I am pleased to have an opportunity to submit a statement to the Commission. The views expressed are my own. They are views that I have developed over the nineteen years since my appointment to the United States Court of Appeals for the Fifth Circuit in 1979.

I recognize that the Commission is looking at structural alternatives to the present system, and I do not propose to express any views on the various alternatives that have been so extensively studied during the last fifteen years. Instead I intend to discuss what one large court has done to address volume-driven problems with only a modest increase in the number of authorized judges and the change that has resulted, in my view, in the function of an appellate judge in many of the cases that come before us. I believe that my comments are germane to the structural alternatives inquiry because they facilitate an evaluation of the necessity for the more radical structural changes that have been proposed by providing a basis for comparison to the more conservative approach that we have taken.

Quantity of Appeals.

The Court of Appeals for the Fifth Circuit is, and has been for more than two decades, the second largest federal appellate court in the nation in terms of numbers of appeals filed and terminated, number of appeals terminated per active judge and number of judges. Our appeals have increased from 6,382 per year in the twelve months ended September 30, 1992 to 7,573 in 1997. Not included in the latter number are an additional 272 successive habeas corpus actions which, by reason of the Antiterrorism and Effective Death Penalty Act (AEDPA), must be disposed of by a three-judge panel within thirty days of filing.

The numbers alone, however, do not tell the full story. The lion's share of the increase during that five-year period has been in direct criminal appeals and in prisoner litigation (federal and state habeas cases and prisoner civil rights litigation). Of the new appeals filed in the Fifth Circuit during the twelve months ended September 30, 1997, 64.7% consisted of direct criminal appeals and prisoner litigation; 51.4% of the appeals filed were pro se. Our civil litigation, in terms of the number of appeals filed, has actually declined somewhat over the last five years.

The workload of an active judge during the twelve months ended September 30, 1997 involved participating in, on average, 591 appeals terminated on the merits and 188 procedural terminations and preparing a total of 189 written decisions. This workload, while heavy, represents a considerable reduction when compared with the workload during the twelve months ended September 30, 1994, when an active judge participated in, on average, 739 cases terminated on the merits and 143 procedural terminations and prepared a total of 247 written decisions. Only a portion of this reduction in workload is attributable to an increase in the number of active judges that occurred when several vacancies were filled. The most substantial portion of the reduction occurred during the twelve months ended September 30, 1997 and appears to be attributable to the AEDPA and the Prison Litigation Reform Act. The upshot of all this is that for the first time, perhaps in decades, there has been a meaningful reversal in the upward trend in judicial workload. Whether this will continue, or even be erased by subsequent legislation, is impossible to predict. But it does point up the skepticism with which one should view gross filings statistics as an indicator of judicial workload, as well as the hazards of relying on straight-line projections in predicting future workload.

The good news is that, even with the heavy workload that this Circuit has shouldered during the last five years, we have remained current. For the last three years, we have ended the court year with no backlog of cases ready for oral argument. Further, our cases pending under submission have actually declined over the last five years and are at a very low level. The judges are getting the work out.

Decision-Making Mechanisms.

Beginning in the 1960's with the creation by the "old Fifth" of the Summary Calendar, the Fifth Circuit has developed a series of mechanisms designed to enable the court to handle a steadily increasing caseload without a concomitant increase in the number of judges. The Fifth Circuit has been a kind of laboratory for the nation in which new techniques for disposing of appeals have been and are being pioneered. I would like to describe the major innovations and provide my own assessment of how they are working.

Since the 1960's, the number of cases sent to oral argument has steadily declined to the point that, of the 3,114 fully briefed cases screened for decision as to oral argument during the twelve months ended June 30, 1997, only 30.6% (952 cases) were sent to the oral argument calendar. The balance of the cases screened were disposed of by Summary Calendar panels (1,699 cases, or 54.6% of the cases screened) and Conference Calendar panels (463 cases, or 14.9% of the cases screened).

Conference Calendar.

