What is the ideal structure for appellate review? Without providing a definitive answer to the question, commentators have suggested several factors that may improve the process, and thus perhaps the accuracy, of appellate review. First, it is said that panels of judges are preferable to review by a single judge. Second, expertise in the relevant area of law is a benefit. Third, other indicia of lawfinding ability-such as the ability of lawyers and judges to focus on legal issues without the distraction of factual conflicts and the amenability of judges' schedules to careful contemplation and reflection-contribute to the quality of appellate review. Fourth, a court's adherence to traditional notions of appellate hierarchy, as exemplified by following its earlier precedents, has been deemed to produce better results. Finally, it is said that the independence of appellate judges-that is, the extent to which job features such as life tenure and a guaranteed salary tend to insulate judges from pressures to decide cases or issues one way or another-is of value.
In this Article, we endeavor to evaluate empirically the relative quality of appellate review. To do this, we rely upon data obtained from the appellate review of bankruptcy matters. The current federal bankruptcy appellate structure provides an excellent setting in which to study appellate review because it offers litigants two paths for obtaining appellate review. First, after the bankruptcy judge issues a ruling, litigants may have the district court-in the person of a single district judge-review that ruling. Alternatively, the parties may agree (in circuits that have them) to have the bankruptcy judge's ruling reviewed by a panel of bankruptcy judges-a so-called "bankruptcy appellate panel" or "BAP." Further appeal in both cases- whether from the district court or the bankruptcy appellate panel- lies with the proper federal circuit court of appeals. We have collected data on affirmance rates in and citation rates to appellate bankruptcy opinions. Analyses of the data generally-and analyses of the citation data in particular-support the notion that BAP decisions in our study are perceived to be of greater quality than are district court decisions. First, we find support for the proposition that courts of appeals are more likely to uphold upon review the conclusions of BAPs than district courts. Second, BAP decisions are, with statistical significance, cited more frequently by bankruptcy courts, BAPs, federal courts of appeals, and courts in other circuits than are district court decisions. Only district courts are not more likely .to cite BAP decisions than decisions rendered by district courts.
Jonathan R. Nash and Rafael I. Pardo,
An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review,
61 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol61/iss6/3