PROPOSED INTRAMURAL REFORMS: WHAT THE U.S.
COURTS OF APPEALS MIGHT DO TO HELP
THEMSELVES·
THOMAS E. BAKER**
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
Introduction
Technology
Administrative Units and the En Banc Court
Differentiated Case Management
Greater Orality
Maintaining and Improving Judicial Productivity
Two-Judge Panels
Advisory Staff
Dealing with Frivolous Appeals
Conclusion
1321
1322
1326
1330
1337
1339
1346
1347
1351
1357
I. INTRoDucnoN
"Intramural reforms" are measures used by the U.S. courts of
appeals to change the traditional appellate procedures by which
they historically have performed their appellate role and function.!
'" Adapted with permissIOn from THOMAS E. BAKER, RATIONING JUSTICE ON
ApPEAL-THE PROBLEMS OF THE U.S. COURTS OF ApPEALS, Chapter 7 (Copyright 1994
West Publishing Co., 610 Opperman Drive, P.O. Box 64526, St. Paul, MN 55164-0526, 800328-9352) (forthcoming publication on file with St. Mary's Law Journal). This book began
as a report of the Justice Research Institute for the Federal Judicial Center. This Article
was adapted, in part, with permission from Thomas E. Baker, from A Compendium of
Proposals to Reform the United States Courts of Appeals, 37 U. FLA. L. REV. 225 (1985).
The views and positions expressed here are those of the author alone.
"'''' Alvin R. Allison Professor, Texas Tech University School of Law. B.S., Florida
State University; J.D., University of Florida. The author is grateful for the suggestions and
comments of: Honorable Levin H. Campbell; Honorable John C. Godbold; Professor Arthur D. Hellman; Honorable James C. Hill; Professor A. Leo Levin; Honorable Richard A.
Posner; William K. Slate II, Esquire; Honorable J. Clifford Wallace; and Honorable Joseph
F. Weis, Jr. Thanks are owed to Diana Nichols and Michael S. Truesdale for their able
research assistance.
1. See generally Thomas E. Baker, Intramural Reforms: How the U.S. Courts of Appeals Have Helped Themselves, 22 FLA. ST. U. L. REV. (forthcoming 1994) (manuscript on
file with author) (discussing various internal reforms for appellate courts).
1321
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These reforms amount to procedural shortcuts, resulting in an abbreviated appellate process, which have been justified for the most
part by the threat of docket growth that has gripped the courts of
appeals since the 1960s. This Article focuses on proposed intramural reforms, on reforms presently under limited experimentation
for possible wider implementation, and on others still on the drawing board. The proposals examined in this Article are grouped
under eight broad headings: Technology; Administrative Units and
the En Banc Court; Differentiated Case Management; Greater
Orality; Maintaining and Improving Judicial Productivity; lWoJudge Panels; Advisory Staff; and Dealing with Frivolous Appeals.
Intramural reforms invoke familiar themes such as working
harder, delegating more authority, streamlining procedures, and
rationing scarce resources among priorities. 2 Admittedly, no one
can oppose improvements in court management unless the price
becomes too high in terms of money, judicial resources, and appellate ideals. The federal judiciary certainly must do its part in the
administrative realm to shepherd its resources. Considered individually and collectively, however, the intramural reforms currently being proposed appear to be somewhat like variations on
themes of reforms already in place. This cataloguing reinforces
two conclusions. First, the regime of intramural reforms has allowed the courts of appeals to survive the docket threat, but at
substantial costs in terms of appellate traditions and ideals. Second, intramural reforms have been all but exhausted and thus do
not hold in store great additional efficiencies. More substantial reforms will become necessary, sooner or later, to cope with projected docket growth in the U.S. courts of appeals.
II.
TECHNOLOGY
Sometimes taken for granted or even overlooked, technology
and its application should be high on the list of priorities of anyone
concerned with appellate court reform. For example, state-of-the2. J. WOODWARD HOWARD. COURTS OF ApPEALS IN THE FEDERAL SYSTEM 274
(1981). See generally Thomas E. Baker, A Compendium of Proposals to Reform the United
States Courts of Appeals, 37 U. FLA. L. REV. 225, 243-73 (1985) (discussing various intramural reforms); Daniel J. Meador, The Federal Judiciary and Its Future Administration, 65
VA. L. REV. 1031 (1979) (outlining present national administrative structure of federal
courts, analyzing problems, and proposing solutions).
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art computer hardware is a minimum requirement for the modern
court, trial or appellate. 3 This requirement applies to the office of
the clerk of court as well as to the judge's chambers. 4 Responding
to the need for additional technical resources,s the courts of appeals have installed networks of word-processing equipment with
related electronic document-transfer capability.6 Studies show that
the new technology is saving the scarcest appellate resource: the
judges' time. 7
Further research and development is required in the area of
computer-based case- and court-management information systems. s Several courts of appeals have taken the lead in this regard.
For example, the Third Circuit was among the first to implement
an electronic mail system. Among the regional courts of appeals,
the Ninth Circuit, which has to cope with the largest geographical
area, has relied extensively on technology to improve the communication among judges' chambers and between chambers and the
administrative offices of the court.9 The Eleventh Circuit has developed and implemented an automated case-management system
3. See generally ELDRIDGE ADAMS, COURTS AND COMPUTERS 101-35(1972). Technology also applies to the interface from the courts to the bar. For example, along with other
federal courts, the Fifth and Ninth Circuits have experimented with an Electronic Dissemination of Opinions System (EDOS). EDOS is an electronic bulletin board with up-to-date
information on opinions that can be accessed and downloaded immediately on a 24-hour-aday basis. Developments in this area are accelerating.
4. See generally Brian Forst, Overburdened Courts and Underutilized Information
Technology: A Modern Prescription for a Chronic Disorder, 68 JUDICATURE 30, 36 (1984)
(discussing efficiency benefits through the utilization of technology by court clerical staff
and judges); Richard B. Klein & Patricia R. Lykos, What Computer Support Should a Judge
Have?, 28 JUDGES' J. 16, 18-19 (1989) (proposing guidelines for use of technology by
judiciary).
5. J. Clifford Wallace, Our Judicial System Needs Help: A Few Inside Thoughts, 12
U.S.F. L. REV. 3, 13-14 (1977).
6. Cheryl Frank, The Rush Is On, A.B.A. J., Feb. 1985, at 32.
7. See generally J. MICHAEL GREENWOOD & LARRY FARMER, FEDERAL JUDICIAL
CTR., THE IMPACT OF WORD PROCESSING AND ELECTRONIC MAIL ON UNITED STATES
COURTS OF ApPEALS 54-65 (1979) (recounting Third Circuit's experiments with time-saving measures which reduced time taken for producing judicial opinions).
8. See Charles W. Nihan & Russell R. Wheeler, Using Technology to Improve the
Administration ofJustice in the Federal Courts, 1981 B.Y.U. L. REV. 659, 666-67 (discussing
development of "Courtran" system by the Federal Judicial Center as new use of
technology).
9. Stephen L. Wasby, Technology and Communication in a Federal Court: The Ninth
Circuit, 28 SANTA CLARA L. REV. 1,9 (1988); see J. Michael Greenwood, Follow-Up Study
of Word Processing and Electronic Mail in the Third Circuit Court of Appeals (1980), reprinted in MANAGING ApPEALS IN FEDERAL COURTS 804-06 (Federal Judicial Ctf. ed.,
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and facsimile network to monitor its death-penalty caseload. lO
These are but a few examples of how technology has been used,
and they illustrate how it might be developed further.H
Perhaps the next generation of judges will rely on technology for
computer-aided decisions in a judicial version of computer-aided
manufacturing and computer-aided design, which already are relied on as important uses of technology in the business worldP
Other less farfetched applications of technology include judicial
video conferencing, or even video arguments, as are currently being experimented with by the Third Circuit, with judges and attorneys simultaneously appearing before remote cameras. This
application of technology could help rehabilitate the oral argument
procedure and, at the same time, reduce the time and expense of
argument for courts and litigants. Pilot programs experimenting
with the use of video technology initially proved to be costly. Today, lower equipment costs suggest that these programs would be
more feasible and cost effective for the courts. Some appellate
courts already have experimented with video records on appeal,
although the reactions have been mixed. 13
One observer has been heard to wax eloquent about the transformation over the last twenty years of the federal judiciary "from
1988) (detailing increasingly efficient use of electronic mail to increase communication
among judges).
10. Ward Mundy, Automation in the Federal Courts, 33 FED. B. NEWS & I. 112, 113
(1986).
11. Iessica Copen, Courts of the Future, AB.A I., Iune 1991, at 74 (discussing computer integrated courtrooms); lane B. Lucal, The Quiet Revolution: Computerization of
Court Systems for the 21st Centllry, 14 OHIO N.V. L. REV. 169, 169-72 (1987) (explaining
the necessity for computerization in modern courts).
12. See Isaac Asimov, The Next 70 Years for Law and Lawyers, 71 AB.A I. at 57, 58
(1985) (addressing computer aid as a potential adjunct to the judge's bench); lim Meyer,
The New Lawyering, AB.A I., Aug. 1993, at 56, 60 (describing potentially beneficial
courtroom computer applications); Stuart S. Nagel, Computer-Aided Law Decisions, 21
AKRON L. REV. 73, 74 (1987) (analyzing potential computer-aided judicial process); Technology in the Courts, LEGAL TIMES, Dec. 6, 1993, at S27 (arguing that artificial intelligence
will become prevalent in courtroom technology).
13. See Robert S. Gerstein, Appeal by Video, L.A. LAW., Aug.-Sept. 1990, at 21 (stating that 11 states allow courtroom videotaping); Rorie Sherman, Virtual Venues-Technology Now in Use May Someday Create a Courtroom in Cyberspace, NAT'L L.I., Ian. 10,
1994, at 1 (describing technologically advanced courtroom installed at MarshalI-Wythe
School of Law); see also B. Paul Cotter, Ir., When the Electronic Judge Meets the Electronic
Lawyer, IUDGES' I., Spring 1988, at 2 (detailing computer needs of judges when dealing
with complex cases).
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a wasteland of technological barrenness to a garden of fertile innovation."14 Other experts have noted, however, that "[t]he current
state of court automation [still] is eons behind that of the business
world...."15 The modernization and utilization of technology in
the federal courts are not entirely up to the courts themselves. Predicting the future use of technology in courtrooms might lead to a
somewhat pessimistic result, given the nation's current budget
woes.
The ability of the courts to acquire and install computers and peripheral equipment ... is completely dependent on the availability of a
budget adequate to the task. Regretfully, there is ample reason to be
pessimistic about the courts' ability to proceed at the pace anticipated in the earlier version of the automation plan. This is particularly unfortunate because the very powerful new AIMS [system] has
been shown to be cost effective, as will be the other systems under
development.
Obviously, serious budget reductions will not be accompanied by
corresponding reduction in the workloads of the courts. . . . The public will be poorly served if the courts are forced to carry their current
burdens, and accept new ones, without the aid of modern automation. Effective operation of the federal courts demands a policy that
will prevent this unfortunate result. 16
Finally, it would be a misplaced hope to expect future technology
to do more than provide added increments of efficiency. Judging,
under the guidelines set forth in Article III of the Constitution, is
inherently a labor-intensive enterprise and no hardware or
14. Cristin Birch, Alltomation in the U.S. Courts, 36 FED. B. NEWS & J. 238, 241
(1989).
15. Carol M. Neal, Courts Enter the Compllter Age, but Slowly, NAT. L.J., Mar. 30,
1992, at 7. See generally Symposium, Technology Drives the Future: Now Is the Time to
Automate, JUDGES' J., Spring 1989, at 1 (reviewing technological innovations in legal profession from judges' perspectives).
16. Joseph F. Weis, Jr. & Gordon Bermant, Automation in the Federal Courts: Pro·
gress, Prospects, and Problems, JUDGES' J., Fall 1987, at 14. See generally Robert Anderson
et aI., The Impact of Information Technology on Judicial Administration: A Research
Agenda for the Future, 66 S. CAL. L. REV. 1761,1768-70 (1993) (forecasting difficulties in
obtaining funding for new judicial technology); Jeffrey Jackson, Judicial Independence, Ad·
equate Court Funding, and Inherent Judicial Powers, 52 MD. L. REV. 217, 250 (1993)
(presenting alternatives to compelling courts to maintain dockets even when there are
funding difficulties).
