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Structural and Other Alternatives for the Federal Courts of Appeals Structural and Other Alternatives for the Federal Courts of Appeals Report to the United States Congress and the Judicial Conference of the United States Federal Judicial Center 1993 Structural and Other Alternatives for the Federal Courts of Appeals Report to the United States Congress and the Judicial Conference of the United States Judith A. McKenna Project Director Federal Judicial Center 1993 The Federal Judicial Center prepared this report pursuant to the request of Congress in section 302(c) of the Federal Courts Study Committee Implemen­ tation Act of 1990. Contents Acknowledgments v Introduction 1 I. Perceived Threats to the Mission of the Courts of Appeals 5 The structure and mission of the courts of appeals 5 Reasons offered for structural change 11 II. The Work of the Courts of Appeals 17 Factors contributing to case load trends 23 Intercircuit variability in caseloads 31 Disposition times in the courts of appeals 32 III. Effects of Caseload Volume on the AppeUate Process 37 How the courts have handled the rising tide of appeals 38 IV. Effects of Caseload Volume on Intercircuit Conflict 55 The number, tolerability, and persistence of intercircuit conflicts 57 Nonstructural proposals for promoting the consistency of federal law 66 Structural proposals for resolving intercircuit conflicts 75 Structural and jurisdictional proposals to prevent intercircuit conflicts 83 Legislative contributions to consistency 91 V. Effects of Caseload Volume on Intracircuit Conflict 93 Intracircuit inconsistency-the nature and extent of the problem 93 Current efforts to maintain the consistency of circuit law 95 Additional proposals to enhance the consistency of circuit law 98 VI. Proposals for Structural Change to Reorganize Appellate Capacity 105 Total consolidation of circuits 108 Partial consolidation of circuits 110 Reducing the size of the circuits 111 Multi-tiered courts of appeals options 117 VII. Alternatives to Full Structural Reorganization: The Triage Proposals 123 Expanding the concept of "leave to appeal" 123 Differentiated appeal management 127 District court review for error 133 iii VIII. Reducing tbe Need for Structural Cbange by Reducing tbe Flow of Cases 141 Jurisdictional options for reducing the volume of litigation in the federal courts 141 Nonjurisdictional options for reducing the volume of litigation in the district courts 153 Conclusion 155 Appendix A: Percentage of Appeals Terminated on the Merits, by Circuit, Statistical Year 85-92 159 Appendix B: Percentage of Terminations on the Merits that Were Argued, by Circuit, Statistical Year 85-92 163 Appendix C: Number of Per-Judge Participations in Appeals Terminated on the Merits, by Circuit, Statistical Year 85-92 167 Appendix D: Percentage of Terminations on the Merits that Resulted in Published Opinions, by Circuits, Statistical Year 85-92 171 Appendix E: Case Types as a Percentage of All Appellate Filings by Circuit, Statistical Year 92 175 Appendix F: Number of En Banes and Number of En Banes by Case Type, Statistical Year 74-92 177 Appendix G: U.S. Court of Appeals for the Federal Circuit Appeals Filed, Terminated, and Pending During the Twelve-Month Period Ended June 30, 1991 179 iv Structural and Other Altemativesfor the Federal Courts of Appeals Acknowledgments This report is the result of a research project designed by Judith A. McKenna, Donna Stienstra, and Joe S. Cecil of the Federal Judicial Center's Research Division. Like most Center research projects. this study was a collaborative ef­ fort. It benefited from the contributions of other Center staff, including Research Division staff members Laural Hooper, Barry Kreiswirth, Patricia Lombard, Melissa Pecherski, and Elizabeth Wiggins. In addition, members of the Center's Board, especially Judge Edward R. Becker and Judge J. Harvie Wilkinson III, gave helpful comments on earlier drafts. We were assisted in this effort by the work of many people beyond the Center. Our starting point was the report of the Federal Courts Study Committee that led to the legislation requesting the Center's study. That report, and the subcommit­ tee reports and collected working papers of the committee, are rich sources of in­ formation about the perceived problems of the courts of appeals and potential solutions to those problems. Under the auspices of the Justice Research Institute, Prof. Thomas E. Baker of Texas Tech School of Law reviewed for us the exten­ sive literature on proposed changes to the structure of the appellate courts. Prof. David E. Pierce of Washburn University School of Law and Prof. Jonathan Entin of Case Western Reserve University School of Law contributed to our analysis of specialized panels. Barbara Vincent, formerly of the Center's Research Division, prepared much of the analysis of appellate court caseloads reflected in sections II and III. Special thanks go to Prof. Arthur D. Hellman of the University of Pittsburgh School of Law. In addition to his extensive work