My name is J. Clifford Wallace. I have been a federal judge for 28 years, initially on the District Court for the Southern District of California, and a member of the United States Court of Appeals for the Ninth Circuit since 1972. For 15 years prior to that, I was a lawyer in San Diego, specializing in civil litigation. I am pleased to testify at this hearing because of my interest in judicial administration, which now spans nearly three decades. I hasten to add, however, that I speak for myself only and not for my court or for any other person or group.

I wish to focus on that part of the Commission's enabling legislation defining the Commission's purpose: to study the present division of the United States into the several judicial circuits and to study the structure and alignment of the Federal Court of Appeals system, with particular reference to the Ninth Circuit. For the first time since the Hruska Commission, Congress has directed a comprehensive investigation into the structure of the federal judicial system. Regrettably, the Hruska Commission did not seize the opportunity to make recommendations on the structural needs of the federal courts (aside from recommending the creation of a national court of appeals, a recommendation that has drawn little support): it essentially recommended circuit divisions.⁽¹⁾

This Commission now has the opportunity to consider seriously what the federal appellate structure should be in 20 or 30 or 50 years. Nothing, in my judgment, could be more important to the future of the federal judiciary.

My study of the future of the federal judiciary and the structure of the federal courts of appeals dates back nearly two decades. Chief Justice Warren Burger "requested that I undertake the task of giving preliminary, exploratory thought to the problems that the judicial system will encounter 10, 15, and 20 years from now and what types of questions we should ask ourselves in progressing towards reasonable solutions to those future problems."⁽²⁾ Although those 20 years have nearly elapsed, we are still faced with decisions on the structure of the federal judiciary and, I suggest, the Commission still cannot make reasonable decisions today without looking ahead 20, 30, or 50 years to plan the future judiciary our country should have.

The contours of the future judiciary, in turn, depend on your vision of the mission of federal courts.⁽³⁾ What cases belong in federal court? The federal courts will only have a minor percentage of the country's total litigation. What cases unique to the federal courts should enter the jurisdictional door? If we continue to see federal courts as courts of limited jurisdiction, we must carefully analyze added jurisdiction which would expand federal jurisdiction willy-nilly. In particular, I am troubled by the increasing move to federalize traditionally state crimes, such as drug possession with intent to distribute, possession of firearms by a felon, and carrying a gun near a school. It is difficult to reconcile the increasing federalization of state crimes with a traditional view of limited federal jurisdiction.⁽⁴⁾

In addition, should our process and practice be changed? Should all cases have a right of appeal? To what extent do courts need to publish opinions?

With the mission of the federal court determined, the next step is to establish the federal court structure to carry out the court's mission. In this exercise, I believe it is important not to get lost in arbitrary quick solutions. In recent debates, it has been proposed that a "cap" on the number of total federal judges be established. Let me deal with that issue first.

Size of the Judiciary

Former Chief Judge Jon O. Newman of the Second Circuit and Chief Judge J. Harvie Wilkinson of the Fourth Circuit have advocated placing a ceiling on the number of federal judges,⁽⁵) while Judge Stephen Reinhardt of the Ninth Circuit has argued in favor of doubling the current judiciary.⁽⁶⁾ Both approaches are arbitrary; I reject both.⁽⁷⁾

Although there are some normative judgments involved in the process, setting the size of the judiciary arbitrarily is counterproductive because courts are designed to serve the public, not to correspond with judges' abstract sense of an ideal size.⁽⁸⁾ That is true whether one considers capping or doubling the size of the federal judiciary.

Even though they ultimately propose arbitrarily fixing the size of the judiciary, there is much of worth in Chief Judge Wilkinson and Judges Newman and Reinhardt's arguments. Judge Reinhardt correctly focuses on the losses, such as delay, expense, and diminution of quality, caused by clogged dockets and lack of federal judges.⁽⁹⁾ Judge Newman and Chief Judge Wilkinson, however, also astutely suggest that caseloads can be decreased without expanding the judiciary through increased efficiency or decreased scope of cases decided in federal court.⁽¹⁰⁾

These concerns also suggest the importance of analyzing the appropriate size of the future judiciary in terms of two focuses: input and output.⁽¹¹⁾ Input analysis concerns the types of controversies that should enter into the federal court system. Input can be increased or decreased by legislation, prefiling alternate dispute resolution methods, and case decisions expanding or decreasing jurisdiction or rights of action. Input is the oft-ignored twin in plans for the future of the judiciary, but any meaningful plans cannot be made without considering it. I believe it is a necessary part of the Commission's deliberations.