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software will change its nature, so long as it remains a human
endeavorP
III.
ADMINISTRATIVE UNITS AND THE EN BANC COURT
Congress has recognized the peculiar administrative problems of
the so-called jumbo circuits, the largest courts of appeals. In 1978,
Section 6 of the Omnibus Judgeship Act authorized any court of
appeals with more than fifteen active judges to reorganize itself
internally into administrative units and to reorder its en bane procedures by court rule. ls Only the former Fifth Circuit19 (before
creation of the new Fifth and Eleventh Circuits) and the Ninth Circuit,z° however, qualified at that time and implemented administrative unit plans. These plans served to decentralize those circuits'
clerks' offices, but formally accomplished little else. In any event,
the provision in Section 6 is of limited applicability because, presently, only the Fifth, Sixth, and Ninth Circuits have the qualifying
number of judges?l
The Ninth Circuit has been the most active in pursuing administrative decentralization. 22 It reorganized itself into three administrative units to achieve a more decentralized and more efficient
court organization. Each administrative unit has an administrative
judge who performs somewhat like a chief judge of a circuit. The
Ninth Circuit has created an executive committee to handle admin17. See generally Douglas E. Winter, Down-Time: A Fable, LITIG., Fall 1986, at 48
(illustrating extreme case of computer automation in judicial process).
18. Act of Oct. 20, 1978, Pub. L. No. 95-486, § 6, 92 Stat. 1629, 1633 (current codification at 28 U.S.C. § 46(c) (1988)).
19. See generally Thomas E. Baker, A Legislative History of the Creation of the Eleventh CirCltit, 8 GA. ST. U. L. REV. 363, 363-64 (1992) (describing split of former Fifth Circuit into new Fifth and Eleventh Circuits); Thomas E. Baker, A Primer on Precedent in the
Eleventh Circuit, 34 MERCER L. REV. 1175, 1178-79 (1983) (analyzing effect of Omnibus
Judgeship Act of 1978).
20. See generally Thomas E. Baker, On Redrawing Circuit Boundaries-Why the Proposal to Divide the United States Court of Appeals for the Ninth Circuit Is Not Such a Good
Idea, 22 ARIZ. ST. LJ. 917, 923-46 (1990) (applying Act to Ninth Circuit); Richard H.
Deane & Valerie Tehan, Judicial Administration in the United States Court of Appeals for
the Ninth Circuit, 11 GOLDEN GATE U. L. REV. 1,8-9 (1981) (reviewing administrative-unit
plans).
21. See 28 U.S.c. § 44(a) (Supp. IV 1992) (detailing number of judges permitted for
each circuit).
22. Thomas E. Baker, On Redrawing Circuit Boundaries-Why the Proposal to Divide
the United States Court of Appeals for the Ninth Circuit Is Not Such a Good /dea, 22 ARIZ.
ST. L.J. 917, 928-32 (1990).
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istrative matters circuit-wide. It also has led the way by experimenting with a limited en banc panel, composed of the Chief Judge
and ten active judges chosen by lot for each rehearing. The economies of scale realized in the Ninth Circuit by these procedures
might be transplanted to some of the other large courts of appeals,
but it is incumbent on the courts of appeals to be aware of regional
differences that oblige adaptation of any reform, even reforms that
have proven successful elsewhere. 23
What limited experience there has been with division of a circuit
into administrative units suggests that a difference exists between
the situations in which the units are used in a transitional phase
prior to division and those in which the units are used to achieve
internal administrative efficiencies. In the former Fifth Circuit, two
administrative units operated similarly to two individual circuits as
a prelude to formal division. Even in the short time the units existed, the judges began to develop a unit collegiality; an allegiance
to unit precedent grew, at least as far as the immediate task of
maintaining the opinion output of the unit; judicial travel declined;
and presumably some marginal savings for litigants resulted, primarily in terms of travel time and expense. But the expectation of
that period was that the court would be divided along the unit
lines.
In the Ninth Circuit, by contrast, the unitization of the court has
been administratively designed primarily to achieve the economies
previously enjoyed by the Fifth Circuit, while maintaining the conceptual unity of the Ninth Circuit as much as possible in so large a
court. The Ninth Circuit judges, in fact, assert that the success of
the administrative units in their circuit is a reason not to divide
their court.
The 1978 statute also authorized each court of appeals with more
than fifteen judges to hold hearings en banc before a limited
pane1. 24 The procedures for rehearing a case en banc can be quite
23. See A. Leo Levin, Lessons for Smaller Circuits, Caution for Larger Ones, reprinted
in RESTRUcrURING JUSTICE-THE INNOVATIONS OF THE NINTH CIRCUIT AND THE FuTURE OF THE FEDERAL COURTS 331 (Arthur D. Hellman ed., 1990) (cautioning against
wholesale use of proposals because of differences in sizes of circuit courts).
24. Act of Oct. 20, 1978, Pub. L. No. 95-486, § 6,92 Stat. 1629,1633 (current codification at 28 U.S.C. § 46(c) (1988».
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cumbersome,25 and the rehearings themselves can be divisive and
unproductive. 26 Rehearings are best understood, and should be
approached by the bar, as exceptional proceedings. 27 Because
most of the large courts of appeals recognize the cost in judicial
resources of assembling a full court to reconsider an appeal, the
judges generally exhibit an appropriate reluctance to invoke rehearings. 28 Indeed, out of recognition of the extraordinary nature
of a full-court rehearing, several courts of appeals have experimented with "mini en banes," which typically call for the hearing
panel judges to circulate their proposed opinion to all the judges
for review without oral argument,29
The Federal Courts Study Committee has called for Congress to
extend the authorization of the limited en bane procedure to all the
courts of appeals, regardless of the number of judges on the bench,
so that each circuit could consider the procedure's efficiencies. 30
With a limited en bane court, in which a rehearing before an ad hoc
25. See Note, Playing with Numbers: Determining the Majority of Judges Required to
Grant En Banc Sittings in the United States Courts ofAppeals, 70 VA. L. REV. 1505,1507·11
(1984) (discussing procedures involved in getting en banc hearings).
26. See Robert Oliphant, En Banc Polarization in the Eighth Circuit, 17 WM. MITCHELL L. REV. 701, 711 (1991) (detailing divisive problems of en banc proceedings); Christopher E. Smith, Polarization and Change in the Federal Courts: En Banc Decisions in the
U.S. Courts ofAppeals, 74 JUDICATURE 133, 133-34 (1990) (discussing polarization of political ideologies created by Reagan's judicial appointments and resulting divisions between
Reagan-appointed judges and other federal judges in en banc decisions); David Egger,
Note, Court ofAppeals Review ofAgency Action: The Problem of En Banc Ties, 100 YALE
L.J. 471, 471-73 (1990) (explaining problems created by evenly split en banc courts reviewing agency decisions).
27. See FED. R. App. P. 35 (disfavoring en banc hearings unless necessary to ensure
uniform decisions or unless exceptionally important issues are involved); 5TH CIR. R. 35.1
(cautioning against use of en banc hearings because judicial resources are limited). See
generally Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981-1990,59 GEO.
WASH. L. REV. 1008, 1018-37 (1991) (analyzing costs and benefits of en banc hearings).
28. See Jon O. Newman, In Banc Practice in the Second Circl/it: The Virtues of Restraint, 50 BROOK. L. REV. 365, 365-66 (1984) (noting Second Circuit granted only two en
banc hearings over three-year period).
29. Steven Bennett & Christine Pembroke, "Mini" In Banc Proceedings: A Survey of
Circuit Practices, 34 CLEV. ST. L. REV. 531, 544 (1986).
30. REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 114-15 (1990). The
A.B.A. Standing Committee on the Federal Judiciary also endorsed the limited en banc
device. See A.B.A., STANDING COMM. ON FEDERAL JUDICIAL IMPROVEMENTS, THE
UNITED STATES COURTS OF ApPEALS: REEXAMINING STRUCTURE AND PROCESS AFTER A
CENTURY OF GROWTH 27-29 (1989) (addressing concerns of establishing effective precedents, decreasing judicial costs, and preserving equal status of federal judges in endorsing
limited en banc hearings).
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subset of all the judges on the court is allowed, a serious inherent
problem develops. Depending on the variable makeup of the
three~judge panel, the limited en banc panel, and the entire court,
respectively, it is possible that an overruled panel could more accurately reflect the entire court's jurisprudence than the decision
reached on such an artificially selected rehearing. This possibility
could, and in reality would, diminish the authority of the en banc
pronouncement in the perceptions of the parties, other litigants,
district court judges, and the circuit judges themselves. The limited
en banc precedents may become stare decisis with an asterisk, thus
compromising the value and defeating the purpose of the en banc
rehearing to establish the binding law of the circuit.
The courts of appeals may be approaching the time when
caseload pressures will cause them to give up the en banc rehearing
altogether. In fact, some judicial leaders believe that the courts of
appeals already have reached that point. 31 In any event, en banc
rehearings, as rare as they are today, do not represent a large savings of judicial resources to be recaptured and recycled into the
effort to cope with the growing caseload.
A somewhat related, but quite different, direction for reform
would be to reconceptualize the procedures for rehearings to a
three-judge panel. For the most part, this procedure has fallen into
disuse, once again largely owing to the press of caseload. Judges
seem to believe that legislation granting appeals as of right guarantees the litigants only one focused examination by the panel. Promoting an interest in the finality of judgments appropriately
enough reinforces this attitude. However, an experiment to determine the optimal method for the hearing panel to focus on an appeal should be developed. For example, as an alternative to the
prevailing mode, the hearing panel could issue a preliminary opinion, a quick and summary draft opinion setting out the judges' first
impressions of the appeal. Then the parties could file briefs specifically responding to the tentative opinion, and then the panel could
publish a final, more complete opinion taking into account the
31. See Irving R. Kaufman, Do the Costs of the En Bane Proceeding Olltweigh Its
Advantages?, 69 JUDICATURE 7, 57 (1985) (concluding that en banc proceedings should be
severely curtailed). Bllt see Arthur D. Hellman, Breaking the Bane: The Common-Law
Process in the Large Appellate COllrt, 23 ARIZ. ST. L.J. 915, 986-89 (1991) (finding little or
no adverse effects from modern en banc proceedings).
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fuller written arguments. Such a practice likely would be unnecessarily cumbersome in some appeals, but might prove efficient to
improve the final opinion in others. Perhaps this reconceptualized
rehearing procedure could be made available in carefully selected,
clearly appropriate appeals as part of some case-management protocol. Some intermediate state courts have tentatively experimented with this idea, and a federal experiment seems in order.
IV.
DIFFERENTIATED CASE MANAGEMENT
The principle of differentiated case management has been the
most common response to the docket growth of the last twenty-five
years. This trend away from managing and processing each case
uniformly and toward adopting differentiated case management
has been most significant for the appellate ideal,32At first an almost
unconscious byproduct of efforts to cope with docket growth, this
idea has become the guiding principle of the federal appellate
process.
An important, although subtle, effect of differentiated case management has been forcing judges to face the fact that not all issues
on appeal are alike and that it is legitimate to distinguish among
cases. Judges have been reconditioned to apply their time, effort,
and intellect on the difficult appeals and to resolve the less difficult
appeals without wastefully overdoing their deliberation and writing. They have learned the self-discipline to let go of some appeals
sooner and the discernment to know which others require fuller,
longer attention.
The larger circuits have led the way. A hallmark of this casemanagement approach is monitoring each stage of an appeal: notice of appeal, briefing, submission, and decision. The large circuits
have relied on case screening to assign cases to the argument or
32. William L. Whittaker, Differentiated Case Management in United States Courts of
Appeals, 63 F.R.D. 457, 458 (1974). The related development at the district court level has
been the subject of a good deal of debate. Compare Judith Resnik, Managerial Judges, 96
HARV. L. REV. 374, 414 (1982) (discussing impact of current judicial case management)
with Steven Flanders, Blind Umpires-A Response to Professor Resnik, 35 HASTINGS L.J.
505, 507 (1984) (commenting favorably on modern case-management trends). See generally WILLIAM W SCHWARZER & ALAN HIRSCH, FEDERAL JUDICIAL CTR., THE ELEMENTS
OF CASE MANAGEMENT 1-26 (1991) (outlining judicial tools used to manage caseload
efficiently).
