NOT YOUR GRANDFATHER’S FEDERAL CIRCUIT COURTS
The period between the two World Wars might be looked upon as the Golden Age of the federal circuit courts: The judges heard argument in almost all of the cases that came before them, and they decided almost all cases with opinions that could be cited as precedent. In doing so, the courts followed hallowed common-law tradition: Judges can decide cases only if that decision serves as precedent—that is, if the decision /reasoning binds other judges in similar situations. That rule seems to have been well-established through, say, 1960.
The 1960s challenged that basic precept. The decade saw a revolution in both civil-rights and habeas corpus litigation that led to a dramatic increase in the workload of the federal circuit courts. The obvious response to an increased workload, of course, was to ask for a proportionate increase in judgeships; the federal judicial establishment, however, eschewed that choice and settled instead on an array of procedural devices as a way to handle the increased caseload. Those devices included the following: Reduced oral argument, limited publication of opinions, the introduction of “non-precedential” opinions, and a vastly increased use of central staff.
In short, the decision-making procedures in today’s federal circuit courts would come as a complete surprise to Learned Hand or even Henry Friendly. Today, the vast majority of decisions are rendered by central staff, without the benefit of oral argument, and lack precedential appeal. More surprisingly, perhaps, is that those changes have been accomplished with virtually no discussion in the judiciary. The only serious study of the unpublished opinion regime was one that Bill Richman and I did for the Federal Judicial Center a third of a century ago. In 2006, Rule 32.1 of the F.R.A.P. was adopted to permit citation to “unpublished” opinions; it is the only formal response by the judicial establishment to the changes discussed above.
The failure to respond to the dual issues of increased caseload and changing appellate procedures is not due to a lack of study. Indeed, we count some thirteen commissions in the past forty years that have addressed concerns in the federal appellate courts. None of those commissions, however, has produced successful recommendations to deal with the problem of increased caseload and truncated procedures.
In particular, there is an obvious solution to increased caseload that would not require truncating well-known decision-making procedures: That solution is an elegant one—simply ask for more judges. But, amazingly, the Federal Judicial Establishment has resolutely refused to ask for enough judgeships to handle the load. Why they have refused to do so is an important topic on its own.
Professor William Richman (of the University of Toledo School of Law) and I have just published a book, Injustice on Appeal (Oxford University Press, 2012) where we examine the implications of the developments discussed above. In later postings, I shall go into more detail on these issues.