All this suggests, as I pointed out before, the need to review federal court jurisdiction to develop recommended changes to match a determined mission of the federal court. Absent this or some other change in the structure, we probably must assume an increasing use of federal courts.

Of course, there are ways of decreasing use of the courts of appeals. For example, an effective way of limiting input to the federal courts of appeals would be to use federal district courts as appellate courts for administrative Social Security benefit rulings, with a certiorari process in the courts of appeals. These and other ideas on restricting input need to be explored in connection with a coherent mission of the federal courts.

An input analysis, while vital, can be complemented by an examination of output, which deals with modifications in the judicial system, i.e., how courts dispose of cases. Output includes not only efficiency, but also effectiveness, a necessarily slightly subjective measure. Output of district courts and administrative agencies becomes input for the courts of appeals. Thus, a thorough analysis of output would also require examining the proper structure of district and appellate courts, the most effective roles of magistrate judges, bankruptcy judges, court administration, and whether there should be generalist administrative law judges separate from agencies.⁽¹²⁾ The element of output that has recently received the most attention, however, is the size and structure of the federal courts of appeals.

Examining the size and structure of the courts of appeals is a worthwhile endeavor, because regardless of the extent to which the size of the judiciary expands, the federal system should attempt to optimize its output and create the most effective sized circuits.

Size of the Circuits

So how do we determine what is the most effective circuit size? Too often, the question exclusively focuses on the court of appeals. But a circuit involves much more: judges other than circuit judges, clerk's offices, service personnel, vast district assets, and an overall circuit executive and staff. All of these, along with federal practice lawyers, are directly involved in this exercise -- as are the thousands of litigants. Without discounting these aspects of the equation, I will, as others have, concentrate on the courts of appeals.

I suggest, with respect, that a better result will be recommended if the Commission can set aside preconceived ideas of circuit court size and begin with basic principles. Once the basic principles are established, any recommended change will flow from a reasoned foundation.

What are these principles? One certainly is the need to determine how the courts of appeals should be constituted in 20, 30, and 50 years. In doing so, it will help to address what will best serve the public decades from now. It will also inform the decisions which this Commission must now make.

Some argue that the large circuit should not be an alternative considered. Using terms such as "jumbo" to advance a cause without reason or data, it has been asserted that the smaller circuit is the only rational approach. Why? As I have served for many years in a large circuit, an experience most antagonists have not, perhaps I can add to the discussion.

Some court of appeals success indicia include case processing times, case terminations, and consistency of decisions.

These measurements cover efficiency -- the time from filing the notice of appeals to a final disposition and reduction in backlog -- as well as effectiveness, a slightly more subjective determination. I will examine these indicia with respect to the Ninth Circuit in the context of the arguments advanced to support smaller courts of appeals.⁽¹³⁾

a. Collegiality

My experience is that collegiality is more a matter of attitude rather than numbers. But advocates of small courts of appeals stress their collegiality. Many may share a nostalgia for the era of smaller, more personal courts, but I question whether this preference for small-court culture, advanced only by federal judges, should be a factor in determining the size of federal courts.

Judge Tjoflat of the Eleventh Circuit, for example, has compared a small and collegial court to "life in a small town," which he contrasts with "a big city, [where] many people do not even know, much less understand, their neighbors."⁽¹⁴⁾ While I have been on the Ninth Circuit, it has grown from 13 to 28 judges. I can say from personal experience that life in a large court, like life in a large city, is different and perhaps somewhat more bureaucratic. However, I suggest that my preference to live in a small town or work in a smaller court is not relevant. Federal courts do not exist to serve the preference of federal judges; we are public servants and serve, at taxpayer expense, solely to meet the needs of the public. The real question, then, is not what size of court judges prefer, but which size will work best in the future.

b. Stability and predictability

A more serious argument raised by proponents of small courts is that small courts of appeals produce more predictable case law.⁽¹⁵⁾ It is true that the number of panel permutations expands geometrically as the number of judges increases. As courts grow, therefore, it becomes increasingly unlikely that one could predict which panel will hear one's appeal.