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nonargument calendars. 33 Recommending developments and extensions of this methodology is difficult because little is known
about the various screening plans beyond a descriptive level. One
commentator has observed, "[T]he studies that do exist vary markedly in nature, approach, length, and sophistication, resulting in a
regrettable but unavoidable unevenness in [any] review."34 Professor Oakley's recently published study is one of the exceptions to
this generalization. 35 He investigated the various screening protocols used in the thirteen courts of appeals and identified notable
common and differing features:
The great challenge for an appellate court seeking relief from the
crisis of volume through a screening program is to shape a bureaucratic system that processes only those cases that are appropriate for
bureaucratic disposition. Screening loses its value if too much of already scarce judicial time is devoted to the classification process.
This sets up the problem of the bureaucracy making its own choice of
which cases to feed itself. 36
Screening cases requires staff efforts that complement judicial
decision making. It should be a judicial decision to take an appeal
off the track for oral argument. The judicial work of screening
ought to coincide with the judicial work of deciding the appeal on
the nonargument calendar. The same judges ought to evaluate the
appeal for both purposes at the same time. This would save judicial resources, because the judges who have focused on the appeal
to determine that there is no need for oral argument may then go
forward and decide the appeal on the merits. By contrast, there
can be little objection to delegation of authority to a staff attorney
to determine to place the appeal on the argument calendar, oral
argument being the traditional appellate procedure.
33. See generally Alvin B. Rubin & Gilbert Ganucheau, Appellate Delay and CostAn Ancient and Common Disease: Is It Intractable?, 42 MD. L. REV. 752, 758 (1983) (reviewing appellate judge's role in case management). The judges who have become involved with the case-management approach have generally extolled its application. Id.
34. John W. Winkle III, Preappeals Programs in American Courts, 13 JUST. Sys. J.
142, 142 (1988).
35. See generally John B. Oakley, The Screening of Appeals: The Ninth Circuit's Experience in the Eighties and Innovations for the Nineties, 1991 RY.V. L. REV. 859 (reviewing case screening programs attempted by various circuit courts as well as that
implemented by Ninth Circuit judges).
36. Id. at 875.
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The Fifth Circuit, which first developed screening in the 1960s, is
conducting a kind of in-house experiment in the 1990s that may
develop into a second-generation case-management procedure.
The program has not yet been studied or evaluated, and there is no
published description thus far in the literature, so this account is
quite preliminary. Under this program, an ad hoc screening panel
of three judges travels to New Orleans for a week's calendar, much
like a hearing panel. A calendar of one hundred cases is assembled
by the clerk. Each appeal is assigned to one of the staff attorneys
for background preparation and presentation to the panel. Each
judge is an initiating judge in one-third of the appeals. The three
judges then meet together with the appropriate staff attorney and
perform an in-person collegial screening. Most of these appeals
are screened for the nonargument summary calendar and are written up and terminated while the judges are there that week. When
necessary, a few appeals may be sent over onto the argument calendar or taken back home to chambers for some refinement. The
judges have noted that this in-person panel screening often is a decisional improvement over the seriatim routine of regular screening, in which a year~long panel works together over the phone and
through the mails. Staff attorneys contribute greatly and their morale improves as a consequence. From the circuit's point of view,
one hundred appeals are dispatched efficiently but with care. This
variation of screening proves that the circuit judges take for
granted the underlying premise that federal appeals are not fungible and also illustrates their willingness to experiment with intramural procedures.
One proposal worthy of serious consideration within any casemanagement scheme is a sua sponte dismissal process for lack of
jurisdiction. Failure to consider jurisdiction at the threshold may
waste private and judicial resources. 37 At times, litigants and
judges lose sight of the federal judicial role as limited courts of a
limited sovereign. 38 An appeal brought outside the jurisdiction of
the court of appeals is beyond its power to decide, and the court is
37. See, e.g., Gillette Co. v. Miner, 459 U.S. 86,87 (1982) (dismissing appeal for want
of jurisdiction).
38. James C. Hill & Thomas E. Baker, Dam Federal Jurisdiction!, 32 EMORY L.J. 3,6-7
(1983).
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obliged to dismiss such cases, even sua sponte. 39 Although no system can identify every jurisdictional defect at the earliest possible
stage, some courts have experimented successfully with formal jurisdictional screening. 40 This screening might be accomplished as
early as the notice-of-appeal stage or when the first principal brief
is filed. The First Circuit uses staff attorneys to conduct a jurisdiction screening at the time the notice of appeal is filed. The Fifth
Circuit requires that "[e]ach principal brief shall include a concise
statement of the statutory or other basis of the jurisdiction of this
Court, containing citations of authority when necessary."41 In the
Seventh Circuit the chief staff attorney screens all appeals for jurisdictional defects, and a fair number are dismissed sua sponte. Such
a system has the potential to save appreciable appellate resources
with a minimal investment.
There is another evolutionary direction that is fairly well developed and deserving of further comment. Proposals to screen cases
for argument or nonargument calendars show signs of developing
into a more complex approach of differentiating appeals, sometimes called "inventorying." More complete control over case flow
requires more complete monitoring as well as earlier classification.
Inventorying provides more useful information at each stage of the
appellate process.
Consider briefly how the Ninth Circuit's system functions. 42 A
staff attorney obtains a full set of briefs and checks first for jurisdiction, then prepares an inventory card with essential information,
and identifies and classifies the issues on appeal. Along with a
brief summary, the staff attorney suggests a weight (that is, an estimate of the relative amount of judicial time required for resolution) which is then used to equalize hearing panel workloads.
39. Firestone TIre & Rubber Co. v. Risjord, 449 U.S. 368, 379-80 (1981); see THOMAS
E. BAKER, A PRIMER ON THE JURISDlcrJON OF THE U.S. COURTS OF ApPEALS § 1.04, at 89 (1989) (describing limited jurisdiction of federal courts).
40. Bernard S. Meyer, Justice, Bureaucracy, Structllre, and Simplification, 42 MD. L.
REV. 659, 693-94 (1983).
41. 5TH OR. R. 28.2.5. See generally Connie Hanes, Staff Attorneys' Instructions 10
Case Managers re: Checking for Jurisdictional Defects, 10 FIFTH OR. RPTR. 609, 609 (1993)
(stating that it is job of staff attorneys to review cases for appellate jurisdiction).
42. See generally Arthur D. Hellman, Central Staff in Appellate Courts: The Experience of the Ninth Circuit, 68 CAL. L. REV. 937, 941-43 (1980) (outlining historical development and procedures of Ninth Circuit's administrative staff).
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A great deal of fine tuning is possible in inventorying. Issue classification encourages the assignment of similar appeals to a single
three-judge panel to avoid duplication and reduce the likelihood of
inconsistent resolutions. This reduces the possibilities for intracircuit conflicts, either in inconsistent holdings or in conflicting rationales. Such clustering gives the judges a broader perspective on
the issues and contributes to a more comprehensive series of decisions. If the opinions are assigned to the same writing judge, further economy may be achieved. Recurring issues are identified in
several manifestations to allow for greater guidance to the trial
courts and the bar. Inventorying assesses the subject matter of the
appeal and difficulty of the issues to provide a basis for differentiation. 43 Similar cases can be dealt with together. Difficult cases
may be culled for more complete review.
A well-developed coding system even permits computerization. 44
Computerization allows a judge or law clerk to ascertain essential
information from a glance at a printout. Computer sorting and retrieval facilitates case differentiation for appropriate procedures
and identifies trial and appellate court patterns. 45 For example,
cases ripe for preargument conference and settlement might be
more easily identified.
The benefits of inventorying should not be overstated. "Evening
up" the workload of each judge or panel does not add anything
appreciable to the quality of judging. Some have argued that having different judges on different panels struggle through the same
legal problems makes for a better federal common law because different perspectives are added to the resulting law. Furthermore,
inventorying eliminates duplicative effort; the more current the
docket the fewer the opportunities for grouping similar appeals.
Ultimately, the issue is whether the benefit outweighs the cost.
Computer inventorying might allow experimentation with all
other techniques and applications stored within the imaginations of
judges, staff, and commentators. Optimum sequencing in hearing
appeals and writing opinions is one such possibility. This technique
43. Daniel J. Meador, Appellate Case Management and Decisional Processes, 61 VA.
L. REV. 255, 259, 262 (1975).
44. Richard H. Deane & Valerie Tehan, Judicial Administration in the United States
Court of Appeals for the Ninth Circuit, 11 GOLDEN GATE U. L. REV. 1, 10 (1981).
45. Arthur D. Hellman, Central Staff in Appellate Courts: The Experience afthe Ninth
Circuit, 68 CAL. L. REV. 937, 961-62 (1980).
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has been proposed only at the trial level and remains merely theoretical. The idea is that a computer simulation conceivably could
be applied to estimate the total length of time it would take to hear
a group of appeals and write opinions in their docket order (the
sequence in which the appeals were filed). This time span would
then be compared with the projected time for other possible hearing and writing sequences in order to set the most efficient
sequence. 46
Just as variations in inventorying protocols exist among the circuits, the protocols within particular circuits likewise have varied
over time. For example, in the late 1980s, one of the Ninth Circuit
screening panels experimented with in-person conferencing and
oral presentations by staff attorneys, which soon became standard
practice. 47 Thus, inventorying protocols are characterized by a
malleability that seems to bring out the creativity of judges and
other decisional personnel.
The District of Columbia Circuit uses another variation of inventorying that attempts to identify the "big case."48 A big case typically involves an important administrative issue or a large and
complicated record. The D.C. Circuit uses preargument conferences to clarify issues and consolidate the record and arranges oral
arguments by subject area rather than by party. Post-argument
memoranda and conferences might aid opinion preparation on
highly technical questions. Thus, inventorying identifies the cases
calling for peculiar procedural adjustments so that additional, more
individual attention can be afforded those appeals.
Courts may also use inventorying to identify appeals appropriate
for a "fast track" appellate process and to monitor their dispositions. Expedited appeals are nothing new. 49 A consistent goal has
46. See Stuart S. Nagel et aI., Optimum Sequencing of Court Cases to Reduce Delay, 37
ALA. L. REV. 583, 583 (1986) (discussing computer sequencing technique at district court
level).
47. John B. Oakley, The Screening of Appeals: The Ninth Circllit's Experience in the
Eighties and Innovations for the Nineties, 1991 B.Y.U. L. REV. 859, 907.
48. Harold Leventhal, Appellate Procedllres: Design, Patchwork, and Managed Flexibility, 23 UCLA L. REV. 432, 444-47 (1976).
49. See Eve Lieber, Maximllm Case Management with Minimum Judge Time, JUDGES'
1., Fall 1986, at 14, 18-19 (detailing expeditious procedures of California civil appellate
courts); see also Richard McMillan, Jr. & David B. Siegel, Creating a Fast-Track Alternative
Under the Federal Rilles of Civil Procedure. 60 NOTRE DAME L. REV. 431 (1985) (discussing proposed procedural changes that would eliminate excessive court delays).
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been to reduce the docket by reducing the time in the briefing,
argument, and decision sequence. Some courts have experimented
with an interesting variation. When the parties voluntarily elect
the fast track after briefing, the court advances the case on its
docket. The court may then allow oral argument and announce a
decision from the bench without opinion. 50 Speed is the obvious
advantage of this procedure. The attorneys are allowed full participation. Just as obviously, the chief disadvantage is the lost opinion,
a real concern under the appellate ideaLS! The parties, rather than
the court, make the choice. Admittedly, this private sector election
undercuts some criticisms.
All in all, the most serious problem with case-management
schemes may be invisible and impossible to assess. The oft-repeated concern that the courts of appeals are developing into opinion-writing bureaucracies applies with particular force. In effect,
the bureaucracy is deciding what the bureaucracy can decide and
what needs to be passed on to the judges, which amounts to a selffulfilling or self-denying prophecy. A staff attorney first determines that there is no issue in an appeal worthy of serious consideration, i.e., full judicial consideration. Second, this staff attorney
recommends against oral argument; and finally, the staff attorney
drafts a per curiam opinion incorporating the prior reasoning. The
problem inherent in this procedure is that the bureaucracy is running it, not the judges. The judges do not initiate the process.
They initial it, and in some courts they do so as a matter of course.
