Evaluation of the United States Court of Appeals
for the Seventh Circuit
by the Chicago Council of Lawyers

IV. STATISTICAL ANALYSIS OF THE COURT AND ITS JUDGES

The Council looked at statistics regarding the Court's performance in three areas: delay in writing majority opinions, frequency of concurrences and dissents, and a citation analysis of the active judges. Although the work, particularly in the citation analysis, is still quite tentative, the results are of interest. Statistical analyses of these areas are attached as an Appendix to this evaluation report.^/

 A. Delay in Disposition of Appeals.

Delay in issuing opinions is a problem in the Seventh Circuit. For the twelve month period ending September 30, 1992 (the most recent period for which figures are available), the Court ranked 10th out of the 12 Circuits in the median time interval between notice of appeal and final disposition. 1992 Annual Report of Director, Administrative Office of the United States Courts Table B-4 at 151 ("1992 Annual Report"). In terms of actual time, its median time for disposition from notice of appeal to final disposition was 13.5 months, as compared to 10.6 months in all courts of appeals for all cases. Id.

That the problem is not caused in substantial measure by delays in briefing is made clear by the figures for the time between the notice of appeal and the filing of the last brief. Thus, for the year ending September 30, 1992, the Seventh Circuit had a median time for all cases of 4.3 months from the notice of appeal to the filing of the final brief, as compared to a median for all circuits combined of 4.8 months. 1992 Annual Report, Table B-4 at 151.^/ Rather, the Seventh Circuit's record in the time for its dispositions is largely caused by delay between oral argument and final disposition.^/ In this area, the Administrative Office reports that for the year ending September 30, 1992, the Court is last both overall and in each of the three major categories (prisoner petitions, other civil, and criminal) reported by the Administrative office. 1992 Annual Report, Table B-4 at 151-52. For example, the time between hearing and final disposition for all cases terminated by the Seventh Circuit in the past was 4.3 months (or roughly 130 days), as compared to an overall median interval for all circuits of 2.5 months (or roughly 75 days).^/ Id.

Delay in several of the Circuits can be explained at least in part by either organizational or caseload factors. Thus, the Ninth Circuit, with 28 active judges and a huge geographical area, has built-in reasons for the slow overall disposition rate, and where it is last both in the median time interval for all cases both from the filing of the notice of appeal to final disposition and from the filing of the last brief to hearing or submission. Administrative Office of the United States Courts, 1992 Federal Court Management 27 ("1992 Court Management"); 1992 Annual Report, Table B-4 at 151. However, in the area which the Ninth Circuit judges can control -- time between hearing and disposition -- the court is tied for fourth. 1992 Annual Report, Table B-4 at 151. Similarly, the D.C. Circuit, which gets a number of multi-party appeals from complex administrative proceedings, is last in the median interval between notice of appeal and completion of briefing, both overall and in the "other civil" category. Id. But again, in the area that its judges can control -- the time between hearing and final disposition -- it is tied (with the Ninth Circuit) for fourth overall and tied for fifth in "other civil" cases. Id.

In contrast, the Seventh Circuit has nothing either in its case load, geographical area, or number of judges that can justify its overall poor performance. While the Seventh Circuit does hear argument in a greater percentage of cases than most Circuits,^/ the Court is only fourth in the number of signed opinions written by each judge, and is close to the Circuits in fifth and sixth place.^/ Rather, as suggested above, the Council believes that the delay is caused by a few judges whose slow conduct is tolerated by the Court. An analysis performed for the Council looked at time between oral argument and disposition by Seventh Circuit judges for the years 1988 to 1992 (Federal Reporter, Second Series, volumes 836 to 983). Overall, the study found the average time to write an opinion in the Seventh Circuit without a dissent or concurrence was 141 days.^/ However, what is interesting is the substantial disparity in the average time between oral argument and decision from judge to judge. This disparity is set forth in the tables on pages 58-59 of the Appendix.

As can be seen, several judges take consistently longer than the Court's average of 4 3/4 months. On the other hand, several of the Court's judges are extremely quick (by Seventh Circuit standards). Judges Posner, Easterbrook, and Cummings normally issue opinions within about two to three months of oral argument. Nonetheless, these judges by themselves cannot prevent serious delay.

The delay created by the slower judges is even more stark when compared to the judges on the Courts of Appeals nationwide, as reported by the Administrative Office. Thus, while the slow Seventh Circuit judges were taking 5 to 8 months to write their opinions, the nationwide figure for Circuit Judges in 1992 was 2½ months. 1992 Annual Report, Table B-4 at 151. It is true that the figures compared are not fully comparable, since the Seventh Circuit figures are in terms of an average time over an approximately five-year period, while the nationwide figures are in terms of median numbers for one year. However, given the large number of opinions included in the Seventh Circuit figures for each judge, the different measures are not likely to produce significantly different results, nor is review of only 1992 likely to make much of a difference.^/

The cure is clear: the Court must stop permitting the slower judges to delay the Court's cases. As discussed above at note 36, other Circuits routinely act when an opinion is not produced within six months of oral argument, either by reassigning the opinion or not permitting the assigned judge to hear more appeals until he or she has caught up. The Seventh Circuit should adopt a similar practice.

 B. Concurrences and Dissents.

Seventh Circuit judges rarely dissent and rarely concur. An analysis of 3,175 reported decisions in the five year period from 1988 to 1992 found only 184 dissents and 185 concurrences. Moreover, just two judges account for a substantial part of this activity. Judges Cudahy and Ripple together accounted for 41% of the dissents (41 for Judge Cudahy, 35 for Judge Ripple) and 52% (50 and 46, respectively) of the concurrences.

Some judges may feel less of a need to concur or dissent because they have a talent for persuading other judges to change opinions to remove troublesome language. Other judges may concur or dissent more, in part, because they lack that facility. Nevertheless, the numbers and circumstances of the variations in the frequency of separate opinions by Seventh Circuit judges are too extreme to explain on those grounds alone.

As discussed above, the Council is troubled by the infrequency of dissents and the practice of some judges to write separate opinions only on rare occasions. The Court too frequently reaches out for issues not squarely presented by the parties or raised by the record, writes overly broad opinions, is inconsistent in its use of waiver, uses jurisdictional and other procedural hurdles in a way that frustrates legitimate expectations of the District Court and the parties that disputes will be resolved on the merits, and does not appropriately defer to other courts better suited to resolve pending issues. See pp. 8-18 supra. Absent appropriate limitation by concurrence or dissent, these majority opinions become the de facto law of the Circuit even if the issue addressed was not squarely presented by the case, briefed by the parties, or even fully considered by the other judges.

 C. The Citation Analysis.

Assistant Professor Lessig also provided the Council with a preliminary citation analysis of the opinions of the active judges of the Seventh Circuit. Citation analysis looks at the citations of a judge's work to see how frequently the judge's work is cited. This analysis, which is set out in the Appendix at 1-27, is preliminary, but contains some interesting points. Work on the analysis is continuing, and the Council understands that it is being amplified by a citation analysis of other circuits.^/

Proceed to evaluation Methodology and evaluations of individual judges