Our Conference Calendar was devised in 1992 in response to the escalating caseload and the failure of the executive and legislative branches to fill vacancies. In 1990 the number of authorized judges on our court was increased from sixteen to seventeen, but the vacancy was not filled until 1994. In addition, several judges took senior status during that period, leaving us for four years with vacant judgeship months ranging from 35.2 to 42.9 per year. The net effect of the caseload and the vacancies was what seemed like an avalanche of fully-briefed appeals being mailed to each judge's chambers for screening and, in a substantial number of those appeals where oral argument was not likely to be useful, for decision. During the same period, an ever-increasing number of motions were also being mailed to chambers for disposition. The result was that the work day of each judge was largely devoted to dealing with an increasing number of what were perceived to be fairly routine matters, leaving little time for preparation for oral argument and for research and writing on the more difficult cases (both oral argument and Summary Calendar cases) on the docket. The theory of our Conference Calendar was that our easiest cases would be kept in New Orleans for disposition and the hope was that we could thereby increase the amount of time that a judge could devote in chambers to the more difficult cases.

Each active judge serves on one Conference Calendar panel a year. Every other month, a panel of three judges sits in New Orleans for three or four days to dispose of approximately thirty cases per day. The judges assigned to the Conference Calendar do not work on any other matters while they are in New Orleans for a Conference Calendar sitting; even their mail is routed to their home chambers so that it will not be a distraction from the task at hand. The principal criteria for a Conference Calendar case are a limited record and a limited issue that has been frequently decided and is well settled. If a judge has to spend much time in the record, do more than minimal research or think very long about a Conference Calendar case, it shouldn't be there. The initial decision as to which cases will be heard by a Conference Calendar panel is made by the Staff Attorney's Office, but the judges constituting that panel review each case preliminarily assigned to the Conference Calendar with a view to determining, inter alia, whether Conference Calendar treatment is appropriate.

Each judge assigned to a Conference Calendar sitting is expected to review carefully each day the briefs and record in ten cases, along with a memorandum and a draft opinion prepared by the Staff Attorney's Office on each of those ten cases. In addition, each judge reviews the briefs, a memorandum and a draft opinion by the Staff Attorney's Office in each of the twenty more cases that the other two judges are reviewing in depth. There are no elbow law clerks involved in the Conference Calendar process. The panel members convene in mid-afternoon with the members of the Staff Attorney's Office who worked on that day's cases and each case is gone through orally in some detail. By late afternoon, all thirty cases are either decided or are sent on their way to a screening panel.

In my experience each of these cases gets more hands-on attention from all three judges than it might get if it were simply assigned to a Summary Calendar panel and routed through three judges' chambers by mail. Although many of the cases decided by the Conference Calendar panels are prisoner cases--the simple fact is that many of the cases decided by our court are prisoner cases--we decided early on that every appeal is theoretically a candidate for the Conference Calendar. We rejected limiting it to certain classes of cases. Needless to say, reversing a case on the Conference Calendar happens rarely, if at all.

Summary Calendar.

Although our Summary Calendar technique is older and better known, it might be useful to summarize it briefly, if only to illustrate its contrast with the Conference Calendar. Most of our nonorally argued cases (54.6% of our fully briefed cases) are disposed of on the Summary Calendar. Each of our active judges is assigned at random each year to a screening panel that functions as a group for a full year. When an appeal is fully briefed, the briefs and the full record and exhibits are sent out to the next judge in rotation on a screening log, who then becomes the initiating judge for the appeal. The initiating judge is called upon to make the initial call as to whether that case needs or will benefit from oral argument. If the initiating judge thinks the case can be decided without oral argument, he or she prepares an opinion and sends the screening package (now with a proposed opinion) to the next judge on his or her screening panel. Any member of the screening panel can send a case to oral argument, no questions asked.

