Cue Theory: What Kind of Case Is This?

Judges may look for certain features or “cues” in an appeal petition that signal that the petition does or does not present important legal issues. If judges can identify these cues easily or at low cost, they can efficiently sort large numbers of petitions to determine which ones deserve closer scrutiny.[1] Judges on this view are primarily motivated by legal considerations and concerns about efficiency. We can think of cues as falling in two broad groupings: those related to the case itself, and those related to the players or parties.

Consider first cues related to the case itself. A judge may ask, for example, whether there was a dissent at the lower court, conflicting holdings across lower courts, or conflicts with supreme court precedents; if an appellate court reversed the original decision; or if an application raises important or novel legal issues.[2] Each of these factors may indicate a controversial or important decision. Judges may also look for cues that the case is not important, such as if the lower opinion is unpublished or if the petition emphasizes fact-specific concerns.[3]

A cue that may be the most easily identifiable for judges is whether the appeal involves certain fields of law.[4] Judges may assume these fields are likely to involve significant legal issues, or provide an opportunity to influence specific policy areas. Judges on a particular high court may, for example, be more likely to agree to hear appeals involving constitutional and civil liberties issues. Alternatively, although the number of constitutional benches declined over 1993-2011 in India, the Court has started to accept a higher percentage of tax, service, labor, and land adjudication appeals.[5] The cues may change over time, depending on broader policy considerations. For instance, the Emergency period in India was marked by a decline in the high courts’ willingness to intervene against the government, as was Israel during national security crises.[6]

As we will see, cues related to the case itself may be more influential on courts with less explicit ideological motives or fewer strategic opportunities. However, we adopt the following as an initial hypothesis relating to cues:

H2: The rate at which high courts agree to hear appeals varies significantly across different areas of law.

The other grouping of cues relates to the parties involved in the appeal. Judges may, for example, be more likely to agree to hear appeals from parties with greater resources, filed by high profile “repeat litigators,” or supported by amici curiae.[7] each of these factors may for certain judges point to the appeal being more likely to have important public or political implications. Further, having the government involved, either as a party or intervening in the appeal, may point toward greater importance. The status of the parties involved may then influence judges into hearing an appeal on the merits, although there may be an overlap with ideology in that judges with different personal preferences may react differently to different types of parties. For example, a judge who tends to favor the underdog may be more likely to want to hear appeals involving parties with fewer resources. However, our initial hypothesis concerning parties to the appeal is as follows:

H3: Judges are more likely to agree to hear appeals involving the government, repeat litigators and parties with greater resources.

If a high court tends to hear more cases in some areas of law than others, the difference may result from the number of applications in an area or from the grant rate. For example, a court may hear more constitutional than property law appeals because although it agrees to hear about 15 percent of both types of cases, more people apply to have appeals heard that involve constitutional matters. It may also be, however, that similar numbers of applications to be heard are brought in each area but the court agrees to hear a higher proportion of constitutional than property appeals. These explanations may be related— a higher grant rate for constitutional appeals may elicit more applications in that area.

Relative Proportion of Leave to Appeal Applications and grant Rates, Top Ten Areas of Law, Supreme Court of Canada, 1990-2011. source

Figure 6-10 Relative Proportion of Leave to Appeal Applications and grant Rates, Top Ten Areas of Law, Supreme Court of Canada, 1990-2011. source: Alarie & Green, “Docket Control" supra note 9.

Take the Supreme Court of Canada as an example. It differentiates across areas of law. Figure 6-10 looks at the 10 areas of law with the highest number of applications for leave to appeal since 1990. It shows that both the proportion of leave applications (and therefore the number of applications) and the rate at which leave is granted vary considerably across these areas. Criminal law and procedural law make up the highest proportion of applications for leave to appeal with tax and property law the lowest in the top 10 areas. The differences are quite stark. Over 2,300 applications for leave were launched involving criminal law but less than 500 for tax law.[8] However, the grant rates vary considerably, with the Court most likely to hear appeals involving the Charter of Rights and Freedoms, tort law, and criminal law. The Court did agree to hear a higher percentage of appeals in other areas but for these areas there were few applications to be heard. For example, the Court granted leave to appeal in over 30 percent of cases involving federalism issues but these cases made up a mere 8 percent of applications for leave.[8]

Courts are more likely to agree to hear appeals not only in certain areas of law but also if particular parties are involved. Governments are especially successful at getting their appeals heard by high courts. In the united States, for example, the US Supreme Court agreed to hear about 46-80 percent of appeals when the uS solicitor general was the petitioner—that is, when the uS government was asking the Court to hear the appeal.[10] In part this high success rate may be due to the uS government becoming more selective in the appeals it brings, as the number of cases for which the federal government petitioned to be heard has dropped significantly since the 1980s.[11]

