Empirical Legal Studies

Vanishing (Federal) Appeals

Framed by Marc Galanter's (Wisc.) canonical 2004 paper, The Vanishing Trial, a recent paper by Stefanie Lindquist (Wash U.) and Kirk Randazzo (South Carolina--poli sci), The Vanishing Appeal?, may not surprise many.

That said, it was not too long ago that appellate courts adopted a number of case management protocols in response to "burgeoning caseloads." As Lindquist and Randazzo note, however, concerns about growing appeals may now be outdated. Data drawn from the Administrative Office of the United States Courts on the total number of appellate filings in all circuits from 1983 to 2022 imply that, since 2006, “the number of federal appellate filings has stopped rising and has, instead, decreased steadily and almost monotonically, with a reduction of 26,000 cases from the high point in 2005.” While the paper explores an array of explanations, Figure 1 (below) suggests that the decline in the number of federal appeals cannot be ascribed to any corresponding drop in the U.S. population.

The paper's abstract follows.

"Appellate filings in the United States Courts of Appeals demonstrate a considerable decline since 2006, following an historical trend in increasing caseloads throughout the twentieth century and early parts of the twenty-first. This phenomenon deserves evaluation. In this Article, we demonstrate the trend using data from the Administrative Office of the U.S. Courts and advance a number of potential hypotheses that might assist in explaining the trend, including decreasing trial rates, unique case type and circuit variations, trends in pro se litigation, and political explanations. Ultimately, the trend in case filings in the federal appellate courts is likely the product of a number of contributing factors, but the data deserve additional investigation in order to offer a more fulsome explanation."

CELS 2025--Submission Deadline Extended

At the request of the CELS 2025 conference co-organizers, David Hyman, Neel Sukhatme, and Josh Teitelbaum, I am delighted to pass along the following information update:

Conference on Empirical Legal Studies

24-25 October 2025

Paper Submission Deadline Extended

The paper submission deadline has been extended to Friday, June 27, 2025 (11:59 PM Eastern Daylight Time). There is no charge for submissions.

If you have questions about the submissions process, please contact the conference organizers at [email protected].

Data on Judge Reviews of Warrant Applications

While police search hundreds of thousands of individuals and their property annually, almost nothing is known about how the Fourth Amendment regulates these searches and how they work in practice.

In their forthcoming paper, Unwarranted Warrants? An Empirical Analysis of Judicial Review in Search and Seizure, Miguel de Figueiredo (Conn.), Brett Hashimoto (BYU-linguistics), and Dane Thorley (BYU) lever digitized and timestamped metadata drawn from over 33,000 warrant applications filed through Utah’s “e-Warrants” system over a three-year period, categorize warrants by type, length, and complexity, and assess when and for how long judges reviewed warrant applications.

The paper's key findings include high approval rates and a median warrant review time of three minutes. Approximately 10 percent of warrants are “opened, reviewed, redrafted (if necessary), and approved in sixty seconds or less.” Fig.3 (below) plots the relation between an affidavit's word count and the amount of time the judge spent reviewing a subset of warrant applications that were approved, suggesting that a substantial share of the warrant applications could not have been read in their entirety or carefully (or both, even after assuming fast reading rates).

An excerpted abstract follows.

“… Our key findings demonstrate that the warrant review process is fast and nearly always results in approval. Ninety-eight percent of warrant reviews eventually result in an approval, and over 93% are approved on first submission. Further, we find that the median time for review is only three minutes, and that one out of every ten warrants is opened, reviewed, and approved in sixty seconds or less. Our analyses that account for warrant complexity and length also suggest that many approved warrants are either not read carefully or not read in full (or both). We also perform a qualitative analysis of a randomly selected subsample of warrants and find cases where the review process has clearly failed. Taken together, our results have critical implications regarding the warrant review process that force us to reconsider the constitutional nature of probable cause and the role that judicial review plays as a “check” on police searches. In light of these implications, we explore the political, economic, and logistical constraints that judges face when reviewing warrants and consider pathways to reform that are mindful of these factors.”

CELS 2025--Now Accepting Submissions

At the request of the CELS 2025 conference co-organizers, David Hyman, Neel Sukhatme, and Josh Teitelbaum, I am delighted to pass along the following information update:

Conference on Empirical Legal Studies

24-25 October 2025

Now accepting submissions

The 2025 Conference on Empirical Legal Studies (CELS) is now accepting submissions. CELS will consider empirical papers spanning all areas of empirical legal studies. Authors are encouraged to submit works-in-progress; however, submissions should be completed drafts that include principal results. Submitted papers must be unpublished (and expected to be unpublished at the time of the conference).

The paper submission deadline is Friday, June 20, 2025 (11:59 PM Eastern Daylight Time). There is no charge for submissions.

To submit a paper, please visit www.cels2025.com. We encourage preregistration of all experiments, and we encourage all authors to make their data, scripts, and code publicly available upon publication to the extent your methodology permits. We welcome replication studies and papers that develop and demonstrate empirical methods.

Papers are selected through a peer-review process. If accepted, authors will have an opportunity to submit a revised draft prior to the conference for presentation and discussion. Discussion at the conference includes assigned commentators and audience questions. Accepted papers will be made available to all conference participants. Acceptance of a paper or poster constitutes the presenting author’s agreement to be a commentator on another paper at the conference.

Scholarship on Law Review Scholarship Cited in SCOTUS Opinions

While many judges and Justices have bemoaned the increased irrelevance of legal scholarship for judges over time, Chief Justice Roberts' 2011 comments are among the more pointed: “Pick up a copy of any law review that you see, . . . and the first article is likely to be . . . the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn't of much help to the bar.”

Given such judicial skepticism, that 20% of the SCOTUS opinions issued from 2001 through 2011 cite at least one law review article surprised some observers. Even more surprising, perhaps, is that the percentage has increased over time. Brent Newton (Penn. St.-Dickinson) and May Hennessy recently updated the 2012 study and analyzed SCOTUS opinions issued during the October Terms 2013 through 2023. What the authors find in their mercifully brief study, A Significant Shift to the Right: U.S. Supreme Court Justices' Citations to Law Review Articles During October Terms 2013-2023, is a "dramatic" increase in law review citations (from 20.2 to 34 percent). Interestingly, the paper ascribes much of the recent increase to "the dramatic increase in the rate that conservative justices, specifically, have cited law review articles during the past 11 years." An excerpted abstract follows.

"... The updated study shows a significant increase in the overall citation rate among all types of opinions (34.0% compared to 20.2% in the prior study) and a dramatic shift in the differing rates of citations to law review articles by conservative and liberal justices.  Among the total 1,441 total opinions in the current study period, the justices coincidentally cited law review articles 1,441 separate times – meaning, on average, justices cited one law review article per opinion.  In contrast, during the 2012 study period, among the total 1,961 opinions, there were 1,023 distinct citations to law review articles – meaning, on average, justices cited 0.52 articles per opinion. Thus, there has been a nearly a two-fold increase in the average number of law review articles cited per opinion (considering all types of opinions). The notable increase in citation rates primarily is attributable to the dramatic increase in the rate that conservative justices, specifically, have cited law review articles during the past 11 years. In the prior study period, conservative justices cited law review articles in their opinions at significantly lower rates than liberal justices. In stark contrast, during the current study period, conservative justices cited law review articles at a dramatically higher rate than liberal justices in all types of opinions..."