Professor Oakley has succinctly articulated the essential strength
and weakness of differentiated case-management schemes and inventorying protocols:
Despite the beneficial aspects of the innovation in screening [appeals], there is a need for caution before the new screening model is
allowed to become the dominant method for deciding cases on ap-
50. D.C. CIR. R. 14(c); see Ruth B. Ginsburg, The Obligation to Reason Why, 37 U.
FLA. L. REV. 205, 221 (1985) (noting that litigants rarely, if ever, choose the no-opinion,
fast-track appeal process).
51. See generally John M. Perry III, The Fast Track: Accelerated Disposition of Civil
Appeals in the Oklahoma Supreme Court, 6 OKLA. CITY U. L. REV. 453, 462-64 (1981)
(reviewing the advantages and disadvantages of Oklahoma Supreme Court's fast-track
procedures); Donald P. Lay, Reconciling Tradition with Reality: The Expedited Appeal, 23
UCLA L. REV. 419 (1976) (suggesting procedures to decrease time from notice of appeal
to final disposition).
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peal. Courts should keep firmly in mind that the assignment of a
case to the screening docket consigns that case ever more frankly to
an inquisitorial rather than an adversarial process of decision. If this
perception properly influences the initial screening decision so that
appeals featuring the kinds of claims and litigants best suited to inquisitorial disposition are just the ones diverted to the screening
docket, the screening of appeals can make a qualitative contribution
to justice on appeal. 52
In terms of the federal tradition and the ideal appellate function,
inventorying and screening appeals for differentiated procedure
should somehow guarantee that appeals requiring traditional plenary appellate review do in fact receive it. Otherwise, the process
becomes a sequence of shortcuts taken without any final destination. Existing practices and procedures, as well as proposed reforms, must be evaluated in terms of the quality of appellate
adjudication, not in terms of history or efficiency.
V.
GREATER ORALITY
One recent proposal urges a reevaluation of the deemphasis of
oral argument in federal appeals that has occurred in recent decades. Professor Meador has called instead for greater orality.53 In
his proposal, written filings would be kept to a minimum and oral
argument would have no time limit. The success of this approach
would depend upon counsels' thorough preparations and the quality of their presentations of argument and authority, the judges'
questions, and the judges' abilities to confer effectively with each
other during and after argument. 54 Remindful of the English tradition, this approach in effect would combine oral argument and
court conference in one proceeding. Presumably, some inventorying would be necessary, either to identify whole categories of cases
or to screen particular cases for assignment to the oral track.
52. John B. Oakley, The Screening of Appeals: The Ninth Circuit's Experience in the
Eighties and Innovations for the Nineties, 1991 B.Y.U. L. REV. 859, 922; see also REPORT
OF THE FEDERAL COURTS STUDY COMMITTEE 115-16 (1990) (recommending further study
and regular exchange of information on management techniques). See generally Frank M.
Coffin, Research for Efficiency and Quality: Review of Managing Appeals in Federal
Courts, 138 U. PA. L. REV. 1857 (1990) (reviewing empirical studies of efficiency involving
federal courts).
53. Daniel J. Meador, Toward Orality and Visibility in the Appellate Process, 42 MD.
L. REV. 732, 747-51 (1983).
54. Id. at 749.
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Several experiments suggest there is some merit to Professor
Meador's proposal. 55 In 1984, an American Bar Association Commission invoked the historical appellate traditions to urge preservation of the role of the advocate:
A concern for the preservation of these values [of appellate advocacy] has led to a reconsideration of the argument presentation stage
of the appellate process. The basic problem is redundancy-in many
cases briefs and oral argument are not both necessary. This redundancy can be eliminated, or at least diminished, by curtailing briefs,
while preserving oral argument. To a much greater extent than the
elimination of oral argument, the reduction of briefing has the potential to save time for both attorneys and judges. A contracted briefing
time would permit the case to be presented to the judges by counsel
while it is still fresh in their minds.
Additionally, counsel should not have to spend as much time in
preparation for an oral argument that occurs promptly after briefing
as compared to one that comes months later. Finally, a significant
opportunity for oral argument should permit the court, with the aid
of counsel, to come to grips better with the critical issues in the appeal, so that post-argument research and opinion-writing should not
require as much time. 56
This procedure could not become the exclusive model, however.
Generally, federal appellate caseloads are too large and too complex to rely solely on an eighteenth-century process. It would be
sheer lunacy to return to an era of unlimited oral argument in
every appeal. Orality proves inefficient: (1) when the case is complex; (2) when the issues are numerous and sophisticated; (3) when
the trial transcript is delayed; (4) when the backlog would delay
argument long after trial; (5) when the court is not convenient to
the bar; and (6) when the judges are resistant. Greater orality
sounds good and commends itself in routine cases involving common legal principles. Difficult issues, however, require substantial
advance work by judges and staff. Written briefs allow for this process and promote the efficient resolution of these sorts of issues.
55. Aside from the English and early American experiences, simulations in Arizona,
Colorado, and California have been well received. [d. at 738-47. But see ROBERT J. MAR.
TINEAU, ApPELLATE JUSTICE IN ENGLAND AND THE UNITED STATES 167-71 (1990) (suggesting that American appellate caseloads would overwhelm English appellate
procedures).
56. A.B.A., ACTION COMM'N TO REDUCE COURT COSTS AND DELAY, ATTACKING
LITIGATION COSTS AND DELAY 26-27 (1984).
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Furthermore, the variety of legal issues confronting the courts of
appeals makes it difficult to attain the mastery required by complete orality. Nevertheless, orality could provide an efficient option, within an inventory system, for the truly commonplace
appeals. Pursuing greater orality, selectively and in carefully chosen appeals, might prove a useful differentiation of the appellate
practice.
VI.
MAINTAINING AND IMPROVING JUDICIAL PRODUCTIVITY
Proposals for reform within the existing appellate structure are
not limited to nondecisional, administrative matters. Over the
years, judges and commentators have suggested ways to improve
the judging art, which have a somewhat peculiar application to the
courts of appeals. Basically they ask that judges do more and do
better. The problem is that these exhortations have been echoing
for some thirty years and thoughtful observers are beginning to
question how much "more" and "better" the circuit judges can do
than they are doing now. 57
If the appellate ideal is to be realized, judges must have time for
study, deliberation, and collegiality. Panel participation in oral argument requires judicial preparation. The judges on the courts of
appeals now appear to be at their limit of effective operation, averaging one week of oral arguments per month. 58 Certainly, various
labor-saving devices such as short memorandum opinions could increase productivity by allowing more nonargument calendar cases
to be decided.
57. See generally Frank M. Coffin, Grace Under Pressure: A Call for Judicial SelfHelp, 50 OHIO ST. LJ. 399 (1989) (discussing difficulties of judicial profession in discovering self-help remedies). More than 30 years ago, when he was a circuit judge, Griffin Bell
was heard to insist: "The pace of the federal appellate process can only be described as
leisurely.... The fact is that courts can do better." Griffin B. Bell, Toward a More Efficient
Federal Appeals System, 54 JUDICATURE 237, 237-38 (1971).
58. Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat to
the Function of Review and the National Law. 82 HARV. L. REV. 542, 558 (1969); see Daniel
J. Meador, A Challenge to Judicial Architecture: Modifying the Regional Design of the U.S.
Courts of Appeals. 56 U. CHI. L. REV. 603. 604 (1989) (noting "functional difficulties"
encountered by courts of appeals due to increased caseloads); Charles A. Wright, The
Overloaded Fifth Circuit: A Crisis in Judicial Administration, 42 TEX. L. REV. 949, 962
(1964) (noting that Fifth Circuit had increased its days in court as well as its disposal of
cases significantly).
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Deadlines would also force judges to do more. 59 The Supreme
Court of the United States follows what amounts to an annual
term-end deadline for all decisions in cases argued each October
Term. Practicing lawyers also must live with established briefing
deadlines imposed by courts. Similar restrictions would be appropriate for circuit judges, with care taken to avoid draconian deadlines. Otherwise, a real danger exists of an unintended
bureaucratization if the judge has only a set time to decide an appeal. The District of Columbia Circuit, for example, has imposed
internal procedures that (1) bar judges from hearing cases in a new
term if they have failed to circulate draft opinions in more than
three cases argued at least six months previously, (2) require judges
to respond to a circulated draft opinion within seven days, and (3)
authorize the writing judge to release an opinion after thirty days
pass without dissent,60
The use of deadlines might be implemented more generally to
apply to attorneys, court reporters, and appellate court staff. In
the early days of the new Eleventh Circuit, the court developed
time standards for most of the significant events of an appeal, and
applied them to the judges as well. As a result, in its first decade
the Eleventh Circuit performed substantially more work per judge
than the other courts of appeals. nearly one-third more than some.
That level of performance proved impossible to maintain in the
face of a docket with one of the largest growth rates, but that early
experience is instructive. A commitment on the part of the judges
to the use of deadlines was a necessary prerequisite to the standards' becoming effective. Under the system used, a regular
monthly report was routed to every chamber, which showed the
status of each appeal, opinion, or other matter and indicated each
responsible judge's action to date. The combination of the judges'
applying the standards to themselves in filing their reports, as well
as to the regular circuit-wide reports circulated to all the judges,
made them more aware of what they had to do and how they apportioned their time. Each judge was obliged to monitor the work
59. See Patricia M. Wald, The Problem with the Courts; Black-Robed Bureaucracy on
Collegiality Under Challenge?, TRIAL, June 1984, at 33 ("One thing courts need is
deadlines.").
60. [d. at 33-34.
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in chambers and to assign priorities that reinforced the court's
shared goals for efficiency.
Time standards are an effective tool the usefulness of which has
not been fully developed in the courts of appeals. Opinion-writing
assignments likewise might emphasize expeditious publication
rather than equality, Le., the most current judge at the sitting
should take the most cases or the more difficult cases. 61 Writing
assignments might formally take into account the special interests,
professional experience, and background of the judge.62 Such
measures merit study and, perhaps, more widespread application.
Nevertheless, it is important that such measures not be implemented to encourage sloth or to penalize ability.
Several related and modest proposals suggest other ways the
courts of appeals could perform better. These proposals are not
meant to degrade the quality of the courts' work.63 Even federal
judges, however, must admit that the federal legal system can be
made more "intelligible."64 No one could oppose such a proposal.
The trick is how to accomplish it. In the first place, judges must
recognize that they administer the law in partnership with the bar.
Indeed, on a day-to-day basis, the principal administrators of the
law are the lawyers at work in their offices. 65 The partnership between bench and bar in administering the law has a significance far
beyond reaching the "right result" in a given appeal and explaining
the outcome in the pages of the Federal Reporter, Third Series.
61. See generally Saul Brenner & Jan Palmer, The Time Taken to Write Opinions as a
Determinant of Opinion Assignments, 72 JUDICATURE 179, 179 (1988) (noting that chief
justices assigned "important cases" to themselves and to justices who usually voted with
them).
62. See generally Stuart S. Nagel & Miriam K. Mills, Using Management Science to
Assign Judges to Cases, 40 U. MIAMI L. REV. 1317,1317 (1986) (discussing linear programming as relevant management-science method for judge assignments).
63. "[N]o one will understand me to be speaking with disrespect ... [for] one may
criticize even what one reveres." Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L.
REV. 457, 473 (1897). See generally Patricia M. Wald, Some Real-Life Observations About
Judging, 26 IND. L. REV. 173, 173-79 (1992) (discussing difficulties associated with judging).
64. See Ruth B. Ginsburg, Reflections on the Independence, Good Behavior, and
Workload of Federal Judges, 55 U. COLO. L. REV. I, 19 (1983) (acknowledging proposals
intended to expedite federal judicial process). See generally JOSEPH GOLDSTEIN, THE INTELLIGIBLE CONSTITUTION (1992) (discussing ways to improve judicial system).
65. See Ruth B. Ginsburg, Reflections on the Independence, Good Behavior, and
Workload of Federal Judges, 55 U. COLO. L. REV. I, 19 (1983) (noting that overlitigiousness
of bar results in crowded dockets).
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"Our federal appellate courts provide guidance to citizens-and to
the lawyers who advise them-on how to order their affairs, and to
lower federal courts on how to decide disputes in a consistent and
coherent manner."66 This undertaking by the appellate courts thus
has an obvious importance to the constitutional life of our citizens
and the commercial life of our nation.
