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A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.

To determine whether the circuit courts utilize random assignment, we have created what we believe to be the largest dataset of panel assignments of those courts constructed to date. Using this dataset, we tested whether panel assignments are, in fact, random by comparing the actual assignments to truly random panels generated by code that we have created to simulate the panel generation process. Our results show evidence of non-randomness in the federal courts of appeals.

To be sure, the analysis here is descriptive, not explanatory or normative. We do not ourselves mean to suggest that “perfect randomness” is a desirable goal. We are simply testing an existing assumption and believe these findings will have implications for empirical researchers and court scholars more generally.

Library of Congress Subject Headings

Appellate courts, Appellate procedure, Judges, Empirical