We applaud the contribution that the Commission on Structural Alternatives for the Federal Courts of Appeals (White Commission) has made to the public debate regarding how the federal courts of appeals can cope with the demands of ever increasing caseloads and no new judicial resources. The White Commission has conscientiously discharged its challenging assignment in the very brief period which Congress allotted. We believe, however, that a careful review of the Commission's research reveals no significant evidence of dysfunction in any court of appeals, and certainly none sufficiently severe to warrant its ultimate recommendation to restructure the Ninth Circuit Court of Appeals into three autonomous adjudicative divisions. We submit that the Commission has not met its burden of persuasion for such sweeping change. Therefore, we urge Congress to authorize the Ninth Circuit, which has been the acknowledged national leader in experimenting with innovative methods of resolving large caseloads, to continue and expand upon that record of successful experimentation.
In this article, we suggest that those who propose to change a successful, century-old institution must bear the burden of persuasion regarding the need for modification. In the first section of this article, we explore some of the principal concerns that the members of the Commission, as well as certain observers of the Ninth Circuit, have raised during the study process. In the second section, we show that, by standard measures of judicial administration and performance, the Ninth Circuit Court of Appeals is operating as well as or better than the other courts of appeals which were not the focus of the White Commission's recommendations. The next section reviews how the untested restructuring proposed by the Commission will cause more problems than it was intended to fix. Finally, in the fourth section, we offer a constructive alternative approach that the Ninth Circuit has already implemented. We examine the work of the Ninth Circuit's Evaluation Committee, which is developing innovative solutions to address many of the same concerns that the Commission sought to alleviate through its restructuring proposal. Through more modest modifications to court operations, the Ninth Circuit will be able to maintain its flexibility and adaptability in order to meet the caseload demands of the next millennium. We conclude by suggesting that Congress authorize the Ninth Circuit to continue experimenting with measures that promise to enhance court operations.
Proctor Hug, Jr. & Carl Tobias, A Split by Any Other Name ..., 15 J.L. & Pol. 397 (1999)