on the nature and tolerability of intercircuit conflicts, which is reflected here and described more fully in other Center reports, Professor Hellman provided invalu­ able assistance at several points in this project. Finally, we acknowledge with gratitude the many federal judges who com­ pleted our survey and who generously shared their time and their thoughts with us at various stages of this project. v Introduction The Federal Courts Study Committee, authorized by Congress and appointed by the Chief Justice to perform a fifteen-month study of the federal court system, identified the federal courts of appeals as an area needing the attention of the Congress, judges, lawyers, and the public over the next several years. In its 1990 report, the committee recommended that various structural alternatives for the courts of appeals be considered in more detail. Section 302(c) of the Federal Courts Study Committee Implementation Act of 1990 requested that the Board of the Federal Judicial Center "study the full range of structural alternatives for the Federal Courts of Appeals and submit a report on the study to the Congress and the Judicial Conference of the United States." This report describes the results of that study and is submitted at the direction of the Center's Board. I Concerns about the courts of appeals and the asserted decline of the appellate tradition are not new. Nor are many of the proposed solutions. Students of the federal court system have been commenting on the change in the nature of the appellate process and the possible relationship of that change to court structure for more than two decades. Some of this report draws directly on their work; all of the report is informed by it.2 Observers of the federal courts of appeals have proposed major and relatively minor structural changes to the system over the years, and we describe many of those proposals here. We submit that when policy makers consider proposed al­ ternatives, those alternatives should be logically related to the nature of the per­ ceived problems of those courts. Before pursuing major changes, it is useful to consider to what extent the problems have been caused by structural factors and to what extent they might be remedied by structural change. Thus before describ­ ing the proposals, we review the problems the committee and others have con­ cluded afflict or threaten the courts of appeals. Where possible, we evaluate the nature and severity of those problems. We describe a range of structural changes and other alternatives and provide an initial evaluation of how, if at all, the pro­ posed alternatives would ameliorate the perceived problems and how they would further or hinder the mission of the courts of appeals. I This report was prepared by Federal Judicial Center staff. Terms such as "we" and "our" through­ out this report denote the author of the report and contributing staff. The author is responsible for the analyses and conclusions expressed here. 2The literature review done for this project by Prof. Thomas E. Baker was the beginning of our analysis. EspeCially helpful works on the federal courts of appeals are Paul D. Carrington et ai., Justice on Appeal (1976); Restructuring Justice (Arthur D. Hellman ed., 1990); Richard A. Posner, The Federal Courts: Crisis and Reform (1985); 1. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System (1981); and Robert M. Stem, Appellate Practice in the United States (1989). 1 Implicit in this assessment are judgments (most often educated guesses) about how an alternative will affect judicial caseloads and workloads, how it will affect decision making, and how it will be received by affected parties.3 We are not prepared to suggest how these factors or others ought to be weighed in deciding whether to choose an alternative to the present structure and, if so, which one. We believe that any major change should be evaluated according to how it satis­ fies society's informed preferences for how an appellate court should function. When structural change might solve one problem, the change's ancillary effects on the core values and functions of the courts must be considered in determining whether the solution is worth the cost. The same analysis might fruitfully be ap­ plied to the costs and benefits of maintaining the status quo. We have not limited our inquiry to options that would change the architecture of the court system. Because many people knowledgeable about the courts be­ lieve that further efforts within the current structure can adequately handle the system's problems, we also describe "intramural" approaches. That is, we note what some or all courts are currently doing~r might do without major structural change-to avert or minimize the problems. Finally, because most observers be­ lieve the problems of the federal courts of appeals may be traced to caseload vol­ ume, we include jurisdictional and other changes that might reduce the flow of cases into the federal courts in general and the courts of appeals in particular.
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