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This chapter focuses on Learned Hand's years as Second Circuit Court of Appeals judge and his relationships with fellow judges. The distinctive role Hand played on the Second Circuit during his first decades there emerges clearly in the many hundreds of pre-conference memoranda he preserved. Their most notable characteristic is the sheer joyful thoroughness with which he tackled each case. The court confronted a very wide range of subjects in a seemingly endless flow of cases, many of them of little apparent interest to anyone other than the litigants' lawyers. Yet whatever the subject—patents and copyrights, maritime law, bankruptcy, corporate and commercial law, citizenship and aliens' deportation, criminal law, problems of evidence and jurisdiction—Hand unflaggingly sought to get to the bottom of the facts and the law.

This chapter argues that the reputation of the House of Lords for high quality appellate adjudication in private law litigation was well maintained during the last two decades of the 20th century. In its excursions into the developing field of public law the Law Lords built on the trailblazing of their predecessors. Publicly more exposed than ever in the past, the standing of the Law Lords at the pinnacle of the court hierarchy was, despite its occasional immersion in controversy, well established. Only those acutely sensitive to the implications of the Human Rights Act and its emphasis on the need for judges not only to be but to appear to be wholly independent, could have predicted that within another decade, it would be transformed into a supreme court wholly detached from Parliament.

This chapter details Learned Hand's promotion to the Second Circuit Court of Appeals. By the spring of 1917, after only eight years on the bench, Hand was the most senior judge of his district. He had grown more confident about his talents, and the increasing attention to his rulings by lawyers, fellow judges, and professional publications reinforced his self-esteem. Yet many of his daily chores as a district judge seemed ever more routine and dull. Increasingly, the Second Circuit summoned him to hear appeals, and he found that the appellate work gave him some of his most enjoyable and rewarding days. A permanent seat on the Circuit Court of Appeals, he knew, would assure him of regular work on legal problems of interest and significance. Hand entered the race for promotion in July 1924, and within a month, he learned that the nomination was his. His road to the Second Circuit was assured by the support he received from the judge whom he succeeded there, Julius Mayer. The Senate confirmed Hand, unanimously and without hesitation, on December 20. A few days later, Hand received his commission as circuit judge, and on December 29 he was sworn in by senior judge Charles M. Hough.

This chapter discusses the history of the circuit courts of appeals. For the first hundred years, there was no separate set of intermediate courts of appeals, though Congress had experimented with various court configurations to perform their function. Then in the Evarts Act (1891) and the Judges' Bill, Congress created the current appellate court system, intending that the circuit courts of appeals would perform the traditional functions of a common law appellate court—the correction of trial court error and the incidental law-giving function needed to explain the error correction results. The courts functioned this way for nearly eighty years until an explosion of appellate litigation required that these courts change in primary function, staffing, and internal operating procedure.

In common law systems, top-level appellate courts hear argument and give full judgements in only a relatively small proportion of cases brought to them. In 2001, the House of Lords disposed of 269 petitions for leave to appeal, allowing 68 to go forward to a full hearing (25%). The US Supreme Court was presented with 7,924 petitions for criterion and heard argument in 88 cases (1%). This chapter argues that we must take the process and product of case selection seriously. Choosing cases is far more than just a way to limit the workload of the court to a manageable size. The main significance of case selection is that it enables a court to define its constitutional role and power. As such, it is vital that case selection be carried out in accordance with relevant constitutional principles, notably that it is a transparent procedure with opportunities for scrutinizing outcomes.

The Justices of the Supreme Court function not just as individuals but also as members of a group. Political science models of Supreme Court decision making, however, focus on the legal and policy goals of individual Supreme Court Justices. By not taking into account what role intra-group dynamics may play in Court decision making, political science models provide an incomplete and inaccurate picture. For example, when there is an ideologically simpatico majority coalition on the Court, the preferences of the Court's median Justice often give way to intra-group preferences. In this chapter, we employ social psychology literature to examine both the importance of and the obstacles to group formation. By comparing differences in decision making of the (largely simpatico) New Dal Court and the (very diverse) Rehnquist Court, we illustrate how social psychology can contribute to an understanding of Supreme Court decision making.

This chapter begins with a discussion of how the judicial House of Lords survived and consolidated its position as the final appellate court during the period 1914–45. It then describes the contributions of the House of Lords to private and public law. One of the factors that helped to reinforce the House of Lords as the final appeal court was that it heard appeals from Scotland (in civil cases) and Northern Ireland as well as from England and Wales. In other words, it was the final appeal court for the United Kingdom, and the presence of Scottish Law Lords in particular was important.

This chapter explores further what judges do in common law cases when they decide in the absence of a controlling precedent or ask themselves whether to overrule or avoid a precedent that does appear to apply. After looking at considerations that are relevant in common law adjudication, it provides a summary analysis of three accounts of the overall task of judges who are resolving common law issues. It then examines questions about how judges should regard precedents that apparently apply, and what it should take to distinguish them or undertake full or partial overruling. The chapter focuses on appellate courts; these are not bound by the legal rulings of the courts below them.

This chapter summarizes the preceding discussions and presents some general lessons from the transformation of circuit courts. The first and most obvious is that there is a steady force pulling on governmental institutions even in a democracy, the desires of the institution's insiders. Another lesson to be drawn is one about what Hamlet called the “insolence of office,” the arrogance with which public officials ignore criticism of their conduct as they sacrifice the good of the public for their own desires. A third lesson is about the increasingly inequitable distribution of societal benefits; in plain terms, the rich get richer. A final and most troubling lesson is about “judicial activism.” The prevailing view from both the Right and the Left seems to be that the judges are not content to limit themselves to matters purely legal. Instead, they have placed an ideological thumb on the scale in momentous cases to substitute their own policy preferences for those of the legislature.