The best predictor of litigation outcome, however, is a circuit case on point. Without a case on point, lawyers and litigants can only speculate as to how any panel might rule. More published decisions give additional guidance to lawyers and trial court judges and reduce the need for litigation and appeals. Recognizing this principle, some smaller jurisdictions with few judges and little case law choose to follow a larger jurisdiction to give additional guidance and predictability. For example, Guam chooses to use court rules identical to California's rules to allow Guamanian courts to access a broader body of case law. Only larger courts can provide enough case law to have useful precedent.

Some argue, however, that with increased case law necessarily comes increased inconsistency. This view is quite popular, but has been supported only with anecdotal evidence. Experience with the Ninth Circuit, however, contradicts the popular assumption of inconsistency. Arthur D. Hellman, in Restructuring Justice, reports on his empirical study, which found that feared inconsistencies in the decisions of a large court have not materialized.⁽¹⁶⁾ Professor Daniel J. Meador has described Professor Hellman's study as "the most thoroughgoing, scholarly attempt that yet been made" on the issue and concluded that it "goes far toward rebutting the assumption that such a large appellate court, sitting in randomly assigned three-judge panels, will inevitably generate an uneven body of case law."⁽¹⁷⁾ Practitioners and judges in the Ninth Circuit appear to agree. When division of the Ninth Circuit has been put to a vote, 86% of judges and lawyers have rejected the proposition.⁽¹⁸⁾ Contrary to popular national perception, large courts, such as the Ninth Circuit, can produce more stable and predictable case law than smaller courts of appeals.

How can this occur? It seems so counter intuitive. The Ninth Circuit Court of Appeals has pioneered modern initiatives to overcome law destabilization by modern techniques and oversight. A few examples will help explain.

1. All cases are identified by issue and entered on a computer. Case clusters with similar issues ready for hearing are placed before the same panel.
2. Each panel is advised in writing of cases submitted in the last six months with the same issue.
3. Staff law clerks read carefully each slip opinion and advises the panel of possible inconsistencies.
4. A modern, streamlined en banc process, authorized by Congress, provides a less difficult method to eliminate conflicts.

This shows the fallacy of the argument, advanced by some,⁽¹⁹⁾ that a large circuit court interferes with judges' "monitoring duties," assuming the judge alone must be responsible for whatever this duty is. The panel decides the law for the court and the panel is the primary "monitor." The remaining judges should be alert to panel conflicts, but they do not work alone. As pointed out above, Ninth Circuit judges are already ably assisted. It must be remembered that the problem is conflict in precedent, and fewer than 17% of Ninth Circuit cases are published,⁽²⁰⁾ limiting precedential cases to less than one in five.⁽²¹⁾ Finally, effective lawyers are in an excellent position to help with their suggestions for rehearing en banc. This so-called inefficiency is overstated.

Thus, this new technology and constant attention can, as in the Ninth Circuit, keep as consistent a body of the law in a large circuit as in a small circuit.

c. Efficiency

Another prime argument for large courts of appeals is their potential efficiencies of scale. With issue coding, large courts can assign panels cases involving similar issues. In this way, panel resources and time are more efficiently focused.

Another important efficiency is created by the Ninth Circuit's modern en banc procedure. Some carelessly degrade the process, referring to it as "mini en banc" without giving thoughtful consideration. To understand, one must see the process as a whole.

The first step is hearing by an en banc court, made up of 11 judges. If a majority of the whole court is dissatisfied, the case may be heard by the full court. This en banc proceeding allows a court to resolve en banc cases and maintain finality without always using the valuable time of all the judges on the court. The Federal Courts Study Committee did not miss this efficiency: "The limited in banc appears to allow more efficient use of courts of appeals resources and should be available to the other courts of appeals, even those that do not regularly have fifteen active judges."⁽²²⁾ Again, this innovative procedure magnifies the efficiencies of a large court and eliminates what might be one of its inefficiencies.

National statistics demonstrate the efficiencies that come with larger courts. While it is true that the Ninth Circuit's average time from filing of notice of appeal to final disposition is above average, this is due to the current severe shortage of judges. Dividing the Ninth Circuit would only split this delay between two circuits.

