April 20, 1998

Members of the Commission:

My name is Edwin Schallert. I am a member of the firm of Debevoise & Plimpton and am Chair of the Committee on Federal Courts of the Association of the Bar of the City of New York. Our Committee is composed of a broad cross-section of the local Bar and studies the operation of, and practice before, the federal courts. Our federal appellate experience, while national in scope, is concentrated in the United States Court of Appeals for the Second Circuit, which is the focus for several of our comments. I appreciate the opportunity to present the views of the Association as part of the Commission's important work in examining the structure of the federal courts of appeals.

We do not believe that there is any need at this time for significant structural changes in the courts of appeals. Other than possible changes to the Ninth Circuit, as to which the Association takes no position, we are deeply skeptical of any material changes to the structure of the appellate courts. The current appellate court system has shown remarkable resiliency in the face of increasing challenges, which imposes a heavy burden on those who advocate change.

To be sure, the courts of appeals face problems. The most pressing problem in the Second Circuit, however, is not structural; it is the problem of judicial vacancies. With five vacancies, the second largest number among the courts of appeals, the Second Circuit now has only eight active judges. The Court had nine active judges about 35 years ago. The Court's caseload has grown nearly ten-fold during this period, yet the Court has one fewer judge. As the Chief Justice observed in his Year-End Report, judicial vacancies "cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal Judiciary."⁽¹⁾

It is nonetheless remarkable that the Court of Appeals functions as well as it does with only eight active judges. If the Court had thirteen judges -- or the fifteen judgeships for which authorization has been sought -- we believe the Second Circuit could indefinitely maintain its traditional high standards for disposing of cases. (These standards include offering oral argument in every appeal, including (non-prisoner) pro se appeals.) With a full complement of judges, the Court would undoubtedly reduce the modest backlog that has resulted from recent vacancies. Even with the backlog, the Court has remained one of the fastest among all circuits, with a median time from filing to disposition of about eight months.

How is it that the Court could handle nearly ten times more appeals than it did 35 years ago with only a handful of additional active judges? There are undoubtedly many explanations, including judges who work longer hours, the prodigious efforts of senior judges, the contributions of visiting judges, the advent of computer technology, the assistance of law clerks and other support personnel, and the creation of court management programs such as the Civil Appeals Management Plan. The Plan involves the use of settlement conferences run by staff counsel in most counseled civil appeals.

The Court's increasing use of summary orders -- which now account for more than 60% of its decisions -- has also allowed it to handle an increased caseload. Unlike some Circuits where the these orders can be very terse, Second Circuit summary orders are on the average five or six pages and typically contain an explanation of the decision for the benefit of the parties and the Supreme Court. These decisions do not appear to be appreciably shorter than many decisions from the 1960s; published decisions today are certainly longer on the average.

As presently structured, the Second Circuit has been able to handle a dramatic increase in its caseload without any noticeable diminution in the quality of justice rendered. The Second Circuit's experience thus demonstrates the flexibility of the existing system in the face of an increasing and more complex caseload.

We urge you therefore to proceed cautiously before embracing any proposal that would effect a structural overhaul of the appellate court system. Such proposals have been made in the past, and a brief look back suggests that their adoption would have caused unnecessary and costly disruption in the judiciary. In the 1970s, the Freund Committee⁽²⁾ and the Hruska Commission⁽³⁾ called for the creation of a National Court of Appeals to ease the burden of an increasing caseload on the Supreme Court and to enhance the uniformity of law among the circuits. In the 1980s, Chief Justice Burger called for the establishment of a temporary panel of the United States Court of Appeals for the Federal Circuit to resolve what he perceived to be a crisis of intercircuit conflicts.⁽⁴⁾ More recently, there have been proposals to create non-regional subject matter courts to enhance the uniformity of law and suggestions to realign the boundaries of all of the circuits to accommodate an increasing caseload.⁽⁵⁾

With all due respect to the thoughtful authors of these proposals, we think justice was better served without such reforms. Indeed, the Long Range Plan for the Federal Courts, approved by the Judicial Conference of the United States in 1995, indicates that many of the issues supposed to have been addressed by these proposals did not then, and do not today, require such extreme remedies. Moreover, procedures adopted by courts of appeals have addressed some of the issues.

In response to concerns about intercircuit conflict, the Long Range Plan notes that "the Supreme Court appears to be capable of resolving significant differences of decisional law among the circuits with reasonable promptness" and that "intercircuit inconsistency is not a problem that now calls for change."⁽⁶⁾ As for intracircuit conflicts, the Second Circuit has procedures that minimize them, including the circulation of opinions in advance within the Court. It is thus the rare case where an en banc hearing is needed in this Circuit.

In response to proposals for a broad realignment of the circuit courts, the Plan concludes that "[n]o problem has been identified that would be simply solved by the wholesale redrawing of circuit boundaries, a remedy that would cause more disruption than benefits."⁽⁷⁾ This observation has particular force within this Circuit, where collegiality and cohesiveness among judges in different states appear to be very strong.

In response to the call for the creation of non-regional specialized courts, the Plan "declines to adopt proposals to create new specialized or subject-matter courts" because "the well-known dangers of judicial specialization outweigh any such benefits."⁽⁸⁾ A review of the Second Circuit's docket reveals an extremely broad array of subjects with which the Court successfully grapples. Our strong sense is that even within specialized fields, practitioners would prefer the Second Circuit as an appellate forum.

We agree with the Plan's overall conclusion that "the present structure of the federal courts is by-and-large appropriate for carrying out their functions" and therefore join in its recommendation that there be "no major structural changes in the near term."⁽⁹⁾ We who practice before the Second Circuit believe that the system is not broken; it does not need to be fixed.

The periodic recommendations for change in the structure of appellate courts have tended to focus on what is wrong in the federal courts of appeals. Before this Commission endorses a program for change, we think it equally important that it consider what is right in our courts of appeals. The current system has demonstrated extraordinary flexibility in accommodating an increased caseload. Procedural innovations like the vigorous use of settlement conferences contribute to this flexibility. By continuing to improve the existing court structure, we can build on the strengths of a system that has proven itself over time.

Thank you again for the opportunity to address these important issues.

1. William H. Rehnquist, 1997 Year-End Report on the Federal Judiciary (Jan. 1, 1998).

2. See Report of the Study Group on the Caseload of the Supreme Court, 57 F.R.D. 573, 590-95 (1972).

3. See Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change, 67 F.R.D. 195, 208-09 (1975).

4. See Warren E. Burger, Annual Report on the State of the Judiciary, 69 A.B.A. J. 442 (1983).

5. See, e.g., Daniel J. Meador, A Challenge to Judicial Architecture: Modifying the Regional Design of the U.S. Courts of Appeals, 56 U. Chi. L. Rev. 603, 607 (1989); Charles W. Nihan & Harvey Rishikof, Rethinking the Federal Court System: Thinking the Unthinkable, 14 Miss. C. L. Rev. 349, 371 (1994) (discussing proposal made in the Report of the Judicial Conference Committee on Court Administration and Case Management to the Judicial Conference Committee on Long Range Planning (Feb. 16, 1993)).

6. Long Range Plan for the Federal Courts 46 (Dec. 1995).

7. Id. at 43.

8. Id.

9. Id. at 41.