This chapter describes the second phase of James Meredith's legal battle. On June 25, 1962, two months after the appellate court heard arguments in the case, four and half months after Judge Mize's decision, and thirteen months after Meredith filed his lawsuit, the case concluded. In what two scholars have called a “masterpiece of acid rhetoric,” Judge Wisdom spoke for himself and Judge Brown in favor of Meredith.

This chapter examines the opinions of the Texas Appellate Courts concerning the children taken into custody by state authorities after the raid on the Fundamentalist Church of Jesus Christ Latter Day Saints (FLDS) at the Yearning for Zion Ranch. It first considers contemporary concerns about children in new religious movements (NRMs) and other minority religions that often find themselves subject to efforts of social control by authorities of the dominant society. It then discusses two problems that are associated with accusations about child abuse in NRMs and other minority religions in America: the very definition of child abuse and the issue of “collective child abuse.” It also looks at a number of cases that highlight the difficulties dealing with allegations of child abuse in communal religious groups. It also presents a time line and brief description of the unfolding events regarding the FLDS raid and court actions taken in Texas. It suggests that the FLDS secured an apparent victory based on the Appellate Court ruling in Texas but at the expense of basic civil liberties.

This chapter presents the history of the laws that have targeted serpent-handling Christians. In the view of public officials, this religious practice is a danger both to those who engage in it and to those who simply gather to observe it. The experimental research illustrates that prejudice against serpent handlers—rather than rational reasoning—was and is the most likely motivation for the persistence and enforcement of these laws. It explores the history of legislation against serpent-handling churches and the success of this legislation in appellate courts. It investigates both rational and prejudicial reasons for opposition to serpent handlers and discusses a study in which the presentation of factual information regarding serpent-handling churches alters people's opinions on whether laws banning serpent handling override one's religious freedom to practice his or her beliefs, even at the risk of harm.

This chapter discusses the American court system. It begins by laying out the basic structure of federal and state court systems. It then looks at the judges—where they come from and whether they occupy an elective or appointive office. Next, the work of the courts is examined, including the kinds of cases in federal and state courts, basic trial court procedure, actions in equity, the settlement process, and the work of appellate courts. Finally, the chapter explains and evaluates various theories of judicial decisionmaking.

This chapter examines the impact of five years of operation of Three Strikes on the criminal and appellate courts, on the prison population, and on the politics of criminal justice reform. It briefly outlines some major developments in the first half-decade after the new law took effect. The major headings in this analysis are the courts, the state correctional system, and the politics of criminal justice. The short-term impact of the Three Strikes era on California prisons was not substantial. However, the passage of Three Strikes has energized a single-issue politics that has destabilized the legal principles and operating practices of the criminal justice system.

This chapter reflects on the question of dissenting judgments. In what circumstances are they called for, in what circumstances not? What sort of considerations should animate those contemplating a dissent? In what sort of terms should they be expressed? The reflections concern principally dissenting judgments in the Supreme Court as a final appellate tribunal. It concludes that Lord Rodger's dissenting judgments were never the occasion of the least hostility between members of the court but also challenged the rest of the court to think more deeply about the issues involved. And invariably they were expressed in language of such matchless charm and felicity as utterly to disarm any who might disagree.

This chapter addresses the emerging significance of decisional competence in the United States. The practice of assessing and adjudicating fitness to plead developed largely without assistance from the United States Supreme Court or other appellate courts for most of the nineteenth and twentieth centuries. However, the need for appellate guidance became evident in the 1980s, especially regarding the significance of mental or emotional conditions that can impair capacity for rational decision making without impairing the defendant’s capacity to understand the proceedings and communicate coherently with counsel. During the past twenty-five years, some governing principles have come into view, but important issues remain unsolved. The chapter then evaluates the current state of the law in the United States, focusing on two recent decisions by the United States Supreme Court, and offers some suggestions for future development.

This chapter shows that Susie Sharp was not willing to sacrifice John Kesler if ever she was nurturing ambitions to become a member of the state's highest appellate court. In vivid contrast to her feelings for Venitah Breckenridge, Susie found every mention of Sudie Kesler by John or others to be painful. She hated to hear him refer to “my wife” and would sink into silent despair until he reassured her of his feelings for her. Once, when someone told her about meeting Sudie with John before they were married, Susie Sharp recorded that it had made her sick to her stomach. In the time-worn lament of countless other “other women,” she told John that “my idea of heaven is to be able to go openly thru the front door of places with [you] and where I can call all and sundry and say: ‘I want you to meet John.’” John said, “If we just loved each other less, it would be simple.”

This chapter discusses procedural reform in the second half of the nineteenth century, covering the Field Code, appellate courts, and codification and reform. The year 1848 is considered by some lawyers and historians as a time of procedural revolution, although perhaps a mild one. In that year, New York passed an “act to simplify and abridge the Practice, Pleadings, and Proceedings of the Courts.” This was a full-blown Code of Civil Procedure, radically new at least in appearance. The Code is often called the Field Code, after David Dudley Field, who did more than anyone else to devise it and get it enacted. The Field Code also served as a catalytic agent for procedural reform in other parts of the United States.