The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

How Seventh Circuit motions panels work [UPDATED]


Over the summer I posted a couple of times about the rather unusual procedural treatment of a Seventh Circuit appeal in Motorola Mobility. Here's my initial post. Eventually the case was vacated and set for oral argument, and one of the lingering questions was whether the case would be reheard by the same motions panel that had already pre-decided the case. Well the second draft of the opinion came out last week, decided by the same panel, and written once again by Judge Posner.

One interesting question this prompts is how the motions panels and merits panels in the Seventh Circuit actually relate in practice. How are motions panels picked, and when do the motions panels get to hold a case for oral argument.

Ed Whelan at Bench Memos posted queries about this and got informative responses from Chief Judge Diane Wood and from former Chief Judge Frank Easterbrook. They're worth reading for those who follow Seventh Circuit procedure or appellate procedure generally. One revelation that particularly interested me is that according to Judge Easterbrook, the Seventh Circuit does not quite follow its own posted internal operating procedures:

3. Although the operating procedures say that the panel will refer the matter to the Chief Judge for assignment, this rarely happens-and no one wants it to be done routinely. As a practical matter, the issue is referred to the Chief Judge only when the panel is internally divided about whether to retain the case for decision on the merits. During my seven years as Chief Judge, that happened only once. I assigned that case to the motions panel for decision on the merits.

There's been some talk about the non-randomness of appellate panels lately, including this study by my friends Marin Levy and Adam Chilton. It looks like we've just found another source of non-randomness.

(Kudos are due, by the way, to Judges Wood and Easterbrook for being forthcoming about these procedures. It would have been easy not to be.)

Update: Here's more from Alison Frankel at Reuters, including a link to another paper on non-randomness on the Seventh Circuit. (Judge Easterbrook's brief comments on the paper are in the Frankel story.)