The Commission on Structural Alternatives for the Federal Courts of Appeals issued a report and proposals after carefully evaluating the appellate system for a year, while the data have minimally changed since the report's issuance. The Commission's principal focus was the Ninth Circuit, as Congress had instructed, yet the Commission assembled much useful information on each circuit court of appeals and found that all operate efficaciously. Because how the Fourth Circuit addresses a large docket is critical to appellate justice, the Commission's analysis of the tribunal and the court itself merit scrutiny, which this Article undertakes.
Part I of this Article examines the Commission's background and its study. Part II assesses the Commission's review in an effort to increase appreciation of the modern Fourth Circuit. The Commission gathered, analyzed, and synthesized considerable empirical data. The Commission's particular information suggests that the tribunal functions less effectively than it might. For instance, six percent of appeals currently receive a published opinion-the lowest nationwide-while two of the fifteen active circuit judgeships are vacant. Yet, these data were not refined or broad enough to ascertain definitively how the court actually performs. Indeed, the Commission made no attempt to correlate the tribunal's operations and political reputation, and the group frankly acknowledged that it lacked time for a statistically meaningful assessment of the Ninth Circuit. Part III thus proffers recommendations that emphasize greater Fourth Circuit study and includes miscellaneous ideas, such as the application of concepts, namely filling all the open judgeships, that should improve the tribunal's performance.
Carl Tobias, A Fourth Circuit Photograph, 45 Wake Forest L. Rev. 1373 (2010).