More on the Curious Decline in Paid Petitions
Earlier this week, I discussed the curious decline in the number of paid petitions filed with the Court, a phenomenon that began in 1994 and has since accelerated. One prevailing theory is that Congress has been passing fewer major pieces of legislation recently that lead to widespread litigation in federal court. While that may explain some of the phenomenon, I think that the decline in paid petitions is in large part a function of the Court’s own making. Let me explain.
The decline in the plenary docket, though it started in 1986, really began to accelerate in the early 1990s as a number of new Justices were appointed. From 1992 to 1993, for example, the Court decided 27 fewer cases, the largest drop for a single Term since the Harvard Law Review began collecting statistics on the Supreme Court’s docket in 1948. As you may know, the plenary docket declined even further over the next several years, reaching a modern low during October Term 2002. As the number of cases granted plenary review have decreased and the number of petitions for certiorari have simultaneously increased, the Court has become more selective in its selection of cases for plenary review.
Assuming that litigants (and their counsel) are sophisticated, it is not a surprise that the number of paid petitions has decreased as a result. In one article, Tony Mauro estimated that it costs between $10,000 and $75,000 to file a petition for certiorari with the Court, with most of that sum attributable to attorney’s fees. That is no nominal sum. With the Court granting fewer than 1% of the petitions filed, it is logical that many litigants are simply unwilling to expend such a large sum on the slim chance of gaining plenary review. A rational (though not all litigants are rational!) litigant will only authorize the filing of a cert petition if the expected benefit from the filing outweighs its expected costs. The expected cost is straightforward: it is between $10,000 to $75,000 in addition to any emotional costs for individual litigants. The expected benefit is a function of the probability of receiving plenary review, the probability of receiving a favorable result if certiorari is granted, and the value to the litigant of a favorable outcome. As costs have risen, the expected benefit from filing a petition has also decreased, largely as a result of a decline in the probability of receiving plenary review. As a simple matter of economic theory, therefore, it is expected and we have in fact witnessed a decline in the number of paid petitions. Although I think that other reasons may also explain the “curious” decline in paid petitions, simple economics may be the largest factor of all.
With that in mind, I would very much like to hear from other practitioners and academics who may disagree (or agree) with my view.
You hypothesize that the decline in paid petitions over the last fifteen years is a function of both the cost of filing them and the low chance of success. All well and good. But is there empirical evidence to back it up? Let us take the period from 1960 to the present. We have three variables: the number of paid petitions, the chances of having one granted, and the cost. The latter two supposedly determine or explain a large part of the former. We must first look at the number of paid petitions filed over this time period I do not know what it is. But if your hunch is correct, we would expect to see a very rough correlation between the number of filings and the cost and chance of success. It is difficult to know what the cost of filing a petition was in, say, 1967, but I would think the chances of success were about the same. I recall reading a book by Justice Rehnquist where he not so fondly recalled parsing through petitions for cert when he was a clerk and the extremely low chances of one ever being granted and that was in the early 1950’s. If we had the data, this theory could be displayed as a graph and proven conclusively to be true or not. But I doubt very much that the relative cost has changed that much over the years. The chances of having a petition granted may change but I do not believe it is statistically significant. But nevertheless, you raise a valid point for which I believe there may be an explanation. During the last twenty years, large businesses have scrutinized their legal expenses and applied traditional economic analysis to them in the same way they would any other economic activity. Years ago, this was not the case. The explanation may be that companies have finally realized that they have been investing in something akin to a giant lottery and the returns simply don’t justify the expenditure. And when faced with the potential bill if cert if granted and the chances of success on the merits, it may just not be worth it. Another point. Has there been a decline in the number of written opinions in the circuit courts of appeal (or state supreme courts) in the last twenty years? I would be interested to know if there is any data on this issue and if there is a pattern among the circuits as a whole or if it varies from circuit to circuit.
