In 1985, the U.S. Supreme Court held in Thomas v. Arn that a federal court of appeals may establish a rule that failure to file objections to a magistrate judge’s report and recommendations "waives" both the right to further review by the district court and the right to appeal the judgment to the court of appeals. The Arn majority determined that such a rule did not remove the essential attributes of the judicial power from the Article III court or elevate non-life-tenured magistrate judges to the functional equivalents of Article III judges. Rather, loss of the right to any Article III review through failure to object to a magistrate judge’s report and recommendations merely constituted a nonjurisdictional "procedural default," similar to failure to pay an appellate filing fee or failure to file an appeal before an internal court deadline. The Court emphasized that discretionary appellate review “in the interest of justice” remained available.

Despite describing such a rule as a "procedural default," the Arn Court consistently used the term "waiver" throughout the opinion to describe the operation of the rule. Many circuits - although not all - adopted analogous rules under their own supervisory powers, and in 2005 an Arn-type rule became codified as Federal Rule of Criminal Procedure 59. Similar to Arn, Rule 59 established for criminal matters that failure to timely object to a magistrate judge’s decision "waives a party’s right to review."

However, in the twenty-year span between the Arn decision and the promulgation of Rule 59, the 1993 U.S. Supreme Court case of United States v. Olano carved out a special meaning for the word "waiver." The Olano Court established that there is a procedural and substantive distinction between waiver - "the intentional relinquishment or abandonment of a known right" - and forfeiture - "the failure to make the timely assertion of a right." Substantively, waiver fully extinguishes any error, precluding any form of review, whereas "mere" forfeiture means that an error, which is clear and affects substantial rights, remains potentially reversible under plain error review.

Failing to timely object is the paradigm example of forfeiture, and Thomas v. Arn’s "interest of justice" discretion has been held equivalent to review for plain error.

Accordingly, "waiver" is an inapt description of the default rules authorized by Arn, despite the initial use of "waiver" in the Arn Court’s opinion, before Olano had specifically construed the term. By using the language of "waiver" post-Olano, Rule 59 semantically insinuates that every avenue of review, even plain error review, is foreclosed by the failure to timely file objections to a magistrate judge’s report and recommendations. As such, the language of Rule 59 obfuscates the actual availability of plain error review. The parameters of appellate "waiver" rules demand greater clarity, particularly to the extent that this misleading choice of words subtly disrupts the constitutional rationale for magistrate judge adjudication, which rests on the presumption, at minimum, of some level of review by a life-tenured Article III judge. Among other conclusions, this Article recommends a change in the language of Rule 59 to more accurately reflect the current limits of appellate "waiver" for failure to timely object to a magistrate judge’s report and recommendations, and to aid the future constitutional analysis of magistrate judge adjudication.

A variety of new “pro se” or “pro bono” appellate programs have been sprouting up around the country in recent years. Courts, bar associations, and legal services and advocacy organizations are implementing these projects to grapple with the challenges raised by increasing numbers of pro se (self-represented) and indigent civil litigants in appellate courts. Judicial operational systems designed on the premise of adequately counseled parties are ill-prepared to handle an influx of self-represented litigants, posing frustrations for both pro se litigants and court personnel. The expansion of pro se litigation strains appellate court resources and staff, but because of the complex, technical nature of the appellate process, the pitfalls for pro se litigants in this area are numerous and substantial. Improper designation of the record, noncompliance with the rules of court, and a failure to provide coherent briefing of the relevant legal and factual issues on appeal are all issues that often impede low-income pro se litigants from obtaining equal access to justice in the appellate process. Access to justice depends on access to the courts, and pro se civil litigants need adequate information and resources to better navigate state and federal appellate systems and perfect their cases. In many, if not most, cases, they also would benefit from representation by counsel. For their part, appellate courts struggle to remain neutral and not give legal advice while providing enough guidance to ensure meaningful access for unrepresented litigants. Much of the focus of pro se/pro bono appellate programs has accordingly been on providing print or online resources to which appellate court staff may direct pro se litigants without having to do too much “hand-holding” throughout the process, and/or on methods of screening pro se litigant cases for appointment of pro bono counsel. These are each necessary, but frequently not sufficient, measures. Many pro se litigants require technical assistance at each stage of the appellate process, beyond an initial referral to written directions. This places a serious burden on court clerks and staff attorneys, who must either spend inordinate amounts of time helping litigants unfamiliar with the court system, or deal with noncompliant submissions and faulty briefing as a result of such litigants’ lack of guidance. Funding to establish and maintain more formalized assistance structures is not widely available within most courts of appeal. And, mechanisms for placement of pro se appellate matters with pro bono counsel may depend on proactive litigant request or be limited in scope to certain kinds of matters. This leaves gaps in the availability of pro bono representation and may allow meritorious appeals by pro se litigants to fall through the cracks.