This idea of partnership between bench and bar implicates attorneys in a most important way. First, the bar must shoulder some of
the blame for what has been called the "Let's Everybody Litigate"
mentality.67 This attitude directly contributes to clogged appellate
dockets. 68 Second, once on appeal, attorneys can no longer brief
and argue cases today as though the traditional federal appellate
process of thirty years ago has remained intact. 69 Modern appellate procedures barely resemble those of a less litigious era. Reducing expectations and demands through self-imposed limits on
briefing and arguing would benefit the system. Indeed, the resourceful advocate takes advantage of the modernized procedure.
More focused appellate advocacy helps the court to provide more
focused decision making. The clearer, shorter, more definitive
opinions that result will make the work of both judges and lawyers
more effective over the long term. Still, more needs to be done to
educate judges and their law clerks on the art of writing opinions. 70
Judges must strive to do their part to make the law more understandable, more predictable, and, hence, more administrable. 71
Reaching this goal lays the groundwork for deciding each appeal.
This makes the law more certain, the outcome more predictable,
66. Thomas E. Baker & Douglas D. McFarland, The Need for a New National Court,
100 HARV. L. REV. 1400, 1407 (1987) (explaining function of judicial system).
67. Maurice Rosenberg, Let's Everybody Litigate?, 50 TEX. L. REV. 1349, 1349-53
(1972) (discussing overemphasis on "trial-type court litigation").
68. Ruth B. Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, 55 U. COLO. L. REV. I, 19 (1983).
69. Daniel J. Meador, Appellate Case Management and Decisional Processes, 61 VA.
L. REV. 255, 293 (1975); see Lawrence W. Pierce, Appellate Advocacy: Some Reflections
from the Bench, 61 FORDHAM L. REVIEW 829, 831-33 (1993) (noting increases in litigation
have curtailed ability to hear oral argument).
70. See, e.g., Elizabeth A Francis, A Faster, Better Way to Write Opinions, JUDGES' J.,
Fall 1988, at 26 (looking at needs of target audience to define elements of clear, concise
opinions).
71. Ruth B. Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, 55 U. COLO. L. REV. I, 19-20 (1983). See generally JUDICIAL OPINION WRITING MANUAL (AB.A Appellate Judges Conference ed., 1991).
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and a further appeal less likely. The most direct way to reduce the
appellate workload is to reduce the rate of appeals being filed. 72
Part of the inherent certainty in the law, however, arises from principled decision making. Individual cases must be decided on the
basis of general, articulated principles of common application.
There can be no abandonment of this central tenet of the federal
appellate tradition. The appropriate aspiration, for bench and bar,
is to strive constantly to "get it right" and thus advance the law.
In the majority of appellate decisions, courts can simply identify
and apply the principle in the common-law tradition. But the role
of the judge is not always so limited, as Judge Edwards of the District of Columbia Circuit, has explained.73 He has described the
special importance of the judge's role in a few contexts of what he
calls "wide-angled adjudication."74 When an appeal presents a specific type of recurring problem, disposes of an enormously important problem, or presents an opportunity for clarification of
existing law with the anticipation of future litigation, then Judge
Edwards argues for a broader decisional sense. 75 Wide-angled decision making requires a broader analysis and predictability in order to better guide attorneys and future courts. On such occasions,
the court of appeals must provide a clear, precise, and fully reasoned decision.76 At first this position seems at odds with the exhortation to brevity and clarity in the earlier discussion. But in the
long run, the law is better served by selective and discriminating
72. Alvin B. Rubin, Views from the Lower Court, 23 UCLA L. REV. 448. 451 (1976).
Upon the occasion of his retirement, Justice White exhorted his colleagues to lead by
example:
Since I remain a federal judge and will likely sit on courts of appeals from time to
time. it will be necessary for me to follow the [Supreme] Court's work. No longer will
I be able to disagree with or dissent from a Court opinion. Hence, like any other
Court of Appeals judge, I hope the Court's mandates will be clear, crisp, and leave
those of us below with as little room as possible for disagreement about their meaning.
Letter from Hon. Byron R. White, Associate Justice. to "Dear Colleagues," June 28, 1993
in 114 S. Ct. CXIII, CXIV (1993).
73. See Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections
on Current Practice in Federal Appellate Adjudication, 32 CLEV. ST. L. REV. 385, 413-14
(1983-84) (positing various scenarios when more than strict application of common law is
desirable).
74. Id.
75. /d. at 413-14.
76. Id. at 419. See generally Lewis A. Kornhauser & Lawrence G. Sager, The One and
the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1 (1993) (discussing decisional models for adjudicating cases).
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use of wide-angled adjudication. In deciding an appeal that figuratively asks what the time is, the court's opinion need not describe
how to build a watch.
Such selectivity and discrimination lead to a sensitive subject,
without mention of which no discussion of federal courts would be
complete: judicial self-restraint. Judicial self-restraint in the present context means the court of appeals should abide by the appellate ideal vis-a-vis the district court. As has been explained, the
federal court system is designed as an integrated system, with decision-making power concentrated at the foundation level in the district court.?7 Statutes, precedents, and rules of court limit the
appellate role for a U.S. court of appeals to only those questions
within its scope of authority.7s The courts of appeals must resist
their tendencies to draw power to themselves and away from the
trial courts.?9 The design of the system defines the appellate role
and demands no less.
In the final analysis, to exhort circuit judges to "do more and do
better," one needs to possess a good understanding of what it is
they do; that is, how a judge goes about judging and deciding. This
is no small feat: "To the extent that one must tap these sources to
adequately present a true picture of the process, the task of translating the complex into the understandable is formidable and, in
77. See James C. Hill & Thomas E. Baker, Dam Federal Jurisdiction!, 32 EMORY L.J.
3, 81 (1983) (finding decision-making power must stay at base of federal judicial pyramid).
78. Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat to
the Function of Review and the National Law, 82 HARV. L. REV. 542, 568 (1969). Judicial
self-restraint also should include a reluctance to create unnecessary intercircuit and intracircuit conflicts.
79. [d. See Dan T. Coenen, To Defer or Not to Defer: A Study of Federal Circuit
Court Deference to District Court Rulings on State Law, 73 MINN. L. REV. 899, 899-903
(1989) (exploring the "rule of deference" among courts); Charles A. Wright, The Doubtful
Omniscience of Appellate Courts, 41 MINN. L. REV. 751,751 (1957) (discussing strengthening of judicial power by appellate courts simultaneously with decrease of power of trial
courts). But see John C. Godbold, Fact Finding by Appellate Courts-An Available and
Appropriate Power, 12 CUMBo L. REV. 365,389 (1982) (maintaining appellate fact finding is
proper and does not injure judicial system). See generally Ronald R. Hofer, Standards of
Review-Looking Beyond the Labels, 74 MARQ. L. REV. 231, 250-51 (1991) (concluding
that appellate courts must clarify degree of deference accorded trial courts in decision
making); Jon O. Newman, A Study of Appellate Reversals, 58 BROOK. L. REV. 629, 629-40
(1992) (analyzing reversal rates by Second Circuit and concluding that rates are
reasonable).
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some cases, impossible."80 Any number of experts have attempted
this impossibility:
Commentators have attempted to explain judging in several ways.
Some, including many judges, have explained judging as a process in
which judges try to apply the law as they find it to the facts of the
case. Political scientists have been inclined to explain judging as a
function of the politics of judges. Other commentators have attempted to describe judging on the basis of judicial role perceptions.
Each of these theories is rooted in an observation that contains a
strong measure of truth. The law, as it is found by judges, does decide most cases. The policy preferences of judges do affect judicial
analysis and decide some cases. The ways in which judges perceive
their roles do determine the boundaries of their analysis, and thus
the results, of cases. 8!
The point is that the judges on the courts of appeals very much care
about reaching the right result in each case. 82 These are very independent, highly motivated, individual decisionmakers who feel a
great responsibility "to get it right." Judging is not always efficient;
nor should anyone expect it always to be so. At the same time, the
circuit judges cannot help but feel the docket pressure to process
cases efficiently while giving each one the attention it deserves.
Studies have indicated that the judges' efforts to do more and to do
it better, for the most part, have increased judicial productivity.83
Considering all that has taken place in the courts of appeals over
the last thirty years, it would be unrealistic to expect that veteran
circuit judges need or would benefit from one more revivaliststyled exhortation to "do more and do better."
80. Kenneth J. O'Connell, Patterns of Decision-Making: A Device for Teaching Appellate Judges et al., 70 OR. L. REV. 57, 178 (1991).
81. Douglas O. Linder, How Judges Judge: A Study of Disagreement on the United
States Court of Appeals for the Eighth Circuit, 38 ARK. L. REV. 479, 516-17 (1985).
82. Id. at 517.
83. See Thomas B. Marvell & Carlisle E. Moody, The Effectiveness of Measures to
Increase Appellate Court Efficiency and Decision Output, 21 U. MICH. J.L. REF. 415, 441-42
(1988) (conceding difficulty in explaining reasons for increased productivity); see also Mary
L. Luskin & Robert C. Luskin, Why So Fast, Why So Slow?: Explaining Case Processing
Time, 77 JUD. CRIM. L. & CRIMINOLOGY 190, 211-14 (1986) (suggesting ways to reduce
case processing time).
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TWO-JUDGE PANELS
Another possible way to increase productivity without creating
additional judgeships involves rethinking the norm of the threejudge appellate pane1. 84 A three-judge panel has been the federal
tradition and the American norm for an intermediate court sitting
in panels. 8s On occasion, however, one panel member has been
unable to continue and a quorum of two has decided the appeal,
usually with no untoward result. 86 This exception could be made
the rule. In the run of federal appeals, two judges would be sufficient, if they agreed, and a third could be brought in to break the
tie only when the two could not agree. 87 At least analogously, the
routine nonargument case proceeds similarly, as an initiating judge
drafts a proposed opinion and solicits a concurring vote from both
of the other screening panel members.
This proposal contains some distinct disadvantages. 88 One perspective less might diminish the quality of the particular decision or
the overall quality of decision making and might create subtle pressure not to disagree. The influence of law clerks and staff attorneys
might also increase as decision making becomes more in-chambers
than between-chambers. An assumption might arise that because
the case has been screened and deemed straightforward or unimportant it need not be fully evaluated by the judges. The entire
decision-making process would be changed, perhaps in unknown
ways, by moving from a triad to a dyad, which would necessarily be
84. See Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat
to the Function of Review and the National Law, 82 HARV. L. REV. 542, 563-66 (1969)
(finding utilizing senior judges, visiting judges, and district judges as third panel members
would avoid creation of additional court of appeals judgeships). Almost all that can be
done in this regard, however, has already been done. [d.
85. See 28 U.S.c. § 46(c) (1988) (establishing maximum of three judges for federal
courts of appeals cases and controversies); A.B.A JUDICIAL ADMINISTRATION DIVISION,
STANDARDS RELATING TO COURT ORGANIZATION § 1.13(b)(iii) (1990) (noting appellate
panel should ordinarily be composed of minimum of three judges).
86. See 28 U.S.C. § 46(d) (1988) (defining quorum of panel). BIIt see 28 V.S.c.
§ 46(b) (1982) (requiring minimum of three-judge panels).
87. Daniel J. Meador, Appellate Case Management and Decisional Processes, 61 VA.
L. REV. 255, 281 (1975). See generally PAUL D. CARRINGTON, AMERICAN BAR FOUND.,
ACCOMMODATING THE WORKLOAD OF THE UNITED STATES COURTS OF ApPEALS 4-5
(1968) (discussing proposals for two-judge panels).
88. See Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat
to the Function of Review and the National Law, 82 HARV. L. REV. 542, 561-63 (1969)
(describing difficulties associated with two-judge panels).
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less representative of the whole court. The total number of twojudge permutations would far exceed the total for three-judge permutations, thus exacerbating a major problem with the larger appellate benches. The frequency of a division of opinion, which
would require a third participating judge, cannot be predicted, and
obvious procedural problems exist with bringing in a third judge to
break a tie.
Arrayed against these concerns is the savings of one-third of the
judgepower now being expended. At the same time, inventorying
also might select cases for this truncated panel approach. The Federal Courts Study Committee did endorse experimentation with
two-judge panels. 89 This experimentation should evaluate whether
the dyad panel ultimately is worth the risks, considering the relatively small proportion of judge time spent on preparing, hearing,
and deciding "easy" appeals.