This success of the government at being heard also holds in other countries. The Canadian federal government is much more likely to have the Supreme Court grant leave to appeal than are other parties.[12] The Israeli government has also been effective at being heard, with the government obtaining review in about 70 percent of criminal cases in which it sought to be heard in 2006-2007, compared to a 6 percent rate for defendants. In civil cases it was less successful, obtaining review in just under 50 percent of the cases in which it sought to be heard, but still more effective than other parties who obtained review less than 15 percent of the time.[13]

So governments are generally the best at getting their cases heard across countries. High courts tend to differ, however, in whether they differentiate between nongovernment petitioners. This difference may in part be due to how each court decides which cases to hear and how many applications they receive.

As we have seen, the United States attracts a very large number of petitions to be heard—in the order of8,000 per year—and all judges may vote on whether to hear each petition. The chief justice reduces this workload somewhat through the creation of the “discuss list” of petitions that are more seriously considered, but it is still a large number of petitions each year. Judges on the Court do appear to take into account the relative resources of the parties in deciding whether an appeal will be heard on the merits. Individuals are generally taken to have the smallest number of resources when they are involved before the Supreme Court; businesses come second thanks to greater resources available and better organization. The government and government organizations, with their “nearly limitless pool of resources and the frequency with which they litigate,” are considered the most powerful.[14]

Parties with relatively fewer resources tended to be more likely to bring petitions to be heard by the Court but less successful in getting heard. Black and Boyd found, for example, that the petitioner had fewer resources than the responding party (such as an individual petitioning and a business responding) in 62 percent of cases and more resources 31 percent of the time (in the remaining 7 percent the parties were at an equal level).[15] They explain their results through cue theory. Of course, it may not just be that the judge sees the party with greater resources as more likely to have an important case but that high resource petitioners such as the government and big business had the knowledge and ability to craft briefs including clear cues.[16]

Another indication of the importance of resources in the united States stems from how the petition to be heard came before the Supreme Court. The Court receives two kinds of petitions: for paid petitions, the petitioner must pay a fee and follow various other requirements, whereas for petitions in forma pauperis (literally, in the form of a pauper), there are no fees and many of the other requirements are waived.[17] Most of the petitions in forma pauperis are submitted by prisoners. This is the simplest way in which the uS Supreme Court can identify the status of petitioners. Over the 10 years leading up to the 2011-2012 term, the Supreme Court granted on average 4.3 percent of all paid petitions, but only 0.2 percent of all in forma pauperis petitions.[18]

The disadvantage of petitioners without resources can be mitigated somewhat if the party has support from interest groups. Such support comes in a form called amicus briefs in the United States—materials provided to the Court by someone who is not a party to the case. By one estimate, if a petitioner with few resources, such as an individual, seeks to be heard by the Court but has no support from interest groups, his odds of success are about 0.1 percent—with a 97 percent chance of being denied leave to appeal without even making the chief justice’s discuss list. However, the same petitioner with two amicus briefs in support had a 7 percent chance of being granted review.[19] Similarly, amicus curiae briefs filed in support of a petition to be heard by the Court increased the estimated probability that the Court would grant that petition by 50-60 percent (starting from the baseline certification rate of less than 1 percent). For cases with a reasonable chance of acceptance in the first place, amicus curiae briefs seem often to make the difference between success and failure.[20]

The governments, both federal and state, are listened to even when they are not the petitioner. The Court can ask for the input of the American government in cases in which the government is not directly involved. This is a privilege extended to no other party in the American court system. If the Court asks for advice from the government on whether to hear a case, it is likely to follow the advice it receives—between 1998 and 2004, when the solicitor general recommended a straight grant or denial of a petition, the Supreme Court followed the recommendation almost 80 percent of the time.[21] If a state government supports a petition, the Court is also more likely to agree to hear the appeal. During the 2001-2010 terms, where three or more states filed an amicus brief, the Court granted certiorari 44.4 percent of the time, far more often than the baseline grant rate.[22] This effect was larger when more states were in support of the petition and when the states that support the brief were more diverse in terms of ideology.[23] Diversity in the states supporting the petition may send credible cues to the Court about the importance of a case.

In the united States, then, parties without resources are less successful in getting the Supreme Court to hear their appeals, although this disadvantage is reduced if they can get support from interest groups or governments. Similarly, in Israel, other than the government that as noted before has been very successful at being heard by the Court, there is some limited evidence of the petitioner’s resources making a difference when the Court is deciding whether to hear an appeal. After the government, a corporate petitioner that lost at the lower court to an individual had the highest success rate of being heard by the Supreme Court.[24] Beyond this, however, a party’s resources did not appear to influence the Court’s decision to hear an appeal.