A more telling statistic is that the Ninth Circuit has one of the lowest time intervals from hearing or submission to case termination -- the amount of time that the case is actually in the judges' hands. The national average time from case hearing to final disposition in 1997 was 2 months; the Ninth Circuit average time was 1.6 months. The Ninth Circuit also had the shortest time from submission to final disposition -- .1 months, well below the national average of .8 months.⁽²³⁾

d. Other benefits of large courts

Large courts of appeals not only increase stability, predictability, and efficiency, but also have some less obvious benefits. Uniformity and consistency of law in a large geographic region facilitates broader trade and commerce. For example, only the Ninth Circuit has the same law across a seaboard. A larger court includes judges with a greater variety and diversity of backgrounds, resulting in less regional parochialism. The chief judge of a large circuit can draw on large pool of district and bankruptcy judges for temporary assignment to neighboring districts for quick assistance. Smaller circuits, with fewer available judges to draw on, would have to seek assistance for such needs from the Judicial Conference of the United States.

Application

If the large circuit can offer these benefits, how does this affect the Commission's deliberations? I believe the benefit is far more important than just informing any recommendation for division of the Ninth Circuit. The really important issue is not whether a First Circuit-sized Northwest circuit is created. Rather, my presentation today is designed to inform the Commission on perhaps the most critical issue: how the federal appellate judiciary can best function in 20 or 30 or 50 years.

If Congress continues to divide circuits when an arbitrary size is reached, the inevitable end result will be more and more circuits. What will happen when there are 20 circuits? 30 circuits? 40 circuits? Obviously, a time necessarily will come when there is no real national federal law. The purpose of federal courts will be frustrated and a national rule will be largely illusory. Nor is the once advanced, and now largely rejected, fourth tier of federal courts a viable alternative. Most now agree it is not a practical alternative.⁽²⁴⁾

What is the alternative? Fewer, larger circuits with the ability, as the Ninth Circuit has demonstrated, to provide a coherent body of circuit law. Intercircuit conflicts would be minimized, because there would be fewer circuits. Limiting or reducing the number of circuits may buck the trend, but it provides a real, more practical alternative to the continued division of circuits and multiplication of intercircuit conflicts.⁽²⁵⁾ Thus, looking to the future, large circuits are simply better than the alternative. If the judiciary continues to grow at any rate, a narrow-minded insistence on preserving small circuits will result in the proliferation of circuit courts and the resulting balkanization of national law. Increasing the number of circuits necessarily increases the amount of intercircuit conflicts, which would further heighten the pressure on the Supreme Court and harm the uniformity of national law. After all, one purpose of federal courts is to have reasonably consistent federal law. Balkanization of the circuits will eventually defeat this goal.

Conclusion

It important to step back and realize that the size of circuit courts is merely one part of the equation of the future of the judiciary. I believe the Commission needs to develop its view on the mission of the federal courts, and examine the subject matter input into the federal court system. There should be a lively and productive debate on the proper role of the federal courts and which disputes they should be resolving. Perhaps then the Commission can make more useful predictions on the growth of the judiciary.

Whatever the growth rate of the judiciary, however, there is an important interest in ensuring optimal court output, or wise use of judicial resources. Recommendations for structuring the federal courts of appeals in a way that optimizes judicial resources in the future should be the task of this Commission.

It is true that many judges yearn for the day of Learned Hand, when judicial life was more comfortable and, perhaps, more rewarding. But the clock cannot be turned back; society, our employers, demands we meet today's and tomorrow's problems as best we can.

Despite sentimental and anecdotal arguments for small circuits, larger circuits have proven to be more efficient and effective. Large courts produce more case law, increasing stability and predictability. Thanks to innovations, the very size of larger courts creates efficiencies of scale with issue coding and modern en banc procedures. Finally, large courts prevent balkanization of the law and spread of intercircuit conflicts, resulting in the best solution for the future. In planning for a court system which will work 20, 30, or 50 years from now, we cannot let our personal preferences for small-court culture blind our analysis of what structures have been and will continue to be effective.

If it were possible, I would combine circuits. With five or six large circuits, our federal appellate judiciary would be prepared structurally to meet the future needs of our country. I realize there would be opposition to this suggestion -- what judge wants to change? But if it is best for the country, why not?

At the very least, circuit division should stop now. Not because the Ninth Circuit does not want to be divided, but because the practice of ad hoc arbitrary division when a circuit is "too big" will ultimately lead to balkanization of the federal appellate judiciary and its resultant tragic consequences. At least, I recommend the circuits be allowed to grow, if growth is to occur, and let them, as the Ninth Circuit, develop ways to maintain an effective and functional circuit.

