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25086NCJRS.Pdf If you have issues viewing or accessing this file contact us at NCJRS.gov. This microfiche was produced from documents received for iUlclusion in the NCJRS data base. Since NCJRS cannot exe:cise coo.trol over the physical condition of the documents sil.bmitted, the individual frame quality will vary._The i9solution, chart on this frame may be used to evaluate ,the ·document quality. ", I, ,! . , I. I' I, "" TI ", - I ", ! ' ! '- ! • r' ,,!: I - , " ".,,', I,', I, r 'l -_ 2 1.0 : IIIII 2,8 11111 ,5 3 ~ 11111 ,2 22' W ' - ~ ~I~~~ w ,V olunteI:' :i I~ 1.1 ;.. 1! Sllmmary and 11111 1.25 111111.4 11111 1,6 Background MICROCOPY RE~OLUTION TEST' CHART NATIONAL BUREAU OF STANDARDS-1963-A • Microfilming procedures used to create -t~is fiche comply with the standards set forth in 41CFR 101·11.504 Points' of view 0 r op inions state~ in this document are, - those of the authorl sl a!1d dg r;ot repr'esenl the official - .• I' .t'., ~t.'- position or policies of the I1.S. 0 8partment" of Justice: "·,,:.,-.:..1 ... • i , '. , ' ~ I, i l " ~ U.S. DEPARTMENT. OF JUSTICE ,'. -:. :. .' - . :. _.. '. .; . I ':, LAW ENFORCEMENTASSISTANCEADMINISTRA TlON ::":". ,.1 _. _:":- NATIONA;,L CRIMINAL JUSTICE 'REFERENCE SERVICE WASH,INGION', O;C .. 20531 . 0" I) ,'-,I r " ',.. This Conference h.as be.en planned"by the Advisory Council for Appellate . " ': Justice, a 33-member group which jointly advise.~, the, Nationa'] Center' for State Courts and the Federal Judicia'lCen~el;' on the wark of "gppe-llate CQur:t? The 'council is comprised o.f state and federal 'judges.~ practicing lawyers ". ('. andla\1teachers,in roughly equal numbers,' Financial support has been '. provided by grants from the Law Enfore.emEw.:t Assistance Administration ,and the Council on Law-Related Stu'd,ies. ,'; . ,., •• '* ',", , .. ' MEMBERS Professor Maurice Rosenberg, Chairman Honorable GriffinB. Bell Honorable Charles D; Breitel Honorable Louis H. Burke Professor paul D. Carrington Honorable Wirislow Christian Dean Roger C. Cramton Honorable Wilfred Feinberg Jphn P. Frank, Esquire , Hohorabl e Floyd R.. Gi bson Honorable Horace W. Gilmore Honorable William A. Grimes Honorable Erwin N. Griswold Honorable Jcimes D. Hopkins Seth M. Hufstedler, Esquire Honorable Sh,irley M. Hufstedler Honorable CharlesW. Joiner Honorable Benjamin Kaplan professor Delmar Karlen Professor" Robert A. Leflar Honorable Harold Leventhal Honorable Wade H. McCree, Jr. Honorable Carl McGowan Professor Daniel J. Meador Professor RusseHD. Niles Profes~or Alan Polasky Honorable Walter V. Schaefer Dean Murr~y L. Schwartz Honorable.Albert Tate, Jr. ,', Honorgble Roger J. Traynor " Honorable Jo~eph Weintraub Honorable John. Minor Wisdom Bernard E.Witkin, Esquire SPONSORING ORGANIZATIONS National Center for St9-te Courts c Federal Judicial Cen,ter Honorable~dward B. McConnell, Director Honorabl e Wal ter E. Hoffman", John C.-Ruhnka, Esquire, Project Liaison Director' ;William E, Benjamin, Esqtiire, Conference William B: Eldridge, ,Esquire, . ' Iniplementation Programs " . a' . Proj ectL;ai son '<;~ o .'i 0 ":1 f '~I ': \1 II " ,0 ------ ~p PE L.l:8J1_~"ll,,~DfJl} J~Zp? - ~!.l_a 1s_!,?_~.~Natj 9na 1 Conf.