If all three members of the screening panel subscribe to the proposed opinion (with whatever changes are suggested by other panel members), the screening package is returned to the Clerk's Office with the opinion and the appeal terminates. The Summary Calendar is not the place to decide complex cases or cases involving res nova. Although reversal of a case sometimes occurs on the Summary Calendar, again, that is far less common than affirmance. Certain categories of cases sent to screening panels are first routed through the Staff Attorney's Office and arrive in the chambers of the initiating judge with a memorandum and frequently a proposed opinion. Diversity cases, employment discrimination cases, bankruptcy cases, and some agency cases, among other categories, are not routed through the Staff Attorney's Office.

I find the Summary Calendar to be increasingly troubling, particularly in comparison with the Conference Calendar. The sheer volume of cases that each judge has to deal with each day makes it all too tempting to rely on the initiating judge's efforts. This means, as a practical matter, that these cases can easily become one-judge cases, with the other members of the screening panel doing little more than reading the Staff Attorney's memo and the writing judge's proposed opinion. When the initiating judge, also under pressure to get more out than he or she can say grace over, relies too heavily on the Staff Attorney's memo, the problem is exacerbated. The fact that the entire screening process takes place by mail, and not face to face, makes it easy to take short-cuts. Because judges rarely talk about the processes that they employ to decide cases, it is difficult to say how serious a problem this is. My guess would be that the frequency of short-cuts varies considerably from one judge to another and may also be affected by the level of exceptionally demanding cases that a judge has under submission at any given time.

In evaluating how well any decision-making mechanism works in dealing with a heavy caseload, it is important to take account of the fact that the mechanism will be utilized by judges with widely varying levels of experience. New circuit judges (excepting, to some extent, those coming from the federal district bench) face the arduous task of achieving a working knowledge of numerous areas of federal law that are, in all likelihood, quite foreign to them. As a result, new judges must spend much more time preparing to decide a case than their more experienced counterparts, and this is true for several years. Yet in every court that I am familiar with, the workload is distributed evenly among judges, regardless of experience. A workload that is heavy but manageable for an experienced judge can be crushing for a new judge.

The risk is that a new judge may be compelled to use short-cuts that may thereafter become part of his or her modus operandi, forever altering the way in which he or she decides cases. Decision-making mechanisms such as the Summary Calendar exacerbate this risk because the absence of face-to-face interaction among judges, coupled with the tendency to rely on the efforts of the initiating judge, diminishes the likelihood that mistakes resulting from short-cuts will be identified. In order to be considered truly effective, a decision-making mechanism must yield correct results when utilized by the experienced and inexperienced alike. In my view, the oral argument and Conference Calendar mechanism more fully satisfy this definition of effectiveness than does the Summary Calendar, particularly when those mechanisms are utilized to handle a very heavy workload.

Increase in Staff.

The descriptions of the Conference Calendar and the Summary Calendar make clear that we have been able to dispose of an ever larger caseload without adding judges only by increased reliance on staff. Today, our court (sixteen active judges and five senior judges) employs forty-two staff attorneys in New Orleans and sixty-four elbow clerks, resulting in a total of 106 lawyers working for the court. Ten years ago, the Staff Attorney's Office had only sixteen lawyers; each judge had only three law clerks, whereas many now have four. The responsibility for supervising these lawyers is divided. The judge supervises his or her elbow clerks. The staff attorneys are supervised by the chief staff attorney and by five junior supervisors who have come up through the ranks of the Staff Attorney's Office.

Fortunately, for most of the last ten years we have been in a buyer's market insofar as hiring staff attorneys is concerned, and we have been able to hire very able lawyers for our Staff Attorney's Office, most of them with law review experience and many with experience as a clerk for a federal district judge. Further, we changed our policy of keeping a staff attorney for only two years, and we now keep our best indefinitely, resulting in an increasing number of experienced lawyers. It is possible to take some comfort, if comfort is needed (as it surely is for me), from the fact that the staff attorneys develop expertise in dealing with certain kinds of cases and issues: direct criminal appeals, federal and state habeas petitions, pro se litigation, civil rights cases, some federal question litigation (such as cases under the Federal Tort Claims Act and the Freedom of Information Act), and some agency litigation (social security and immigration cases being the primary examples).

