How Are Appellate Panels Selected (Part 2 Of A 4 Part Post)

With this post, we begin our short review of some of the academic literature regarding panel effects.

Of course, the first question one encounters when taking a case before an appellate court is how one's panel will be chosen. A majority of appellate courts state, either in their operating procedures or their rules, that appellate panels for argued cases are assigned randomly. This assumption has been built into most of the analytics work done on panel effects for at least a generation.

But is it really true? I have spoken with lawyers in several federal circuits who are dubious about just how random assignments are.

Let's begin by making several things thoroughly clear: no one is suggesting that panels are intentionally chosen to manipulate results in particular cases (although disappointed litigants have done so once in awhile). Further, reasonable people could dispute just how beneficial random assignments are. There are any number of good reasons to