VIII.
ADVISORY STAFF
While the foregoing proposals are largely aspirational and noncontroversial, one more concrete suggestion for reform has recently resurfaced amidst mild disagreement. This suggestion is to
provide judges access to expert advisors. The idea is not new;
thirty years ago Judge Wyzanski appointed an economist as his law
clerk during a complex antitrust trial,9° In its preliminary report,
the Hruska Commission suggested the creation of a pool of scientific advisors to function analogously to law clerks in appeals calling for sophistication in science and technology.91 The Commission
withdrew this preliminary suggestion owing to critical reaction primarily concerned with the possibility that information and argu89. REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 116 (1990).
90. See Harold Leventhal, Environmental Decisionmaking and the Role of the Courts,
122 U. PA. L. REV. 509, 552-53 (1974) (writing that later Judge Wyzanski changed his mind
about propriety of "expert" law clerk appointments since clerk had "mastery" over judge).
91. See Arthur D. Hellman, Central Staff in Appellate Courts: The Experience of the
Ninth Circuit, 68 CAL. L. REV. 937, 983 (1980) (quoting COMM'N ON REVISION OF THE FED.
COURT ApPELLATE SYSTEM. STRUcrURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE. A PRELIMINARY REPORT 83 (1975)). The Hruska Commission was
established by Congress to study "the structure and internal procedures of the federal appellate court system." The Commission filed its final report in June 1975. The report recommended the formation of a national court of appeals. Harold C. Petrowitz, Federal
Court Reform: The Federal Courts Improvement Act of 1982-and Beyond. 32 AM. U.L.
REV. 543, 546 (1983).
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ments might reach the decisionmaker without knowledge of the
parties and without being tested by the adversary process. 92 More
recently, an Eighth Circuit panel hired a university professor as a
contract consultant to prepare reports and memoranda to assist the
court in understanding the record in a difficult Investment Companies Act case. 93 The panel allowed the parties to respond to the
consultant's reports and the parties bore no expenses from the experiment. 94 Because the reports incorporated materials foreign to
the record, Justice Brennan, in a dissenting opinion, criticized the
practice when the issue was heard before the Supreme Court. 95
The recent Report of the Federal Courts Study Committee recommended a "comprehensive examination of how courts handle scientific and technological complexity in litigation. "96 This effort
should include how appellate courts perform their role in such
cases.
The appellate ideal seemingly will not countenance anyone but
judges roaming beyond the record. Brandeis briefs, solicited supplemental briefs, and amicus curiae appearances, however, are all
part of the appellate tradition and serve the same function. Perhaps in endorsing the Federal Rules of Evidence, which give great
latitude to the use of such material, the Supreme Court has meant
to imply that these supplemental materials are sufficient, and perhaps properly so. Generally, expert witnesses, like all witnesses,
should be limited to the trial courtroom. 97 Court-appointed ex-
92. See Arthur D. Hellman, Central Staff in Appellate Courts: The Experience of the
Ninth Circuit, 68 CAL. L. REV. 937,981-82 (1980) (chronicling events surrounding Hruska
Commission's report).
93. Collins v. Securities & Exch. Comm'n, 532 F.2d 584, 605 n.40 (8th Cir. 1976).
94. [d.
95. See E.!. DuPont de Nemours & Co. v. Collins, 432 U.S. 46, 57 (1977) (Brennan, J.,
dissenting) (criticizing lower court for not utilizing traditional methods for examining and
testing evidence). "We are not cited to any statute, rule, or decision authorizing the procedure employed by the Court of Appeals." [d. But see Bernard S. Meyer, Justice, Bureaucracy, Structure, and Simplification, 42 MD. L. REV. 659, 679-80 (1983) (suggesting that
Supreme Court frequently engages in similar practice).
96. REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 97 (1990). See generally
REPORT OF THE CARNEGIE COMMISSION ON SCIENCE, TECHNOLOGY, AND GOVERNMENT,
SCIENCE AND TECHNOLOGY IN JUDICIAL DECISION MAKING: CREATING OpPORTUNrrlES
AND MEETING CHALLENGES 49-61 (1993).
97. See FED. R. EVID. 702, 703 (allowing expert to testify as to opinion); id. R. 703
(providing that data on which expert relies need not be admissible).
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perts at trial are subject to careful restrictions requiring notice and
adversary evaluation. 98
The advocates likewise must do their part to make the record on
appeal comprehensible and to fit the issues into the legal framework. If an appellate judge cannot comprehend a factual record so
carefully constructed, the solution may be to assign the controversy
outside the adversary process altogether. Additionally, no justification exists for referring legal questions. Judges are supposed to
have the authoritative voice on the law. In sum, Article III decision making requires an Article III decisionmaker. 99
The suggestion has been made to create an appellate magistrate
as a kind of appellate advisorYJO Magistrate judges, as they are
now called,lol have been around for some time and have come to
be an accepted part of the district court scene. 102 Proposals to replicate that experience on the courts of appeals are not new, but
tend to suffer from a vagueness in purpose and design. This uncertainty may explain, in part, why the creation of the appellate magistrate position is still only a proposal. In 1990, the Report of the
Federal Courts Study Committee endorsed this proposal as one de98. See id. R. 706 (providing for specific compensation, notice to parties, discovery,
party access, and cross-examination, and guaranteeing that parties may designate own
experts).
99. As obvious as this might seem, some commentators take seriously the suggestion
that difficult legal issues be referred to outstanding law professors for study and recommendations. See Dorothy W. Nelson, Why Are Things Being Done This Way?, JUDGES, J.,
Fall 1980, at 13, 46 (discussing necessity for reforms regarding workload for Article III
judges). But see Thomas E. Baker, The Impropriety of Expert Witness Testimony on the
Law, 40 KAN. L. REV. 325 (1992) (addressing new trend of law professors testifying as
expert witnesses on law).
100. See Robert S. Thompson & John B. Oakley, From Information to Opinion in
Appellate Courts: How Funny Things Happen on the Way Through the Forum, 1986 ARIZ.
ST. LJ. 1, 75-76, 78 (explaining idea of staff members being vested with official status as
appellate magistrates); see also John B. Oakley, The Screening of Appeals: The Ninth Cir·
cuit's Experience in the Eighties and Innovations for the Nineties, 1991 B.Y.U. L. REV. 859,
915-21. In June 1993, the Standing Committee on Rules of Practice and Procedure recom·
mended a new Federal Rule of Appellate Procedure 48 to the Judicial Conference of the
United States. The proposed new rule would authorize the courts of appeals to appoint a
special master to hold hearings, if necessary, and to make recommendations of factual
findings and disposition of ancillary matters in appeals before the court.
101. Federal Courts Study Committee Implementation Act of 1990, Pub. L. No. 101650, tit. III, § 321. 104 Stat. 5089, 5117.
102. See generally Carroll Seron, Magistrates and the Work of Federal Courts: A New
Division of Labor, 69 JUDICATURE 353, 353 (1986) (showing that present system can be
traced back to 1968).
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serving of "careful analysis."!03 The Study Committee apparently
had in mind the Washington Supreme Court's experience with its
Commissioner,lo4 who is essentially the chief staff attorney for the
court and handles specified motions.!Os
To adapt this model to the courts of appeals, Congress would
need to create a new federal judicial officer, presumably entitled
something like "Circuit Court Commissioner," with two primary
sets of duties: "(1) to decide non-merits motions relating to time,
manner, and place of appeal, including jurisdictional issues, [and]
(2) to operate the screening program."!06 This reform would go a
long way toward answering harsh criticism of appellate court
bureaucratization that includes allegations that staffers are performing judicial tasks behind the scenes. The complaint is that the
judges are relying on the recommendations of staff attorneys without the benefit of comment from the attorneys for the parties. Appellate magistrates might be expected to approach the level of
bankruptcy judges and magistrate judges in terms of experience,
selection, and performance. The delegated tasks would be identified and articulated with particular specificity, consistent with the
requirements of Article III. Presumably, the parties would be afforded notice and a meaningful opportunity to be heard before the
appellate magistrate. Technology might allow for video conferencing, and some value of lost oral arguments might thus be reclaimed
for the appellate process. The appellate magistrate's determination, with published reasons, would constitute a recommendation
to the hearing panel that would become final if there were no objection within a certain period. And, even after objection, if the
appellate magistrate recommended affirming the district court's
decision, the court of appeals would be expected to adopt the appellate magistrate's determination without writing its own opinion.
But in close cases or with recommendations to reverse the district
court, the court of appeals would decide the appeal, in effect, de
novo.
103.
REPORT OF THE FEDERAL COURTS STUDY COMMITTEE
115-16 (1990).
104. Id. See John B. Oakley, The Screening of Appeals: The Ninth Circuit's Experience in the Eighties and Innovations for the Nineties, 1991 B.Y.U. L. REV. 859, 917-18
(gleaning outline of program from Washington's Supreme Court Administrative Rules).
105. Id. at 919.
106. Id. at 920.
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While these suggested procedures are merely illustrative, they
demonstrate the underlying value of the appellate magistrate as a
reform that would shift matters from the discretion of an invisible
staff to a public forum with regular procedures. On the other
hand, if these procedures become so elaborate as to resemble a
mirror image of the traditional appellate procedure, the appellate
magistrate would become a first-line appeal as of right that would
add delay and expense along the way to the final decision by the
court of appeals. Experimentation, under controlled conditions,
would help to inform this balance.
IX.
DEALING WITH FRIVOLOUS ApPEALS
One last proposal for intramural reform, perhaps the most significant reform in the category, merits a separate emphasis, yet it has
gone virtually unused until recently. While their jurisdiction is for
Congress alone to change, the courts of appeals show signs of ending the tradition of unimpeded appellate access by imposing sanctions in frivolous appeals. 107
The prevailing perception of the docket crisis is that a large
number of appeals are frivolous or hopeless and simply drain judicial resources for naught. lOS In a defense of screening procedures
in particular, but fairly generalized as a defense of all intramural
reforms, Judge Nichols of the Federal Circuit called for something
107. The recent trend has not escaped the notice of commentators. See, e.g., Martin
B. Louis, Discretion or Law: Appellate Review of Determinations That Rule 11 Has Been
Violated or That Nonmutuaiissue Preclusion Will Be Imposed Offensively, 68 N.C. L. REV.
733,753,757 n.l72 (1990) (arguing for discretionary standard of appeal to curb appeals as
of right); Robert J. Martineau, Defining Finality and Appealability by Court Rule: Right
Problem, Wrong Solution, 54 U. Prrr. L. REV. 717, 749 (1993) (suggesting repealing al1
statutes giving unqualified right of appeal); Robert J. Martineau, Frivolous Appeals: The
Uncertain Federal Response, 1984 DUKE L.J. 845, 850-54 (identifying frivolous appeals);
Michael S. Oberman, Coping with Rising Caseload: A New Model of Appellate Review, 46
BROOK. L. REV. 841, 843 (1980) (noting Second Circuit has reduced case backlog and
delay); Judith Resnik, Precluding Appeals, 70 CORNELL L. REV. 603, 606-07 (1985) (proposing models for limiting judicial review); P.S.H., Note, Disincentives to Frivolous Appeals: An Evaluation of an ABA Task Force Proposal, 64 VA. L. REV. 605, 606 (1978)
(noting desirability of disincentives for appeals). "The law of [appel1ate] sanctions is developing rapidly and may best be described as uncertain." THOMAS E. BAKER, A PRIMER ON
THE JURISDlCfION OF THE U.S. COURTS OF ApPEALS § 5.04, at 57-58 (1989) (citing GREG.
ORY P. JOSEPH, SANCfIONS: THE LAW OF LITIGATION ABUSE (1988) and W. FREEDMAN,
FRIVOLOUS LAWSUITS AND FRIVOLOUS DEFENSES: UNJUSTIFIABLE LITIGATION (1987».
108. Thomas Y. Davies, Gresham's Law Revisited: Expedited Processing Techniques
and the Allocation of Appellate Resources, 6 JUST. Sys. J. 372, 374 (1981).