Change in the Function of an Appellate Judge.

If I were describing the way in which a large law firm or a federal agency works, there would be nothing unusual about the picture. A law firm or an agency handling a case depends on junior lawyers to review the record and do the requisite legal research; middle level lawyers to supervise the record review and legal research, to review the results of both and to make a recommendation to a senior partner on the decision to be made; a senior partner to make a final review and to make the requisite decision; junior and middle level lawyers to write up the decision; and the senior partner to fine tune it. But, to say the least, that is not the way Learned Hand functioned.

Twenty years ago, then Justice Rehnquist made a speech to the American Bar Association entitled "The Cult of the Robe." In that speech, he focused on the increasing number of direct criminal appeals, but the change in the function of an appellate judge that he identified as occurring in the way those appeals were handled is true today, at least in the Fifth Circuit, in the way in which a much broader group of appeals is handled:

[A]ppellate courts now process criminal appeals rather than decide them. The sheer numbers have been thought to require addition of staff clerks in almost all appellate courts. But there is a subtle change in the function of the appellate judge also; a change from the role of linesman at a tennis match to that of an inspector on an automotive assembly line. The tennis linesman does not start out with any presumption that the server's service will be in or out, he simply judges each serve on the merits. But the assembly line inspector assumes that a part is good unless he sees a defect in it.

The person who actually decides an appeal is an appellate judge -- the person who supervises the processing of such appeals to ultimate decision, though he be called an appellate judge, is really more of an administrator. Instead of personally delving into and casting a vote on, say, ten cases, he takes part in supervising law clerks who delve into twenty or thirty cases, he approves what the law clerks have done in half or two-thirds of that number, and personally delves into and decides the remainder.

So long as the clerks and judges are capable, as they generally are, there is no denial of justice in this system. But the appellate judge who is one of its supervisors plays a different role than the appellate judge of a generation ago.

The great hallmark of judges, to my mind, has always been the idea that whatever goes out over a judge's signature, while not necessarily composed in its entirety by him, has at least been fully considered and understood by him. Any significant increase in this trend of converting judges into administrators would jeopardize that principle of judging.

In my view, which is shared by some but not all of the judges on my court, we have gone a long way further down the road of converting judges into administrators in the last twenty years on this court. We still "personally delve[] into and decide[]" many cases each year, the number varying from one judge to another; but our efforts in a substantial number of the cases on our docket consist of directly supervising law clerks or indirectly supervising staff attorneys who delve into those cases and of approving what they have done. We have not become administrators because any of us is lazy; all the judges on this court work very hard, much harder, in my view, than almost all of our peers in law practice. We have not done so because we wanted to; most of us would be more comfortable, that is, less worried about the accuracy and quality of our decisions, if we did more of the spade work ourselves. The simple fact is that we have been compelled to become administrators of an ever-larger team of lawyers by reason of the sheer volume of our caseload and the defensible decision of a majority of the judges on our court (concurred in by Congress) to limit the number of judges on our court.

Although I would personally prefer to function as did the appellate judge of a generation ago, I take some comfort from Chief Justice Rehnquist's statement that so long as the judges and clerks are capable, and they are, there is no denial of justice in the present system. But I am concerned that the core principle of judging that Chief Justice Rehnquist identified--"that whatever goes out over a judge's signature, while not necessarily composed in its entirety by him, has at least been fully considered and understood by him"--is in jeopardy today by reason of the sheer number of matters that go out over our signatures. One of our more experienced judges once commented to me, somewhat cryptically, that "we now have discretionary review." I think that this problem may have been at the heart of what he was talking about.