In Los Angeles, a new model seeks to better meet the needs of both indigent pro se appellate litigants and the courts, by providing a staffed self-help clinic on site at a court of appeal. This successful program, now three years old, is a unique collaboration between pro bono public interest firm Public Counsel, the California Court of Appeal (Second Appellate District), and the Appellate Courts Committee of the Los Angeles County Bar Association. It is the first formal drop-in clinic for pro se appellate litigants housed in any state or federal court, and to our knowledge, no other public interest or legal aid organization in the country currently provides general in-person, self-help technical assistance to indigent pro se individuals involved in civil appeals. In tandem with managing the self-help clinic, which is staffed three days a week by an experienced appellate attorney, the Public Counsel Appellate Law Program also identifies and evaluates cases for pro bono representation and works with the Appellate Courts Committee to refer appropriate cases to pro bono counsel.

Everyone involved has benefitted from the presence of a knowledgeable, trusted intermediary to both provide technical procedural assistance and facilitate pro bono placement for indigent pro se litigants on appeal. Having these functions handled by the same independent, neutral specialist, accessible at the courthouse yet not paid or supervised by the Court of Appeal, has been of immense value in managing, prioritizing, and streamlining both tasks. Public Counsel hence appropriately describes the program’s role as one of “triage.” The cost to the court system has been minimal, and the Public Counsel Appellate Law Program offers a model that, with the right local leadership and funding, has the potential to be transferable to courts of appeal nationwide.

The authors - a federal appellate judge and his law clerks - bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert's classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, 2d Edition, an updated, comprehensive guide intended to be of wide practical use to members of the judiciary, judicial staff attorneys and law clerks, state and federal administrative judges, hearing officers, commissioners and private arbitrators, law librarians, scholars and students. This Article draws from and complements topics addressed in Opinion Writing, 2d Edition, while specifically highlighting the relationship between opinion writing and opinion readers.

In Part I, we survey some of the considerations facing opinion writers as they decide whether to write an opinion at all, examine the decision-making process engaged in by courts prior to writing an opinion, and summarize the various types of written "opinions" that may be produced, such as per curiams, judgment orders, precedential and non-precedential opinions. In Part II, we identify primary and secondary "readership markets" for judicial opinions and discuss how the purpose of writing opinions is affected by the intended audience. In Part III, we dissect the ideal structure of an opinion, offer basic mechanics of draftsmanship and address some of the criticisms of judicial opinions lodged by readers. In Part IV, we briefly touch on opinion writing style and editing. In conclusion, we reaffirm the need for wider understanding of the judicial process and for increased clarity of communication between opinion writers and readers. To this end, we hope this Article will serve as a useful resource for all opinion readers and writers, including scholars, practitioners and judges, students and aspiring law clerks.

The availability of appellate review is integral to our contemporary justice system and serves important practical and symbolic functions. Appeal as of right, while not constitutionally guaranteed, is assured by statute for the vast majority of final decisions by trial courts, and with good reason. For one, the principle of open access to the courts is a key value of American law. An accessible public forum for the adversary process ensures that grievances are properly heard and fairly disposed of. Accordingly, justice is best served when parties are able to comprehensively litigate their rights at every level of the judicial system. Appellate review allows novel legal theories and untested questions of law to be advanced and considered, and affirms the continuing applicability—or not—of precedent. Additionally, the existence of successive levels of appellate review functions to reassure individual litigants and the general public that decisions of lower court judges are, at least theoretically, accountable to higher authority. The appeals process hence plays an important role in maintaining the stability and trustworthiness of the judicial system at large. Nevertheless, the right to appeal a valid final judgment or appealable order does not presume the propriety of every appeal. “[A] defendant has no right to file a frivolous appeal,” and the decision “whether to appeal from an order of the District Court is not a matter to be taken lightly by either a losing party or her counsel.” As a consequence, the federal courts of appeal possess the power under Federal Rule of Appellate Procedure 38 (Rule 38) and other sources of authority to sanction appellants who pursue completely meritless or vexatious petitions for review. Historically, though, courts have been reluctant to rigorously announce findings of frivolity or to impose full Rule 38 sanctions, for fear of chilling zealous advocacy or impeding novel claims. And even courts with a greater propensity to sanction under Rule 38 traditionally often have refrained from imposing sanctions on pro se appellants. However, mounting caseloads have increased the pressures on courts of appeal in recent years, leading to increased willingness by courts to identify and penalize frivolous appeals as well as provoking calls by some scholars and practitioners for substantially stricter imposition of Rule 38 sanctions.