This resource advantage, however, does not appear to be consistent across high courts, in part potentially due to differences in how courts decide which cases to hear and the number of applications. As we discussed earlier, the Canadian Supreme Court, for example, receives vastly fewer requests to be heard per year than the uS Supreme Court, and accepts a much higher percentage of those it does receive. Further, unlike its American counterpart that votes on all certiorari petitions en banc, the Canadian Supreme Court votes on petitions in panels of three judges. Flemming argues that these differences mean that Supreme Court of Canada justices do not have to use resources of the petitioner as a cue in their decision to grant or deny leave to appeal, beyond the relative success of the government we noted earlier.[25] Due to the lower volume of cases, justices can obtain and work through enough information to make informed decisions when voting on leave-to-appeal petitions and can rely less on these cues.[26]

Judges, in deciding whether to hear an appeal, then are influenced by the area of law of the appeal and whether it is the government that is asking to be heard. Aside from government success, whether a judge relies on cues depends on how the court decides which cases to hear. Being the stronger party in the case appears to increase a petitioner’s chance of being heard in the united States, and to a lesser extent in Israel, though not in Canada, which raises interesting questions about inequality and access to justice. Similarly, the experience of the lawyers involved may influence how likely an appeal is to be heard in different countries such as the United States and India,[27] but does not appear to matter in others such as Canada.[28] Moreover, different judges may respond differently to these cues. For example, liberal justices on the US Supreme Court tended to favor “underdog” litigants, whereas their conservative colleagues had the opposite inclination.[29] Whether or not a court will hear an appeal therefore appears correlated with at least some cues arising in the appeal.