1 See Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change, reprinted in 67 F.R.D. 195 (1975).

2 J. Clifford Wallace, Working Paper -- Future of the Judiciary, 94 F.R.D. 225, 226 (1981) (hereinafter Working Paper).

3 I have previously discussed the need for both short-term and long-term federal commissions to attempt to define the mission of the federal courts and implement that mission. See, e.g., J. Clifford Wallace, The Future of the Judiciary: A Proposal, 27 Cal. W.L. Rev. 361 (1991); Working Paper, supra note 1, at 234-36.

4 See J. Clifford Wallace, Tackling the Caseload Crisis, 80 A.B.A. J. 88 (June 1994).

5 Jon O. Newman, 1,000 Judges -- The Limit for an Effective Federal Judiciary, 76 Judicature 187 (1993); J. Harvie Wilkinson, We Don't Need More Federal Judges, The Wall Street Journal, February 9, 1998, at A19.

6 Stephen Reinhardt, Too Few Judges, Too Many Cases, 79 A.B.A. J. 52 (1993).

7 To explain why an arbitrary cap is illogical, I have previously used a simple analogy:

The number of teachers in Clark County, Nevada, which includes the entire Las Vegas metropolitan area, has increased over 60% in the last eight years, a growth rate somewhat greater than that of the federal judiciary. Is this a crisis in Las Vegas? Is this a problem to be addressed? There is probably some loss of collegiality among the teachers of the school district. There is certainly some administrative inefficiency incident to the schools' growth. But are people crying out to limit the number of teachers? Certainly not. Naturally, no intelligent discussion as to the optimal number of teachers can be pursued until we know what has happened to student enrollment. Similarly, how can a decision be made as to the optimal number of judges in the judiciary without reference to case filings?

J. Clifford Wallace, Developing the Mission of the Federal Courts -- A Method to Determine the Size of the Federal Judiciary, 27 Conn. L. Rev. 851, 856 (1995).

8 See id. for a fuller discussion of arbitrary and nonarbitrary approaches to determining the proper size of the federal judiciary.

9 See Reinhardt, supra note 6.

10 See Newman, supra note 5; Wilkinson, supra note 5.

11 I have discussed the nature of input/output analysis more extensively in Working Paper, supra note 2.

12 Id. at 230.

13 For additional discussion focusing particularly on the Ninth Circuit, see J. Clifford Wallace, The Ninth Circuit Should Not Be Split, 56 Ohio St. L.J. 941 (1995).

14 Gerald Bard Tjoflat, More Judges, Less Justice 79 A.B.A. J. 70 (1993).

15 See, e.g., Newman, supra note 5; Wilkinson, supra note 5.

16 Arthur D. Hellman, Restructuring Justice 83-86 (Cornell Univ. Press 1990).

17 Daniel J. Meador, Struggling Against the Tower of Babel, in id. at 195, 199.

18 J. Clifford Wallace, The Case for Large Federal Courts of Appeals, 77 Judicature 288, 288 (May-June 1994) (hereinafter Large Federal Courts).

19 See, e.g., Statement of Gerald Bard Tjoflat to the Commission, March 23, 1998.

20 Statistics Division, Administrative Office of the Courts, Judicial Business of the United States Courts: 1997 Report of the Director Table S-3 (1997) (Ninth Circuit statistics for 1997).

21 9th Cir. R. 36-3.

22 Report of the Federal Courts Study Committee, April 2, 1990, at 115.

23 Judicial Business of the United States Courts, supra note 20, Table B-4.

24 J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 Cal. L. Rev. 913, 916 (1993) (hereinafter Intercircuit Conflicts); J. Harvie Wilkinson, The Drawbacks of Growth in the Federal Judiciary, 43 Emory L.J. 1147, 1184 (1994); Federal Courts Study Committee, Tentative Recommendations for Public Comment 111-14 (1989); Annual Judicial Conference, Second Judicial Circuit of the United States, 115 F.R.D. 349, 360 (1987) (remarks of Chief Judge Feinberg).

25 See Large Federal Courts, supra note 18; Intercircuit Conflicts, supra note 24, at 940-41.