Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition is a thought-provoking critique of the United States Courts of Appeals. Professors William Richman and William Reynolds maintain that dramatic increases in appellate filings have transformed the appeals courts during the last quarter-century, prompting systemic constriction of procedural opportunities, particularly for parties with few resources or little power. The authors find these changes profoundly troubling and propose that Congress radically expand the number of appellate judges.
Individuals and institutions, such as expert study committees, which have analyzed the federal courts, agree with much of the authors' descriptive assessment. Less consensus, and even some controversy, attend the writers' provocative suggestion that the creation of many additional judgeships will resolve the conundrum posed by growing dockets and numerous other difficulties which the appellate courts confront today. These factors mean that the authors' valuable contribution to understanding the appeals courts warrants a response. This essay undertakes that effort. My paper invokes a number of federal court studies and applies insights gleaned from the continuing debate which involves possible division of the Ninth Circuit. This court is instructive because its experience with mounting caseloads epitomizes developments in many regional circuits since the 1970s and typifies the treatment that the writers criticize.
I first evaluate the authors' descriptive account and identify aspects of their discussion with which a number of federal court observers concur and differ, and I find considerable agreement about most of the features. For example, numerous analyses of the federal civil and criminal justice systems and the ongoing controversy over the Ninth Circuit reveal that the appellate courts have undergone a transformation in the past several decades.
My response then assesses the writers' prescription. I ascertain that phenomena ascribed to multiplying appeals and many additional complications facing the appeals courts constitute a polycentric problem. This difficulty apparently requires application of a varied mix comprising myriad available solutions, but the precise combination of approaches which would be most efficacious remains unclear. The judiciary's expansion is only one potential remedy. However, it would also impose disadvantages, might be less effective than numerous alternative solutions, and might be politically unrealistic. The above difficulties show, μierefore, that Congress should appoint a national commission to evaluate the appellate system. I conclude with recommendations for creating this entity and for how it might proceed.
Carl Tobias, New Certiorari and a National Study of the Appeals Courts, 81 Cornell L. Rev. 1264 (1996)