I am confident, however, that our court will deal with this problem, as it has dealt with all the volume-driven problems that we have faced in the twenty years that I have been a member of the court, by confronting it and by making changes in our decision-making process. The problem does not exist in the way we handle our oral argument cases or our Conference Calendar cases. We can fairly say that those cases are fully considered and understood by each judge on the panel. The problem may exist, however, in the way we handle our Summary Calendar cases. It could be materially alleviated by importing into that process the collegial conference that we have on oral argument and Conference Calendar cases. In my experience, the conference process greatly enhances the level of consideration and understanding of those cases. Regardless of what changes we ultimately settle on, I believe that we have demonstrated over the last twenty years that we have the collective resolve and the collective ability to make whatever improvements are necessary in our decision-making process.

Other Problems of a Large Appellate Court.

I would like to address briefly some other problems of a large appellate court that are often mentioned.

Collegiality.

A court is collegial when the work of each of its members is based on knowledge of and respect for the existing law and the views of the other members of the court and respect for the orderly process of change that is central to the rule of law. The objective of a collegial court is a body of law that is clear and consistent, and it is possible for a collegial court to come close to meeting that objective even during a period of substantial change in the law. In my experience (with the old Fifth, which had twenty-five active members during my tenure, and with the new Fifth, which now has sixteen active members), the greatest challenge to collegiality results not from size but from the occasional judge who comes with a "take no prisoners" attitude and may not respect the existing law, the views of other judges, the orderly process of change, or all of the foregoing. Such a judge creates a potential for chaos. Judges with that attitude are, mercifully, very few, and they are by no means unique to large courts. The presence of one or more such judges on a court does place a particular premium on careful review by each judge of each opinion submitted for his or her concurrence and on careful monitoring of the court's opinion output. In my view, that review and monitoring, in combination with the en banc process, resolves most of the problems created by collegiality-challenged judges.

Difficulty of Monitoring Opinions.

The principal objective of monitoring opinions is also to maintain a clear and consistent body of law. It may have the incidental effect of identifying instances in which the law is wrongly applied in individual cases, but it would take considerably more than monitoring opinions to identify those cases. Opinion monitoring efforts, therefore, are directed to opinions that are precedential, i.e, published opinions.

In the Fifth Circuit, the percentage of appeals terminated on the merits resulting in published opinions has declined steadily from 1981 to 1997. Looking at actual number of opinions published and working with the court's internal statistics, in the twelve months ended June 30, 1982 (the period during which the Fifth Circuit was split), our court issued 832 published opinions and 646 unpublished opinions (which, under the rules then in effect, were also precedential). Thus, the percentage of published opinions during this time period was 56.3%. In the twelve months ended June 30, 1997, the court issued 585 published opinions and 2,607 unpublished opinions (which, under our present rules, are not precedential), resulting in a percentage of published opinions of 18.3%. In contrast to the percentage of terminations on the merits resulting in published opinions, which declined steadily over a fifteen year period, the number of published opinions remained relatively steady--ranging generally from 800 to 900 opinions per year--from 1982 until 1994, when the substantial decline represented in the foregoing statistics began.

It is difficult to identify all the reasons why the number of published opinions has declined so substantially. But clearly, the principal reason is that, in the opinion of the judges, a steadily increasing percentage of our appeals consists of cases that do not make any new law and therefore do not require publication. The lesson from our publication statistics is that the explosion in our docket that has occurred must be viewed critically. As noted earlier, much of that explosion has consisted of direct criminal appeals and prisoner litigation (federal and state habeas cases and prisoner civil rights litigation), cases which most frequently involve the application of settled law to a particular set of facts (which are often not significantly different from the facts set out in published opinions applying that law) and far less frequently require publication.

The upside from the standpoint of monitoring opinions is that there are substantially fewer opinions to be monitored than was the case fifteen years ago. A large court and a large docket do not automatically translate into more precedent-setting opinions requiring careful monitoring. When the circuit was split on October 1, 1981, the implicit Congressional judgment was that fourteen active judges could effectively monitor 832 published opinions per year. Applying that same judgment, sixteen or seventeen active judges can effectively monitor 585 published opinions per year.