In this changing environment, inconsistencies among circuits in determining when an appeal is frivolous and when to impose sanctions carry significant impact for appellants, particularly vulnerable pro se appellants proceeding without the benefit of counsel. While interests of judicial economy are certainly substantial, access to appellate review must be safeguarded for all tenable claims, even those of marginal merit. The assurance of thoughtful consideration by a court of last resort must not, instead, become merely a myth of last resort.

This Article argues for adoption of consistent standards across circuits for determining the frivolity of appeals, particularly those by pro se appellants, as well as for consideration of different criteria for sanctioning frivolous appeals by pro se appellants than for attorneys. Part I provides an overview of the function and purpose of Rule 38, and clarifies the relationships among Rule 38, other sources of authority for finding frivolity, and analogous rules such as Federal Rule of Civil Procedure 11, which operates to identify sanctionable frivolous suits at the trial court level. Part II discusses the interest of courts in stemming an “avalanche of appeals,” as well as the competing interest in not applying Rule 38 so strictly as to chill legitimate advocacy. Part III explores the implementation of Rule 38 by various circuits and identifies an increasing trend in the federal courts of appeal toward stricter implementation and stronger sanctions for frivolity, including against certain categories of pro se appellants. Part III also notes inconsistencies in how frivolous appeals are determined in general and with respect to pro se appellants, and examines how an appellant’s pro se status affects the factors courts consider in deciding whether to exercise their discretion to impose sanctions for filing a frivolous appeal. Part IV argues that indeterminacy and varying standards among circuits hinders both the efficiency of courts and the access of pro se litigants to appellate review. In conclusion, this Comment recommends adoption of a standardized process for Rule 38 review based on combined best practices of the circuits. Initial determination of frivolity should be objective, limited to consideration of the merits of the appeal as filed. Then, the decision whether to sanction should take into consideration the totality of the circumstances, including subjective factors such as bad faith on the part of the appellant and whether she is proceeding pro se. In this analysis, there should remain a presumption against imposing sanctions in the case of a pro se appellant, as well as an explicit advance warning requirement before sanctioning pro se appellants. Courts should retain their historical caution and reserve Rule 38 only for cases of objective and unquestionable frivolity, remaining mindful of other avenues for sanctioning for delay or vexatious litigation. Additionally, courts of appeal should consider the alternative of issuing an affirmance without opinion under local court rules providing for summary disposition.

For forty years, California appellate courts generally have applied one discrete harmless error test for federal constitutional error in criminal cases and another for civil proceedings. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond any reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the outcome, is generally applicable to federal constitutional error in civil cases. Where a fundamental right such as personal liberty may be erroneously infringed upon, the logic goes, greater protection of such a right is required, in contrast to errors merely of state statutory or procedural nature that by and large arise in state civil trials. However, on several important occasions civil cases enter a grey area involving the suspension or infringement of fundamental constitutional rights. As a result, for the same forty years, appellate courts in the state have varied considerably regarding which of the two standards to apply in assessing the harmlessness of federal constitutional errors arising in civil proceedings. This twilight zone means that little definitive guidance exists for courts evaluating harmlessness of error in civil cases that nonetheless implicate fundamental rights. Such circumstances include, for example, involuntary civil commitments for sexually violent predators and mentally disordered offenders, conservatorship and competency hearings, and child protection and parental severance (“dependency”) proceedings. Given the lack of guidance from higher courts, California appellate courts have varied widely regarding which harmless error standard should be applied to federal constitutional errors in such civil cases. Without a clear harmless error standard established for federal constitutional error in these instances, outcomes are rendered unpredictable and the level of protection afforded defendants’ federal constitutional rights is problematically inconsistent. This Article considers the case of juvenile dependency proceedings as one example of a civil area where federal constitutional error may arise, and argues for the application of the Chapman v. California harmless error standard on appeal when rights of federal constitutional magnitude arise in dependency proceedings.