The 106th Congress seriously considered proposed legislation that could profoundly affect the federal appellate courts, and the 107th Congress may well do so. The Commission on Structural Alternatives for the Federal Courts of Appeals, which performed a rather comprehensive, albeit incomplete, study of the tribunals, recommended this bill as the centerpiece of its report for Congress. The commissioners prescribed regionally-based adjudicative divisions for the United States Court of Appeals for the Ninth Circuit and for the remaining appellate courts when the courts increase in size, even as the commission decisively rejected the possibility of splitting the Ninth Circuit into multiple courts. The commissioners suggested that each of three divisions, with a majority of the division's judges resident in the specific area, exercise exclusive jurisdiction over appeals from district courts situated there and proposed a Circuit Division that would resolve conflicting opinions which the three entities issue. The commission asserted that this approach would enhance the consistency and coherence of circuit law, promote genuine judicial collegiality and link the appellate forum more closely to the region served.
The commission deserves substantial credit for carefully evaluating the appeals courts and for developing recommendations that constitute a pragmatic political compromise. Should the divisional arrangement enable the Ninth Circuit to improve the quality of case resolution without disrupting daily operations, the organizational scheme might also afford an effective alternative for the other appellate courts as they expand. The remedy that the commissioners crafted could even be responsive to the dramatic docket growth which has transformed the appeals courts from the institutions that the tribunals were only a generation ago.
However, the commission did not systematically collect, analyze and synthesize empirical data that show persuasively, much less definitively, that the appellate courts have encountered or now experience difficulties that are sufficiently problematic to warrant treatment. Indeed, the commissioners forthrightly acknowledged that they lacked adequate time to conduct n "statistically meaningful analysis" of the Ninth Circuit, even as the commission members found that each of the appeals courts operates efficaciously. Those candid admissions make particularly compelling the inadvisability of implementing solutions which seem as drastic and potentially ineffective as the divisional concept. All of these propositions mean that the report and suggestions that the commissioners recently issued deserve assessment. This Article undertakes that effort.
I initially trace the historical developments which prompted the 105th Congress to authorize the establishment of the Commission on Structural Alternatives for the Federal Courts of Appeals. The paper then scrutinizes the entity's report and proposals and determines that the evidence the commission marshaled fails to support change that appears as inefficacious as the divisional structure in entities, which are as important as the appellate courts. The piece concludes by recommending that members of Congress approve additional study of the appeals courts and that the Ninth Circuit continue its experimentation with measures that promise to improve the appellate system.
Carl Tobias, Divisional Arrangement for the Federal Appeals Courts, 43 Ariz. L. Rev. 633 (2001)