Other factors influence the ease with which opinions are monitored. Suggestions for rehearing en banc, which are reviewed by all judges, can be relied upon to a considerable extent (although not exclusively) to identify opinions that are inconsistent with Supreme Court or circuit precedent. Further, our circuit has long insisted on slip opinions that have a brief synopsis and headnotes (aids that would not be available in prepublication review of opinions, a procedure which we have rejected) which can be easily scanned to identify quickly cases that may be inconsistent with Supreme Court or circuit precedent or may involve new law.

In summary, the problem of monitoring opinions on the Fifth Circuit today is considerably easier than it was fifteen years ago when Congress decided that it was manageable.

Inconsistency in Panel Decisions.

We do have conflicts between panel decisions, many inadvertent. Those conflicts are not frequent. We have been aided in avoiding inconsistencies by technological advancements that permit relatively easy and fast checking of circuit and Supreme Court precedent to identify cases on point. Technology, in combination with monitoring opinions and faithful attention to suggestions for rehearing en banc, has succeeded in keeping conflicts to a minimum. Those conflicts that do slip through are dealt with either by the en banc court or by application of the rule that the first opinion controls over a subsequent inconsistent opinion.

Reasons for Decision.

One by-product of our heavy caseload has been an increasing number of appeals terminated on the merits in which we provide either no statement of reasons for affirmance or a statement so elliptical as to be comprehensible only to an experienced lawyer. This practice began in late 1995 when the Staff Attorney's Office began furnishing proposed opinions along with memoranda in many of the appeals being processed by that office. Those opinions generally list the issues on appeal and conclude, where appropriate, with a statement affirming "for essentially the reasons given by the district court." Sometimes a case is cited, sometimes not. Not all judges utilize those opinions without making some changes in them, but many judges do.

In the case of a frivolous appeal, a good argument can be made that the litigant does not deserve any more, and giving reasons may provide a perverse incentive to file other appeals equally as frivolous. Further, there are many cases, especially cases in which the district court has rendered a relatively full opinion, in which there is little to be gained by saying more. But there are also many cases in which the litigants would more likely be persuaded that we have at least paid some attention to their case if we give succinct, particularized reasons for the decision. The petition for rehearing cannot serve its function of identifying error by the panel if no reasons are given and the litigant feels compelled simply to regurgitate his or her brief in order to be sure that the panel understood his or her point. Finally, giving reasons, however briefly, provides a basis for accountability of the panel and the system generally.

En Banc Courts.

The Fifth Circuit has not elected to utilize the option of an en banc court consisting of less than all of the active judges. The consensus is that such a procedure may result in en banc decisions that do not reflect the views of a majority of the active judges. An en banc court consisting of seventeen judges is cumbersome, but not so much so that we have been unwilling to make relatively ample use of it. During the twelve months ended September 30, 1997, the Fifth Circuit decided fifteen cases en banc, second only to the Ninth Circuit, which decided sixteen. There is nothing quite like the prospect of an en banc court of seventeen judges to keep intra-circuit conflicts to a minimum. More important than its in terrorem effect, the en banc court serves the important educational function of providing regular lessons in the values and techniques of a collegial court. So long as the burden of convening seventeen judges does not cause us to shy away from giving en banc consideration to cases that need it, I am of the view that an en banc court of all active judges is a valuable tool.

Conclusion.

I came to the conclusion a long time ago that a federal appellate court has very little control over the number of authorized judges, the rate at which vacancies are filled or its caseload. Those are political decisions that we can, at best, hope and try to inform but that we must, in any event, honor and live with. It is our responsibility, working with whatever we have been given, to devise a decisional process that allows us to dispose of a large caseload in a manner that preserves, to the maximum extent possible, our historical role as appellate judges and insures the just disposition of the appeals coming before us. In my view, the Fifth Circuit has demonstrated the resolve and ability necessary to discharge this responsibility without structural changes. The decision-making mechanisms that we have today must be viewed as works in progress. I am confident that they will continue to evolve in ways that enhance the quality of justice that we dispense.