The Commission on Structural Alternatives for the Federal Courts of Appeals, or White Commission, ("the Commission") recently issued a report and recommendations for Congress and the President after studying the appellate courts for a year. The Commission investigation emphasized the United States Court of Appeals for the Ninth Circuit, as Congress had instructed. The centerpiece of the Commission's recommendations was a divisional arrangement for the Ninth Circuit and the remaining appellate courts as their caseloads increase. Notwithstanding this focus on the Ninth Circuit, the commissioners compiled a substantial amount of objective empirical data and some subjective information on the other regional circuits, while proffering additional prescriptions, such as two-judge and district court appellate panels for those courts.

The Commission also studied and collected considerable material on the United States Court of Appeals for the Federal Circuit. The Commission members assessed "two types of cases that have frequently been discussed as potential candidates for the Federal Circuit's jurisdiction, including the key reasons advanced for centralized review." The commissioners submitted these to Congress, without recommendation, "for its use as it examines the needs of the federal appellate system in the future."

The Commission characterized the legislative creation of the Federal Circuit in 1982 as "the most significant and innovative structural alteration in the federal intermediate appellate tier since its establishment." Moreover, the commissioners observed that Congress intended the Federal Circuit to have exclusive jurisdiction over categories of appeals as to which there would be "a perceived need for centralized, nationwide review" in the future. This essay analyzes those aspects of the Commission's investigation, report, and prescriptions that are applicable to the Federal Circuit.

Part I evaluates the background of the Commission on Structural Alternatives for the Federal Court of Appeals and the analysis that the entity performed. Part II explores the features of the commissioners' investigation that implicate the Federal Circuit. I find that the information which the Commission assembled does not permit conclusive determinations about any of the appellate courts, including the Federal Circuit. However, the commissioners examined tax and social security appeals for the benefit of senators and representatives, because they may be appropriate, albeit controversial, candidates for Federal Circuit review. Additional categories of cases might warrant similar review. Part III, therefore, provides suggestions for the future.

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