The Commission on Structural Alternatives for the Federal Courts of Appeals submitted its report and suggestions to the United States Congress and the President in December 1998. The Commission spent ten months studying the "structure and alignment of the Federal Court of Appeals system, with particular reference to the Ninth Circuit," and two months developing "recommendations for such changes in circuit boundaries or structure as may be appropriate for the expeditious and effective disposition of the caseload of the Federal Courts of Appeals, consistent with fundamental concepts of fairness and due process." The centerpiece of the Commission's proposal is the suggestion that Congress require the United States Court of Appeals for the Ninth Circuit to implement three regionally-based adjudicatory divisions and authorize the remaining appellate courts to institute divisional arrangements as they increase in size. Lawmakers intended that the Commission craft recommendations which would help Congress resolve the controversial, ongoing debate over the Ninth Circuit and to address the dramatic caseload expansion that has transformed the appeals courts from the institutions which they were a generation ago. Indeed, the Commission's report and proposals could well chart the destiny of the appellate courts for the twenty-first century.
The suggestions proffered by the Commission have received great attention. Many federal court observers, including members of the judicial and legislative branches, have expended much energy analyzing and responding to the recommendations. In the commentators' apparent haste to praise or criticize the Commission's recommendations, they have essentially ignored the elaborate descriptive account of the appellate courts that the commissioners compiled. For instance, observers have neglected the Working Papers of the Commission on Structural Alternatives for the Federal Courts of Appeals. This 348-page volume includes a number of studies which the Commission authorized and much information which it collected. The commissioners seemed to consult these materials closely in fashioning the report and proposals.
The dearth of attention that commentators have accorded the Commission's description is remarkable. The Commission appeared to depend heavily on the descriptive account when drafting its report and suggestions. Change which is as drastic as the commissioners recommended in institutions that are as critical as the appeals courts should correspondingly have clear, substantial empirical support. The Commission also painted a rather detailed portrait of the appellate system or at least took numerous snapshots of the appeals courts, which yield instructive insights on them at the tum of the century and could inform their future reform and investigation. Indeed, the commissioners may well have constructed one of the richest modem accounts of those courts, thereby making the absence of scrutiny afforded the description even more striking.
The descriptive account which the Commission on Structural Alternatives for the Federal Courts of Appeals compiled warrants analysis. This article undertakes that effort. The first section evaluates the origins and development of the Commission and briefly describes its work. The second section selectively assesses the Commission's description and attempts to derive from the account useful perspectives on the twelve, specific regional circuits and the appellate system as well as additional, helpful lessons respecting the Commission's endeavors. Most significant, particular appeals courts appear to operate less efficaciously than they might. However, the empirical evidence which the Commission adduced appears insufficient to support definitive conclusions regarding the circuits' present condition, much less modifications that seem as dramatic as those which the commissioners proposed. The final section, therefore, suggests that Congress reject the Commission's recommendations and authorize further study, which should permit more conclusive determinations about the courts, or experimentation with promising measures.
Carl Tobias, The Federal Appeals Courts at Century's End, 34 U.C. Davis L. Rev. 549 (2000)