Among those at the forefront of the attempt to restrict the growing appellate caseload has been legal scholar and federal judge Richard Pasner. Posner proposed a method, based upon economic assumptions, that he argues will liberate the appellate courts from the deluge of recent civil appeals. Because Posner’s model has played such an important theoretical and practical role in how we view the decision of losing litigants to appeal, the validity of the model and the real role of economic constraints have important implications. Using empirical research, I tested the validity of Posner’s model and I propose that economic considerations are not the primary motivations in losing litigants’ decision to appeal. I argue that, if Posner’s model is flawed, using this model may not only fail to decrease appellate case filings but could actually harm the legitimacy of the judiciary.
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