The Rank-Order Method for Appellate Subset Selection
Notre Dame Law Review Online
Appellate courts in many countries will often use a subset of the entire appellate body to decide cases. The United States courts of appeals, the European Court of Justice, and the highest courts in Canada, Israel, South Africa, New Zealand, and the United Kingdom all use subsets. Utilizing such subsets has the advantage of increasing judicial efficiency, but creates the possibility that there will be an attempt to manipulate the composition of the panel for strategic purposes. In general, there have been two methods that appellate courts have used to choose their subsets: direct selection and random assignment. In direct selection, the chief judge or a designated court administrator (hereinafter, the "Selector") simply selects the members and size of the panel for that particular case. In random assignment, the size of the panel is preset and the composition of the panel is randomly assigned from the full set of judges. Both of these subset selection methods likewise involve a trade-off. Direct selection allows the Selector to choose panels that reflect the views of the entire set of judges. At the same time, direct selection also permits the Selector to "game" the outcome in particular cases. Random assignment prevents such purposeful gaming, but allows for unrepresentative "outlier" panels to form simply by "the luck of the draw." This Essay introduces a new method for selecting subsets that combines the best elements of both the direct selection method and random assignment, while avoiding their pitfalls. This new method-which I call the rank-order method creates subsets that are judicially efficient and representative of the appellate body as a whole. The rank-order method is specifically designed for use in "politically charged" cases where the reactions of specific judges to the particular case can be ,"'predicted with a fair degree of accuracy." Importantly, the rank-order method also mitigates against possible "judicial gaming." This Essay proceeds as follows: Part I discusses the "fatal flaws" of random assignment and direct selection: outlier panels and judicial gaming, respectively. Part II introduces the rank-order method and explains how this method is superior to either random assignment or direct selection. Part III provides detailed examples of how the rank-order method works in practice. Part IV concludes.
Michael J. Hasday, The Rank-Order Method for Appellate Subset Selection, 93 NOTRE DAME L. REV. ONLINE 17 (2017-2018).