Professor Arthur Hellman recently published a trenchant critique of the report compiled by the Commission on Structural Alternatives for the Federal Courts of Appeals. In The Unkindest Cut: The White Commission Proposal to Restructure the Ninth Circuit, he emphasizes that the report adduced little empirical data which demonstrate that the Ninth Circuit operates inefficaciously. Indeed, the commissioners candidly declared: "There is no persuasive evidence that the Ninth Circuit ... is not working effectively ... .'' Despite this admission, the Commission prescribed drastic change with a divisional concept, which Professor Hellman finds flawed. He thus urges that Congress "reject the proposal and allow" the circuit to continue the successful experimentation which it has pursued for twenty years.
The next step is crucial. Congress is now seriously considering three major bills. One would implement the Commission plan. Another would split the court. A third would treat Commission concerns by regionally assigning judges and modifying the limited en bane process. The Ninth Circuit itself endorses the last option as a "reasoned, responsible alternative to [Senate Bill 253's] radical restructuring." These proposals are among two dozen recommendations of an Evaluation Committee which is assessing the administrative structure and the operations of the circuit. This essay undertakes an analysis of the Commission's work, The Unkindest Cut, the Senate Bills, and the Ninth Circuit's own efforts. I initially evaluate the article and then compare the measures being explored. My essay concludes with an examination of the best approach.
Carl Tobias, Commentary, The Next Step for the Ninth Circuit, 73 S. Cal. L. Rev. 1407 (2000)