The last couple of weeks, we’ve looked at reversal rates for the Court of Appeal in cases at the Supreme Court. But the difficulty which few people talk about is that reversal rates are nearly always a composite statistic – either “all cases,” or at most all civil cases or all criminal. But mathematically, a high reversal rate can be explained by one of two results: (1) a very high rate in a couple of areas of law, and far lower rates in other areas; or (2) reversal rates around the baseline composite rate in a host of different areas. The difference makes a difference: ten years ago, the reversal rate at the Ninth Circuit became a political football. So was the Ninth Circuit supposedly out of step with the Supreme Court across the board? Or was the rate driven by serious disagreements in just a few areas?
This week, we’re splitting up the highest reversal rates at the Court of Appeal by areas of law: Division 4 of the First District (civil cases) and Division 1 of the Second District (criminal cases).
First, we review the civil cases from Division 4 of the First District by area of law. One-quarter of the cases between 1990 and 2020 were tort – 25.93%, to be precise. Civil procedure accounted for 16.67% of the cases, employment law was 11.11%, and constitutional law and government/administrative law accounted for 9.26% each. The remaining areas of law were minor players, contributing only an occasional case.
Overall, the reversal rate for Division 4 for these years in civil cases was 74.07%. In the Table, we report the reversal rate for cases in each area of law.
The reversal rate in tort law was 78.57% – not much above the overall rate. The reversal rate in civil procedure cases was below the court-wide average: 66.67%. Employment law was below average too: 50%. Rather than being driven by a very high reversal rate in one particular subject, Division Four’s reversal rate was driven by very high rates in areas which contributed only a minimal number of cases to the docket. Constitutional law, government and administrative law and tax law each accounted for less than 10% of the Court’s cases, but taken together, they are 25.93% of the total. And the reversal rate in each of these three areas was significantly above the Court’s average: the rate for government and administrative law and tax law was 100%, and 80% of the constitutional law decisions were reversed.
Join us next time as we turn our attention to the criminal docket.