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of a "reality check" over the propriety of bringing every case up on
appeal:
If all the appeals filed in any intermediate federal court ought to
be there, the court would have no need for a selective publication
policy [or these other intramural reforms]. The ones that should not
be there create the need. The theory of appellate review in the past
was that losers in trial courts would exercise self-censorship and
forego appeals unless competent counsel determined that legal errors of the trial court could be pointed out or, if not certainly errors,
at least rulings as to which competent judges might differ. Thus, the
appellate judges, handling a moderate volume of appeals, could
devote collegial attention to them, act without haste or pressure, and
set down the reasons at length for every decision. We all know this
does not describe why appeals are filed today.l09
In criminal cases, both paying and indigent defendants have
profound incentives to appeal, and indigent appellants have neither
costs nor any disincentives at all. l1O Sanctions for frivolous appeals
are therefore best considered only in civil cases. Courts impose
sanctions for compensation and deterrence: compensation to the
opposing party for the time and expense of the appeal; deterrence
to those who would take the wasteful appeal, delaying consideration of valid appeals. 1l1
Identifying the truly frivolous appeal is the essential yet somewhat metaphysical task,11z The determination necessarily involves
some measure of the appellate court's perspectives and expecta-
109. Philip Nichols, Jr., Selective Publication of Opinions: One Judge's View, 35 AM.
U. L. REV. 909. 919 (1986).
110. Thomas Y. Davies, Gresham's Law Revisited: Expedited Processing Techniques
and the Allocation ofAppellate Resources, 6 JUST. Svs. J. 372, 374 (1981). Professor Davies
found that criminal appeals consistently lose to civil appeals in the competition for appellate court resources. [d. at 373; see David A. Davis, The Frivolous Appeal Reconsidered, 26
CRIM. L. BULL. 305, 313-16 (1990) (discussing ethical obligations of criminal law attorneys
to pursue valid appeals).
111. Robert J. Martineau, Frivolous Appeals: The Uncertain Federal Response, 1984
DUKE L.J. 845, 847-48; see Michael S. Oberman, Coping with Rising Caseloads: A New
Model of Appellate Review, 46 BROOK. L. REV. 841, 844 (1980) (discussing keeping docket
current as additional method of avoiding delay).
112. See WSM, Inc. v. Tennessee Sales Co., 709 F.2d 1084, 1088 (6th Cir. 1983) (noting
that "[f)rivolity, like obscenity, is often difficult to define").
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tions and its receptiveness to the issue being raised on the merits,113
Various factors of hopelessness, jurisdictional and substantive, inform the determination,114 Appellate conduct that is dilatory, or
misleading to an adversary or to the court, should also be relevant
in the determination,11s Some courts have vacillated between subjective and objective standards of frivolity, between an actual badfaith motivation and a reasonably prudent attorney standard,116
Other courts have framed the choice as between a negligence standard and an intent standard,117 Still other courts have been preoccupied only with how the appeal was conducted,11s Although the
appellate court decisions have been less than straightforward, the
key to understanding the various frivolity standards is determining
whether the merit of the appeal or the motive of the appellant
should control. 11 9 Whatever the standard, sanctions may be im-
113. See Thomas Y. Davies, Gresham's Law Revisited: Expedited Processing Techniques and the Allocation of Appellate Resources, 6 JUST. SYS. J. 372, 375-76 (1981) (questioning decision-making process in determining whether appeal is "frivolous" or merited).
114. Robert J. Martineau, Frivolous Appeals: The Uncertain Federal Response, 1984
DUKE L.J. 845, 850-51.
115. Id. at 851-53.
116. See In re Marriage of Flaherty, 646 P.2d 179, 186-87 (Cal. 1982) (discussing various standards applied when determining whether an appeal is frivolous); see also Glenn D.
Forucci et aI., California Supreme Court Survey: A Review of Decisions: January 1982June 1982, 10 PEPP. L. REV. 167, 174 (1982) (analyzing In re Marriage of Flaherty). See
generally Harold Lowenstein, Frivolous Appeals, Not Frivolously Granted: A Practical
Analysis, 60 UMKC L. REV. 491,491-96 (1992) (discussing risk of sanctions for frivolous
appeals).
117. See Comment, Awards of Attorneys' Fees Against Attorneys: Roadway Express v.
Piper, 60 B.U. L. REV. 950, 962-68 (1980) (reviewing knowing, negligent, and intentional
standards of review).
118. See Robert J. Martineau, Frivolous Appeals: The Uncertain Federal Response,
1984 DUKE L.J. 845, 856 (determining that some courts place greater emphasis on manner
of appeal than actual merits).
119. Id. at 857. See generally Michael S. Oberman, Coping with Rising Caseload: A
New Model of Appellate Review, 46 BROOK. L. REV. 841, 852 (1980) (finding summary
disposition procedures of frivolous claims are vague and conclusory).
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posed for frivolous appeals under statute,120 rule,l21 or a court's inherent power. 122
Monetary sanctions include such penalties as double costs,123
damages, attorney fees, and fines. 124 While, historically, appellate
courts have been reluctant to impose such sanctions, they may assess these sanctions against the attorney or the appellant. It is too
early to say whether the recent renaissance of monetary sanctions
is more than episodic and whether it will serve as an effective deterrent. 125 At the very least, the present amorphous sources of authority should be consolidated and integrated into a concise
120. See, e.g., 28 U.S.C. § 1912 (1988) (giving courts of appeals discretion to award
prevailing party "just damages for his delay, and single or double costs"); id. § 1927 (providing, in part, that attorney "who so multiplies the proceedings in any case unreasonably
and vexatiously" may be ordered "to satisfy personally the excess costs, expenses. and
attorneys' fees reasonably incurred because of such conduct"); see also Howard B. Prossnitz, Fines Against the Trial Lawyer, LITIG., Fall 1983, at 36, 36 (describing § 1927 sanctions
imposed upon attorneys); Mary Van Vort, Note, Controlling and Deterring Frivolous In
Forma Pauperis Complaints, 55 FORDHAM L. REVIEW 1165, 1179-81 (1987) (detailing assessment of costs to plaintiffs proceeding in forma pauperis).
121. FED. R. App. P. 38.
122. See Roadway Express v. Piper, 447 U.S. 752, 764 (1980) (finding that inherent
powers "are those which are necessary to exercise all others"). Some courts of appeals
have local rules regarding frivolous suits passed under the general authorization of FED. R.
App. P. 47. See 5TH OR. R. 42 (discussing dismissal of cases); 11TH OR. R. 42-2 (empowering court to dismiss appeal whenever court determines appeal is "frivolous and entirely
without merit"). Additionally, the Federal Rules of Appellate Procedure allow courts of
appeals the disciplinary authority to sanction attorneys. FED. R. App. P. 46(c).
123. See FED. R. App. P. 37, 39 (authorizing single costs or interest payments in any
appeal).
124. See Robert J. Martineau. Frivolous Appeals: The Uncertain Federal Response.
1984 DUKE L.J. 845, 866-68 (stating that monetary sanctions within discretion of court may
be imposed upon either attorney or litigant).
125. See, e.g., Chambers v. Nasco, Inc., 501 U.S. 32, 56 (1991) (Kennedy, J., dissenting) (noting that FED. R. App. PROC. 38 gives courts the power to award damages and costs
for frivolous appeals); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 407 (1990) (allowing expenses incurred in appeal to be shifted onto party who pursued it); Tatum v.
Regents of the Univ. of Neb.-Lincoln, 462 U.S. 1117, 1117 (1983) (assessing $500 in damages against pro se petitioner under then-Supreme Court Rule 49.2); United States v. Atkinson, 748 F.2d 659, 602 (Fed. Cir. 1984) (ordering party filing frivolous appeal to pay
government twice costs government incurred in defending appeal); Reid v. United States,
715 F.2d 1148, 1155 (7th Cir. 1983) (deeming assessment of double costs for frivolous appeal appropriate). See generally Paul D. Carrington, Crowded Dockets and the Courts of
Appeals: The Threat to the Function of Review and the National Law, 82 HARV. L. REV.
542, 569-70 (1969) (concluding that even artistically drafted sanction statutes would not
stem flow of appeals); Michael Vitiello, The Appellate Lawyer's Role in the Caseload Crisis,
58 MIss. L.J. 437, 474-76 (1988) (concluding courts are challenged to use sanctions to improve efficiency without deterring pursuit of legal reform); Fred Woods, Sanctions-
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framework for analyzing sanctions issues. 126 The principal nonmonetary sanction, of course, is dismissal of the appeal. A truly
frivolous appeal by definition would eventually be unsuccessful,
and thus dismissal alone simply is not a sufficient sanction, but
merely the same result as if the court heard the appeal and merely
affirmed,127 Dismissal should be more widely used, however,
wholly apart from other sanctions.
In 1989 the American Bar Association Standing Committee on
Federal Judicial Improvements endorsed the concept of shifting attorney's fees as an effective deterrent to unnecessary appeals,12s
The Standing Committee concluded: "An increase in the magnitude and frequency of sanctions for frivolous appeals would [have
to] be consistent with [the applicable] statutes [and court rules and
appropriate interpretations.]"129 In the expert opinion of the
Standing Committee, however, increased use of appellate sanctions
would not appreciably reduce the workload of the courts of appeals, because they would deter only the weakest appeals, which
do not require substantial appellate court resources,13° Even proponents of a more aggressive use of sanctions are unsure that such
a campaign is worth the casualties that will be inflicted on the appellate tradition. At most, they express a hope:
It remains to be seen whether the process of imposing sanctions
will effectively reduce trial and appellate court backlogs, or whether
the mechanics for imposing sanctions will elongate proceedings,
thereby increasing the number of cases on our trial and appellate
court calendars. However, if sanctions are consistently and properly
imposed, in keeping with constitutional requirements of due process,
the inevitable result will be a marked improvement in our backlog-
Stepchild or Natural Heir to Trial and Appellate Court Delay Reduction, 17 PEPP. L. REV.
665, 681 (1990) (stating that proper use of sanctions will decrease court dockets).
126. See Robert J. Martineau, Frivolous Appeals: The Uncertain Federal Response,
1984 DUKE L.J. 845, 885 (advocating promulgation of single rule clearly establishing procedures for imposing sanctions).
127. [d. at 864.
128. A.B.A., STANDING COMM. ON FEDERAL JUDICIAL IMPROVEMENTS, THE UNITED
STATES COURTS OF ApPEALS: REEXAMINING STRUCTURE AND PROCESS AFTER A CENTURY OF GROWTH 35 (1989).
129. [d.
130. [d. at 36. The Standing Committee somewhat hesitatingly raised the possibility
that the general appellate filing fee be increased, but was pessimistic that the increase
would reduce the number of cases appealed. [d. at 35.
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ged calendars, thus enabling better access to our courts by deserving
litigants. 131
One last possible analogy for the dismissal of frivolous appeals in
the courts of appeals can be drawn from the Supreme Court's
mandatory appellate jurisdiction. Not every case which satisfies
the High Court's appellate jurisdiction statute receives the Justices'
plenary considerationY2 Instead, the appeal must initially raise a
"substantial" federal question, a nonstatutory requirement that has
evolved in Court decisions. 133 A proposal for change at the intermediate court, however, need not be the equivalent of the
Supreme Court's certiorari jurisdiction,134 which is a matter of discretion with a presumption against exercise. A suggestion for a
more vigorous dismissal process in frivolous appeals would be
based on overcoming a presumption of review as of right. Properly
implemented, this proposal would be more than a half-empty/halffull distinction. It would be crucial to articulate a standard for dismissal consistent with the appellate ideal. This articulation, however, does not seem likely to succeedYs The base problem is that
the proposal resembles a disposition without opinion which leaves
no precedential opinion and will, in reality, do little to deter similar
appeals. Articulating a standard that avoids the same dangers to
the appellate ideal may be impossible, but, some attempt should be
made.
131. Fred Woods, Sanctions-Stepchild or Natural Heir to Trial and Appellate Court
Delay Reduction?, 17 PEPP. L. REV. 665, 681 (1990).
132. Michaela M. Nicolarsen, Note, The Supreme Court Dismissal of State Court Appeals for Want of a Substantial Federal Question, 15 CREIGHTON L. REV. 749, 750 (1982).
The High Court's mandatory jurisdiction was all but eliminated in 1988. See generally Bennett Boskey & Eugene Gressman, The Supreme Court Bids Farewell to Mandatory Appeals, 121 F.R.D. 81, 81-99 (1988) (tracing history of Supreme Court's mandatory
jurisdiction).