  • [1] Black & Boyd, “Selecting,” supra note 3.
  • [2] See e.g. Roy Flemming & Glen Krutz, “Selecting Appeals for Judicial Review inCanada: A Replication and Multivariate Test of American Hypotheses” (2002) 64:1 Journal ofPolitics 232 at 24, n. 16 [Flemming & Krutz, “Selecting Appeals”]; S. Sidney Ulmer, “Conflict withSupreme Court Precedents and the Granting of Plenary Review” (1983) 45:2 Journal of Politics474; S. Sidney Ulmer, “The Supreme Court’s Certiorari Decision: Conflict as a Predictive Variable”(1984) 78:4 American Political Science Review 901; S. Sidney Ulmer, William Hintze & LouiseKirklosky, “The Decision to Grant or Deny Certiorari: Further Consideration of Cue Theory”(1972) 6:4 Law and Society Review 637; Margaret Meriweather Cordray & Richard Cordray, “ThePhilosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection” (2004)82:2 Washington University Law Quarterly 389. In their seminal study of case selection at the USSupreme Court, Tanenhaus et al. identified three factors correlationally associated with successfulcertiorari applications: (1) petitions filed by the federal government, (2) dissenting opinions in thelower courts’ decision or conflicting rulings across lower courts, and (3) cases raising civil libertiesissues: J. Tanenhaus et al., “The Supreme Court’s Certiorari Jurisdiction: Cue Theory” in GlendonShubert, ed, Judicial Decision Making (New York: The Free Press of Glencoe, 1963) at 111.
  • [3] Black & Boyd, supra note 3 at 1135, n. 2; Flemming & Krutz, “Selecting Appeals,” supra note42 at 41, n. 16.
  • [4] Wrightman, supra note 23, n. 5.
  • [5] Robinson, “Quantitative Analysis,” supra note 4 at 572.
  • [6] Menachem Hofnung & Keren Weinshall-Margel, “Judicial Setbacks, Material Gains: TerrorLitigation at the Israeli High Court of Justice” (2010) 7 Journal of Empirical Legal Studies 664;Robinson, “Quantitative Analysis,” supra note 4. Alternatively, however, there may be anincreased willingness to find for the government if the governments during this period chosejudges who they know will be favorably disposed to their initiatives.
  • [7] See e.g. Kevin Mcguire, The Supreme Court Bar: Legal Elites in the Washington Community(Charlottesville: university Press of Virginia, 1993) [Mcguire, Supreme Court Bar]; KevinMcguire, “Amici Curiae and Strategies for gaining Access to the Supreme Court” (1994) 47:4Political Research Quarterly 821; gregory Caldeira & John Wright, “Organized Interests andAgenda Setting in the u.S. Supreme Court” (1988) 82:4 American Political Science Review 1109[Caldeira & Wright, “Organized Interests”].
  • [8] Alarie & Green, “Docket Control," supra note 9.
  • [9] Alarie & Green, “Docket Control," supra note 9.
  • [10] David C. Thompson & Melanie F. Wachtell, “An Empirical Analysis of Supreme CourtCertiorari Petitions Procedures: The Call for Responses and the Call for the Views of theSolicitor General” (2009) 16:2 George Mason Law Review 237 at 277 [Thompson & Wachtell].Similarly, Caldeira and Wright also found a high success rate for the US government, with theCourt agreeing to hear two-thirds of appeals when the solicitor general was the petitioner.Caldeira & Wright, “Organized Interests,” supra note 47 at 1117.
  • [11] Margaret Cordray & Richard Cordray, “The Solicitor General’s Changing Role in SupremeCourt Litigation” (2010) 51:5 Boston College Law Review 1323 at 1353. At the same time, Cordrayand Cordray found that the solicitor general was more likely to become involved in appeals atthe merit stage as amicus.
  • [12] Flemming, Tournament of Appeals, supra note 13 at 57.
  • [13] Theodore Eisenberg, Talia Fisher & Issi Rosen-Zvi, “Israel’s Supreme Court AppellateJurisdiction: An Empirical Study” (2011) 96:3 Cornell Law Review 693 at 718-719 [Eisenberget al., “Empirical Study”].
  • [14] Ryan Black & Christina Boyd, “US Supreme Court Agenda Setting and the Role of LitigantStatus” (2010) 28:2 Journal of Law, Economics, and Organizations 286 at 293 [Black & Boyd,“Agenda Setting”].
  • [15] Black & Boyd, “Agenda Setting,” supra note 54 at 297.
  • [16] Black & Boyd, “Agenda Setting,” supra note 54 at 289, 305.
  • [17] Saul Brenner, “Granting Certiorari by the United States Supreme Court: An Overview ofthe Social Science Studies” (2000) 92:2 Law Library Journal 193 at 195.
  • [18] Kedar S. Bhatia, “Likelihood of a Petition Being Granted” (10 January 2013), Daily Writ(blog), online: http://dailywrit.com/2013/01/likelihood-of-a-petition-being-granted/.
  • [19] Black & Boyd, “Selecting,” supra note 3 at 1139. Ryan Black and Christina Boyd also recentlyfound that the influence of amici briefs supporting a petition was contingent on both judicialideology (as the positive effect on liberal judges was substantially greater) and party status (withweaker parties benefitting the most from intervener submissions, whereas much stronger parties were actually disadvantaged). Black & Boyd, “Agenda Setting,” supra note 54 at 303-305(this result conflicts with the earlier findings of Caldeira & Wright, “Organized Interests,” supranote 47, n. 13, which found that interveners were consistently a positive cue).
  • [20] Caldeira & Wright, “Organized Interests,” supra note 47 at 1122.
  • [21] Thompson & Wachtell, supra note 50 at 245.
  • [22] Greg Goelzhauser & Nicole Vouvalis, “Amicus Coalition Heterogeneity and SignalingCredibility in Supreme Court Agenda Setting” (2014) The Journal of Federalism, Forthcomingat 8 [Goelzhauser & Vouvalis]. They note that the overwhelming majority of state-filed amicuspetitions support the granting of review. Gregory A. Caldeira, John R. Wright & ChristopherZorn, “A Unified Model of Supreme Court Voting” (Paper delivered at the Conference onInstitutions and Law-Making, Emory University, Atlanta, GA, February 25-26, 2011) [unpublished] [Caldeira, Wright & Zorn, “Unified Model”] (suggest that it’s a bad idea to ever file abrief against cert “[t]hat is, because such briefs represent nontrivial investments by the groupsfiling them, they indirectly signal the importance of the case, thus raising the likelihood of certiorari in spite of the arguments presented therein” at 3).
  • [23] Goelzhauser & Vouvalis, supra note 62 at 12-13.
  • [24] Eisenberg et al., “Empirical Study"’ supra note 53 at 719.
  • [25] Flemming, Tournament of Appeals, supra note 13 at 57, 59-60.
  • [26] Flemming & Krutz, “Selecting Appeals,” supra note 42 at 246.
  • [27] McGuire, Supreme Court Bar, supra note 47, n. 13; Mark Galanter & Nick Robinson, “India’sGrand Advocates: A Legal Elite Flourishing in the Era of Globalization” (2013) Harvard LawSchool Program on the Legal Profession Research Paper No. 2013-5.
  • [28] Flemming & Krutz, “Selecting Appeals,” supra note 42 at 246; Roy Flemming & Glen Krutz,“Repeat Litigators and Agenda Setting on the Supreme Court of Canada” (2002) 35:4 CanadianJournal of Political Science 811.
  • [29] S. Sidney Ulmer, “Selecting Cases for Supreme Court Review: An Underdog Model” (1978)72:3 American Political Science Review 902.
 
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