Comment by Dennis Bedard — March 3, 2007 @ 6:52 am
Thank you Dennis for your excellent comments. Although I do not want to give away too much of my forthcoming article (primarily because it is still a work in progress), I will say that the probability of having a paid petition granted decreased markedly during the 1980s and especially the 1990s. The increased selectivity of the Court with respect to paid petitions has largely tracked the increased selectivity in the overall certiorari docket.
You are correct, however, that I am largely working within the framework of a hypothesis, and I am still collecting data to test that hypothesis. And, of course, even if the data are supportive of the hypothesis, statistical analysis cannot prove causation, only a relationship.
But more importantly, you raise an excellent point about a possible interfering variable. The number of unpublished opinions has risen over the last decade, as several scholars have pointed out. The Court is very hesitant to grant certiorari in such cases. It is worth investigating whether the rise in unpublished opinions has also contributed to a decrease in paid petitions, although my initial reaction is that the explosion in the number of cases terminated in the Courts of Appeals largely counters the increase in unpublished opinions. Thanks again for your excellent comment.
Comment by David Stras — March 3, 2007 @ 7:21 am
One other comment that I meant, but forgot, to make part of my initial post. I would like to thank Arthur Hellman, with whom I have had discussions on this topic and who initially piqued my interest on the subject of the decline in paid petitions.
Comment by David Stras — March 3, 2007 @ 5:16 pm
David: You might want to look separately at paid criminal cases. I have maintained for over 20 years a private criminal defense appellate “boutique” practice, nearly all federal. While I take more than my share of court appointments, the large majority of the cases is necessarily drawn from the fairly small pool of paying defendants — but (with lamentably few exceptions) not the highest-paying ones, who tend to go to bigger firms. If and when the time comes to decide whether to file a cert petition, naturally I lay out the odds for my clients and their families (who are generally paying the bill) in frank terms. (Understand also that I am only speaking of cases in which there is a plausible issue, as to which a non-frivolous case can be made for being “cert-worthy.” But that include clear-error cases, since there are a few per curiam summary reversals every year, as well as many GVRs. The possibility of being one of those is as valuable to the client as a merits grant, if not more valuable.) But I also point out that for some families who have the ability to pay, in criminal cases particularly, the desire to “leave no stone unturned” weighs heavily, where there are so many harsh outcomes that families understandably see as an injustice. So while I frankly tell them that from a cost-benefit point of view filing a cert petition makes no sense (except to me and my college-age children), the psychological cost of *not* filing may be high. I also point out that the Court does grant somewhat unpredictably (not even Tom can be right all the time!), and that if you don’t file, you cannot prevail. As we all learned in seventh or eighth grade math, a very small chance of winning is literally infinitely larger than no chance at all. Families can thus increase their loved ones’ chances of winning their appeals by a factor of *infinity* by filing a non-frivolous petition for certiorari. In criminal cases, and perhaps in some subclasses of civil cases where the psychological investment is high, this can be a persuasive reason to file.
Comment by Peter G — March 4, 2007 @ 1:53 pm
Maybe it just got cheaper to buy a congressman or a pardon.
Roger Friedman
Comment by r.friedman — March 5, 2007 @ 8:39 am
I wonder if paid (and unpaid for that matter) petitions in state criminal cases have increased since AEDPA was enacted. For many issues, the Supreme Court is the very last place for meaningful substantive review because of the difficult standards under AEDPA, and I can say, anecdotally, that state criminal appellate practitioners consider cert petitions more than they used to. That said, paid petitions in state criminal cases may be too few in number to be worth studying separately.
Comment by Jonathan Soglin — March 5, 2007 @ 12:41 pm
I would like to thank everyone for their wonderful comments on this issue. One other issue that was raised in an e-mail to me is that perhaps even the Court’s tendency of granting primarily in “split” or “conflict” cases discourages petitioners from filing even when there is “clear error” in the opinion below. A very interesting theory indeed, especially after my last article demonstrated that the cert pool uses the presence of conflict as a very important screening device.
Comment by David Stras — March 6, 2007 @ 5:28 am