~~e~nce f ~_~!Lg~,t~Rq'~,~~2<!l~~!:t=~~. - 2~, :) edited by Paul D. Carrington 'Winslow Christian Wilfred Feinberg Jerold Israel Delmar Karlen Bernard E. Witkin This project is supported by Grant Number 75 TA 99-0002 awarded by the National Institute of Law Enforcement and Criminal Justice of the Law Enforcement Assistance Administration, U. S. Department of Justice, under the Omnibus Crime Control and Safe Streets Act of 1968. Points of view reflected in this document do not necessarily represent the position of the U. S. Department of Justice. Preparation of these materials was also supported by grants from the Council for Law-Related Studies and West Publishing Company. DETAILED TABLE OF CONTENTS VOLUME I PREFACE INTRODUCTION: A PREVIEW OF THE CONFERENCE A. PREVIEW OF CHAPTER 1: _A PERSPECTIVE ON APPELLATE JUSTICE The Data of Congestion The Limited Options: A Distasteful Choice 2 Purposes of Appellate Litigation 4 B. PREVIEW OF CHAPTER 2: VISIBILITY OF DECISIONS 5 Limiting Oral Argument 5 Decisions Without Reasons and Oral Opinions 6 Publication of Opinions 6 Questions 6 f' V. PREVIEW OF CHAPTER 3: RESPONSIBILITY FOR DECISIONS 7 Dramatis Personnae 8 Staff Functions 8 Limits of Delegability 8 ... \ Questions 9 D. PR~VIEW OF CHAPTER 4: UNIFORMITY OF DECISIONS 10 \ The Appellate Process and The Rule of Law 10 \ The Intermediate Level of Review: Problems of "10 ... \ Hierarchical Growth Panels and Divisions: Problems of Lateral Growth 11 Stabilized Assignments and Specialization: Problems of Cellular Growth 12 Questions 12 CHAPTER 1 A PERSPECTIVE ON APPE~LATE'JUSTICE 25 \ A. THE DATA OF CONGESTION 26 PREVIEW OF CHAPTER 5: EXPEDITING REVIEW OF FELONY CONVICTIONS 13 (1) ,State Appellate Courts 26 E. Amerlcan Judicature Society, Congestion Dispatch as ~ Goal ~f the Criminal Appellate Process 13 State Appellate Courts (1974) and Delay in ·26 (2) The Supreme Cou t f h ' 27 The Record on Appeal 14 Report of the Study ~ 0 t e Unlted States . Supreme Court (l~~~) on the Caseload of the Delay of Counsel 15 27 CasperCaseload & Posner, (1974f A Stud y of th e ~upreme- Courtls A Role for Appellate Court Staff 15 35 16 (3) ,The United States Courts f A 44 Accelerated Decisions: A Reprise Carrlngton, The Workload of ppeals 16 Appeals (1974) Unlted? States Courts of Questions 44 17 J. Goldman,Crisis Federal(1973) D'lstrict Courts and the Appellate PREVIEW OF CHAPTER 6: TERMINATING CRIMINAL LITIGATION 53 F. 17 The Governing Law B. CONTROLLING THE CASELOADS 56 Proposed Solutions Not Directly Related to the 17 Appellate Process Frank, Decision Points and Jurisdiction (1969) 56 ji 18 Solutions Relating to the Appellate Process Hazard, Eliminating IIToo Many Appeals ll (1965) 62 "... 1 18 Questions Ameri~an ~ar.Asso~i~tion, Standards Relatint to Criminal (.\ 19 ustlce. Crlmlnal Appeals (1971) ~ 64 PREVIEW OF CHAPTER 7: EQUALIZING PUNISHMENT G. Hermann, Frivolous Criminal Appeals (1972) 83 \ 19 I Purposes of Sentencing Review 20 Carrington, Deter~ing" Frivolous C'lvil Appeals (1969) 95 "\ Alternative Forums for Equalizing Punishment 20 Posner, Delay in Court (1973) 99 \ Procedure in Sentencing Appeals 21 C. THE PURPOSES OF APPELLATE LITIGATION 101 Scope of Sentencing Review Pound, The Scope and Purpose of Review ' 21 Proceedings (1940) ln Civil Questions 101 PREVIEW OF CHAPTER 8: REVISION OF THE FEDERAL COURT STRUCTURE 22 Traynor, What Makes Error Harmless? (1970) 103 H. 22 Possible Limitations on Federal Jurisdiction Wilner,Ad Civil.. App,ea 1s, . Are They Useful in the 23 mlnlstratlon of Justice? (1968) 108 Circuit Realignment and the Law of the Circuit Rosenb~rg, Judicial Discretion of 23 Vlewed from Above (1971) the Trial Court, Special Problems and Special Solutions 110 23 The Limits of the Supreme Court C. Wright,Courts The(1956) Doubtful 0mnlSClence ' , of Appellate 24 117 Multi-Purpose Revision Carrington, The Power of the District Jud e of the Courts of Appeals (1969) 9 and the Function131 :j ( J , i --------.