their own states, the U.S. Supreme Court is the definitive expositor of the meaning of federal law. Accordingly, when federal appellate judges are presented with the question whether U.S. Supreme Court precedent governs an issue raised for decision in an appeal, the federal appellate judges must predict whether the U.S. Supreme Court had intended for the rule announced in the earlier case to apply in the current case, notwithstanding whatever factual and procedural differences exist between the two cases.

However, in at least one respect, a federal appellate judge's duty to predict how a state's highest court would rule in a diversity case differs from the same judge's duty to predict how the U.S. Supreme Court would rule in a federal question case. The U.S. Supreme Court has repeatedly instructed lower federal courts not to anticipate the overruling of a directly controlling U.S. Supreme Court case, even where more recent U.S. Supreme Court decisions unambiguously foreshadow the demise of what would otherwise be directly controlling precedent. In such an instance, federal appellate judges' role is to apply the seemingly enfeebled directly controlling U.S. Supreme Court precedent instead of applying their prediction of how the U.S. Supreme Court would rule on the issue today.

But what are U.S. Court of Appeals judges to do when presented with a federal law issue that is truly a question of first impression? On the one hand, they could permissibly decide the case based on their best guess of how the U.S. Supreme Court would rule. On the other hand, it would also be entirely permissible for federal appellate judges to apply their own personal understanding of what the correct answer would be, even if that understanding differs from how those judges predict that the U.S. Supreme Court would rule. Yet cases that present true federal law questions of first impression constitute only a small percentage of the workload of a federal appellate judge. As a result, federal appellate judge are not frequently entitled to implement their own view of what federal law is while ignoring how the U.S. Supreme Court would rule.

Viewing a U.S. Court of Appeals judge as largely a predictor of how other courts will rule may make the job less appealing to some, but that's how the job should properly be performed. Whether that's how the job is being performed by members of the federal appellate bench will continue to be a topic that is hotly debated in the years ahead.

.