133. ROBERT L. STERN ET AL., SUPREME COURT PRACfICE §§ 116-118 (7th ed. 1986).
134. See THOMAS E. BAKER, RATIONING JUSTICE ON ApPEAL-THE PROBLEMS OF
THE U.S. COURTS OF ApPEALS 229-86 (1994) (discussing wide range of possible changes for
courts of appeals).
135. Some have tried, with mixed success. See Robert J. Martineau, Frivolous Appeals: The Uncertain Federal Response, 1984 DUKE L.J. 845, 878-85 (listing proposed solutions to frivolous lawsuit dilemma and problems with changing status quo); P.S.H., Note,
Disincentives to Frivolous Appeals: An Evaluation ofan ABA Task Force Proposal, 64 VA.
L. REV. 60S, 611-24 (1978) (recounting ABA task force proposals for relieving frivolous
suits). Cf Denton v. Hernandez, 112 S. Ct. 1728,1733 (1992) (reciting standard that frivolous claims may be dismissed only if completely baseless and sink to depths of "irrational
or the wholly incredible").
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CONCLUSION
Contemplating all the federal intramural reforms, both those already implemented and those having been proposed, leaves two
impressions. First, a willingness to experiment has proved essential
for the survival of the courts of appeals. 136 Second, intramural reforms have been virtually exhausted in the effort to cope with the
caseload. The pragmatism that has characterized the last thirty
years, however, has steered the federal judiciary farther and farther
away from the deliberative, judicial model in the appellate ideal
and toward a bureaucratic model of case processing. Further intramural reforms promise further slippage. 137 Even the Federal
Courts Study Committee has worried about these "palliatives. "138
Before further intramural reforms are implemented, the overall effect on the big picture ought to be considered.
What have these palliatives done to the appellate ideal? ThenChief Judge Markey of the Federal Circuit describes a before-andafter comparison.
Before the intramural reforms:
As performed as recently as twenty years ago, the personally conducted federal appellate process comprised: (1) review of the record
and briefs by the judge; (2) oral argument of thirty or forty-five minutes on a side; (3) preparation by the judge of a written opinion; (4)
assistance in each chambers by one elbow law clerk and one secretary; and (5) frequent and adequate conferences of the judges on the
cases. 139
After the intramural reforms:
As performed today, the bureaucratically conducted federal appellate process comprises: (1) screening and track-setting by staff attorneys; (2) review of records and briefs by a law clerk or a staff
attorney; (3) oral argument in less than one third of the cases, and
136. See generally Thomas E. Baker, A Compendium of Proposals to Reform the
United States Courts of Appeals, 37 U. FLA. L. REV. 225, 228-34 (1985).
137. See Charles A. Wright, The Federal Courts-A Century After Appomattox, 52
A.B.A. J. 742, 747 (1966) (warning that justice cannot be sacrificed for judicial efficiency).
138. REpORT OF THE FEDERAL COURTS STUDY COMMITTEE 114 (1990). "Many worry
that these palliatives threaten the appellate ideal of individual attention to individual cases.
Without [these reforms], however, the appellate courts would be in serious difficulty,
rather than current, as now. More changes are probably inevitable ...." [d.
139. Howard T. Markey, On the Present Deterioration of the Federal Appellate Process: Never Another Learned Hand, 33 S.D. L. REV. 371, 376 (1988).
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then for fifteen or twenty minutes on a side; (4) preparation of opinions by law clerks and staff attorneys; (5) dispositions without opinions in two-thirds of the cases; (6) assistance in each chambers by
three law clerks and two secretaries and assistance to all chambers by
a corps of staff attorneys; and (7) infrequent, short judicial conferences on the cases. 140
"In sum," Chief Judge Markey concludes, "all appellate opinions
were once the product of judges; today most are the product of an
institution. "141 For the most part, warnings have gone unheeded
and criticisms have been met with the same answer the Federal
Court Study Committee has given: the intramural reforms have
been a necessary evi1. 142 Criticisms almost always are rebutted
with statistics; the number of appeals has made the intramural reforms necessary and the lessened number of cases on appeal after
the reforms justifies them. The problem with this answer is that
" 'quantitative analysis, when done properly, is only the starting
point for proper analysis of judicial administration. The process of
measuring judicial performance may well commence with numbers,
but numbers should be the beginning, not the end of the
inquiry.' "143
140. Id. at 376-77.
141. Id. at 377; see John J. Gibbons, Illuminating the Invisible Court of Appeals, 19
SETON HALL L. REV. 484, 486 (1989) (noting that majority of appellate cases are handled
by judges' staffs). The experience in the state appellate courts has been quite similar. See
generally Thomas B. Marvel, Abbreviate Appellate Procedure: An Evaluation of the New
Mexico Summary Calendar, 75 JUDICATURE 86 (1991) (pointing to trend among appellate
courts to increase staff in order to facilitate increased caseload); Thomas B. Marvell, State
Appellate Court Responses to Caseload Growth, 72 JUDICATURE 282, 286-87 (1989) (discussing increased use of law clerks and staff attorneys); Cathy J. Lerman, Mass AppealAre There Too Many Cases Going to the Appellate Courts?, BRIEF, Spring 1988, at 26-30
(recounting difficulties with number of appeals and lack of judges).
142. Commentators have clearly identified significant costs that these devices have
imposed on the judicial process-more bureaucracy, less accountability, and a dramatic
reduction in the visibility of justice. Yet the criticisms seem to have had very little effectat least if effect is measured by changes in judicial behavior. "The principal causes for the
judges' reluctance to abandon or curtail the streamlining strategies are: (I) their perceptions of the quality as well as the quantity of their caseload; (2) their pre-judicial status,
work styles, and conceptions of appellate judging; and (3) the comforting illusion that the
streamlining strategies permit." William M. Richman & William L. Reynolds, Appellate
Justice Bureaucracy and Scholarship, 21 U. MICH. J.L. REF. 623, 641 (1988).
143. Kenneth F. Ripple, The Article III Judiciary in Its Third Century, 34 Loy. L. REV.
469, 478 (1988) (quoting Third Circuit Judge Becker, Fifth Circuit Judge Higginbotham,
and judicial administrator William K. Slate II's estimates of how their personal decisionmaking process compares to other judges). Legendary Harvard law professor Thomas
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If statistics are not the fullest or best measure of intramural re-
forms, then what is? Two qualitative principles mark the most negative level of assessment. First, we might follow Chief Judge
Markey's before-and-after comparison to take into account and reassess the full package of intramural reforms, not individually but
cumulatively, now that they have been in place for a generation. 144
Second, we might compare the contemporary appellate reality with
the federal appellate ideal to ask how well the intramural reforms
have enabled the courts of appeals to achieve their mission. 145 We
should address their cumulative effect on the quality of appellate
adjudication in a forthright manner.
Applying these qualitative measures, we can conclude that, today, the large courts of appeals-the Ninth Circuit being the largest of the large in terms of judgeships and caseload-Ieast resemble
the nineteenth-century federal appellate courts at the time of the
Evarts' Act. 146 Of course, buggy-whip era procedures themselves
ought not be of interest today, except in historical accounts of the
courts of appeals. The repeated alarm sounded over and over
again, however, has been the concern for what has become of the
federal appellate ideal underlying such traditional appellate procedures as oral argument and published opinions. The policy values
these traditional procedures serve certainly have not passed out of
fashion or function. Indeed, it would be difficult to believe that
Reed Powell often was heard to disapprove of "the kind of social study where 'counters
don't think, and thinkers don't count.'" HENRY J. FRIENDLY, FEDERAL JURISDICfION: A
GENERAL VIEW 15 (1973); see RITA M. NOVAK & DOUGLAS K. SOMERLOT, DELAY ON
ApPEAL: A PROCESS FOR IDENTIFYING CAUSES AND CURES 1-6, 153-54 (1990) (discussing
need for reform owing to delay in appellate process); Stephen H. Anderson, Toward Eradication of Delay in the Tenth Circuit Court of Appeals, 3 UTAH B.J., Dec. 1990, at 27 (reciting that quality of justice is more important than quantity of cases processed).
144. See Pamela Mathy, Experimentation in Federal Appellate Case Management and
the Prehearing Conference Program of the United States Court of Appeals for the Seventh
Circuit,61 CHI.-KENT L. REV. 431. 432, 481-82 (1985) (calling for cumulative assessment of
reforms instituted in judicial systems in 1970s and 1980s).
145. Id. at 432.
146. See JOE S. CECIL, ADMINISTRATION OF JUSTICE IN A LARGE ApPELLATE COURT:
THE NINTH CIRCUIT INNOVATIONS PROJECf 7-12 (Federal Judicial Ctr. ed., 1985) (detailing automation and judicial reform programs instituted in Ninth Circuit courts). The Evarts Act of 1891 eliminated the circuit-riding duties of Supreme Court Justices and
established the circuit courts of appeals. This Act established the three-tiered system of
federal justice that essentially remains today. J. Clifford Wallace, The Nature and Extent of
Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 CALIF. L. REV.
913,913-15 (1983).
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intramural reforms can be taken very much further, while still expecting the courts of appeals to stay even remotely in touch with
the federal appellate tradition. 147 Modern federal appellate procedures have become illusory in far too many appeals. This is the
cumulative consequence of the intramural reforms, which in turn
have been the primary response to the "crisis of volume."148 In far
too many appeals being decided by the courts of appeals today,
what remains of the federal appellate tradition and ideal resembles
Alice's Cheshire Cat-only the smile is left and it is growing fainter
and fainter.
The vision for the future also is bleak. 149 One incumbent circuit
judge, charged with gazing into the federal judiciary's crystal ball,
sees the imminent and virtually total abandonment of the federal
appellate ideal: "So my vision of the future would include a presumption against oral argument and a presumption against published precedential opinions, but a requirement for some form of
written opinion in every case."150 Realistically, there are only minor, tinkering, even incremental, changes left intramurally.151
Those few with even modest potential have been identified in this
147. See John B. Oakley, The Screening ofAppeals: The Ninth Circuit's Experience in
the Eighties and Innovations for the Nineties, 1991 B.Y.U. L. REV. 859, 922 (arguing for
"maintaining the values of appeal while the crisis of volume continues to compound").
148. But see Michael C. Gizzi, Examining the Crisis of Volume in the U.S. Courts of
Appeals, 77 JUDICATURE 96, 96-97 (1993) (arguing that it is difficult to assess reality of
crisis when there has been little study of ultimate capacity courts may bear).
149. See, e.g., The Drugging of the Courts: How Sick Is the Patient and What Is the
Treatment?, 73 JUDICATURE 314, 314 (1990) (predicting breakdown of court systems from
war on drugs); Roger J. Miner, Federal Courts, Federal Crimes, and Federalism, 10 HARV.
J.L. & PUB. POL'y 117, 117-18 (1987) (warning that growing use of federal judiciary for
criminal prosecutions "threatens to overwhelm the federal courts").
150. John J. Gibbons, Maintaining Effective Procedures in the Federal Appellate Court,
in THE FEDERAL ApPELLATE JUDICIARY IN THE 21ST CENTURY 22,27 (Cynthia Harrison
& Russell R. Wheeler eds., 1989). Some of the state appellate courts may be further along
in the quest for "efficiency at all costs" and seem to have travelled even further away from
the appellate ideal and tradition. For example, the New Mexico Court of Appeals employs
a summary calendar that uses only memoranda filed by counsel-without transcripts,
briefs, or oral argument-to decide two-thirds of its appeals. The average "appeal" in this
system takes about 100 days. Thomas B. Marvell. Abbreviate Appellate Procedure: An
Evaluation of the New Mexico Summary Calendar, 75 JUDICATURE 86, 86-87 (1991).
151. "Only reforms that preserve the central role of Article III judges in deciding
appeals are likely to improve the effectiveness of the courts of appeals in any lasting way."
A.B.A. STANDING COMM. ON FEDERAL JUDICIAL IMPROVEMENTS, THE UNITED STATES
COURTS OF ApPEALS: REEXAMINING STRUCTURE AND PROCESS AFTER A CENTURY OF
GROWTH 40 (1989).
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Article. The final question remains whether the regime of intramural reforms, both those already implemented and those to come,
will create more problems than it will solve. 152
152. "The history of procedure is a series of attempts to solve the problems created by
the preceding generation's procedural reforms," Judith Resnik, Precluding Appeals, 70
CORNELL L. REV, 603, 624 (1985).
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