-----, -------------.....III!!'."III!!' •.•III!!' ...I11!!' ...""' ... -""'.-!!!1-!!!1-.~--.!!!I ..!I!!. __ IIIII __ .I1111 .... IIII!._I111111 ___!11_._!I!I! .•I111!1": __ .____ .. ______ ." .. ,._ PREFACE The work of preparing these materials was supported by indispens~· able grants from the Council for Law-'Related Studies, led by David F. Cavers; from West Publishing Company; and from the National Institute of Law Enforcement and Criminal Justice of the Law Enforcement Assist­ ance Administration, U. S. Department of Justice. Effective action, which the Conference'hopes to stimulate, will require consensus. This is so because the political base for judicial law reform is always so slender that even a little opposition is almost always effective. Hence, the hope for reform is dependent on the flexi­ bility of proponents and the modesty of opponents. A real difficulty lies in the fact that most of the issues to be debated,at the Conference are jurisprudential, involving what are, or may be, the basic characteristics of our legal process. Jurisprudential debates, like religious ones, must take place on a vast plain which provides few shelters of certainty for any adversary. He who yields an article' of faith does not know where" if at all, he will be able to re-group and defend himself. Accordingly, e~ch of us tends to defend each bit of terrain far more passionately than its worth would justify. So? the common tendency to reassure one 'I s self-doubts by emphatic as­ sertions will be manifest in many of th(: writings contained in these volumes, including several of my own. :Because this tendency is so destructive of the chances for political accommodation so essential to reform, it seems wise to place the familiar risk in view at the outset. Readers are therefore cautioned not to become so enamored of their 0W11 opinions as seem to be the persons who are responsible for the assembly of these materials. As the principal editor, I blush at the frequency with which the ideas of members of the Advisory Council for Appellate Justic~and especially my own, are advanced here. In defense of this immodesty of opinion, it can only be said that, at the moment, these were the best ideas we knew. I wish the conferees more luck than I have enjoyed in controlling pride of opinion. Paul D. Carrington Ann Arbor, Michigan November 1, 1974 ------------------------..............j ---- ---~-- INTRODUCTION: A PRE VIEW OF THE CONFERENCE The reading material provided for those attending the Nationa~ Conference on Appellate Justice bulks large. Each conferee will re­ ceive copies of Meador, Appellate Courts: Staff and Process in t?e Crisis of Volume (1,974) and Leflar, Appellate Judicial Opinions (1974), as well as these four volumes of materials. Together, these materials comprise a small library on the subject of the conference, which may prove useful for purposes other .than preparation for the conference itself.
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